May I ask a question on the Long Title of the Bill?
Planning and Development (Strategic Infrastructure) Bill 2006: Committee Stage.
SECTION 1.
Question proposed: "That section 1 stand part of the Bill."
The Deputy can ask about it at the end of the Committee Stage debate.
I understand we will consider the Bill line by line.
The Title of the Bill is considered at the end.
The Long Title is at the start of the Bill.
It is the last thing we consider, after we have done the rest of the work.
I am sorry. I see that it is included on the first page.
It is. The Deputy is quite right.
I will ask another question then.
The first shall be last and the last shall be first.
Is section 1 agreed?
I would like to speak about the section. I want to understand the various procedures. I understand we will go through the Bill line by line, although I may have to be corrected. If there is an amendment to section 1, that amendment will be discussed when we are considering the section. One can ask questions on any section of the Bill when it is being examined. For example, one can ask what something means without proposing an actual amendment. Is that correct?
Yes.
I just want to ask a question. I do not want to take precedence over anybody else. I just want to get the procedure right. I would like to talk about section 1 and understand Deputy Gilmore wishes to do likewise.
The Deputy can speak on the section.
I presume I will be allowed to speak for a second time, for example, to clarify issues, if I wish to do so. I will not obstruct or obfuscate.
Okay.
I would like to ask a generic question about line 10 on page 6 of the Bill. I am not sure if I am allowed to ask about that section. Perhaps I have moved on to Part 2 of the Bill. I refer to the proposal to amend the Planning and Development Act 2000 by including a new section 37A(1), as follows:
An application for permission for any development specified in the Seventh Schedule (inserted by the Planning and Development (Strategic Infrastructure) Act 2006) shall, if the following condition is satisfied, be made to the Board
Is the Deputy referring to section 1 or section 3?
That is what I am trying to clarify.
The Deputy has moved on to section 3.
My problem is that I do not see any section 1 in what I am looking at.
It is at the beginning of Part 1.
The term "section 1" does not appear in the Bill.
No, it is not. The number "1" is used to indicate where section 1 begins.
I am now beginning to understand. The term "section 1" does not appear.
No.
The term "Part 1" is used in the Bill.
Can the Deputy see where the number "1" appears in bold type after the term "Part 1"? That is where section 1 begins.
That is fair enough. I understand it now a little better. When the appropriate time comes, I will move amendment No. 1 which is a technical amendment for the consideration of the committee.
Section 1(3) states this legislation "shall come into operation on such day or days as the Minister may appoint" and will be commenced "by order". Will the Minister outline his timetable for bringing the legislation into operation if it is passed? Does he intend to commence all Parts together, or does he intend to commence different Parts at different times? If the latter is his intention, will he indicate the Parts he intends to commence earlier and give the committee an approximate timetable for their commencement?
That is a fair question. I hope to commence all Parts of the legislation together, rather than incrementally, between mid-October and early November. A series of regulations will flow from this legislation, while An Bord Pleanála will prepare directions and instructions. I want the entire edifice to be in place. The date about which the Deputy asked will be some time between mid-October and early November. He has also asked whether the whole lot will commence together. That is the intention, unless something completely untoward and unforeseen arises in the interim. I do not foresee that anything untoward will arise. The basic point is that the legislation will become fully operational from the commencement date. I think that was the Deputy's point. He wanted to know whether we would have it——
I want to know the earliest date on which it will be possible to apply for the projects which are covered by the Bill to be regarded as critical infrastructure. The Minister has indicated that he envisages that the date in question will fall in November this year, approximately.
If I am reading the Deputy's mind correctly, he might have a particular project in mind. I am thinking about a similar project. I have made it clear that I do not want anybody to piggy-back on this legislation, in effect. It relates to the future; it will not be possible to use it for something that is three quarters finished.
I will speak specifically about the Ringsend project if the Minister is referring to it. Do I understand correctly that it is not covered by this legislation?
I have made it clear in public on several occasions that I would like the Ringsend project, in whatever form it takes, to be handled under the existing planning arrangements, not under this legislation. I do not want any controversy associated with the project to reflect on this Bill in any way.
What will happen if the planning application is not made by November?
I understand the application will be made in the next month. I have made my position on this matter clear. I have been very frank with everybody in this regard in recent months. In particular, I have been very frank with the council proposing the project. I do not want any tactics to be used to try to bring something that has been discussed in one planning context into the new planning context. If one examines every utterance I have made, I think——
If the project is not to be fast-tracked, an application must be made in respect of it before the new fast-tracking system comes into effect.
My understanding is that the application will be made in the next month.
The other question——
I cannot be more direct because, as I said to the Deputy, I am legally required not to intervene or interfere directly in the planning process. I have used bells, whistles and very large letters to make it very clear that I do not want any of the controversy associated with a project prepared under the existing planning arrangements to intrude on this legislation in any way. This is a Bill for the future.
Question put and agreed to.
SECTION 2.
As amendments Nos. 1 to 5, inclusive, are related, they may be discussed together.
I move amendment No. 1:
In page 6, line 4, to delete "2000." and substitute "2000;".
I apologise for the delay while I ensure I am referring to the right amendments. I did not get the final list until this morning. I have proposed amendment No. 1 as a technical improvement to the Bill.
The Deputy is speaking about amendments Nos. 1 to 5, inclusive.
Yes. Amendments Nos. 1, 4 and 5 are in my name.
The other two are in the name of Deputy Cuffe.
The amendments in my name have been proposed to improve the drafting of the Bill.
Amendments Nos. 1 to 5, inclusive, are being discussed together.
Amendments Nos. 1 to 5, inclusive, propose to insert a number of new definitions in the Bill. We discussed these matters at some length in the Seanad. Amendments Nos. 4 and 5, in particular, look very familiar. The amendments propose some unnecessary changes in the description of the Environmental Protection Agency, for example. I said in the Seanad that even though I was anxious to accept amendments, I did not see the logic of the amendments in question. All five attempt to clarify the Bill's intentions which have been made clear by the Office of the Chief Parliamentary Counsel. It would be unwise to depart from the suggested approach, as outlined in the definitions, as they stand. With my apologies, therefore, I do not propose to accept any of the amendments.
I wish to formally propose amendments Nos. 2 and 3. Essentially, I am trying to define the strategic infrastructure——
Can we dispose of amendment No. 1 before we move on to amendments Nos. 2 and 3?
Of course, we can.
I accept the Minister's response to my amendments Nos. 1, 4 and 5.
Is amendment No. 1 being pressed?
No. I am happy with the response I have received from the Minister.
Amendments similar to amendments Nos. 4 and 5 were discussed in the Seanad, whereas Deputy Cuffe's amendments were not discussed because they are new. They propose to bring about changes and clarifications in the definitions used in this section. While I always support clarification, the Parliamentary Counsel has got it right. On Committee Stage in the Seanad, I succumbed to the charms of Senator Bannon and made what appeared to be an innocuous amendment. Later that evening, I was persuaded that the ramifications of the change were equivalent to apocalypse now. I had to make a further amendment to revert to my previous hard stance.
We need to be as clear as possible as to what we mean——
Has the discussion on amendment No. 1 concluded?
Yes.
We will discuss amendment No. 2 in the name of Deputy Cuffe.
I thank the Vice Chairman. I feel a sense of déjà vu.
Amendment No. 2 proposes to place a crisp definition on to what will be the strategic infrastructure division. It makes sense to provide as much clarity as possible through a proper definition. That amendment refers to a specific part of An Bord Pleanála and gives some transparency and clarity in the interpretation of the applicability of the Bill to certain defined categories of development applications under the Seventh Schedule.
It is a complex area but these definitions are contained in section 6. A section in this Bill amends the relevant section in the 2000 Act and captures the clarity Deputy Cuffe is seeking to achieve.
Where in the Bill is it contained?
The definitions are laid out in Part 3, on strategic infrastructural development. The advice is that this is the best way to capture the definitions because it consolidates what went before in previous legislation. I appreciate the Deputy's amendment but it is already included in the Bill. Section 6, which amends the principal Act, states " 'Strategic Infrastructure Division' means the division of the Board referred to in section 112A(1)".
I regret that I do not have the principal Act with me.
We have been through this before in the Seanad. Deputy Cuffe may have a feeling of déjà vu about procedure but I also have it in respect of this section, which amends the relevant sections of the principal Act in which the definitions are listed. I have been advised that to put further definitions on what is already clarified in the principal Act would be unwise and that, in doing so, I would bring down upon me the wrath of the Parliamentary Counsel.
I accept the Minister's explanation.
If it would be helpful to the Deputy, I can forward him the specific response to this amendment. It is a complex area.
This amendment differs from amendment No. 2 because it seeks to define the strategic economic, social and environmental aspects of the State.
There may be unintended results from accepting amendment No. 3. Rail, local authority, motorway and other infrastructure projects are being brought into the strategic infrastructure process. The amendment could remove them from the Bill's scope. That may be the Deputy's intention.
I want to ensure that we have a definition of what is meant by a strategic infrastructure project. I am concerned that if we do not define what constitutes a strategic infrastructure, a future Minister may define it the way he or she so wishes. The amendment proposes, as is the case with the EU directive on environmental impact assessment, to have a precise list.
I see the Deputy's point. Part 3 provides a specific list of what constitutes a strategic infrastructure project. I am not always disposed to putting lists in legislation because inevitably some item will be excluded presenting difficulties at a later stage. The lists in Part 3 are quite specific. Deputy Cuffe expressed concerns that one might find office parks being sneaked in under the legislation. That is not the intention and it would not be possible. It would be nice to have a one line precise definition but that is not possible. The listing on Part 3 is the best way to proceed. If there were to be any broadening of the process in the future, it could only be done through legislation. We are nothing but ad idem on this matter.
Amendment, by leave, withdrawn.
I move amendment No. 2:
In page 6, between lines 4 and 5, to insert the following:
""Strategic Infrastructure Division" means the Division within An Bord Pleanála with responsibility for the assessment and decision making on development projects as defined and determined under Schedule Seven of the Act;".
Amendment, by leave, withdrawn.
I move amendment No. 3:
In page 6, between lines 4 and 5, to insert the following:
""Developments contributing to the strategic economic, social and environmental importance of the State" means those types of developments listed in Schedule Seven of the Act, or certain projects so determined by An Bord Pleanála to fall within the categories of projects listed in Schedule Seven of the Act.".
Amendment put and declared lost.
Amendment No. 4 not moved.
Section 2 agreed to.
NEW SECTION.
I move amendment No. 5:
In page 6, before section 3, but in Part 2, to insert the following new section:
"3.—The Principal Act is amended by inserting the following section before section 3 but in Part III:
"32.—In this Part—
"prospective applicant" is any person who proposes to apply for any development specified in the Seventh Schedule;
"the Agency" means the Environmental Protection Agency as established by the Environmental Protection Agency as established by the Environmental Protection Agency Act 1992.".".
The first part of section 37A(1) states that the board has certain jurisdiction with regard to these applications. I want to know whether this is the case only if an application goes before the board or whether it applies in all cases. I understand Indaver, a waste incinerator company, has identified its position, which is that it would prefer the existing legislative and planning position. If I want to locate an incinerator in Wicklow or elsewhere, and if I choose not to take the route of this Bill, do I have the right to use the existing planning process? If the matter goes before the board, the board will decide. However, if it does not go——
When the Bill is passed, the answer will be no.
That is not clear from the wording.
The answer is no. There will not be an either-or choice. It is right they should be tied to one or the other, and they should not have an opportunity to pick and mix.
That is not clear from a reading of the text of the Bill. The wording needs to be changed because it deals with matters that go before the board. If I apply to the local authority, what process takes place? If I am a county manager who receives a planning application about which I am uncertain, or if I begin a process of application, how do I define that?
To help the Deputy, the word "shall" is used in section 37B(1), which states: "A person who proposes to apply for permission for any development specified in the Seventh Schedule shall, before making the application, enter into consultations with the Board in relation to the proposed development."
That concerns an application to the board. My point is that if I make an application to the local authority, how does the local authority know whether the application is in the Schedule? It is fine if I go to the board but if I do not, how is the application dealt with?
The board is blind to the fact that an application is——
National and regional strategic issues are involved. The Bill refers to the case of two local authorities being affected by the issues. I want to clarify the exact legislative process.
Given the scale of even a regional strategic issue, such a difficulty seems highly improbable, particularly as the local authorities will have specific instructions and guidance as to how they should operate this Act. The second point is that the board would have cognisance of projects of a certain scale.
The board would not know about an application.
Of a specific scale.
One of the weaknesses in the Bill is that it states a development must have a "significant effect on the area of more than one planning authority". The county manager in one county might be sure it has a significant effect whereas another county manager might be sure it has not. How is "significant effect" to be defined?
There is a double lock in this regard because it is a decision for the board, not just for the manager.
A planning application might be made to Wicklow County Council, for example. Who decides it affects a second local authority and, therefore, must be referred to the special board in An Bord Pleanála? I do not want to labour the point but I want to give it due consideration.
It is most unlikely to arise. I will consider the issue further.
I will need the Minister to respond at a later stage.
I will put it down as a marker and come back to the Deputy. It is highly unlikely to arise between local authorities. However, if there was, say, a conspiracy between a local authority, effectively, as the Deputy is suggesting——
I am not suggesting a conspiracy.
It is possible the local authority would ignore the fact that the Planning and Development (Strategic Infrastructure) Bill exists. I will come back to the Deputy on this issue.
The issue will be that some local authorities may be of the view that it is of "significant effect" but some may not be. That is the problem. It is the lack of——
It is a fair question because local authorities and local authority planners, managers and directors of services are not always consistent in the way they view matters.
We need to clarify this issue, particularly for the public good.
It is a fair point. I will come back to the Deputy in this regard.
I am satisfied with regard to section 37A(1) but I will have questions with regard to the other sections.
It is an important issue on which I will come back to the Deputy.
It is important we go through the Bill.
I agree. I have a document which shows in a schematic way how the consent process operates. It would be helpful if I provide copies of that document for committee members. It shows how the various default positions operate. The committee might provide members with copies.
Amendment, by leave, withdrawn.
SECTION 3.
We move to amendment No. 6. Amendments Nos. 8 to 10, inclusive, 22, 28 and 35 are related. Amendment No. 7 is an alternative to amendment No. 6, amendment No. 23 is an alternative to amendment No. 22 and amendments Nos. 36 and 37 are alternatives to amendment No. 35. The amendments may be discussed together. Is that agreed? Agreed.
I move amendment No. 6:
In page 6, lines 13 and 14, to delete "if the following condition is satisfied" and substitute the following:
"if following determination by the Board, with reference to the projects listed in Schedule Seven".
I will substitute for Deputy Cuffe for the present. I hope he will return shortly. Deputy Cuffe has put down amendments Nos. 6, 9 and 10. Do I discuss them individually in turn or should they be grouped?
They may be discussed individually.
Amendment No. 6 is a minor amendment put down in the interests of transparency, which seeks to use the word "determination" instead of "condition". Will the Minister indicate his position? It is not a particularly significant amendment but would provide greater clarity with regard to the board's operations.
I want to deal with the group of amendments together because the amendments have a combined impact. The thrust of the amendments, particularly amendment No. 6, is a proposal to delete provisions which would enable the board to enter into pre-consultations with prospective providers of strategic infrastructure. Instead, the board would only be able to make a determination as to whether a development was or was not of strategic importance, having regard to the criteria set out in the section. I disagree with that proposal because it would strike down a central tenet in the pre-consultation process. The consultation is intended to ensure that applicants and environmental impact statements, EISs, are better prepared. It is a fair criticism the Green Party has made over several debates that frequently there are faults in applications and in the EIS.
Consider the consequences of that, for example, particularly for a community group or organisation, or a private individual who wishes to challenge a planning application. They have to go through the whole expense and process, perhaps twice, simply because the procedure has not been properly adopted. The idea is to ensure that applicants, the applications and the EISs are better prepared and have the fullest regard for the requisite procedural guidelines. That is the way to avoid undue delay and crucially ensures that the ramifications — particularly the environmental ramifications — of a project must be highlighted as early as possible, rather than having a piecemeal approach to the planning process.
To summarise that point, when a process comes into the formal consent procedure, it is complete and people are not looking or trying to second guess what is behind this. It must be complete. The Green Party has made this particular point on several occasions. In one recent debate, for example, a robust suggestion came from the Green Party that delays in key infrastructure were more often caused by poorly prepared planning applications and EISs than anything else. That is precisely the problem I am attempting to address here.
It is right and proper that the expertise of the board be fully employed at the very earliest stage in the process to make absolutely clear that everything is right in an application. As it stands the board is involved only at the last stage under the current arrangements. Itis constrained in a way as to how it can handle the projects and the need to be involved from the very beginning. In a project of the scale we are talking about it needs to be involved from the very beginning, to ensure that projects it receives are properly put together. It needs to ensure that all the documentation is in place, given the environmental ramifications of major projects. It needs to be assured from day one that they are all there. This has been the core of the valid criticism that the Green Party has made.
I stress that the consultation process provided for is wholly transparent and open and I am committed to ensuring that the impartiality of the board is not in any way impugned by the consultation process. I am confident that the board itself will put arrangements in place to ensure that this is the case. In fact, guidance documentation will be produced by An Bord Pleanála to ensure there is no public disquiet in this regard or because this process is being wrongly used.
To summarise, the intention of the process is to ensure that there is, effectively, a quality test on the propositions that come forward and that we do not have, as so often in the past, dribbles, bits coming in and stuff not properly prepared. People will be told to go away and do their job before coming before the board. That is good and healthy.
The Minister, in grouping his responses, has come to a fundamentally important point with regard to my colleague, Deputy Cuffe's amendment. While we would like to seek improvements in EISs, in trying to achieve that we should not sacrifice the real independence An Bord Pleanála has. The real concern in our party is that, for example, under the current planning system there is an imbalance which allows consultations between developers and local authorities to inappropriately direct the whole planning process. Certainly there is a perception that this advanced consultation process undermines the independent nature of decision making. It is human nature that if one is engaged in a consultation process prior to an application being made, there is almost an understanding on the part of the developer when it comes to the adjudication or application process to the effect that there is a common mind on the issue because of the prior talks in private without public scrutiny.
I would argue that it is essential that we do not have consultation but rather a determination by the board, first and foremost, as to whether an application falls under Schedule 7 or other appropriate Schedule under this legislation. One of the great strengths of the board is its perceived independence and the perception that when one walks into an inspectorate hearing, either as an objector or developer, one has equality of status as regards preparation and the hearing of one's case. That is not possible if such a consultation process occurs, which by nature is outside the public realm. That is the sense of Deputy Cuffe's amendment. I am trying to restrict that pre-discussion period to one of determination by the board rather than consultation. It is a substantial and important addition.
I see the point the Deputy is making. First and foremost, the process of ensuring that an application is proper does not make a pre-adjudication on the substantive issue of the application. This process is naturally not unusual. Local authorities, for example, before they actually get to the specific issue of a planning application must determine whether it has been put together correctly — and frequently come to the view that it has not. Under the courts system there is an examination as to whether a case is well put together before there is an adjudication on the substantive issue.
I understand what the Deputy is saying and I believe it arises from a concern as to how this equates with public confidence in the planning system. First and foremost, the board is acutely aware of the importance of maintaining public confidence in the way it determines any form of project, whether it is a strategic project or any other. An Bord Pleanála jealously guards its independent status and we all accept that this is the case. Sometimes we get frustrated because the board seems to be almost pedantic on that point. It is a good point, however, because it means we cannot have a pick and mix or à la carte attitude towards whether we accept An Bord Pleanála. An Bord Pleanála has been robustly independent and has certainly managed to provide a good service.
The fail-safe mechanism that protects against the concerns the Deputy has becoming a reality is that this must be done in a transparent way. There has to be a record of all of this consultation process and the discussion which goes on and that will be available. So there is no reason to fear that. Certainly, the fact that the board examines the quality of the documentation, whether the document is correct or the EIS goes sufficiently far, or there has been sufficient investigation does not mean that it is indicating a predisposition one way or the other towards an application. It is simply saying that the application is wrong because of A, B or C or that it is in order and that the board is prepared to move on to the consent process.
I understand the point the Deputy is making and fears and concerns he has. These are focused on ensuring that the impartiality and confidence the system currently enjoys is maintained. Impartiality and confidence are written into this Bill
A couple of things are important. The first is we need to be clear about what law is proposed to be made here. I thank the Minister for circulating the plain man's guide to what is a complex new planning process. The strategic——
The simple man's guide——
I would never confuse the Minister with a plain man, didactic perhaps, but let us concentrate anyway on the sheet he has given us. Let us say a private waste company wants to build an incinerator. Its representatives ask An Bord Pleanála for a decision on whether or not this is a very important piece of infrastructure. An Bord Pleanála can decide if it is of strategic economic or social importance, if it would contribute to the fulfilment of any of the objectives of the national spatial strategy, or if it would have a significant effect on the area of more than one planning authority. Let us say that An Bord Pleanála decides that it is a very important piece of infrastructure and the company will be permitted to come in under this new Bill. Having got that decision, the promoter of the incinerator asks An Bord Pleanála what he needs to put in the EIS, the application and so on. He is taken by the hand and guided through the EIS and the application, step by step, all the way. The application is then submitted.
The Minister is now telling us that An Bord Pleanála, having made a decision that this is a very important piece of infrastructure and having walked the applicant through the application, will then turn it down. That is simply not going to happen. When it comes to the third stage of the process, An Bord Pleanála is hopelessly compromised. It has already decided that this is a critical piece of infrastructure, is important to the social and economic well-being of the State and must be fast-tracked. It effectively acts as a planning consultant to the applicant and then is supposed to decide the issue objectively.
Let us imagine someone going to the High Court to make a claim. The person asks the High Court to decide if the claim is so important that it must be heard in that court rather than the Circuit Court. The High Court decides that it must hear the case and the person then asks the judge to help it prepare the pleadings for the case. The judge outlines to the person what he or she needs to do in court, who then will appear before that judge. That is nonsensical. This Bill rips the idea of objectivity out of An Bord Pleanála. It gives the board a multiplicity of functions under one roof, which are completely in conflict with each other and which will compromise the board's ultimate ability to make an objective decision.
Even though that presentation is dramatic, it is not relevant. Much was made by Deputy Gilmore of the EIS. There is a mandatory requirement within the directive to scope an EIS and the best people to adjudicate how that should be done are on the board.
The Deputy suggests that if the board states that a certain project is envisaged by the Bill, it could not reject the project later. That suggestion is patent nonsense. The personnel involved in consultations are not necessarily the same personnel involved in the ultimate decision. The personnel may not be on the board, but individuals among the staff of the board.
Is the Minister saying that the board will not be making the decision?
The board will make the decision. That is precisely the point that I am making.
The first decision.
The board will make the ultimate consent decision.
The whole board.
It will be made by the strategic infrastructure board, not the whole board.
It could also be the whole board as that option is in the Bill.
Yes.
In what circumstances would consultation of the board be needed to determine whether this was of strategic importance or not? If it was of strategic importance, the logic would be very clear. An applicant could make a case for it in writing. Why is a consultation needed?
It would not necessarily be very clear.
It is not clear under this Bill.
That is untrue and is also unhelpful. We have had many discussions on this and nobody has suggested——
We have not had discussions at all.
We had 70 contributions on Second Stage.
The Minister had no discussions with the Irish Planning Institute. There has been no public consultation at all on the Bill.
I am frankly surprised that the Deputy has become so attracted to the Irish Planning Institute.
I am attracted to any good argument, even good arguments the Minister might make, despite my personal opinion of him. He should not deride anybody or any group.
Will the Minister reply on amendment No. 6?
The first step of all of this is to decide whether a project is allowed within the Act. It is appropriate that the board should make that decision.
Does the whole board make that decision?
The strategic infrastructure division of the board will make that first decision. The alternative is that the Minister makes the decision and that would not be good or proper. It would not stand up to political scrutiny. Someone must make the decision on whether something is strategic infrastructure. It is appropriate that the decision is taken by the division.
To go back to the legal analogy, one does not meet a High Court judge in his chambers. One goes before the court and accepts its judgment. An Bord Pleneála is under a similar quasi-judicial position in making decisions. How can the board maintain its independence when any form of consultation process, even if it is recorded, minuted or whatever, leads to a close contact that makes it impossible for such a board to be impartial in a decision?
I disagree with the Deputy on that. The adjudication of the particular case will not be on the substantive issue of the application. It will be a simple question of whether or not the EIS covers sufficient ground. The point that the Deputy has correctly made several times in debates is that documentation is often faulty, inadequate or incomplete. The adjudication on whether something is correctly formulated is not an adjudication on the substantive issue, which is the application itself for consent for a particular piece of infrastructure.
I am sorry for being late, but I got caught up with the HSE. God help anyone caught up with the HSE. I have just a few brief comments to make that will cover my amendments on this.
We are speaking on amendment No. 6.
I support the thrust of amendment No. 6 and what Deputy Cuffe is seeking to achieve. There is a number of definitions missing, including that for "significant effect". It needs to be defined in a statutory way. It is simply too important to leave open. It could be defined to include ecological effects such as on natural resources or the component structure and functioning of ecosystems. The notion of something being of strategic economic or social importance must be defined. Since the Bill is concerned with contributing significantly to the fulfilment of the objectives of the national spatial strategy, one need only amend those objectives for the whole tenor of the criteria to change. I will leave it at that for the moment.
On a technical point rather than an argumentative one, the Minister may intend that the strategic infrastructure division of the board decide such issues, even at this initial stage. However, he allows power in the legislation for the entire board to meet and decide on something if it so wishes. It is therefore not technically correct. I am looking purely at the process. If the strategic infrastructure board is confused as to whether something falls within its ambit, the entire board decides. Are there issues in that regard?
If the Deputy looks at section 112A(8), he will see that it arises there.
While he does so, perhaps I will address Deputy Morgan's point. The words "significant effect" are used throughout the legislation. I draw the Deputy's attention to SI 600 of 2001. The phrase is very commonly used in planning, and the Deputy will see it at Schedule 6, which deals with the size of proposed developments, remedying significant adverse effects and so on. The term "significant effect" is used in a multiplicity of places throughout the Planning Acts and the various regulations that give effect to them. It is also used in the EIS process.
Where?
It derives from the directive and has been defined by the use and practice of some years. "Significant effect" is something that——
Which directive?
The EIS directive. It is used very frequently in planning law and consistently throughout the planning regulations.
I want to try to understand this process in practical terms. As I understand it, when a normal planning appeal is made to An Bord Pleanála, it is given to a planner or planning inspector, who examines it and writes a report that goes to an individual member of the board. That person signs off on it, after which it goes to the board itself. The first thing that will happen in this process is that the applicant will talk to someone on the board, the consultation under section 37B. To whom is it envisaged that people talk at that stage? With whom will the consultations take place when they get the advice regarding what heading it falls under?
Second, having received that advice, what happens when the application goes in? This is the first round and the application must be submitted for a decision on whether it qualifies as strategic infrastructure. Perhaps the Minister would talk us through that, telling us in a step-by-step manner what he envisages will happen to an application. Who will handle it? Will it go to an individual member of the board, as is currently the case, afterwards going to the strategic infrastructure division? How will that work?
When the new infrastructure division is established in the board, it will replicate in virtually every aspect what happens in the existing board, with the exception that the strategic infrastructure division will be focused specifically on areas defined in the legislation. Who would the first person be that an applicant would meet to say that the documentation is ready? It would be the inspector rather than the board.
Essentially, one is clearing successive hurdles to determine whether one's documentation is correct and that adjudication can be made outside. It remains part of the strategic infrastructure division, but it does not necessarily mean that the entire board will need to make that decision. Effectively, it is an administrative and technical function rather than an adjudication function. Regarding Deputy Ryan's point, the substantive question is a matter for the board.
The preliminary work being done here on consultation and the adjudication of documentation is not the same as the examination once formal procedures have been initiated and the formal consent process is under way. The Deputy is making more of this process than is intended. When it comes to examining the issues of the EIS, it is simply a matter of scoping and that is envisaged in the directive itself. One of the criticisms made of the Irish system from various sides in the debate is that it is sometimes hard for people to know what exactly is expected of them. This process is an attempt to bring some coherence to the system.
The applicant will go to the inspector first, for example, if he or she wishes to build an incinerator. The inspector will advise the person of whether the application is a waste of time.
The inspector, operating on behalf of the board, will say that it is not the kind of project envisaged in the Bill and that the applicant should go elsewhere. That is the first decision point. Having made the decision that it is the type of project envisaged in the legislation, the second issue will be whether the documentation, presentation and materials are sufficiently comprehensive to support entry into the full consent process. It is a succession of hurdles that one must clear to enter the formal process of adjudication on the substantive issue.
Does the inspector report to the strategic infrastructure division on those discussions?
No, the first decision is on whether one is in the process. That would be issued in the name of the strategic infrastructure board.
I am talking about before that decision. This is the first knock on the door, when one is talking to an inspector asking whether one is in the right shop, if it is strategic infrastructure and where one is going with it. Will there be a record of those discussions with the inspector?
Yes. I thought that I had made that clear.
Will that record be available to the board or the strategic infrastructure division when it makes its decision?
Yes, since it would have to be part of the file. In any event, when one reaches the formal stage where one makes the substantive decision on the board, that presupposes that one has come through the first stage.
All right.
The Deputy's concern was about transparency and whether it would be part of the file, and I can confirm that it would be.
My final question on this part is that when the inspector has finished with the matter and a formal decision is made about whether the plans qualify as strategic infrastructure, will that go directly to the division or will an individual member of the board examine it first?
The internal procedures for handling such issues are entirely a matter for the board and is not prescribed in law.
What is the Minister's understanding in this respect?
The internal arrangements made by the board will be subject to its own guidelines. It will make its own administrative arrangements internally. The process will be prescribed in law, as will the requirement to keep detailed records of that process. In addition, those detailed records will be on file and will be available to whomsoever reviews that file, including the board.
The Minister is stating it is possible for this matter to be handled by an individual member of the board before the division makes a decision on it.
It is up to employees, but the board makes a decision, if possible. If I understand the provisions correctly, the strategic infrastructure board will meet. While it can have five members, it may sit with three members, one being the chairman, a deputy or a replacement. The issue concerns potential disagreement among them. Consider a case in which three members meet and while two of them decide the project does not constitute strategic infrastructure, the chairman states it does. The chairman has the power to overrule the strategic infrastructure board and refer the issue to the entire board. In that context, he also has the power to decide it does not constitute strategic infrastructure and to refer it elsewhere within An Bord Pleanála.
This returns to the point as to who will actually make the decision as to whether a project constitutes strategic infrastructure. The board will do so, rather than the person who will meet the prospective developer. Moreover, the chairman of the strategic infrastructure board has the power to make decisions above and beyond the board members, a majority of whom may have voted against him or her. Can the Minister respond to this point?
The chairman has the right to place the issue before the entire board. Has the Deputy a concern in this regard?
I have. I will go through the process again. An application is received and goes through the employees or officials and comes before the chairman.
It goes through the initial stages of the process
Assuming that is in order, it will come before the chairman, who may sit with up to five people, including himself. Consider a scenario in which only three members sit, and that this constitutes a quorum. While two of the three may state this project is not a strategic infrastructure issue, the chairman can overrule them and can refer the matter to the board, because he or she believes it is such an issue. Alternatively, the chairman can do the opposite and can state that a matter does not constitute strategic infrastructure, despite the opinions of the other members to the contrary, and can then pass it on somewhere else.
May I back this point up with a——
In this respect, the Deputies should re-examine the proposed section 112A(8), which outlines the role of the chairman in this matter. It states:
[A] person acting as chair[man] .... may at any stage before a decision is made by the Division, transfer the consideration of any matter from the Strategic Infrastructure Division to a meeting of all available members of the Board where he or she considers the matter to be of particular complexity or significance.
I do not see anything sinister in this provision.
I did not suggest the word "sinister". I suggested that the chairman——
I do not see anything questionable.
No, it is not questionable. As this is proposed legislation, it is right that members examine it in full.
Yes. However, I am trying to understand the basis of the Deputy's concern.
My point is that the chairman of the strategic infrastructure board has more powers than the board itself. The chairman can decide whether it is a matter for his or her board. The chairman can also decide it is not a strategic infrastructure issue where the board may feel otherwise. I raise this issue for the Minister's attention. It is not pejorative.
The chairman of the board is given the power to order the business of the board in a general way.
The Minister's proposed legislation allows the chairman, where there is disagreement, to be the majority shareholder in this respect, regardless of the other board members' opinions.
No, this provision allows the chairman to refer the matter to the entire board.
Yes. However, I am trying to ascertain whether a conflict might arise within the Minister's legislation and process. If a majority of members on the strategic infrastructure board have a contrary view to that of the chairman, the latter may ignore it.
No, the Deputy is missing the final words of the subsection, that is, "where he or she considers the matter to be of particular complexity or significance". Hence, I do not——
To put it in a different way, there will not be a problem when the rest of the board agrees with the chairman, because the decision will be made. However, this scenario will arise if the strategic infrastructure board disagrees with the chairman.
The Deputy's point is that someone must be in the position to order business. The person who orders the business of the board may deem it appropriate to have the full board deal with a matter of immense complexity or particular significance. This provision gives the power to the chairperson to make that adjudication. I am trying to envisage what negative consequence could flow from this. The Bill itself will prescribe the circumstances in which the board will use that adjudicative right, namely, when he or she considers the matter to be of particular complexity or significance. Hence, I do not envisage how this provision necessarily would cause a conflict and I see it as being positive. A matter of huge significance or complexity, or potentially of huge controversy, should be appropriately dealt with by the entire board.
To go back slightly——
I wish to make a point. There is a direct analogy with the courts. This happens in the courts.
I want to make a point by returning to the first stage before an application is made. Section 37B defines the term, "prospective applicant". In such cases, that person enters discussions with the inspector. Under section 37B(3), the inspector will give advice on what considerations, related to proper planning and sustainable development, may, in the opinion of the Board, have a bearing on its decision in relation to the application. Hence, an inspector will meet a developer to discuss the issues pertaining to proper planning and sustainable considerations in respect of the application.
As the Minister noted, these are hugely complex matters. In the case of an important issue, it will not be easy for one person to meet a developer to discuss and outline matters such as the sustainable development aspects of the project.
The Deputy has touched on the essential point. As such matters are huge, complex and are clearly strategic, his comments support the process. The process will be that a judgment call must be made as to whether a particular project falls within the ambit of this legislation and whether it is right and proper for it to go to the strategic infrastructure board, or through the normal planning process. The judgment call is as to whether it is the class of proposition dealt with in the legislation. The decision will not be made on the issue itself. The Deputy's earlier point was that simply making the call as to whether a matter would fall within strategic infrastructure would somehow contaminate the ultimate decision. However, I do not accept that.
My argument is that it would be perfectly feasible for the board to perform this process in writing. If the board requires further information regarding an application, it could issue a written statement to that effect. However, as I am sure the Minister is aware, my real concern is based on experience. Given the human condition, developers may discuss the sustainable development aspects of a project with an official. Undoubtedly however, the developers will then adopt a completely different approach and will return to the board to state that the sustainable development issue has already been discussed with the board at an earlier stage and that they know where matters stand in that regard. They will then claim it will be impossible to have an independent arbitrary process in which such matters are listed to come to consideration, because they have all been discussed previously. They will note such matters were discussed with the board at the outset and that the issues regarding sustainable development were agreed. They will ask why, if the board had a problem regarding such matters, they were not raised at that stage.
It is because the adjudication at the outset will be as to whether such a project is of a class which comes within the meaning of the legislation. At that stage, one will not make an adjudication on the substantive issue.
The idea that there should be consultation other than by way of face-to-face consultation does not make much sense. It would involve sending written material back and forth. We should remember that the concerns about transparency are addressed by the fact that the content of these meetings must be written up and records of the meetings entered on the file. That file ensures everyone knows precisely what has taken place.
I will cite a recent example involving a similar meeting which took place between An Bord Pleanála and the developers of the Corrib gas pipeline. While minutes of the meeting were kept, it was highly unsatisfactory and very awkward. When we held a meeting about it with members of An Bord Pleanála, they appeared to be deeply embarrassed. In addition, the minutes were very inconclusive about what was actually discussed at the meeting with the developers.
An Bord Pleanála is an element of the Irish planning system that is beyond reproach. I have been on an equal footing with developers in any hearing attended by me. Similarly, developers must feel that at least they are getting an independent and fair hearing. That independence is compromised by the conditions set out in section 37(B). There is no way that these conditions cannot be described as anything other a compromising of this independence.
I will return to the point I made earlier to Deputy Eamon Ryan. It does not compromise the independence of the board in any way. A decision that a project of a type comes within the remit of this Bill is simply a decision; it is not a decision on the project itself. It does not, and need not, in any way compromise the independence of the board.
It is wise to have this consultation process. It is intended to prevent the developments which the Deputy and his colleagues have rightly highlighted on a number of occasions. I do not disagree with the Deputy about the necessity of ensuring that everything is appropriately handled when a major proposal comes forward, not least from the perspective of other people who are involved in the planning process and want to see all the relevant documents, on which they can make their own submissions, and have their interests in particular projects addressed.
We are making more of this than is necessary. It is simply a preliminary process. The procedures will be determined internally by the board and to suggest that a decision that certain projects are or are not envisaged somehow determines the final decision is wrong. This is not the intention or the effect of the section.
I hope that following Deputy Gilmore's contribution, we will make some progress.
There is a role for a one stop shop where the promoter or developer of an infrastructural project can get advice on what is required in terms of environmental impact statements, applications and organisations to whom applications are be submitted. It would be analogous to the role played by the IDA in respect of industrial projects. People visit officials from the IDA who take them through matters like the required steps, where to go for planning, what they need to do about licensing and employment legislation so they know where they stand.
However, such an organisation should not be the same organisation that decides the application. If someone is building an incinerator or gas pipeline, they should be able to contact an organisation for advice. I suspect that the genesis of this provision resulted from the fact that when this Bill started out, the idea was that a strategic infrastructure board would be established. I can see a role for such an organisation, which would provide this kind of advice, support and assistance to the promoters of infrastructural projects. However, it is not appropriate that it should be the same organisation that makes the ultimate decision regarding the project.
From the Vice Chairman's experience and that of most members, it is clear that one of the things that bedevils our planning system is the problem caused by people getting different views from those to whom they go for advice. If we want to bring some consistency to the system, we need to introduce the provision set out in this Bill. The decision made relates to a series of successive hurdles. Does the project involve strategic infrastructure and is it the type of project that is appropriate for the board to decide? Deputy Gilmore will realise, based on his experience as a member of a local authority, that a considerable amount of confusion has been caused over the years because different people say different things. It is appropriate, particularly in areas like this, that a degree of certainty be achieved and that people know they have spoken to the people who can define whether or not a certain project is a strategic infrastructural project. If we were to move in the direction suggested by the Green Party's amendment, we would simply negate the entire basis of the Bill.
I agree with Deputy Gilmore that if an agency is going to give advice on how to proceed and what does and does not qualify, it will be extremely difficult for that same agency to decide not to permit the development at some later point because it has led the prospective developer by the hand through the entire system. We all agree with the concept of a one-stop shop. However, the problem appears to be caused by the fact that it is the same agency which will make the final decision. If the agency gives guidance and advice at the outset, how can it refuse a development at a later stage, having brought the developer through system?
An Bord Pleanála makes decisions, for example, in the infrastructure areas proposed by local authorities. The only change that will take place is that the board must make a initial decision as to whether or not a piece of infrastructure is of the type that falls within the remit of the Bill. The most appropriate, and indeed, the only agency which can make this decision is the strategic infrastructure board within An Bord Pleanála. Concerns have been expressed in this meeting about whether the strategic infrastructure board will lead prospective developers through the process by the hand. This will not happen. The board will simply tell the prospective developer that it needs an environmental impact statement to cover certain points and certain comprehensive supporting material and studies.
The strategic infrastructure board will effectively tell an applicant or proposer under this particular issue that before it gets into the process of deciding whether to give formal consent or make a decision, it needs certain materials. It is no more or less than this. It does not in any way make the decision on the key issue. It simply states the prior requirements for making the decision, which is entirely appropriate.
The Bill does not actually state that. It states that in any consultation under subsection (1), the board may give advice to the prospective applicant about the proposed application. This is extremely wide; much wider than the provision referred to by the Minister.
This is a misreading of section 37(B)(3). The section states that in any consultations under subsection (1), the board may give advice to the prospective applicant regarding the proposed development, particularly whether it would, if carried, fall within the remit of the Bill.
And envisaged within the Bill.
There is a certain non-prejudicial element involved in the procedure involved in making a planning application. The section also refers to the considerations relating to the proper planning and sustainable development that may, in the opinion of the board, have a bearing on the decision. This is quite appropriate. The board merely tells prospective developers that before it makes its decision, it needs certain information, which is completely logical.
That is not how it is written in the Bill.
It is both logical and transparent because it will be written down.
My next contribution will be brief.
We have spent approximately one hour on one amendment. I do not mind spending another two or three hours on it but there are 196 amendments to be dealt with.
I understand there are 305 amendments. I have two questions for the Minister.
If Deputy O'Dowd continues on amendment No. 6 and we continue to make this rate of progress, we will just be ready for St. Stephen's Day.
We will be ready for the High Court. I agree on the importance of debating these issues, which is the reason for Committee Stage. If we rush, we will make bad law.
If I understand the trend of the comments, will the Minister firewall by regulation that part of the process from the decision-making process, that is, would the inspectors involved be separated from the decision-making stage of the application?
I will return to the issue of the chairman's role when we reach it. If I, as an applicant, am unhappy with a decision of the board, what are my legal rights under legislation? For example, if the board states that something is not critical infrastructure whereas I believe it is, how can I legally exercise my rights?
The only right the Deputy would have would be to challenge the decision as a point of law, which is the current situation in respect of decisions by An Bord Pleanála. There is no further appeal process beyond that.
In this legislation, the Minister will not allow appeals of decisions of the board except on extremely rare points of law. Would such apply in this case at this level?
It would need to be——
The board makes a decision that——
I cannot envisage a situation wherein someone who has been told——
Can the Minister tell us?
We must apply some logic to the situation. The Deputy's comments on making law are right. To answer his question, if the board makes a decision, the strategic infrastructure division issues a letter thanking the person in question for proposing a motorway but explaining that such does not fall within the provisions of the Bill. The only way to challenge that decision is to go to court.
Does the Bill restrict that right? It restricts the legal right of appeal of board decisions except on points of exceptional legal issue taken to the Supreme Court.
No more so than under current planning legislation, which requires specificity in a challenge. This Bill would require the same.
Will the Minister revert to me on the issue? I would like to have it clarified legally.
I have no problem with doing that.
As I understand it, any decision of the board is not challengeable except in extremely rare circumstances. While this is an initial decision——
The Deputy is correct in that the Bill determines the circumstances in which one can make a challenge. That is not a novelty in planning law.
It is an exception. I am not being argumentative, rather I am trying to discuss what would happen should such a situation arise.
I know.
The Bill significantly restricts the judicial review process. Therefore, there would be no judicial reviews of decisions. I am not suggesting that anyone would ever want to go down that path, but there could be one in 1,000 who might.
There might be one in a million. I do not disagree with the Deputy.
Will the Minister revert to me on this legal issue?
I have no problem with reverting to the Deputy. This provision is not a novelty in planning law.
The key legal argument against this legislation is that it restricts access to the courts. The normal recourse to the law in planning matters is not present.
That is not correct. To challenge something in the courts, one must show substantial grounds. One cannot make a challenge quixotically, as the Deputy knows. I am not patronising him by saying so. We would not be entering a novelty into law. If the Deputy wants me to revert to him, I will be pleased to do so.
On firewalling, the internal arrangements will be made within the board and will not be determined by the legislation. The legislation gives the board the right to make its own guidelines on how it operates internally, which is as it should be. It would not be a good idea for the Oireachtas to hamstring the board.
It would be a good idea to bring to the board's attention the points made in this debate.
I am agreeing to do that.
Must all developments specified in the seventh Schedule be processed by these means?
Yes.
They do not have the discretion to go for——
I apologise. I am not sure whether the Deputy was present earlier when this question arose and I said the answer was "Yes". We do not want to create a situation in which there is a forked way to do something, that is, by A or B, as it would only cause problems. I answered this question in the context of the discussion on Ringsend.
Amendment put.
The Committee divided: Tá, 4; Níl, 8.
Tá
- Gilmore, Eamon.
- McCormack, Pádraic.
- O’Dowd, Fergus.
- Ryan, Eamon.
Níl
- Brady, Martin.
- Cregan, John.
- Grealish, Noel.
- Healy-Rae, Jackie.
- Kelleher, Billy.
- Moloney, John.
- Moynihan, Donal.
- Roche, Dick.
Amendment declared lost.
Amendments Nos. 7 to 10, inclusive, not moved.
Amendments Nos. 11, 12, 21, 58, 59, 65, 66, 73, 74, 77, 81 to 83, inclusive, 85, 108, 109, 113, 121, 132, 134 to 137, inclusive, 146, 147, 150, 151, 154 to 158, inclusive, 160, 163, 176, 268, 272, 284, 301 and 302 are related and may be discussed together.
I move amendment No. 11:
In page 6, line 17, to delete "serve" and substitute "shall serve,".
These are technical amendments that propose the insertion of full stops instead of commas. They demonstrate the attention we have paid to the Bill. It is important we examine the language and punctuation used.
I agree with the Deputy that language, context and style are important. However, the advice received from the Parliamentary Counsel is that we should not accept the amendments which were discussed at extraordinary length in the Seanad. In the course of the debate, in an attempt to prove I was not a difficult person to deal with, I accepted the most innocuous amendment from Senator Bannon. As a result, I found myself in serious difficulty. They are stylistic changes. The drafting style of the Parliamentary Counsel differs from that of the person advising the Deputy. Amendments Nos. 158, 176, 268, 272, 284, 301 and 302 are Government amendments which seek to correct textual glitches arising from the worthwhile Seanad debate.
Amendment, by leave, withdrawn.
Amendment No. 12 not moved.
Amendments Nos. 13 to 15, inclusive, are related, while amendments Nos. 16 to 20, inclusive, are alternatives to amendment No. 15. Therefore, amendments Nos. 13 to 20, inclusive, will be discussed together.
I move amendment No. 13:
In page 6, line 23, to delete "be of" and substitute "contribute to the".
This section defines how the board will determine whether an application is due for consideration under the Planning and Development (Strategic Infrastructure) Bill. Amendments Nos. 13 and 14 propose to tighten the language used in the Bill to give a more specific direction on the importance of the economic, social and environmental objectives set out in the national development plan, national spatial strategy and regional planning guidelines.
I agree with amendment No. 15 in the name of Deputy Gilmore. The definition used in the Bill that a proposed development "would contribute significantly to the fulfilment of any of the objectives in the National Spatial Strategy or in any regional planning guidelines" is too broad and could define just about anything. The objectives of the national spatial strategy are remarkably broad. It is important, therefore, that we tighten the definition of the exact strategic economic interest. As I am concerned that sections 37A and 37B are too broad, amendments Nos. 13 and 14 attempt to indicate more specifically the plans or purposes for which we introduced the Bill.
Amendment No. 15 proposes to delete paragraphs (b) and (c) from section 37A(2). The effect would be to limit consideration of this new planning process to projects, the development of which would be of strategic economic and social importance to the State or the region in which they would be situated. The Bill, as drafted, allows for consideration of projects, the development of which “would contribute significantly to the fulfilment of any of the objectives in the National Spatial Strategy or in any regional planning guidelines”. It also extends to developments which “would have a significant effect on the area of more than one planning authority”. That casts an extremely wide net. It is virtually impossible to think of any reasonable sized project in the country which one could argue would not contribute significantly to the fulfilment of an objective of the national spatial strategy which is a broad document published by the Government. Many criticise what appear to be contradictions in it but I will not get into that.
The comments made by the Irish Planning Institute about this section of the Bill are interesting. It stated in its submission:
The three circumstances in which a development would be categorised as strategic infrastructure are, in the opinion of the Institute, too wide, and the terminology used is too vague. In practice, this could lead to controversial private-sector projects that could not reasonably be considered to be of strategic national or regional importance being permitted to by-pass the normal planning process.
Subsection (b) would permit a development, which is not identified as an objective or project in the National Spatial Strategy, the National Development Plan or a regional planning guideline, to be accepted as strategic infrastructure, merely on the basis that it ’would contribute significantly to the fulfilment of an objective’. This formulation, it is suggested, is too wide and vague. Both the NSS and in particular the regional planning guidelines, set out a large number of generalised objectives, a large number of which are not site-specific. If a project were to be proposed, which was not previously identified as being planned for a particular area, and in relation to which the residents of that area had no input (as for example in a Development Plan), and if such a project were to be approved as strategic infrastructure on the basis that it would contribute significantly to the fulfilment of such a vague objective, then there would be very legitimate public concerns.
The institute suggests a wording similar to that which Deputy O'Dowd brought forward. It also points out:
Subsection (c) is extremely vague and far-reaching, and could give rise to serious problems of interpretation. It is difficult to see how developments that merely have significant effects on more than one planning authority would necessarily constitute “strategic infrastructure”, meriting a by-passing of the normal planning process. One could envisage, for example, a small gas storage facility, of 250 tonnes, located at the edge of a city or town/borough boundary, which would have significant effects on the adjoining county. Such a project should be processed through the normal planning process, with right of objection, and appeal, by the adjoining local authority, and by persons living within such area.
The argument has been made all along that the Bill is about projects of strategic importance. That is why it is called the Planning and Development (Strategic Infrastructure) Bill. If that is what it is about, let us confine it to such projects. Let us not have this wide net which allows for a project which contributes significantly to the fulfilment of any of the objectives in the national spatial strategy, thereby allowing for anything.
It would be difficult to see how any of the projects listed in the Seventh Schedule would not qualify as strategic infrastructure under section 37A(2)(b) or (c). One could not argue that ports, airport facilities, gas pipelines or waste facilities would not contribute significantly to either the national spatial strategy or would not have an impact on more than one local authority. It is far too general and wide. If the Minister wants the Bill to apply to strategic infrastructure, let us state it involves strategic infrastructure of critical economic and social importance. There is no need for this wide catch-all net.
This is a critical part of the Bill. As someone who will vote for its principle, I want to stress that it is important we identify in the Bill what is termed critical infrastructure. The national spatial strategy and regional development plans provide us with a process to identify and discuss clear aims and objectives. They are part of the democratic process, as the Government consults on the national spatial strategy, while local authorities consult on regional plans. If a project is not included in the national spatial strategy or regional plans, I do not know how an argument can be made that it is critical infrastructure. As there may be exceptions, I will be happy to hear the Minister's reply. I will call a vote on my amendment because fundamental to the success, transparency and openness of the Bill is that all projects included should be enumerated and listed in development plans. If they are not, they should not be deemed to be critical infrastructure.
One of the points made by the Irish Planning Institute is that a project not included in the national spatial strategy could be allowed under this section of the Bill as it allows for a development which "would contribute significantly" to the strategy. That does not mean it is included in it.
At the core of many objections to strategic infrastructure and controversial planning applications for incinerators, power stations and so forth is surprise, for example, the surprise of the people of Carranstown at the proposal to build an incinerator there. If an incinerator had to be built in that location, it should have been identified in the regional plans. Had it been included in the plans and proper processes been followed, people would have expected the development and would not have been surprised. They could have, in that context, discussed and prepared for it. Problems arose in Donabate recently with regard to regional waste management when the Minister referred to the fact that the movement of treated human waste to regional centres will be required in the future.
All these issues must be dealt with and Fine Gael accepts and acknowledges that fact. However, we only acknowledge it in its correct context. The Bill could exclude the enumeration of certain projects which will be pushed on to communities which are not expecting them. Therefore, these amendments are critical to the success of the Bill, which we support in principle. We are not trying to obfuscate or confuse.
The Bill, as worded, is very confusing. Some of the proposed deletions are critical, for example, section 37A(2) (c) which states: “the development would have a significant effect on the area of more than one planning authority”. I see no need for this because it is very hard to define. One local authority might have a different view from another and almost anything could be included under this provision. How do we ensure that public private partnerships or private operators would not determine or push an issue, which would be properly within the domain of the local authority and not the critical infrastructure board? This is at the heart of what is wrong with the legislation. The current wording makes me deeply unhappy.
I addressed this issue in my earlier contribution but I wish to raise it again. I agree with Deputy Gilmore's comments. The scope of these provisions appears to be far too wide and I expect to see significant amendments on Report Stage. I particularly support amendments Nos. 14 and 19 in the name of Deputy Cuffe. Narrowing the scope to strategic economic, social and environmental objectives is critical and requires clear definitions.
I will look to the EIS directive, in terms of significant effect, which the Minister recommended in response to my earlier comments.
Does Deputy Gilmore wish to speak?
I will await the Minister's reply.
Where does one start? The three subsections at 37A(2) must be read in the context of Schedule 7. That is where the protection against speculative development for a shopping centre, for example, resides. It provides the protection that Deputy O'Dowd is seeking. Many of the Deputies' comments are drawn from the contribution of the Irish Planning Institute. The IPI, in its commentary, also ignores that reality. It focuses on 37A(2) (a), (b) and (c) and effectively discounts the existence of the Seventh Schedule.
The IPI contribution to this debate came remarkably late in the day, after debates had taken place in the Seanad. I would have thought that an institute that is focused on planning would have been more speedy in delivering its commentary, which would have been of particular use to members of the Opposition examining this Bill. It was not thus, however, and that is its business. Having read the commentary on the Bill it appears that the IPI is averse to innovation. It does not like the innovative elements of this Bill. It is quite entitled to that view but that is where Deputy O'Dowd and I would depart from the institute. We both accept that new legislation is required and that the existing legislation is not delivering.
The amendments relate primarily to the criteria by which the board will make its screening decision on whether a project is strategic, based on the national spatial strategy. The amendments seek to require that the specific objectives and locations indicated in the national spatial strategy and national development plan form part of the criteria. The NSS, the NDP and the regional planning guidelines deal with policy. They outline what the policy shall be, for example, that X shall be in a particular region. They are not site specific and cannot be so by their nature.
The Government's spatial strategy sets out a national agenda for balanced regional development. It does not say that A shall be located here or B shall be located there. The regional planning guidelines spell out the agenda applied at regional level. Neither the NSS nor the regional planning guidelines are site specific because they cannot be so. If they were, it would mean that somebody was sitting at the top and effectively determining where everything happens in the country. That would not be a healthy way to plan.
The national spatial strategy and the regional planning guidelines set an overall framework within which Ireland and its regions can develop to their full potential. The national development plan is a funding framework which sets out what the Government has decided to do and is firmly based on the spatial priorities set out in the national spatial strategy. It is not, could not and should not be site specific. The documents set overall priorities and policies within which decisions are made. They are not a detailed site blueprint outlining where infrastructure must be built.
It is clear that the amendments simply would not work because they seek a level of detail and specificity in the NSS, the NDP and the regional policy guidelines which cannot exist. The nature of those documents means that a high level of specificity is impossible. We must rely on the capacity of the board to make relevant screening decisions. Ultimately, the board's final decisions will be critical but these amendments, based on the suggestion of the IPI, attempt to micromanage the detail of the screening decisions. That is not logical and is not the way to proceed.
I am happy that the provision, as currently articulated in the Bill, is the best way to ensure that the board operates strategically and is given adequate room within which to operate. As we do not have a high degree of specification in the NDP, the NSS or the regional planning guidelines, it is illogical to suggest that we should tie the hands of the board in the way that the IPI and some of the amendments propose. I cannot accept these amendments.
I ask the Minister to identify any project set out in the Seventh Schedule, as proposed, which would not qualify under paragraphs (a), (b) or (c).
One could conceivably have some but we are discussing hypotheses. I propose to give the board the opportunity to make a decision. As regards specifics, the terminal building or installation associated with a long distance railway or tramway referred to by Deputy Gilmore might not fall under (c).
It would only be refused under paragraph (c) if it was a very short railway.
I said "a terminal".
The Minister said "associated with a long distance railway".
I referred to the building of a terminal. I would refer Deputy Gilmore to the IPI commentary. It is nonsensical to tie the provision to the NSS, NDP and RPGs with this level of specificity. We have rehearsed a series of projects which, as the Deputy himself noted, are large in scale.
Fine Gael Members have asked me to reduce the size prescribed for port installations but I am not disposed to do so. This Bill provides flexibility in terms of a screening process. No cogent case has been made for the micro-managing of that process. Given that the board is being entrusted with the power to make planning decisions, it would not be a violation of our trust were it also to make screening decisions.
The Minister is missing the point. The regional waste management plan provides for one incinerator in the north east and, ideally, identifies the best site for such a facility. That is a public process which involves elected councillors and gives people the opportunity to comment on the plan. Indaver has applied for permission to extend its existing incinerator at Carranstown in order to meet the regional needs as identified in the regional waste management plan. However, once this legislation is passed, Indaver could apply to use the entire 20 acres for an incinerator which would meet supra-regional needs. Given that the decision has already been made with regard to the transportation of waste across boundaries, Carranstown could end up with a super incinerator for the city of Dublin. However, if the regional strategies are adhered to, such a circumstance will not arise. Everybody should share the pains and the gains of the regional waste management plans but if a smaller number of incinerators are built than recommended in the plans, some regions will bear heavier burdens. If the Minister does not insist on the identification of strategic infrastructure, the legislation will give rise to widespread controversy in terms of waste management because he will have driven a coach and four through the regional waste management plans.
I acknowledge the point made by the Deputy but I would draw his attention to the plans. For example, the Dublin region, comprising Dublin City, Fingal, South Dublin and Dún Laoghaire-Rathdown County Councils, do not have site specific plans for an incinerator.
They are region specific.
Kildare, Wicklow and Donegal County Council, which have decided to form individual regions, do not have not site specific plans. In fact, Wicklow County Council is opposed to the construction of an incinerator in the county.
I am talking about region-specific plans.
The Deputy referred to the transboundary movement of waste. That decision arose from the inflexibility and illogicality of the former arrangement. Kildare County Council could export its waste to India or China but could not send it 100 metres across the border to an adjoining county. Illegally dumped waste in County Wicklow could not be transported back to the region from whence it came.
In a sense, the point made by Deputy O'Dowd is the inverse of what will actually happen. The board will have to be conscious of these arrangements when reaching a decision. My central dispute with the amendments is that they try to micro-manage decisions by the board on the basic screening process. In theory, we are happy to give the board the power to make the ultimate decision, yet we are prohibiting them from making preliminary decisions. That would stand logic on its head.
The information I received under the Freedom of Information Act with regard to the Minister's decision to change the regulations for transboundary movement of waste made no reference to counties Wicklow or Kildare. However, I did receive a copy of a letter which John Ahern of Indaver wrote to the Minister.
He wrote to the previous Minister.
He wrote to the office of the Minister, which I think was occupied at the time by Deputy Roche because the decision on the issue was made last year. I am sure the Department has the letter and, if not, I can supply a copy. Mr. Ahern claimed that, unless transboundary movement was permitted, the bank would not loan the €62 million needed to build the incinerator.
All I can do is show the Deputy——
I would be happy to listen to the Minister once I finish my point. This issue reveals that a waste incinerator in a region would not be economically viable unless it is supplied with waste from outside the region. Mr. Ahern argued that he would become a prisoner of waste suppliers within the region. Under this Bill, a regional incinerator could become a national incinerator if we do not ensure that strategic infrastructure is based on regional plans.
Mr. Ahern's discomfort did not compel me to make any decision.
That was the reason.
Mr. Ahern may have made a case but I made the decision on the matter. I did not make my decision to give comfort to Mr. Ahern or Indaver. I did not discuss anything with Indaver. I know what Deputy O'Dowd is saying, but I am just making the point.
Indaver representatives met with officials.
They met officials of my Department. However the basis on which I made my policy decision was quite specific. I examined the arrangements, and they did not make sense. It does not make sense that when the illegal dumps in west Wicklow were dug out we could have exported the waste to China but not put it into——
That was not part of the Minister's decision. There are documents in which the Minister states that.
It was the basis for my decision. I made the decision and I am telling the Deputy the issues that informed me in making it. Deputy O'Dowd can rest assured that the discomfiture of Indaver or any other large company did not persuade me.
I am concerned about the discomfiture of the public.
I do not want to be unfair to the Deputy and I do not think he is suggesting that I was influenced. We can discuss the side issues any time, and they are pleasant to talk about. The core point here is that the amendments seek to make something specific that cannot be made specific. As the national spatial strategy, NSS, the regional planning guidelines, RPGs and the national development plan, NDP, are not site-specific, the Deputy cannot achieve the objective he wishes to achieve by citing those as is proposed in the amendments. For that reason alone I cannot accept the amendments. They would not achieve the Deputy's goal but would micro-manage and fetter the board in the broad areas in which it should be allowed to make strategic decisions.
It is interesting to hear the Minister insist he had no discussions with Indaver before making a policy decision. This reiterates the point we made about the previous amendments, that it is important to separate meeting somebody and making policy decisions.
I agree with the Deputy, and that is why I did not leave that——
That is why the board should not meet people either.
I did not meet that company——
The former Minister for Environment, Heritage and local Government, Deputy Cullen, met Indaver representatives.
I am not quibbling——
Deputy Cullen met Indaver representatives before the EPA made its decision and gave a commitment to change the law.
I did not meet them.
That is what happened.
I am not being excessively sensitive, but am making it clear because Deputy O'Dowd did not as such accuse me of meeting Indaver representatives.
I accused the Minister of nothing.
The Minister is making the point we made half an hour ago, and which he argued against.
I do not want to re-enter that debate. The fundamental difference is that there will be a degree of transparency because there will be written records that will be part of the file.
A nod and a wink.
We are talking about amendments Nos. 13 to 20, inclusive, and they would not work because the level of specificity required to make them work is not part of the NSS, NDP or RPGs.
Under the Minister's proposed wording, and combining the Seventh Schedule with that, I wonder what would not be included if the board was reading that and making a decision. Take power stations, an area in which I have some knowledge; a thermal power station above 300 MW would be included under the Seventh Schedule. Almost all new power plants are over 300 MW. We built eight combined cycle power plants in the last five years, including one at North Wall and one by Tynagh Energy, and every one was approximately 400 MW. Three or four more are to be built. Under this Bill would they go through a strategic infrastructure process instead of the ordinary planning process?
Yes, if they are of the scale determined in the Schedule.
But every power plant is of that size.
The Deputy says that every power plant recently designated is of that size and that may be so. I am saying that anything determined in the Schedule would be strategic infrastructure. A power plant of that size would be of great significance. We have had a debate about the availability of electricity supply. There is a high cut-off point and the Deputy may be correct that all the power plants built in the last ten or 20 years are above 300 MW.
In the last ten years approximately.
I will take his word on that.
According to the Schedule, practically anything we will build will go through this process. There has been nothing contentious about those power plants. The ones I mentioned went in with no particular problems, although there may have been individual cases of problems. I mention this because it was at the top of the list and I know something about it. So any major infrastructure of any significant size will no longer go through the local authorities. Is that the Minister's intention? I also know about harbour developments and most of the development I know would be regarded as strategic infrastructure. Is the intention that pretty much any structure of major size would go through this new fast-track process?
No. If one examines the IPI contribution on the transport infrastructure, Part 2, paragraph 3, there is a concern about how the legislation is drafted. Deputy O'Dowd has a related amendment on that because, ironically, he wants to reduce the size elsewhere, for example in harbours. I am not sure if he still has that amendment tabled.
Sections 37A, B and C are very broad, as Deputy Gilmore said. On the Seventh Schedule areas where I have knowledge, all the infrastructure being built now would fit into the character of the development envisaged by that Schedule.
They would not. Taking the example of harbours; Fine Gael has a well-argued case that we should make harbours smaller. I am not disposed to go in that direction because I want to have some thresholds, however it was a well-argued case. The argument was that harbours should be less than ten hectares rather than 20. I am just taking one point to disprove the general thesis.
As Deputy Gilmore said regarding transport infrastructure, any development where there is "a terminal building or installation associated with a long-distance railway, [or] tramway" applies to practically every transport infrastructure we will build, so anything to do with transport will be included. Any power station we build will be included.
That is precisely the point. These are the screening processes. The Deputy is correct.
Where is the screening?
If a project does not fall within the Seventh Schedule and the arrangements at 37A it is not regarded as strategic infrastructure.
That is everything. I can see nothing that would not be included, except maybe my back-door extension.
It is not. I have just demonstrated that it is not. Deputy Eamon Ryan's extension is not strategic infrastructure so it is a bad example.
I was being facetious. I apologise.
Deputy Gilmore may speak before the suspension.
It is a case of "you can have any colour you like as long as it is white". According to the Seventh Schedule the board can make any decision it likes provided it gives the go-ahead. Apart from whether we are for or against the legislation, it is important that it is clear. Would it not be better simply to say the Seventh Schedule will be subject to the fast-track process? We can then argue about what is in the Schedule, rather than maintain the pretence that a process exists wherein An Bord Pleanála decides whether a project is defined as critical infrastructure. An Bord Pleanála has three choices to make in determining whether something can be regarded as critical infrastructure, each of which leads to a conclusion in the affirmative. Why is the Minister proposing a fig leaf for an assessment process in which An Bord Pleanála supposedly determines whether a project amounts to critical infrastructure, when the terms of the Bill manifestly deem it so?
The Deputy is wrong. A limitation is imposed by section 37(2)(a) of the principal Act, which means that not every change Dublin Airport Authority makes qualifies as strategic infrastructure. The conjunction of section 37(2)(a) and the Seventh Schedule leads to the very opposite of what the Deputy contends. It means that the Seventh Schedule is not the only determinant but that a project is also subject to the tests in section 37. A screening process will exist for that purpose.
The Seventh Schedule states that an airport with not less than 2 million instances of passenger use per annum, which includes Dublin Airport at least, or any runway, taxiway, pier, car park, terminal or other facility or installation related to it, whether as regards passenger traffic or cargo traffic, will qualify.
In addition, it would have to prove that the specific project itself is strategic.
All it must prove is that the project would contribute significantly to the fulfilment of any of the objectives of the national spatial strategy or the regional planning guidelines.
Questioning the role of the national spatial strategy is not a persuasive argument.
It is a most broad, woolly document. I read it yesterday in connection with another issue and could not believe how general it was.
It is general.
It is massively aspirational and broad.
Like the spatial strategy.
Yes.
The Deputy is quite right. That is why the arguments to relate these amendments to the national spatial strategy do not make sense, because the national spatial strategy is non-site specific. That is the very argument I put forward against the amendments.
Why, then, is it acceptable for the Minister to include such a reference in the original text?
A project must do two things. It must meet the criteria set out in the Seventh Schedule and those in section 37(2)(a), (b) and (c).
An airport runway is covered by the Seventh Schedule if the airport has in excess of 2 million passengers. One can take one's pick as to what contribution an airport runway might make to the national spatial strategy.
An airport runway would be strategic but a car park attached to the airport would not necessarily be so. If it were not for the screening arrangement a car park could be argued to be strategic.
We are playing extra time so we will suspend and return later.
Sitting suspended at 1.35 p.m. and resumed at 4.30 p.m.
If consideration of the Bill is not completed by 7 p.m., I suggest that we adjourn until 2.30 p.m. on Wednesday, 28 June. We will now resume consideration of section 3, amendment No. 13.
I am in a position to stay somewhat longer if that is helpful.
Deputy Cuffe must leave but somebody else may be in a position to substitute.
I am happy remain until 8 p.m.
An 8 p.m. finishing time would be fine. We would get through a fair amount of extra discussion.
If we remain until 8 p.m. we could get through another half page of amendments or, with some luck, perhaps a full page. The decision of committee is to adjourn at 8 p.m. Is that agreed? Agreed.
We had been considering section 3, amendment No. 13.
I may need a moment to catch up as I was absent for a period before lunch.
It may be helpful if I commented because Deputy Cuffe must catch up with significant amount.
I am happy with that arrangement.
Deputy Cuffe had to be absent at the time because he had other duties. We were speaking on section 37A(1), 37A(2) and 37A(3) of the Act. We were discussing the juxtaposition of those elements. Deputy Eamon Ryan stated that he could not see the point in including the section in addition to the Seventh Schedule.
The first point is that we have set the bar high in the Seventh Schedule. The thresholds therein reflect the belief that infrastructural development should be strategic in nature rather than giving the opportunity for something which is not strategic. Many developments are so large that they are likely to be classed as strategic infrastructure by the board. We are talking about projects that are large in scale.
To ensure that potential energy, environmental or transport infrastructure could be of strategic importance can fall within the new consent procedure, we were obliged to cast some of the categories in quite broad terms. That point was being made by Deputy Gilmore, in particular, when he referred to rail infrastructure.
We should consider the relevant section on railways and airports. As Deputy Gilmore commented, the bar is very high, set at 2 million instances of passenger use per annum, with regard to airports. For example, an entrepreneur buying a private airport with the intention of doing something untoward will not be able to come in under the scheme. On one hand, we are conscious that we must set the bar high, while, on the other, we are also conscious of what happens if too many projects fall within the ambit of the board and the value of the consent process is lost.
The IPI made the point that a proposed car park at an airport with more than 2 million instances of passenger use per year, which would enable the operating capacity of the airport to be significantly expanded, may be determined by the board to constitute strategic infrastructure, having regard to an objective criterion set out in section 37A(2). Conversely, parking spaces at Dublin Airport, for example, created for the members of the board of the airport authority would clearly not fall within any of those three categories. There is an attempt to specify and establish a high enough bar, but also to include criteria which would allow a non-strategic issue to be weeded out.
We will give the board a list of qualitative issues that should be taken into account during the screening process to enable it to make a determination and ensure the process is not abused. This will ensure that schemes which were never envisaged could not be included. As much latitude as possible would be given to the carrying out of such screening.
Members followed the debate in the Seanad. During it, I tried to be as open as possible. I informed Deputy Eamon Ryan earlier that I think we should leave this as it stands. Strategic infrastructure has a strategic impact on broader policy and people's lives. I remind Deputies that, crucially, our discussions here relate only to the screening determination of the board. We want to allow the board latitude, but we do not want to create a scenario that is too broad. If a proposed development is deemed to constitute strategic infrastructure in both quantitative and qualitative terms, the principal decision of the board will allow it to be taken and vice versa.
It grants a degree of flexibility to the board. The screening process will allow the board to make decisions so that some set of circumstances that we cannot foresee do not arise. If such circumstances did arise, the board would have latitude, make a determination and say no.
One person's flexibility is another's disempowerment. There is a theme running through the Bill of disempowering ordinary communities. Significant latitude is given to the board throughout the Bill. I am concerned that almost any project with a value of over €10 million, for example, will be classed as an item of strategic infrastructure. The time-honoured process of local involvement in planning will be bypassed. People see the pace of change in this country and feel disempowered. They feel they are unable to participate in the planning process, often due to financial issues. One might argue that it only costs €20 to comment on a planning application, but we all know of projects that have been split where three or four planning applications are made, for example, the development mentioned at this morning's meeting. It will cost an individual over €1,000 to make an appeal in such cases and the process envisaged in the Bill will be well beyond the reach of the ordinary person. We, therefore, have proposed amendments that will put the onus on the board to be clear about how the project will contribute to the development of strategic infrastructure. We must be scientific and precise on this issue, otherwise we will give too wide a latitude that will, inevitably, lead to bad projects being fast tracked. This is what concerns me and, I believe, it is a concern the Irish Planning Institute, IPI, has put to the Minister. For this reason I propose this amendment that, instead of suggesting a project be of strategic importance, a project should contribute. This gives a more objective thrust to this part of the Bill.
Before the break I raised the question of whether this consent procedure should exist at all. If a piece of legislation is to allow for the fast tracking of certain infrastructural projects, why not list the types of projects to be fast tracked? We should provide the procedure for them, rather than engage in this phoney exercise whereby projects are sent to An Bord Pleanála for a decision on whether they are inside or outside the procedure, when we all know what the answer will be.
It might be helpful if I interjected briefly at this point. I was addressing this issue when the Deputy came back in so he did not hear the point I was making. I took the example raised by the IPI which referred to a proposed car park at an airport dealing with over 2 million passengers per year. The Deputy made a reference to this also. This could be deemed to enable the operations of the airport to be expanded significantly, particularly if it was a large, integral part of the airport's infrastructure. This would be determined by the board to constitute strategic infrastructure within the meaning of section 37A(2).
In order to see where the IPI is simply wrong one should consider the two elements in the screening process. If the car park was being built in Dublin Airport, which fulfils all the criteria, but was only for the convenience of members of the Dublin Airport Authority, then An Bord Pleanála would not be compelled to deem it part of the critical infrastructural supports of the airport. An Bord Pleanála would point out that it does not meet the requirements of the three categories we discussed previously and should go through the ordinary planning consent process. This is an example of how the two elements can be juxtaposed to screen applications.
We dealt with another matter in the Deputy's absence.
I was not absent for very long.
I was not implying anything.
The Minister has put it on the record twice.
The Deputy's attendance record is very good. I meant to say "while the Deputy was away attending to other duties".
That makes it three times.
Deputy Kelleher should not inject partisan considerations, we are doing fine. I was making the point that this is an occasion on which the screening process would work. Deputy Gilmore made a point relating to transport, particularly rail, and it is very broad.
Can we stick with the airport car park for a moment? The Minister is suggesting a car park in Dublin Airport would not qualify if it serves only the staff of the airport but would qualify if it served the passengers.
It depends on whether it is an integral part of the airport's infrastructure. It is not decided on the basis of whether it is for staff or passengers. The arrangements in the Bill would give the strategic infrastructure board the right to refuse to view such an application as relating to a piece of strategic infrastructure. I merely used the illustration of the car park because the Deputy mentioned it and it was referred to by the IPI.
What about a long-term car park built some distance from the airport, for example in the St. Margaret's area? Would it qualify?
That is exactly the point. That would be a matter for the board to determine. The Deputy is demonstrating precisely the value of giving such powers to the board.
Let us follow this for a moment. This legislation relates to critical infrastructure and we may not agree on what should fall under such a category, but some projects are obvious like a new port, an airport runway, a terminal building and so on. The Minister is suggesting that speculative investment, for example in a private car park at Dublin Airport, could now qualify as critical infrastructure and be fast tracked due to this legislation.
That would depend on certain factors. The screening process will grant the right to An Bord Pleanála to judge whether an application relates to a bona fide piece of strategic infrastructure. The screening process is important to give the board the discretion to rule out or rule in applications.
This relates to the proposed amendments and the question of what will be allowed under this part of the Bill. There is an argument, which I understand but do not accept, that the country must have airports, ports and so on and that such projects should be referred straight to An Bord Pleanála under a separate planning process. The problem with this Bill that these amendments seek to address is that, once a case is established for a project being fast tracked the net will be thrown wider. A car park company might seek to build a multistorey, long-term car park and this can be regarded as critical infrastructure.
The Deputy is demonstrating precisely why the board should have discretion to say where the line is drawn. Part of the plan to build a new terminal at Dublin Airport was to build car park facilities that were contiguous. The Deputy probably agrees that this is part and parcel of strategic infrastructure. If we were to do as the Deputy suggests the screening process could be obliterated. It could have the perverse effect of allowing every Johnny come lately to build infrastructure.
That is not going to happen. Under this Bill the investor need only show that his car park would contribute significantly to the fulfilment of any of the objectives in the national spatial strategy. He could argue that his car park would take traffic off the M50, etc. As long as he can show that it satisfies any objective in the national spatial strategy or regional planning guidelines, he is in.
The discretion for the board to reject his entreaties arises in this Bill. The board will make the screening decision. That is what I have been saying for the last hour.
The board can only make it in accordance with the Act, however. It must comply with the terms of the Act. There are three tests here and as long as he satisfies one of them he is in. We understand the "strategic economic or social importance" test, so we can leave that. Another test states that it will "contribute significantly to the fulfilment of any of the objectives of the NSS, regional planning guidelines...", or that "the development will have a significant effect on the area of more than one planning authority".
It would be extremely difficult for a spec developer to argue those particular cases successfully to the statutory planning appeals board, which has the discretion to shoot him down.
I think the car park will go ahead and will be fast-tracked.
I do not, so we will just have to agree to differ. That is why I specifically made the point a dozen times so far that it is important to allow discretion with the board. This is what the screening process is about. It is there specifically to give the board latitude to say "No" to people — not to create a situation where everything comes in automatically.
I am glad Deputy Gilmore's questioning has opened up this discussion because it is central to the concerns many of us have. For example, is the car park strategically necessary to facilitate the operation of the airport? Clearly, it is not because one could argue that there is car parking there. Would a park-and-ride facility be accommodated by the board? Clearly, we need a number of park-and-ride facilities around the city that would reduce traffic congestion within it — and not just Dublin but all the major towns and cities. Is that something that is likely to be approved by the board?
The point I am making is that we have allowed latitude to the board to make a decision on an individual case basis. At this remove, one could not draft legislation that would itemise every conceivable option that may or may not arise. In Schedule 7 we have set a high bar. Deputy Gilmore demonstrates a point that in some cases, because whole new areas are being brought into the planning process, such as the rail infrastructure, it is also drawn fairly widely. Section 37(1)(a) and the subsequent articles are precisely designed to give the board — that will be empowered by law to make the strategic decisions — power to make screening decisions also. It is simply to give them the power to say “No”.
The problem some of us have with that is that it is so open-ended it is endless. In fact, one could be bringing in projects that really should be going through the normal process, but they could get under the bar here into this fast-track system, as it is called, by default.
No. With respect, Deputy, there is not a default position here because the board is being empowered to screen. I want to go back to what Deputy Cuffe was saying, and a point that was made previously by Deputy O'Dowd. We want to ensure that people who have some sort of speculative development — for example, somebody who is developing a very large, new neighbourhood project which would cost €300 million or €400 million — do not have the right to come in automatically under the radar and get some sort of fast-track process. That is precisely what we are protecting against by giving the screening right to the board.
Would a significant commercial entity — for example, IKEA — come in with an even bigger idea than they had in Ballymun?
No. It is an excellent example because it would not work. Deputy O'Dowd pursued this interesting issue. He raised the question of whether that could come in as part of the regeneration of a city where one is building office blocks specifically for public service decentralisation, but "No" is the answer.
Could I make a point?
Before calling Deputy O'Dowd, I should say that we had a long discussion on this amendment before we suspended the meeting. While I would love to give everyone as much latitude as possible, I would like us to come to some conclusion within a reasonable time. We have been discussing it for half an hour after resuming.
I acknowledge the Chairman's viewpoint but our job as legislators is to go through legislation with a fine tooth comb. If we do not do so we are not doing our job.
On both sides.
The worst thing would be to rush legislation through rather than taking our time at it. I acknowledge what the Chairman has said, however, so in the spirit of being constructive I suggest we might close the gap a bit. Paragraph (b) states that the development would contribute significantly to the fulfilment of any of the NSP objectives. Perhaps we could change the word “significantly” to “substantially”. I have not tabled such an amendment, but it strikes me that something that is substantially adding to something is stronger than being significant. It means that, on balance, it would have to be a very big thing to do.
That is a fair point. As the Deputies know, I am anxious to improve this Bill in any way I can.
The Minister should have a look at it.
I am prepared to have a look at the word "substantial" and I see the point the Deputy is making. I will check that with the draftsman. What are the modalities? I do not want to give the Deputy an undertaking that I cannot fulfil.
I will be happy if the Minister comes back to me on it.
On Report Stage?
I am happy with that. If we can improve it we should do so.
We should ask the clerk because that could arise from one of the amendments that is being moved. Does the Deputy wish to have the right to raise it on Report Stage?
I have no problem with that.
I will do it on Report Stage if the Deputy cannot. I will check it with the parliamentary draftsman and will come back to the Deputy.
It may be raised on Report Stage.
If the Deputy cannot do it for whatever reason, I will, if the draftsman says the word is appropriate. I will make a genuine effort on it.
Is amendment No. 13 being pressed?
I am pressing the amendment, Chairman, although I do not wish to speak again on it. We have covered it all but the debate has not changed my mind. I still believe that we need to be quite objective in this process and "contribute" is a better phrasing.
Lest anybody would take the wrong view, I greatly respect the right of members to have a fair discussion. That is the way I, along with the Minister, want it to be.
Amendment put and declared lost.
Amendment No. 14 has already been discussed with amendment No. 13.
Not as I understood it, Chairman.
I move amendment No. 14:
In page 6, lines 24 and 25, to delete "importance to the State or the region" and substitute the following:
"or specific strategic economic, social or environmental objective of the National Development Plan or National Spatial Strategy, Regional Planning Guidelines in force and applicable to the region, areas or area in which the development would be situate, for projects listed in the Seventh Schedule or those so determined by the Board as falling into those certain categories of projects having regard to Schedule Seven".
I wish to speak briefly to the amendment. Some contributors did bring this amendment in to the discussion earlier. In the last few days, we have had an example of the sad loss of a former Taoiseach. In some respects, however, his time as Taoiseach was best summed up by the French phrase "l’État c’est moi” — in other words that the State’s interest was close to his own.
That is not necessary, Deputy.
There is a need to be more objective and specific regarding the interests of the State. For example, it could be a wind turbine on an off-shore island. I use that example with good reason.
There is a specific number of wind turbines. That is a rather pathetic effort in the week that is in it. To clarify, there are 50 wind turbines. Deputy O'Dowd and I will discuss whether the number is too high or whether it should be lower. To suggest that is——
I respect the Minister's right to disagree with me. It is very broad-based phraseology and I am concerned about that. I suggest that we bring a specific strategic, economic, social or, indeed, environmental objective to the national development plan, the national spatial strategy or regional planning guidelines. The reason for doing so is that there is a series of plans at national, regional and local levels and we have a certain number of guidelines in that area. If we are to fast-track a major project, we should be able to measure it against the various plans or criteria available and decide whether it should be fast-tracked rather than simply assuming that the State's interest will best be served by its being fast-tracked. I do not believe we have a strong definition of the State's interest and this amendment would bring a little more objectivity to the discussion.
I disagree and I have already been through the points. There is a reference to the national spatial strategy. Incidentally, the concept of the State is not determined by an individual, whether a private citizen or otherwise.
I suspect that it has been in the past and may well be again.
The Deputy can suspect what he wants.
Amendment put and declared lost.
Amendments Nos. 15 to 17, inclusive, not moved.
I move amendment No. 18:
In page 6, lines 34 and 35, to delete "significant" and substitute "demonstrable".
This amendment has not been discussed in great detail. We are coming back to the same type of words — "significant", "substantive" and "strategic" — and discussion we had earlier. The word "demonstrable" gives this a scientific basis. There needs to be a clear appraisal of, and discussion on, whether a project involves significant and strategic infrastructure.
I will not be accepting the amendment. It would be better to use the word "substantial" than remove "significant" and replace it with "demonstrable". The word "demonstrable" depends very much on the state of one's mind. One can easily be persuaded something is right. The word "substantial" is more quantifiable. Deputy O'Dowd's argument is much more objective and scientific and that is why——
It is a substantial argument.
It is a substantial argument, and demonstrably so.
Amendment put and declared lost.
Amendments Nos. 19 to 23, inclusive, not moved.
Amendment No. 25 is an alternative to amendment No. 24 and amendments Nos. 34, 50, 54, 86, 143, 171, 254 and 285 are related to it. Amendments Nos. 87 and 88 are alternatives to amendment No. 86. Amendments Nos. 24, 25, 34, 50, 54, 86 to 88, inclusive, 143, 171, 254 and 285 may be discussed together.
I move amendment No. 24:
In page 6, to delete lines 44 to 46 and substitute the following:
"(2) Where, following determination by the Board under section 37(A) the Board shall issue a notice to the applicant and planning authority in which it is situate and other planning authorities so affected, and at the same time publish the notice in local and national newspapers, stating that in the opinion of the Board—".
The board should be required to independently adjudicate on the applicability of the legislation and then proceed directly to the planning evaluation phase or return an application to a developer so that it can be made to the relevant planning authority. This procedure, in tandem with the other amendments, would speed up the process by removing one of the stages in the filtering of applications by the board.
On the issue of notice, the wording is deficient. There is a requirement that the planning authority would be notified. My concern is to ensure that the public is notified and provision is made in the Bill to ensure that this will happen. The issue of notice, which I also regard as important, is better dealt with by way of regulation than in the legislation and we propose to deal with it in that way. In the Seanad, a Member asked about using the web as a way to notify the public, which is a good idea. That will be written in to the regulations. I draw the attention of the committee to the specific reference to "applications in electronic form" in section 37I(2)(a).
Where is that?
Section 37I(2)(a) states that:
Without prejudice to the generality of subsection (1), regulations under this section may—
(a) make provision for matters of procedure in relation to the making of an application ... including the giving of public notice and the making of applications in electronic form.
The good point made in the Seanad was that we would use the Internet extensively to broadcast the information over a much wider area than one would normally reach by written notification, for example, to the local authority. A written notification to the local authority might be received and lie on somebody's desk, but this is a way of reaching a wider audience. My desire is to reach an audience much wider than that outlined in Deputy Cuffe's proposed amendment.
I take the Minister's point about the regulations. My difficulty is that I, as an Opposition Deputy, do not get the opportunity to propose regulations and that we do not view them in committee before they are enacted. For that reason, I propose this amendment.
That is a fair point. In my lecture notes over the years, one would see pithy comments about regulations. My view is that we should use the electronic media available to do precisely what Deputy Cuffe suggests. Most local authorities have websites and I am asking that they all have them contain major planning issues. Some of the websites are superb.
Some are brilliant.
Some are less so.
I thank the Minister for drawing my attention to the fact that the regulations can provide for the making of the application electronically.
The amendments in my name, amendments Nos. 54, 171, 254 and 285, address a slightly different issue. I propose in those amendments that the environmental impact assessment being submitted by the applicant should be made available electronically free of charge. My proposal is that such onus would fall on the applicant. The Bill, in section 37E(3), proposes that before a person applies for permission to the board under this section, he or she shall publish the usual newspaper notice in which he or she is required to state that an environmental impact statement has been prepared on the proposed development. My amendments propose that, in addition to notifying the public that the EIS has been prepared, the promoter of the project would also identify in the notice the website at which that EIS can be consulted by the public.
That is a good idea. I am particularly seized with the importance of using the Internet for notifications and that is already provided for in the 2000 Act. As Deputy O'Dowd stated, one of the striking occurrences in recent times is that many local authorities are opening superb websites. The South Dublin County Council one, for example, is a masterpiece of its kind because one can get a vast amount of information on it. This Bill, in addition, will amend section 146 of the principal Act to ensure that where the board is required to supply information, it may do so by electronic means provided it notifies the relevant parties that the information will be made available electronically, which is a fair point. Given that such information is on a website, it would be, as Deputy Gilmore desires, free of charge. The Deputy's concern, which also was mentioned in the Seanad, is that sometimes it is prohibitively costly to get one's hands on such information. That is an issue which I intend dealing with in regulation.
The Internet can be used, particularly now that there are so many really good websites and the planning board undoubtedly has a good website, and electronic posting of all of this information is the appropriate way to proceed because people have free access to it. While not everybody has Internet access, increasing numbers of people do and it is a good way of getting into it. I even have views about the format used for putting information up on the website to make it easier to cut and paste so that people making objections need not re-type information from PDF form, but that is a technical issue.
The Minister is responding positively. I ask him to look at this. It needs to be contained in the Bill rather than in regulations. I accept what the Minister stated, that all organisations such as local authorities and An Bord Pleanála use their websites to provide much information and to facilitate people's applications and submissions electronically. My amendments seek to put the obligation on the applicant to make the information available. I acknowledge that an application for an airport to be built under this legislation may be accessible on An Bord Pleanála's website but the obligation should be on the——
In the Bill the obligation to make information available is on the applicant or promoter. The natural consequence of that would be that any requirement for notification electronically would also fall on him or her. I made the point that electronic notification is far better than written notification because the latter goes to a necessarily narrow audience whereas the former is broader. The regulations which require electronic notification will apply to the promoter of the development.
I understand Deputy Gilmore's point, that it is better to put this in legislation. The great benefit of putting it in regulation is that it provides the opportunity to be much more specific as to the nature of the content and the extent of the material that can be made available. That is my proposition.
The bottom line is, will the EIS be available to the public free of charge on a website?
That is our intention because that is a significant element of the documentation. Deputy Gilmore's point is correct. It can be an onerous task for people to get hold of an EIS. One cannot read an EIS over the counter in the local authority offices but if it were accessible on the Internet, one could read it in the library or at home. I accept that not everybody has Internet access at home. My intention is that it would form part of the regulation.
If the obligation is on the promoter or developer to provide the information electronically, on what website does he or she put it? The Minister is then obliging a promoter to have a website. Where would promoters post the information?
That is precisely why it would be better in the regulation to look at using the board's website, but it is also important that the promoters would have some responsibility. Deputy Kelleher's question is a good one because the promoter could quite easily put it on an obscure website and that is why I would much prefer to specify in regulation. This relates to Deputy Gilmore's point, that the promoter must specify in his or her newspaper notice the website on which the data are available electronically.
That is what my amendment states.
That is what I would intend doing by regulation. The benefit of regulation is that one can be much more specific on the exact extent of the information concerned. As long as I am in office, my intention is that the maximum amount of information will be available electronically on a notified site accessible to people.
I agree with the principle but the problem is that if the onus is on the applicant to do this, he or she may frustrate the intention to easily navigate the website. The information should be published on the An Bord Pleanála website.
The documentation will also be published on that website. The onus, for example, for the production of electronic material should be on the promoter. I would not like to generate additional costs for the board. The Deputy is correct that a regulation will not only do what Deputy Gilmore asks, which is to specify the website, but reference will also be made to An Bord Pleanála's website.
That is essential. For example, reports on the EPA website are quite voluminous.
Appeals information is currently published on the An Bord Pleanála website. It is good practice and it has been continued in the regulation. The information involved under this legislation will be more extensive and, therefore, I will use the board's website.
While I support the view that the applicant should have his own website, anybody who wishes should be facilitated to query the application.
It would be more appropriate that an application should be published on the board's website rather than a fancy, public relations website. Deputy Kelleher made a good point about obscurity while Deputy O'Dowd has raised an issue regarding the creation of a benign or optimistic website that gives an excessively positive view of an application. A dispassionate, value-free website would be appropriate.
On a related issue, an EU state which proposes to develop a project within its boundary that could impact on a neighbouring state is required to notify that state and to carry out an environmental impact assessment. Is there a need to provide for a similar measure in the legislation? I hope that if a development is undertaken in counties Louth or Monaghan——
We will have a boundary consultation later. I am not sure we have the jurisdiction to ask another state's representatives to attend a meeting of the strategic infrastructure board to discuss completely inappropriate and entirely unwelcome development elsewhere.
That is temporary. We will change that soon if the Minister works with us.
I was thinking of a neighbouring country as opposed to a severed part of the island.
Is the Minister of the view, therefore, that the legislation does not need to be amended to make such provision?
Transboundary notification is dealt with elsewhere. I thought the Deputy had nuclear power stations or something similar in another jurisdiction in mind.
I agree with my colleagues regarding a strong presence in cyberspace of the details of the application and the board's website is the most suitable outlet for that. However, we must not lose sight of the many members of the public who are happier reading a hard copy of the information. One of the greatest contributions to democracy in the planning process during the past ten or 15 years has been the provision of site notices. It gives people a clear view of something that is about to happen on a particular site. In recent years, the advent of the yellow site notice for repeat applications has also been useful because it informs people that something new is happening, subsequent to an initial application. I propose in amendment No. 34 that red site notices should be erected to indicate that a project is being dealt with under the legislation.
The Deputy is correct about the colour differentiation, which is determined by regulation. I am not sure that the public knows why. However, it is intended to provide for such regulation under the Bill. I do not like to continually reject amendments but I am rejecting the proposal to delete the requirement that an applicant must publish newspaper notices because all notification options should be utilised. It would be appropriate to use a different colour for notices relating to projects covered by the legislation. Site and newspaper notices will be provided for, as well as the information to be made available on the Internet. Such issues will be determined by regulation.
Will the Minister give a commitment that this will apply to all projects going through the strategic infrastructure process? At present, projects such as the erection of power lines can be controversial among local communities but the regulations do not provide for the placement of site notices on the adjacent roads.
There is an issue with power lines in respect of where——
Notices should be placed adjacent to public roads.
It is an interesting issue and I will examine the specification in the regulation. I have no sympathy for the old way in which power line projects proceeded. Famously, I was to be sued by the former chief executive of the ESB, who has since gone to his maker, for €8 million because I had the temerity, as a public representative, to oppose a power line site in Dún Laoghaire, which was subsequently relocated. However, it was moved on foot of the actions of somebody with more purchasing power than myself. I will examine the issue of the colour of the notice in the regulations. The Deputy is correct that a differentiation should be made and that will be done.
I hope the Minister will also examine the proposal that site notices should be required for all projects.
That is the case.
Site notices are not necessary for power line projects.
I will examine that matter. Due to the nature of power lines, it might well be that attention must be drawn to such projects in a specific way. Maps and so on must be published on the website. I agree with the Deputy that everybody does not use the Internet, although access is provided in most public libraries. The intention is to ensure that people receive appropriate notice. There is no point in doing otherwise. When one tries to limit the notification, an air of suspicion is created and that is not a good way to progress in planning.
It is fine to use the Internet for such notices. People can go to a library but they must be aware of this facility in the first instance.
That is why I rejected the proposal that an applicant should no longer be obliged to publish a newspaper notice. Such notification will continue specifically for that purpose. I accept that everybody does not have access to the Internet and that is why Deputy Cuffe said site notices are also necessary. There is a practical difficulty with power lines but I will give some thought to that to ensure that a comprehensive notice arrangement is put in place and that provision is made in respect of colour coding of notices. If new colours were used, it would be obvious to people that something different was happening on the site. That would be positive and I will deal with that in the regulation rather than in the legislation because that would be more appropriate.
Amendment put and declared lost.
I move amendment No. 25:
In page 6, to delete lines 44 to 46.
I have given the Deputy an undertaking that we will look at the issue further.
I have a procedural query. Are we dealing with all of section 3 now? We have dealt with some of the issues raised in amendments on page 7, but I want to return to some of the amendments on page 6. When we have gone through the amendments, will we go back to the section?
Yes.
We are going through section 3 amendment by amendment.
Will we deal with it paragraph by paragraph then?
On Report Stage.
When we have dealt with the amendments, the Chairman will ask if section 3 stands part of the Bill.
I want to raise a question on the two adjoining local authorities.
When we come to the question on the section, the Deputy can raise that.
That is what I wanted to know. I wanted to be sure I could raise it.
I will allow the Deputy raise it, but he may not be happy with my response.
Amendment, by leave, withdrawn.
Amendment No. 27 is an alternative to amendment No. 26. Amendments Nos. 72 and 182 are related. Amendments Nos. 26, 27, 72 and 182 will be taken together by agreement.
I move amendment No. 26:
In page 7, to delete lines 1 to 16 and substitute the following:
"(a) the proposed development, if carried out, would fall within the categories of development, listed in Schedule Seven and thus be subject to the provisions of the Planning and Development (Strategic Infrastructure) Act 2006 and thereby the application will be determined by An Bord Pleanála, or,
(b) the proposed development would, if carried out, fall within the categories of development, listed in Schedule Seven, not be subject to the provisions of the Planning and Development (Strategic Infrastructure) Act 2006 and thereby the application will be determined by the planning authority [name of Authority] in which the development is to be situate,”.
I am concerned by the discussion between the board and the applicant because it takes away significantly from the quasi-judicial nature of the board. It would be rather like a defendant entering the chambers of a judge to have a chat about the case before the beginning of the case. The board has had a strong and independent position since its foundation 30 years ago, and this is particularly true for recent years. I am concerned that this will take away from the reputation of the board and make it more difficult for either the Minister or the board to put hand on heart and say the board is completely separate from the applicant.
We discussed this in substance already when discussing a group of similar amendments. We spent over an hour on the issue and I do not intend to repeat the points made. The matter was dealt with when Deputy Cuffe was in the House on business. His colleague, Deputy Eamon Ryan, and I had a long debate on the issue. I cannot accept the amendment for the reasons already stated.
Perhaps I did not listen properly, but I am not sure we discussed the issue Deputy Cuffe has raised. I understand Deputy Cuffe is saying the board is given a proactive quasi-judicial role in that it looks at an application and may decide whether it comes into its court. Then when the matter comes to it, the board reacts to it before making its decision by suggesting it will grant the decision if the applicant takes a certain action. This is different from organising applications. Is that Deputy Cuffe's point?
Maybe I am wrong, but I thought Deputy O'Dowd was here for that part of the discussion.
Maybe I was.
Perhaps I had a soporific effect on the Deputy. The matter was discussed and Deputy McCormack made a contribution on the matter. We had a lengthy discussion on the board's operation and how it tells people documentation is not complete and advises them to go away and complete it. The meeting is not a consultation process that commits the board to any decision, but simply a requirement. Deputy Cuffe was not here at the time, but I made the point that he has made the point more than once that much of the documentation coming forward in planning is deficient and many planning applications fall as a result. He also made the point that many applications put an onerous responsibility on third parties who must seek information because it was not properly supplied in the first place. We had a comprehensive discussion on the matter, but perhaps it was when Deputy O'Dowd was out of the room. Therefore, for the reasons I stated earlier, I am not disposed to accept amendment No. 26.
Amendment put and declared lost.
I move amendment No. 27:
In page 7, line 13, after "development" to insert "or the environment".
Amendment No. 27 and the cognate amendments Nos. 72 and 182 are introduced to extend the powers of the board to give advice on what considerations on the environmental effects of a proposed development the board will take into account in addition to those relating to proper planning and development. This touches on something that was part of our earlier discussion. Deputy Eamon Ryan made the point that there may be wide-ranging environmental effects that are not envisaged currently. We spoke, for example, about floods and their long-term impact.
This advice will be given during the initial pre-application discussions with applicants for consents for strategic infrastructure, electrical transmission lines or gas pipelines. In essence therefore, the board will have the power to advise on environmental aspects generally or to set a requirement or marker on environmental aspects as well as to respond to specific requests for a technical scoping document. This is important because the board must have the right to expand the area into overall environmental impact.
The cognate amendments are proposed to the equivalent pre-application discussions on gas or electricity proposals. In addition, the words "or the environment" are being added to the issues that will be addressed in the local authority report on recommendations to the board so that they can address environmental issues as well as proper planning and sustainable development. Legislation in this area focuses primarily on proper planning and sustainable development. By including the phrase "or the environment", we are bringing in the opportunity to set down environmental markers in terms of environmental effects flowing from any proposed development. This is generally welcome.
Amendment agreed to.
Amendment No. 28 not moved.
Amendments Nos. 29 to 33, inclusive, are related and may be discussed together.
I move amendment No. 29:
In page 7, to delete lines 17 to 44 and substitute the following:
"(4) The Board shall, within two weeks of receipt of applications for determination under section 37(A), make its determination and issue a notice under section 37(B)(1)(a) or (b) to both the applicant and planning authority in which the development is to be situate.”.
This amendment relates to the different requirements for local authorities. It would allow the board to make a determination prior to the ending of the period in which a submission could be made. In other words, a local authority could still be making a submission and yet the board could have issued a determination.
Amendment No. 30 in my name is identical to Deputy O'Dowd's amendment No. 31.
The Minister copied my amendment.
I copied the Deputy in advance. We can both claim credit for it. The Government amendment addresses the point Deputy Cuffe made.
I agree. It is a curious part of the Bill.
These amendments cover down as far as line 44 and would take in section 37B(6), which provides that the board, having made its decision that a project is covered by this legislation, sends a copy of its decision to the local authority. The IPI raised a point which the Minister should consider. If the decision is based on section 37A(2)(c), in other words that the development would have a significant effect on the area of more than one planning authority, the notice should be served on each of the planning authorities.
I believe it is my amendment.
I apologise for cutting across the Deputy.
The Deputy may proceed. We are in coalition.
Amendment, by leave, withdrawn.
I move amendment No. 30:
In page 7, line 37, to delete "subsection (4)(b)” and substitute “subsection (4)(a) or (b), as the case may be,”.
This amendment has the effect that Deputy Cuffe was attempting to achieve. It also coincides with Deputy O'Dowd's amendment.
Great minds think alike.
The IPI made the proposal before the Deputy.
The Minister criticises the IPI.
I was not criticising it. I made the point that its idiosyncratic views do not accord with my idiosyncratic views. Its views are more frequently idiosyncratic than mine. During discussions in the Seanad, it struck me that this was the case.
On Deputy Gilmore's point about the local authorities, the Interpretation Act would make it clear that local authorities would be encompassed by this.
Amendment agreed to.
Amendment No. 31 not moved.
I move amendment No. 32:
In page 7, line 38, after "authority" to insert the following:
", and in the case of paragraph (c) of section 37A(2), on all planning authorities the areas of which would be significantly affected by the proposed development”.
If the reference to adjoining authorities is mentioned, all local authorities should be notified.
I have already made the response to Deputy Gilmore regarding amendment No. 32. The proposed amendment is not necessary because my advice is that the Interpretation Act would require this to be done. When referring to a local authority——
The problem relates to section 37A(2)(c).
Deputy Gilmore made the point.
In circumstances where more than one local authority is involved, all local authorities should be notified.
That is the effect.
This means that the word "authority" can have a plural meaning.
The word "authority" encompasses all the authorities identified in section 37A(2)(c). Deputy Gilmore’s point was well spotted. However, that is the interpretation.
Amendment, by leave, withdrawn.
Amendments Nos. 33 and 34 not moved.
I move amendment no. 35:
In page 7, to delete lines 45 to 52 and in page 8, to delete lines 1 to 10 and substitute the following:
"(6) The Board shall prepare a report and keep it on public record, of its considerations and deliberations that determined the outcome of its decision under section 37(A).".
This amendment proposes the removal of the private consultation provisions and their replacement with the board preparing a public report on its deliberations. I am seeking more transparency and openness in the procedures.
I would like the Minister to clarify section 37C(2), which states:
The holding of consultations under section 37B shall not prejudice the performance by the Board of any other of its functions under this Act or regulations under this Act and cannot be relied upon in the formal planning process or in legal proceedings.
While this refers to the holding of consultations, can the content of consultations be relied upon in legal proceedings? If interested parties approach an official of the board who gives them information on the record, can they rely on the content of the consultations? I know they cannot rely on the holding of consultations. Could they not rely on the information they were given?
That wording is used in existing legislation. The term "the holding of" would encompass all aspects of those consultations, regardless of whatever was said in them. This provision is included to avoid the point about which the Deputy expressed concern earlier. Effectively, the ultimate decision would be prejudiced. This provision is borrowed from existing legislation and it is effectively a disclaimer provision the intent of which is that the mere holding of consultations would not prejudice the ultimate right to decide to refuse, amend or otherwise. It is mentioned in terms of both the formal planning process and the legal process. It is interesting because it has never actually been contested.
We will see what happens if it is contested. It is our job to raise the question and the Minister has given the answer. Having done so, he will now be obliged to carry the can.
I was going to say something about judges and piles but I will not to so.
Amendment put and declared lost.
I move amendment No. 36:
In page 7, line 49, after "development" to insert the following:
", and this information shall be provided, in writing, not less than 3 weeks prior to the date of any such consultation, in such manner as may be prescribed in regulations".
This amendment has already been discussed.
It has not been discussed.
We have considered more than 10% of the amendments.
The point I wanted to make was that——
The amendment was discussed with amendment No. 6.
I would like to make the point that if an officer of the strategic planning board asks for further information, the applicant will be required to submit that information to the board within a certain period. I suggest that the relevant timeframe be set at three weeks. Such a period of reflection would be sufficient to allow the board to understand the extra information. It would mean that the time limit would not run to the end. I do not know if the Minister understands what I mean.
I know what the Deputy is getting at. Amendment No. 36 requires information to be provided within a certain timeframe in advance of the pre-application discussion. That is the intention of amendment No. 36. I agree it is vital that the board be given sufficient time to consider any information provided on a proposed development for the purposes of informing possible consultations. It is in the interests of the prospective applicant to ensure that all the information is provided. The effect of Deputy O'Dowd's proposal to apply a timeframe would be to put a straightjacket on these provisions. That would be inappropriate, given the range of classes of infrastructure that will be subject to the new processes. The board can regulate itself in this regard. I suspect that it will issue guidelines for prospective applicants on this and any other necessary matters. Given the range of matters with which we are dealing, it would be unwise to put in place a "one size fits all" timeframe. Some material might require more time and some material might require less time.
Some material will require serious reflection after it has been received.
Yes. If the board is seeking substantial material, it will be important to provide for some latitude on the issue of time. The point made by the Deputy demonstrates that his proposal could have a counterproductive effect. The board will be in a position to regulate this matter. If it feels that somebody is acting the clown, for whatever reason, by not providing information, the board will be able to issue a decision on the matter. It would be preferable for the Deputy to withdraw the amendment, given that the board has the right to regulate this issue.
The Minister is saying that one will not make the best possible application, in effect, if one does not give the board what it deems to be adequate notice.
One would damage one's application in such circumstances.
The view has been expressed that——
I presume that a huge proportion of the applications will be quite substantial and will involve a great deal of public information, or information that is in the public sector. It would be imprudent, to put it mildly, for a person who is proposing a major infrastructural project to act in a lethargic or tardy manner in producing such information. It would attract a great deal of negative comment. The board would be responsible for determining the correct approach in such circumstances.
Amendment, by leave, withdrawn.
I move amendment No. 37:
In page 8, to delete lines 4 to 10 and substitute the following:
"(3) The Board shall keep a record, in writing—
(a) of any such request by the prospective applicant under section 37C,
(b) of the Board’s opinion in response to such a request,
and a copy of such request and opinion shall be placed and kept with the documents to which any planning application in respect of the proposed development relates.".
This amendment was discussed with amendment No. 6.
What does the Minister have to say on it?
I would like to express my view on the matter. The Deputy and I probably differ in this regard. Amendment No. 37 proposes to change the matters relating to pre-application consultation which need to be retained by the board on public files. The requirement in the Bill for the board to "keep a record in writing of any consultations" is expressed in broader legal language than Deputy O'Dowd's amendment. The Bill requires the board to keep written records, notes of any discussions held and any other relevant material, including the board's written opinions. A full record of consultations will be retained for the public in this way. I do not propose to accept this amendment. The existing arrangements in the Bill are wider. I know Deputy O'Dowd's intention is not to limit the provisions in question, but that would be the impact of his proposal. If one compares the wording in the Bill to the wording in the amendment, one will find that the former is more comprehensive. I am sure it was not Deputy O'Dowd's intention to be less comprehensive, but that is an unintended effect of his proposal.
I hate to admit it, but I cannot disagree with the Minister.
Perhaps we can blame Senator Bannon for this amendment.
I will withdraw the amendment.
I would like to ask about the pre-application consultation that will be conducted in private between the promoter of a given project and An Bord Pleanála. Although a record will be kept of the consultation, it will not be made public.
It is public.
Will the record be made public?
Yes. As it will be part of the file, it will be public. The Deputy might be concerned that I have not made it clear that the record will refer to relevant materials, including any material relevant to the board's written opinion. It will be very comprehensive.
What will happen in the case of, for example, a proposed landfill project?
I hope it is not in Wicklow.
The owner of the adjoining land could argue that the promoter of the landfill project is able to discuss the matter privately with An Bord Pleanála. If An Bord Pleanála decides to allow the project to be dealt with under this legislation, the right of the adjoining landowner to make a submission on the proposal at the planning stage, or to challenge it through the courts, if necessary, will be limited. Is it not the case that the right to fair procedure is being denied to interested third parties? Is this not something that will end up in the courts?
No, the right to fair procedure is not being denied. There will be a comprehensive record that will be part of a public file. The third party referred to by the Deputy — a neighbour, an adjoining landowner or any other third party — will have an opportunity to make a presentation to the board during the course of the consent process.
Is it not possible that there will be litigation in this area? If I am aggrieved because I own land beside the site on which it is proposed to develop a landfill, I will be frustrated by the provision in this legislation that allows An Bord Pleanála to decide to limit my right to contribute to the planning process and to have access to the courts. In such circumstances, I could argue that the promoter of the project has been facilitated by being allowed to engage in pre-consultation discussions with the board and to enjoy all kinds of hand-holding, whereas I have not had an opportunity to participate in similar discussions. It seems that the board will be able to decide to fast-track various projects without any input from interested third parties.
I do not accept that there would be a legal basis for argument in such circumstances. We are making law in this particular area. Proposals have already been made in the planning system to hold pre-planning meetings which would not allow for discussions with third parties. There is no specific legal novelty in this legislation.
They do not give rise to a discrete decision.
That is a fair point. The Deputy asked if I could envisage a circumstance in which a person would take litigation on this matter. People can litigate on almost any issue. My argument is that the greater public good is served by establishing the planning process proposed in this legislation. Even in constitutional law, the concept of the greater public good is accepted. Our rights in general, which are proffered by the Constitution, are not determined or handed down in an untrammelled manner but are all subject to the public good. Could this provision be contested legitimately? Virtually everything can be contested but I doubt if this proposal could be successfully contested. I repeat that any discussions, particularly the preliminary scoping discussions, will be part of the public record. I do not accept that a person's rights will be violated in any way because he or she will have the right to make submissions to An Bord Pleanála when the consent process commences.
Amendment, by leave, withdrawn.
I am obliged by another commitment to be absent for a period. I propose to nominate Deputy Cregan to take the Chair in my absence. Is that agreed? Agreed.
Amendments Nos. 38 and 184 are cognate and will be discussed together.
I move amendment No. 38:
In page 8, between lines 10 and 11, to insert the following:
"(4) The Board may consult with any person who may, in the opinion of the Board, have information which is relevant for the purposes of consultations under section 37B in relation to a proposed development.".
These amendments propose changes to the sections which would give the board the power to seek the views of any person or body which might have relevant views or information in relation to consultations in respect of the proposed development. This might include, for example, a Department or relevant local authority or any other person or member of the public. The proposal would be helpful where the infrastructure provider has entered consultations on whether a proposed development is of strategic importance and the board believes that other bodies or persons may have views it should take into account in determining whether this is the case.
In other cases, the board may simply wish to canvass views from relevant organisations in giving its advice on what considerations relating to proper planning and sustainable development would have a bearing on its decision. I wish to give the board flexibility to make the correct call in an individual case. This is a prudent proposal to give the board an opportunity to seek advice, particularly in complex cases.
Is there not a danger that the record of these kinds of deliberations will be minimalist and could only include the names of those in attendance and a brief statement on whether the project in question qualified for particular consideration? My earlier amendment proposed that a more comprehensive report be prepared. From my experience of Civil Service records of meetings, the least possible amount of detail is written down. I am concerned that the record of such meetings may include nothing more than the names of participants and a simple steer on the deliberations.
I note the Deputy's point and also that he does not object to the substantive proposal. If a heritage issue were to arise, for instance, the board may believe it necessary to consult the heritage section of my Department. If an archaeological issue were to arise, it may wish to consult the National Museum of Ireland. It would be unwise not to accept the amendments because they specifically recognise that the board, despite its excellence in the area of planning, may not have all information readily available to it. I am surprised at the Deputy's remarks because the purpose of the amendment is to try to enable the board to plug into cases in which concerns may arise. I have alluded to heritage and archaeology but consultations could encompass a series of other areas, for example, wildlife.
I do not oppose the amendment, I was simply thinking aloud. Let us assume, for example, that the chief archaeologist is virulently opposed to an application being fast-tracked, what will we learn of his or her views? We may learn nothing.
In my experience, archaeologists are never shy of consigning their views to paper. In all cases in which I have had to consult archaeologists, either in my Department or a museum, they have been very thorough in this regard. As an enabling amendment, I am surprised the proposal has given rise to concern. The Deputy is concerned that records of deliberations be kept and that they consist of more than the names of those consulted. It would be difficult to specify in legislation how this could be done. Would one, for example, require that the record of a meeting be two pages in length? I will consider how the provision can be improved and while I do not believe the circumstance suggested by the Deputy is likely to arise, I accept his point. The purpose of the amendment is to give specific authority to the board to consult specialists and I assume it will keep its own records. I am not sure how one could legislate for the extent of any records of such meetings.
Would a form suffice?
Perhaps one could require that the substantive issue discussed at any such meeting be part of the record.
Guidance principles and guidelines always issue after provisions of this nature are enacted. It may be more appropriate to stipulate in these guidelines that a record of meetings be kept. As the Deputy will be aware from a High Court action to which I, as Minister, was a party, files were called for and had been written up in great detail, including a large amount of my scrawled marginalia, which is how it should be. The Deputy's concern is that there could be a conspiracy to diminish the extent——
That is a strong word. In the public interest, however——
As Deputy O'Dowd noted, the purpose of this meeting is to try to tease out matters and produce the best possible legislation.
I ask the Minister to consider introducing a form of wording which would require that records of meetings contain some detail.
I will give some thought to the matter. When I read the original text I considered that we should specifically empower the board to make consultations. It did not strike me that the issue to which the Deputy alluded could arise. The scenario he describes could be a benign one, with people writing cryptic comments, or a malign one. I will consider his comments, although I believe the matter would be best addressed in guidance documentation.
I support Deputy Cuffe on this matter. If and when the board consults under this provision, it will be to address a serious issue and hold discussions with experts working in areas outside the scope of the board's remit. They could, therefore, be more important consultations than Deputies currently envisage and could have a major impact on the board's decision. For this reason, the record of any such meeting should not differ from other records of meetings kept by the board. In other words, whatever——
That is a fair point.
——template one might have there, it would not be any different.
It would form part of the file.
Yes, and that it would not be any different. In other words, that it would not——
That is as I would envisage it. To be fair to Deputy Cuffe, his point was that the views of the two parties should be on the record.
That is part of the record.
To be fair to the Deputy, he is making a more subtle point than that. One could have on the record that Mr. A in the board consulted with Ms B, Ms C and Ms D in the Department of the Environment, Heritage and Local Government and Ms X, Ms Y and Ms Z in——
The point I was making is that their views should be on record.
That is Deputy Cuffe's point. I would envisage that this would happen. I just need to give some thought to how it should happen. Given my Civil Service training, I believe the file should be complete and should speak to all the points that are raised in it. Is that Deputy O'Dowd's point?
Yes.
We will examine the matter. It was not something I contemplated when I tabled the amendment. I simply wanted to empower them to do these things. I will certainly have a look at that.
Amendment agreed to.
Amendments Nos. 39 to 46, inclusive, and No. 183 are related and will be discussed together by agreement.
I move amendment No. 39:
In page 8, to delete lines 11 to 32.
We have had much discussion about the promoter consulting with the board and this is another example of it. When a promoter is given the go-ahead to make an application, he can then go in and ask the board to hold his hand when he is going through the environmental impact statement, EIS, process and be told what to put in the EIS and so on. Again, this is prejudicing the board's decision-making process. No matter how many caveats one puts into the legislation, if the board effectively writes the brief for the EIS then the EIS will be accepted.
I propose that this measure should be excised. It is not the function of the board to provide advice to an applicant as to what should be in an EIS. Environmental impact statements are not new phenomena. An application of this type will be professionally prepared by the promoter in any event who will be quite familiar with what is required in environmental impact statements. It is undermining the role of An Bord Pleanála for it to be the body that provides the road map for the promoter in terms of what should be in the EIS.
I draw the Deputy's attention to the directive itself. Scoping of an EIS is a requirement of the EIA directive. Article 5(2) of the directive specifically requires scoping. The intention of amendment No. 39 is to delete the scoping provision in the Bill which would allow a prospective applicant to request from the board a written opinion on what information should be contained in an environmental impact statement. That would disimprove the process because there is no value in withholding from an applicant the scope on what is required in a proper EIS. I cannot accept the amendment. The nature of the advice I have received is that if I were to make Deputy O'Dowd's amendment No. 41 mandatory, I would be incorrectly transposing the EIA directive.
We are not transposing the EIA directive. That directive was transposed in regulations.
That is correct but I cannot put into law something which would infringe the EIA directive. The scoping——
I am not asking the Minister to put something in law, I am asking him to remain silent on it.
Enabling an applicant to request a scoping opinion from the competent authority is mandatory in the directive. It is not a desideratum.
The EIA directive is already law under the regulations which were made to transpose it. I do not suggest the Minister would interfere with that.
What the Deputy is suggesting would have the effect of limiting what is already in the directive, which specifically provides that an applicant may request a scoping opinion from the competent authority. That is part of the directive. I cannot write the Bill in a way which would minimise, diminish or deny that right. That right is contained in the directive and flows from it. To go in the direction suggested by the Deputy would specifically violate Article 5.2 of the directive.
The Minister is not repealing the regulations. They remain in place.
We are at cross purposes. Are we both agreed that the Bill will cover projects which clearly require environmental impact assessment?
Yes.
They will, therefore, require that an environmental impact statement be made. I think we also agree on that. In the EIA directive, an applicant is given the specific power in article 5.2 of that directive to request a scoping opinion from the competent authority. That is mandatory, it is not a desideratum. It would make no sense whatsoever to deny the right to request a scoping opinion in this legislation. Moreover, to do so would run counter to the EIA directive and would land us in the European Court of Justice.
Scoping generally involves the provision of a technical document which sets out what should be included in the EIS. It is a basic list of what should be included. This is already set out in regulations which, as the Deputy correctly pointed out, transpose the directive into Irish law. The board already has this scoping function where a project requiring an EIS comes before it. Essentially, the section builds on the expertise of the board. To deny or seek to limit in any way the right an applicant has under the directive to seek a scoping opinion from the mandatory authority would be in breach of the spirit as well as the letter of the directive, specifically Article 5.2.
Why did the Minister not just state that an applicant was entitled to seek the scoping guidance provided for in the EIA directive? Why is it not expressed like that?
The relevant section from the directive obliges member states to take the necessary measures to ensure that if a developer so requests before submitting an application for development consent, the competent authority shall give an opinion on the information to be supplied by the developer in accordance with paragraph (i) of Article 5. The competent authority shall consult the developer and authorities referred to in Article 6.1 before it gives its opinion. The fact that the authority has given an opinion under this paragraph shall not preclude it from subsequently requiring the developers to submit further information. Article 5.2 of the Council directive of 27 June 1985, which deals with environmental impact assessments, specifically requires that we do this. The language is borrowed directly from that article.
I do not want to labour the point but the record will show that the text of the Bill differs from the precise terms the Minister has quoted.
I disagree with the Deputy. The spirit of Article 5.2 is directly transposed in section 37D(1).
I will press amendment No. 39.
On amendment No. 40, there is more than one way to skin a cat. Deputy Gilmore proposed dropping the entire section but another way to do so would be to issue broad guidelines that would inform the applicant. Although there are already some guidelines, as issued by the EPA, it would make more sense if the Minister issued clear guidelines on the information that should be in environmental impact statements for strategic infrastructure projects. This is the reason for my amendment.
That is a very sensible suggestion, so much so that it has already been taken on board. The information is prescribed in the Planning and Development Regulations 2001, which transcribe the directive on environmental impact assessments. The EPA has issued comprehensive guidance on the content of environmental impact statements and I understand this is being reviewed. The Deputy has made the point on more than one occasion that there is a need for such a review. The guidelines and regulations to which the Deputy refers in his amendment are already in the Planning and Development Regulations 2001. I can let him have a copy of the relevant section if he wishes.
My worry is that the EPA guidelines are not those of the Minister and therefore do not have the backing that would be accorded to ministerial guidelines.
We have accepted them, as has the Commission. The reality is that Ireland is now producing more environmental impact statements per capita than most countries and their quality has increased enormously. The guidelines that exist have stood the test of time although they are subject to ongoing evolution. As I stated, the EPA is seeking to improve them further. I would live with them quite happily the way they are.
The most important point is that the general issue the Deputy is trying to address in amendment No. 40 is already in the Planning and Development Regulations 2001.
What is the position on amendment No. 41?
I do not have a problem in that regard but want to hear the Minister's response. I want to spend some time on amendment No. 44.
Deputy O'Dowd's amendment, No. 41, seeking to make the appeal mandatory, implies that I am incorrectly transposing the directive. As I stated to Deputy Gilmore, the wording in the Act regarding this issue is the standard wording used to cross-reference with Article 5.2.
I will not press amendments Nos. 41 to 43, inclusive, but I want to press amendment No. 44. On amendment No. 44, because the matter in hand is of such strategic importance, both national and regional, it is important to broaden the scope of the information that must be supplied. While the environmental impact statement is critical, the social and economic impact of a proposal ought to be part and parcel of the information that must be supplied. There needs to be an extra test at this level and one must make the strongest possible argument for one's application. One should benchmark the projects by putting them through the eye of a needle, or by subjecting them to a stiffer test than they would normally be subjected to in the planning process as it operates at present.
There is a danger in that suggestion. The definition of "environmental impact statement" in the Planning and Development Act 2000 is "a statement of the effects, if any, which proposed development, if carried out, would have on the environment". The Deputy would confuse this definition because "environmental impact statement" is a term of art and defined by the 2000 Act. By changing its title, it would not have the proposed effect in any case — it would be like calling a cat a dog, bearing in mind that the former would not actually change its character.
I do not mind whether it is a cat or dog as long as it barks or miaows when it is supposed to. We do not have difficulty with the Bill in principle. We want assessments to refer not only to the environmental impact but also the social and economic impact so all the possible arguments that can be made will be made.
I understand the Deputy's intention but it would not be realised simply by changing the definition. It would result in confusion.
One needs to prove one's case and what I propose would assist in doing so. I have discussed this matter with others and have come to the conclusion that one requires greater proof of one's case.
The Deputy's goal should be achieved in the overall assessment and simply changing the definition would not achieve it. This is all he is proposing in amendment No. 44. It would be quite dangerous to rename a process that is given a very specific meaning in the primary Act of 2002. "Environmental impact statement" is a term of art.
On Report Stage, will the Minister consider including a provision for a social and economic assessment?
I will consider seriously anything the Deputy proposes but I do not want to mislead him and suggest I will do something on Report Stage that I have not considered. The Deputy's amendment would not have the desired effect but would create confusion in that a term that has now entered into Irish law and general planning discourse would be ascribed a different meaning in this Bill. The meaning would be dissonant with the meaning in the Act of 2000.
If the Minister is prepared to consider my proposal for Report Stage, I will be happy to withdraw my amendment. My instructions are to press it to a vote on Report Stage.
I do not want to be unfair to the Deputy.
I want the Minister to consider my amendment.
I want to be frank. I have been right throughout, and the Deputy accepts that. The Deputy is asking me to consider something novel on Report Stage when I do not know the implications.
The Minister could tease them out with his staff.
The Deputy can table an amendment and I will tease it out then, but I do not want him to think I am giving an undertaking because I have given undertakings in another area.
I would never dream the Minister was doing such a thing. I am trying to get at the issue, we either have a broader test or we do not.
I see the point the Deputy is making but this is not the way to do it. I cannot accept the amendment but if alternative wording is put forward in another appropriate amendment on Report Stage, I will consider that.
Can I do that now?
It can be done on Report Stage.
We want to be careful because the Deputy is asking a specific question. I am not sure we can do this.
An amendment can be tabled on Report Stage that has arisen from debate on Committee Stage.
If an issue is raised on Committee Stage, it can be tabled as an amendment on Report Stage.
Not necessarily at this point in the Bill?
The Deputy is not losing the point at this stage, he may lose it on Report Stage but he has the option of tabling the amendment.
I will do that.
Amendment put and declared lost.
Amendments Nos. 40 to 44, inclusive, not moved.
I move amendment No. 45:
In page 8, to delete lines 19 and 20 and substitute the following:
"(2) On receipt of such a request the Board shall—
(a) consult with the requester and such bodies as may be specified by the Minister for the purpose, and
(b) comply with the request as soon as is practicable.”.
This amendment and amendment No. 183 are required to ensure compliance with Articles 5 and 6 of the EIA directive which has recently been amended. The amendments to the EIS scoping provisions at the newly inserted sections 37(d) and 182(e) of the 2000 Act provide that the board may consult other specified environmental bodies on the information to be contained in an EIS for a proposed development. I made the point earlier that the board should have the opportunity to consult. It is an empowering amendment.
Amendment agreed to.
Amendment No. 46 not moved.
Amendments Nos. 48 and 49 are alternatives to amendment No. 47 and they will be taken together by agreement.
I move amendment No. 47:
In page 8, to delete lines 39 to 46 and substitute the following:
"(2) The Board may deem invalid any application made to it under this section where it considers that the application for permission, by reference to the inadequacy of environmental impact statement, is incomplete, having regard to the Ministerial Guidelines made under section 177.".
I am unhappy with the section that states that the board may refuse to deal with an application. We have no strong precedent for a planning authority refusing to deal with something in Irish planning law. We need more clarity on this, the board should send a stronger message. The phrase "deem invalid" should be inserted, otherwise it leaves open the danger than an application will be sneaked back in. It should be clear that an application is invalid. That will state to the applicant that he is not up to scratch in his submission.
The amendment would have the perverse effect of limiting the power of the board to handle an incomplete application. The relevant section gives the board the right in law to refuse to deal with an application made under the section where it considers the application for permission or the environmental impact statement is inadequate or incomplete, having regard to the regulations for permission.
The Deputy is right that this is novel, we are saying in unequivocal terms that the board can say to a promoter that he has not done his work and that it is rejecting it. It could not be more forthright. I am surprised at the Green Party proposing an amendment that is designed to ensure an improperly prepared application should be tolerated. This gives the board the specific power to state the application is improper and being rejected.
This is more than a discussion of semantics. "Invalid" has a specific meaning in the rest of the planning legislation.
The effect is exactly the same. Saying something is "invalid" is a more pleasant way of refusing it.
Like the ducks that were dumped into the Liffey a few weeks ago, we want to get rid of them completely rather than have them bobbing around forever.
Ducks usually come home.
Plastic ducks were dumped in for a race but they did not go anywhere and are still floating about in Dublin Bay. I suspect a bad application may not go away either.
An application that has just arrived, been examined by the board and found to be deficient will be refused and people will get that message. Can they come back in future? Yes, when they do it properly. We cannot say we are refusing this forever because they were incompetent once. Hopefully they have learned that incompetent planning applications of a strategic nature will not be tolerated by the board. It will be a public rebuff so it will have a demonstrative effect. I would not like to be a public authority official responsible for putting such an application forward. In the private sector the consequences would be more dire, with people shown the door because of a serious loss of money because of incompetence.
Does that mean if it is refused, the whole thing must go back to the beginning if the application is to be resubmitted?
Yes. A refusal is a refusal. It is dead.
Will it get a new file number if it is resubmitted?
Yes.
That was my worry, that there would be cosmetic changes and the plan would be resubmitted.
If it is refused and the developers go away and make cosmetic changes, they will be refused again. Even the thickest promoters will cop themselves on and realise how much time, money and credibility they are losing through incompetent behaviour.
Incompetence is not mentioned specifically but "invalid" means the validity is questioned. In my mind it is stronger. Perhaps the Minister will look at it before Report Stage.
We could overdo it.
A person refused entry to a nightclub may well come back a few minutes later. If that person was under the required age, he would be "invalid" for entry purposes.
I am sure Deputies Cuffe and O'Dowd both have that experience but it is not encompassed in this Bill.
Amendment, by leave, withdrawn.
Amendments Nos. 48 to 50, inclusive, not moved.
Amendment No. 51 is in the name of the Minister. Amendments Nos. 52, 53, 61, 64, 68, 142, 144, 148, 152, 161, 170 to 175, inclusive, 286 to 200, inclusive, 292 and 294 are related. Amendment No. 62 is an alternative to amendment No. 61, amendment No. 69 is an alternative to amendment No.68, amendment No. 145 is an alternative to amendment No. 144, amendment No. 149 is an alternative to amendment No. 148 and amendment No. 153 is an alternative to amendment No. 152. Therefore, amendments Nos. 51 to 53, inclusive, Nos. 61 to 64, inclusive, Nos. 68, 69, 142, 144, 145, 148,149, 152, 153, 161, Nos. 170 to 175, inclusive, Nos. 286-290, inclusive, Nos. 292 and 294 will be discussed together by agreement.
Could the Acting Chairman repeat all that in Irish?
I move amendment No. 51:
In page 9, to delete lines 2 and 3 and substitute the following:
"(I) the person proposes to make an application to the Board for permission".
This group of amendments ensures that we are in compliance with the public participation and transboundary elements of the Environmental Impact Assessment Directive. The amendments will require applicants for strategic infrastructure to include in the newspaper notice, where relevant, that the proposed development is likely to have a significant impact on the environment of another EU member state or party to the transboundary convention, and what types of decisions the board may make on the application. The amendment also requires that the application and the environmental impact study are copied to the relevant member states and that they are given a chance to comment.
In respect of road and rail amendments this will apply only to Northern Ireland which is therefore expressly referred to in those amendments. The rail amendments include a requirement to notify the authorities in Northern Ireland of the decision, and empower the board to enter into consultations with the authorities in Northern Ireland where necessary. Similar provisions for these procedural matters are not required at this time in the other strategic consent procedures, since they can be done by regulation under powers granted under section 174 of the principal Act.
The transboundary convention is an important instrument designed to allow member states the opportunity to make observations or be consulted on developments that have an environmental impact in their areas. We are one of the member states that has actively commented on transboundary pollution from our nearest neighbour. If we are to apply that principle when it benefits us we must also apply it in law.
Will the Minister give an example of where that might apply? Is he saying he will build a nuclear power station here?
No. In the event that our neighbours go mad and decide to build some more nuclear power stations we request that——
What will we build that will affect Northern Ireland?
In respect primarily of road or rail development it would be prudent to refer to the Northern Ireland authorities. The spirit of the transboundary convention should be encompassed in strategic infrastructure legislation. We are not planning to build any nuclear power stations. It is just as well Deputy Morgan is not present.
Certainly not in County Wicklow.
The Deputy is safe in that regard.
If major infrastructure is proposed in the South——
One example is waste infrastructure.
Would a private developer in the South who wants to build a strategic infrastructure in the Border counties, whether for waste or power, or a public road network, have to give notice to another EU member state?
Yes. These amendments incorporate in the Act a reference not just to the spirit but to the letter of the transboundary convention.
Does that mean if the authorities in Northern Ireland had network proposals we would talk to them and familiarise ourselves with those proposals, so the two places would be linked up? This could be used in a very constructive way.
The Deputy is right. This could be very constructive because one country must consider and discuss the implications of its infrastructure plans for another. The transboundary convention considers the negative impact a development in one member state could have on another member state.
The negative impact might arise if the Northern Irish authorities' spatial strategy was in conflict with ours. The SDLP held a conference on spatial strategy for the country. This process could be constructive rather than negative and require us to familiarise ourselves with that party's spatial strategy or views and for it to inform us of its plans.
It goes further than that. All sorts of dialogue and discussion goes on all the time.
Yes, through the North-South Ministerial Council.
The ideas fly around in the air and go no further but the requirement in the planning and consent process to notify the adjoining authorities, or the people affected on the other side of a border is a positive by-product of the convention. The transboundary convention was initially intended to ensure that something that happened in one member state did not have an adverse effect on another. The Deputy is right to say that a positive outcome of that process is that we would consult with our neighbours and they with us, which would concentrate our minds on the impact of infrastructure and development.
There have been many discussions over several years with the Northern Ireland authorities. Unfortunately, because of the present hiatus there it is difficult to progress these matters. There are issues in the area of waste that I would dearly love to discuss with them.
Will the Minister give us an example of what that might include?
There are many areas but not all are directly relevant.
He could give an example of the waste issues he mentioned.
It would be sensible to take an all-island approach to the WEEE directive. The Deputy also made that point. We have a model that other parts of the European Union are studying. To deal with any kind of waste, whether paper or electronic equipment on an all-island basis would create a critical mass that would encourage investment to recycle and reprocess on the island. That is happening through investments by the Quinn group North of the Border where a great deal of glass is being recycled. Co-operation offers significant synergies on the island, particularly in respect of the environment.
That could have an impact on regional developments. Would it mean that we should re-visit those plans for Border counties to see what proposals there are for infrastructure on the other side of the Border?
I agree with the Deputy. It is a highly artificial border. Donegal and Derry are contiguous yet the Border divides Derry from its hinterland. The logic of the Deputy's point is indisputable. It would be more sensible if wastewater plants in the Derry hinterland were brought together. There is a synergy to be gained from closer co-operation with the North of Ireland. The one area that frustrates me in my portfolio is the absence of politicians in office in the North with whom I could co-operate on environmental and infrastructural projects. I have mentioned this to the Secretary of State for Northern Ireland and the incoming Minister with responsibility for environmental matters. There are fora in which they can be explored such as the British-Irish Council.
There is a requirement to introduce the transboundary convention, to which Ireland is a party, to Irish law. A positive by-product is that as soon as a project comes up for consideration, we will be forced to tell the authorities in the North. It would be foolhardy if they decide to ignore it. The more we can reach out in ways that are not threatening to people of a particular persuasion, the more the abnormality of the division will become obvious. However, we had better not begin a debate on this.
I agree with the Minister and Deputy O'Dowd. Infrastructural development must proceed on an all-island basis. There is scope for co-operation on rail networks, roads, air access, ports and major recycling and waste facilities. It is a great pity Northern Ireland does not have a working executive made up of elected representatives of the people. Leaving aside the political and constitutional issues, it is deeply frustrating that eight years after the Good Friday Agreement was endorsed, people are on polar opposites of the political spectrum rather than constructively working to build institutions and get on with the job of making this a better island on which to live, whatever their differences. One great advantage of the Good Friday Agreement is that it leaves the constitutional arrangements intact and allows people to retain their loyalties and separate national identities. The idea was that we would get on at a practical level with making the island as a whole a better place. It is deeply frustrating that the Minister on this part of the island does not have a corresponding Minister in Northern Ireland with whom to discuss these matters.
I agree; it is incredibly frustrating. To take waste management, an paper mill to handle recycling paper material from north and south of the Border is a possibility. Currently, material is crossing the Irish Sea to be recycled. That does not make sense and is deeply frustrating. Only yesterday I wrote to my incoming counterpart in the North of Ireland inviting him to discuss these issues. I do not care whether he travels to Dublin or I travel north to Belfast. Deputy O'Dowd is correct that a positive and beneficial by-product of this process may well be jolting people into thinking along these lines. While we may not agree on certain issues, we live on one small speck of planet Earth and should co-operate in areas such as infrastructure and the environment in a way that benefits all communities. As the Minister for Finance said recently, we are investing billions of euros in Transport 21. We have made cross-Border investments such as supporting Derry Airport.
Amendment agreed to.
I move amendment No. 52:
In page 9, line 5, to delete "and".
Amendment agreed to.
I move amendment No. 53:
In page 9, line 9, to delete "development," and substitute the following:
"development, and
(III) where relevant, the proposed development is likely to have significant effects on the environment of a Member State of the European Communities or other party to the Transboundary Convention,".
Amendment agreed to.
Amendment No. 54 not moved.
Amendments Nos. 56 and 57 are alternatives to amendment No. 55. Amendments Nos. 63 and 70 are related. Amendment No. 71 is an alternative to amendment No. 70. The amendments will be discussed together.
I move amendment No. 55:
In page 9, to delete lines 10 to 19 and substitute the following:
"(ii) specifying—
(I) the times and places at which, and the period (not being less than 6 weeks) during which, a copy of the application and the environmental impact statement may be inspected,
(II) that a copy of the application and the environmental impact statement may be inspected free of charge or purchased on payment of a specified fee (which fee shall not exceed the reasonable cost of making such copy), and".
I do not intend to accept the amendment. The Deputy referred to the use of the words "free of charge". As the material is placed on the website, it will be free of charge.
Amendment No. 63 proposes to change the timeframe for the submission of a local authority report to the board. The Bill provides that a local authority has a minimum of ten weeks rather than six to do so. The period in respect of a local authority report is longer because the views of elected representatives will be sought. It will not be possible to do this in the timeframe suggested in the amendment. There has to be a period of four weeks for the views of councillors to be gathered. Ten weeks is an ambitious timeframe but to reduce it to six would make it impossible.
Amendment No. 70, in my name, will clarify the point at which the period will start to run. This will deal with some of the concerns mentioned and give the board the power to allow additional time. I am aware there are time constraints.
In amendment No. 56 Deputy Cuffe proposes to amend the time period for public consultation to a minimum of ten weeks. That is unnecessary, since the current text provides for a period that shall not be less than six weeks. I am satisfied that it allows more than adequate time for individuals to submit their views. After all, it is the same period provided for other large or strategic projects and local authority development requiring an EIA. The six-week period is that applicable when a local authority uses the current consent process through the board. It works and I see no reason to change it. Amendment No. 70 would give the board some latitude, which would be very wise.
Regarding amendment No. 63, giving the board a minimum of six weeks rather than ten would be pushing matters. There would be difficulties with a period of six weeks. One must issue a notice to councils and have council meetings. We want to give councillors an opportunity to express their views and have them recorded. I would love to be able to designate a period of six weeks but the reality is that practical considerations suggest ten weeks would be more appropriate.
Amendment, by leave, withdrawn.
I move Amendment No. 56:
In page 9, line 12, to delete "6" and substitute "10".
I thought that a period of six weeks was short, since in August or during the Christmas period it could leave people without recourse to a planner within that short timescale. I wonder whether it might be possible to agree on a compromise.
The Bill states it shall be not less than six weeks, which allows a degree of latitude. As I said, it is the period that currently applies. It is a transposition of the current system, whereby local authorities use the consent process through An Bord Pleanála. It has worked.
Amendment, by leave, withdrawn.
I move amendment No. 57:
In page 9, line 19, to delete "and".
Amendment agreed to.
Amendments Nos. 58 and 59 not moved.
Amendment No. 60 is in the name of Deputy Cuffe. Amendment No. 67 is related. They may be discussed together.
I move amendment No. 60:
In page 9, between lines 29 and 30, to insert the following:
"(III) the likely effects on the strategic economic, social or environmental conditions of the area or area(s) in which the proposed development is to be situate,".
This amendment seeks to broaden matters. Its point is similar to that made by Deputy O'Dowd, namely, that we should consider the strategic economic, social or environmental conditions of the area or areas in which the proposed development is to be situated. I am not sure that it would tie the hands of the board but it would allow for slightly broader discussion than the Bill, as drafted, provides.
As a person with planning experience, the Deputy will know that the nature of proper planning and sustainable development is very broad, particularly when one includes that reference to sustainable development, a very wide term. There is now more clarity because we have a much better grasp of what amounts to sustainable development. I suggest to the Deputy that it includes environmental, economic and social considerations. It goes wider.
Implicitly but not explicitly.
One can be too explicit. "Sustainable development" is a phrase that, a little like a snowball, has gathered a great many additional meanings. I suggest proper planning and sustainable development which we all want are encompassing terms. They give us more than sufficient flexibility. The environmental impact has been addressed. The phrase "the likely effects on the environment" is specifically included elsewhere. I believe very strongly that the wording used offers much more flexibility and a wider possible interpretation than the words the Deputy has suggested.
A worry is that members of the Minister's party have often confused "sustained development" with "sustainable development". That causes me some concern. In a sense, those evaluating——
The Deputy should focus on the future.
I hope we will also keep an eye on what happened in the past, as well as looking to the future, but that is a debate for another day. Those who evaluate proposals will have to use some checklist. They will probably sit down with a spreadsheet and give marks out of ten under various headings. By explicitly listing the economic, social and environmental conditions, we draw the attention of those evaluating proposals to them. The amendment would bring about a more thorough evaluation of sustainable development.
Amendment, by leave, withdrawn.
I move amendment No. 61:
In page 9, line 30, to delete "if carried out," and substitute the following:
"if carried out, and
(iv) specifying the types of decision the Board may make, under section 37G, in relation to the application,".
Amendment agreed to.
Amendment No. 62 not moved.
I move amendment No. 63:
In page 9, line 36, after "situated" to insert the following:
"together with a letter stating that the Manager's report must be submitted within the period of 6 weeks from the date of letter of referral of the application to the planning authority by the Board".
It was the one allowing six weeks rather than ten.
Amendment, by leave, withdrawn.
I move amendment No. 64:
In page 9, line 36, to delete "and".
Amendment agreed to.
Amendments Nos. 65 to 67, inclusive, not moved.
I move amendment No. 68:
In page 9, line 51, to delete "if carried out." and substitute the following:
"if carried out, and
(d) where the proposed development is likely to have significant effects on the environment of a Member State of the European Communities or a state which is a party to the Transboundary Convention, send a prescribed number of copies of the application and the environmental impact statement to the prescribed authority of the relevant state or states together with a notice stating that submissions or observations may, during the period referred to in paragraph (a)(ii), be made in writing to the Board.”.
Amendment agreed to.
Amendment No. 69 not moved.
I move amendment No. 70:
In page 10, lines 4 and 5, to delete all words from and including "within" in line 4 down to and including "(3)(b)” in line 5 and substitute the following:
"within 10 weeks from the making of the application to the Board under this section (or such longer period as may be specified by the Board)".
Amendment agreed to.
Amendment No. 71 not moved.
I move amendment No. 72:
In page 10, line 8, after "on" to insert "the environment or".
Amendment agreed to.
I move amendment No. 73:
In page 10, lines 13 and 14, to delete all words from and including "in" in line 13 down to and including "Board" in line 14.
Here I wish to concentrate on the views of elected members. The issue is probably more general than this. While amendment No. 76 is more substantial than amendment No. 73, I would like a general debate on the issues involved.
Amendment, by leave, withdrawn.
I move amendment No. 74:
In page 10, line 16, to delete "the views of the members" and substitute "their views".
There is a problem with the entire section. The difference between this Bill and the current planning process is that the views of councillors are taken on board in some regulations. The issue is how is that to happen and what status will they have. Will they be appendages to the manager's report or separate and equal? I would like to give more weight in this section to the views of councillors.
The other issue that arises, on which I may be jumping the gun, is that where a significant minority view is expressed on the council, it should carry to the board. One third of the councillors have a view — albeit a minority view — that it should be carried. It all hinges on the wording "by resolution", that is the definition which states "The Council, by resolution, shall...".
I should like to make a point to be helpful. At one stage the Deputy made the proposition about comprehensive minutes of a meeting being attached and for some reason he did not pursue that. I am willing to come back to that on Report Stage. That is the way to encompass all of the views. I believe that would be the sensible way rather than a third said this or——
The problem is that depending on custom and practice among different local authorities, the minutes could be excised by somebody. A town clerk might say he or she only records the votes for and against. The key point I want to make is that what the legislation states at the moment is "by resolution of the Council". This could amount to a majority opposing the minority view.
What the Deputy wants is for the board to be given the opportunity to have the breadth of views that have been expressed by the council. It is a pity, in a sense, that his original proposal which was to actually incorporate the minutes was dropped. That brings up the other issue, which was just raised, that the minutes in most councils, to put it mildly, are spartan. There needs to be some requirement that in this particular instance the minutes should be much more comprehensive and will capture the debate of the moment.
On that issue, when the minutes are passed and come before the next meeting, a councillor may say they do not include his or her view. That means there are addenda to the minutes as well.
That will put pressure on councillors to be somewhat more precise and to avoid the propensity that arises from time to time to straddle the fence. People will actually have to make a decision. The best way of achieving what the Deputy wants to do is to provide that the minutes be sent up. There will have to be clear guidance that there will have to be significant, comprehensive minutes. In other words they will have to incorporate something more than the one-liners that go in at the moment.
If one is in the minority and dissents from the majority decision on an issue, it would be reasonable to have a vote so that the opinion of the council might be expressed. If somebody said he or she wished to be recorded in the minutes as dissenting, would this be adequate?
Yes, if that is what the councillor did. In this particular area for the first time since 1963 councillors are being given the right to record their views——
I am happy with that.
The Deputy is asking how we actually capture that. I know exactly what he means.
I am thinking of a minority that might have a totally contrary view to majority opinion.
The best way of capturing what the Deputy intends to do is for the minutes to be attached. The modus operandi that would then have to operate in those circumstances would be that more comprehensive minutes than the norm be kept and the views of members properly noted. Members would themselves have to be somewhat clear about their views.
The minutes are affirmed at a subsequent meeting, normally a month later. Could one be out of time?
One could be out of time with that process, if it were to be adopted. However, that is a matter the council itself can quite easily determine. It is possible to produce minutes fairly rapidly and to have them agreed.
However, there actually has to be a meeting.
That is a modality that must be dealt with by the council.
The issue here, I believe, is that the views of elected members of the local authority are made known to An Bord Pleanála. By all means this can be done by way of resolution. It can be done by way of minutes. Another simple way of doing it would be to have a facility whereby the observations of an individual member of the council are attached to the submission the manager makes.
That is actually a common sense proposition because particularly in an area such as this, the type of banter that happens on councils is not sufficient in my view to deal with matters. I have certainly attended some really important council meetings where at the end of the day it is very hard to understand what people have said. People need to be encouraged to deal with an issue such as this seriously and cogently. It is very much a matter on which we will have to issue guidance and it will be a matter for councillors themselves to resolve how to do it. For example, arising directly from what Deputy Gilmore has said, if a councillor has a serious view on a particular piece of strategic infrastructure, it is incumbent upon him or her not just to stand up and blather, but rather to provide a written note that clearly and concisely records his or her views on the issue. That is the way to do one's duty by the people who have elected one.
Such an initiative should be given a status in the decision making process.
I was anxious to incorporate the opportunity for councillors to express their views, because I am conscious that this does not exist. I was very anxious that a manager would not do precisely what Deputy O'Dowd indicated, as for example, record 22 for and two against. The two against might actually have the more cogent arguments and those views should be put forward.
It might be in their electoral area.
Precisely, that is a good point and had not struck me. We will have to look at how that may be teased out. Perhaps Deputy O'Dowd can come back with the proposition he was making as regards minutes on Report Stage. That is possible because we raised it here on Committee Stage. We shall consider how this could be made clearer. It is something that will have to be in guidelines to be sent out. It will also be of use to councillors themselves because we all know from our experiences on local authorities that people look for more power. However, sometimes when it is given to them, they are reluctant to use it. God forbid that one has to make clear where one stands on an infrastructural issue, but this will be challenging for councillors.
It is right, however, that people's views should be recorded, even something that is just the view of only one councillor.
That was useful. In my amendment I am saying that the report must include in so far as practicable the views of the members of the local authority, which again encompasses the sense of the debate that has just been held.
We will return to this on Report Stage to see how it may be improved and made more precise. It is something that will have to be set out in the guidelines and there is a need for more precision in that regard. We are all agreed on what we want to achieve. It is just a question of how we achieve it.
Amendment, by leave, withdrawn.
I regret to inform the committee that I must participate in the Private Members' debate. I am sure my contribution here will be greatly missed. I shall remember the Minister in my prayers.
The Deputy is being excoriated as he speaks, so he better get in there.
Amendment No. 75 is in the name of Deputy Cuffe. Amendment No. 76 is an alternative. Amendments Nos. 75 and 76 will be discussed together. Is that agreed? Agreed.
I move amendment No. 75:
In page 10, to delete lines 18 to 24 and substitute the following:
"(6) Where there are recommendations proposed by not less than one third of the membership of the planning authority, such recommendations shall be submitted to the Board, in addition to any recommendations, adopted by resolution, of the majority members contained in the Manager's report.".
I welcome the debate that has just taken place. It was useful. In my 15 years as an elected representative I took a minority view very often. I am very proud to have taken that view in regard to areas such as waste, planning and transportation. I am glad to see that indeed, even the Minister has, in some areas, come around to the type of minority view the Green Party was pushing strongly in the early 1990s. There is a very practical issue here, in ensuring that minority views are heard. There is a danger in using the minutes, unless we radically transform the way in which local authorities and planning authorities take minutes at meetings. There is also a danger in simply attaching the observations of particular members of a local authority. They will end up being used as a conduit for the views of the wider community in a very strong way. That position could be misused in order to ensure that individual or community views are put forward to the board. The IPI has put forward a very practical proposal in this instance. It simply states that if more than a third of the elected members have a view, then that view should be conveyed.
I disagree with that. The argument that is made by Deputies O'Dowd and Gilmore is much more appropriate. The minutes should be comprehensive and they should incorporate the breadth of views. I have been in a minority of one, two or three when I was a county councillor. It was as important that the views of the two or three be recorded as the views of the other 16. We should look for an appropriate mechanism.
The Deputy made a point about lazy councillors incorporating the views of everybody who had written to them, even if those views were contradictory. This will be challenging for councillors. They will have to make their minds up and that is a good thing as it is what they are elected to do. They must be clear and make sure their views recorded. We will look for a mechanism that challenges every councillor to record clearly his or her views.
I look forward to seeing that emerge. I have not seen any great signs of it emerging from city and county managers or from LAMA.
To be fair to councillors, the CCMA and LAMA, this has never arisen before. In the history of planning, we have never had a requirement that councillors provide their views. We are breaking new ground.
I accept that. I would like to provide another example. I am a member of the All-Party Oireachtas Committee on the Constitution. We recently came forward with a report on family rights and a minority view was expressed within that report. It represented a substantial minority and although I am not sure if it amounted to a third, it has greatly informed the public debate on that particular issue. In this instance, a third would represent a significant body of opinion that should be put to the board to help it in its deliberations.
I would like to make a counterpoint to that. Members of the Green Party on Wicklow County Council, such as Nuala Ahern, Alex Perkins and others would frequently have taken a common view on issues relating to waste management. Alex Perkins made some superb contributions during his period as councillor. Very often he and I were on the same side. It was important that his contribution be recorded, even if his views did not make up one third of a council of 24. A herd instinct might develop among the other 16 or 17 councillors and they might go one way. I am asking for a liberal regime that does not allow a lazy approach and where people would have to record their views one way or the other. We must look at some mechanism for doing this. Deputy O'Dowd is right to state that the minutes of meetings are the subject of much criticism. They can be different from the reality. Reality is often in the ear of the beholder, if I am allowed to paraphrase.
We are agreed on this issue. Rather than strain the issue further, I will see how we can make further adjustments to this on Report Stage. Deputy O'Dowd will revisit his own proposition that the minutes should be attached. If the minutes are attached, we must specify in guidelines the degree of detail to be contained. That is a good way of incorporating all that has been said here.
My concern is that I have nothing substantial from the Minister at this stage.
Amendment put and declared lost.
Amendments Nos. 76 to 78, inclusive, not moved.
Amendments Nos. 79 and 84 are related and may be discussed together.
I move amendment No. 79:
In page 10, between lines 35 and 36, to insert the following:
"(8) Where a reasonable request that the Board consult with an independent health expert on the health implications of any proposed infrastructural development is received by the Board from local residents or other interested local parties, such a request shall be complied with.".
This amendment deals with one of the critical issues in the Bill. A proposal to build an incinerator goes through the planning process and ends up with the EPA. Health issues are the primary issues in people's minds. One of the problems with the EPA is that it does not currently have a medical specialist. In the case of the Carranstown development, it has refused to put someone on the board with medical expertise. People could be invited in to discuss the issues.
I know we are dealing with An Bord Pleanála, but the health issues surrounding incineration are very important. The principle I am trying to establish is not excluded from the powers to consult given by the Minister to the board, and I acknowledge that. However, I would like to see the health issues specifically addressed by the board. An obligation should be put on the board that where it is requested, it would always consult with independent health experts. One expert can say one thing and another can say another thing. The Minister has the power to suggest certain people to the EPA whom he might wish to be consulted. I would like to see the same power in this Bill.
Amendments Nos. 79 and 84 deal with the key issue. The public and the board will benefit from it. It will give greater effect to the decision that if it does happen, these people will have been consulted.
I support Deputy O'Dowd's amendment. What could be more important than people's health? The health issue is the most contentious part of any proposal for development.
I apologise again for having to leave the committee on occasion and miss some of the debate. Can the Minister address the issue of what is effectively a judicial role for the board in resolving disputes between the applicant and an objector? Is there a constitutional issue involved? In some cases, redress to the courts is prohibited. The Minister touched on this issue this morning. I hope I am not pressing the issue too far but it is important.
The board members are not judges and do not operate as such but they must operate in a quasi-judicial way. That puts certain requirements on them as to the propriety of their operations. Where there is dispute between parties on a planning issue the board is, in effect, fulfilling a mediation and adjudication role between the different arguments. The board members are required to behave in a quasi-judicial way. There is a body of administrative and case law which covers the operation of this area. I am not sure if that fully answers the Deputy's question.
It does not.
It is a philosophical question and it is late in the day for philosophical questions.
If Gerard Hogan SC or another senior counsel was present-——
Normally, I would philosophise at the drop of a hat but after 12 hours on the trot, it is beginning to wear.
We will come back to the matter on Report Stage. I will consider the options.
The members of An Bord Pleanála are required to operate quasi-judicially, which determines the way they operate and the propriety with which they operate. In the matter of a dispute between two individuals which is before the board, its members are more like mediators or adjudicators. That is probably the most appropriate way for my-——
Therefore, there is an implied judicial licence.
There are responsibilities rather than there being a licence. Anybody who operates in a quasi-judicial way has very specific requirements as to how he or she operates.
I will give an example in the context of planning, which has much case law surrounding it. When councillors were dealing with the old section 4 or section 140 arrangements, they were precluded from introducing issues which were not relevant to the planning considerations. I remember a case where a councillor made a dispassionate argument on good planning grounds but at the last moment snatched defeat from the jaws of victory by making reference to the fact that the farmer about whose land he was arguing for planning permission needed the money from the sale of the site. One could have heard a pin drop when he said it. In one fell swoop, he had behaved in a way that was completely incorrect. The role the board must play is to listen to both sides.
To deal with the amendments, the issue of health is obviously very important and is dealt with in the process. I read comments from Deputy O'Dowd and know the EPA position on this issue. The proposed process is more than flexible enough. We have increased the flexibility to allow the board to gather a wide range of information relevant to a decision it must make, including information on health aspects, which may be very important in particular cases, particularly in the type of case to which Deputy O'Dowd referred.
Each project will be accompanied by an environmental impact statement, which covers the impact on people, such as health implications. The Bill provides that the board may seek the views of other persons or parties it feels have information that is relevant to the determination of an application. This may include health experts if the board feels that health issues arise. The Bill also allows the making of regulations to prescribed bodies for the purposes of consultation on an application or proposed application. In fact, the normal practice has been to include health boards as prescribed authorities where it appears the development might have a significant effect on public health. This would be a more appropriate method of providing for the inclusion of the views of health experts in the planning process.
It is likely that projects that raise health concerns would also have to be licensed under the Environmental Protection Agency. In granting an IPPC, which is the licensing arrangement, or a separate waste licence, the EPA sets limits for values of pollutants and potential pollutants. Where limits are set by the agency, the view is that human health must be protected and it is human health which determines the limits in these licensing arrangements.
Therefore, human health matters are already covered in the various processes, including the role of the EPA in issuing IPPC licences and waste licences. As I said, the board can incorporate and seek additional advice and guidance. In fact, this would have been a good example to use earlier when I discussed empowering the board to seek information. It is precisely the type of information that would be——
I am unhappy with that response, particularly in light of my experience of the application by Indaver for the incinerator at Carranstown. Indaver included in its application to the local authority that it had consulted the health board. I followed up that claim and discovered the company had not consulted the health board but had simply sent a copy of its application to the board. When I took the matter up with the health board, it responded at a very low and unacceptable level through a health inspector. Health inspectors are very fine people but they do not have the degree of professional knowledge required to respond to an application. I do not accept, therefore, that the existing process between the local authority and the health board is satisfactory.
As I have already explained, I do not accept that the powers of the EPA are being applied appropriately. I stress the point that the EPA refuses to bring in independent health consultants to determine the Carranstown application, which is arrogant of the EPA because the consultants would have addressed the key issue of health. I am not satisfied that the powers currently available are used.
I intend to press these amendments to a vote because it is important to set down a marker that I am not satisfied with the existing process and not satisfied that the Bill is sufficiently exercised about these issues. We need to write this into the Bill. At the end of the day, it is a question of credibility. We must bend over backwards to ensure all possible issues with regard to community fears are addressed, notwithstanding the views of the World Health Organisation and similar groups. The legislation needs to take on board the views of the community. The amendments may not contain the best wording available but I will press the vote because I want to establish the principle in law.
I understand the point. Views have been expressed by the WHO, particularly with regard to issues concerning incineration, but people will not accept those views. I fully understand why.
It is not that they do not accept those views but that they have a right to challenge them.
I am concerned that the information from the WHO has been selectively quoted by the Minister and his predecessor to justify the case for incineration in Ireland. I argue that the WHO has been cautious in its views on large-scale landfill and incineration.
Moreover, the variety of different concerns and views has been quite selectively quoted, not alone publically by the Minister and his predecessors, but also in the race against waste campaign literature produced by his Department. I wish to place on record my serious concerns about the manner in which World Health Organisation information has been used by the Minister.
As for the last point, I also periodically disagree with the manner in which the Deputy uses quotations. That is the nature of political debate. In respect of incineration, on which Deputy O'Dowd has specifically focussed, the standards applied in Europe are extremely high. The standard established by the European Union is the gold standard worldwide and is much better than those operated in other countries. Moreover, the standard which has now become operational in Ireland is even more onerous, which is how it should be.
I accept the Deputy wants to make a point in principle in this regard. However, the procedures specified in the Bill before the committee allow for the fullest consultation and the fullest use of expertise. They allow the planning board to call on all forms of expertise, including health expertise, in a non-prescriptive manner. The Bill also allows for the making of regulations which would provide the terms of the consultation process. In practice, this has included the health boards as prescribed authorities where a development might have an effect on public health. Neither amendments Nos. 79 nor 84 achieve any great purpose. The latter is probably the better of the two.
While I believe amendment No. 84 is the better of the two, I am not convinced. Although the powers existed in respect of the Carranstown application, they were not exercised. The non-exercise of those powers was arrogant and did not take on board people's real views.
I refer to the Minister's comments to the effect that the incinerators in Europe are fine. Had the Minister made that statement 20 years ago, he would have been wrong. In other words, the technology that was there——
Sorry Deputy——
I do not wish to put words into the Minister's mouth.
I stated the European standards are the highest. They constitute the gold standard.
Very well. However, the issue is——
I did not state they were all——
I stress I am not trying to put words into the Minister's mouth. I will not play such a game in this regard.
The issue is that in the 1970s, everyone genuinely believed the technology used was adequate and free from problems. Subsequently, it was found this was not the case and a new breed of incinerators was developed which meet all known scientific and medical requirements at present. However, people do not necessarily believe this. While I do not have scientific expertise in this area, I seek the inclusion in the Bill of a mandatory reference to health experts. The vehicle for so doing would be a vote on amendment No. 84.
Nothing but good can come from so doing and its inclusion as an express requirement would meet the genuine fears. If one considers the issue seriously, this is the greatest outstanding fear. I have spoken to thousands of people regarding incinerators and they require reassurance. Heretofore, the process has not reassured people, notwithstanding all the known scientific facts.
The other issue concerns the progress of medical research. If one uses the Internet to try to establish the facts, one finds that studies conducted near landfills and incinerators have shown that the closer one's proximity to such a facility, the more likely one is to have a child born with neural defects and so on. There is some evidence that this may be true. Hence, this amendment is designed to cover all these issues and I will press it to a vote.
I fully appreciate that.
I will do so in that spirit.
For the sake of argument, let us assume all members entirely accept the Minister's points regarding current EU and Irish standards. However, this Bill will be in force for a significant period. In two or three years' time, health research may be conducted on potentially damaging installations, such as incinerators, or any major infrastructural development with potentially contentious health issues, which produces evidence of some harm. On the contrary, it may produce evidence that there is no harm whatsoever from these installations. If the board was permitted to consult with medical experts and produce the evidence, the public would know what was happening. Potentially, the Irish and EU standards could remain static, while other international standards could rise. These amendments would encapsulate such possibilities and would introduce the positive elements.
While I do not question anyone's sincerity in this regard, the inclusion of a line in the Bill will not fully deal with the health debate. I wish to make two points. The environmental impact statement must be based on the best available science at the time. The EIS is not static and the process must incorporate the current state of knowledge. This specifically deals with Deputy Morgan's point. In addition, the integrated pollution prevention and control, IPPC, arrangement also requires an extremely comprehensive approach to be taken and requires the best information available.
All members are in possession of the scientific data in this regard. For example, it is known that a 1 million tonne incinerator, properly operated under existing standards, will produce 0.58 g, whereas the 60,000 tonnes of waste which is burnt every year in backyards produces approximately 15.8 g. Although the precise figure eludes me, from memory it is 15 g to 16 g per year. This is massive in comparison to incineration.
While one can make this point to a concerned community as often as one wishes, I believe the best way to deal with community concerns is by close monitoring and the availability of online information and I have argued that case for years. I was pleased that when the Environmental Protection Agency produced its licensing arrangements, it was cognisant of such an approach. I do not claim credit for the Environmental Protection Agency's inclusion of this requirement, as I was not alone in making such arguments. The best approach is to set a standard, have online monitoring in order that people may have access to it, along with a requirement to shut down an incinerator which breaches particular parameters. As doing so carries with it such a huge cost burden, the operators would be mindful of staying within them.
I accept the sincerity of the Deputy's arguments. However, I reiterate that the EIS and IPPC processes both require the best available information to be used. Hence, they are not set in stone. In this context, the only certainty pertains to what the science says regarding emissions levels. The levels of emissions from backyard burning, which occurs nationwide, are grotesquely higher. Every Halloween, people who burn tyres and the like create such emissions.
I am aware of some of the research as like Deputy O'Dowd, I have used the Internet to review the research. If anything, the research is more condemnatory of large-scale landfill, particularly of the old traditional landfills, than it is of incineration. This has informed my personal views in this regard. I would prefer a properly regulated and monitored incinerator any day to a large landfill, which would have all sorts of problems for a long time. We must agree to differ on this matter.
I have examined the EPA process fully in respect of the issue at Carranstown and made certain criticisms. The person who drew up the report for the board and the EPA transferred to another job but wrote the report before his departure. It was subsequently changed, albeit unintentionally. The requirements he had set out did not appear in the final report. I request a vote on amendment No. 84.
We must wait until the amendment is moved.
I apologise. I thought the two amendments were being discussed together.
We have discussed them together but amendment No. 84 cannot be put to a vote until it is moved.
I then request a vote on amendment No. 79.
It is the same thing.
Amendment put.
The Committee divided: Tá, 3; Níl, 8.
Tá
- Cuffe, Ciarán.
- Morgan, Arthur.
- O’Dowd, Fergus.
Níl
- Blaney, Niall.
- Cregan, John.
- Grealish, Noel.
- Kelleher, Billy.
- McEllistrim, Thomas.
- Moloney, John.
- Moynihan, Donal.
- Roche, Dick.
Amendment declared lost.
Progress reported; Committee to sit again.
The select committee adjourned at 8 p.m. until 2.30 p.m. on Wednesday, 28 June 2006.