Planning and Development (Strategic Infrastructure) Bill 2006: Committee Stage (Resumed).

This meeting has been convened for the purpose of the continued consideration by the committee of the Planning and Development (Strategic Infrastructure) Bill 2006 which was referred to it by order of the Dáil on 14 June. I welcome the Minister for the Environment, Heritage and Local Government, Deputy Roche, and his officials. I suggest that we consider the Bill until 5.30 p.m. before suspending for a break of 30 minutes. I also suggest that when we reconvene at 6 p.m. we continue our consideration of the Bill until the conclusion of Committee Stage. Is that agreed? Agreed.

I wish to make a brief point. Last week there was some excitement while Mr. Nugent was looking at his watch because he had to go to another place. I congratulate him and his wife, Stella, on the arrival of a new citizen, Ella. I wish Stella, Philip and Ella all the very best. He made a great contribution to the work we did last week and is now going to blush.

On behalf of the select committee, I also congratulate Mr. Nugent. He and his family have our best wishes for the future.

I hope we can be concise in our deliberations and efficient in our work this afternoon. That includes the Minister. We will now resume our consideration of the Bill. Members will recall that we stopped last week, having taken a vote on amendment No. 79. This brings us to amendment No. 80 in the name of Deputy Gilmore to section 3. Before discussing that amendment, I draw the attention of members to the following two corrections in the Minister's amendments. In amendment No. 264 the subsection numbering should run (3), (4), (5), (6), (7) and (8), not (3), (4), (6), (7), (8) and (9). In amendment No. 303, in the inserted section 47F, in subsection (3)(b) the reference should be to section 43(7), not section 47(7). These corrections have been circulated.


Amendment No. 80 not moved.

Amendment No. 81 was discussed with amendment No. 11.

I move amendment No. 81:

In page 10, line 39, to delete "for permission".

Amendment put and declared lost.
Amendment No. 82 not moved.

Amendment No. 83 was also discussed with amendment No. 11.

I move amendment No. 83:

In page 10, lines 44 and 45, to delete "applicant for permission" and substitute "applicant's".

Amendment put and declared lost.

Amendment No. 84 was discussed with amendment No. 79.

I move amendment No. 84:

In page 10, line 49, before "from" to insert the following:

", including submission relevant to the health and safety of communities proximate to the location of the proposed development,".

Amendment put and declared lost.

Amendment No. 85 was also discussed with amendment No. 11.

I move amendment No. 85:

In page 10, lines 49 and 50, to delete "for permission".

Amendment put and declared lost.

Amendment No. 86 was discussed with amendment No. 24.

I move amendment No. 86:

In page 11, to delete lines 1 to 9 and substitute the following:

"(d) without prejudice to subsections (2) and (3) the Board publish a notice in the national and local newspaper notifying the public that further information is received and shall, at the same time, copy any information received under section 37F(1) and dispatch it to both the relevant planning authorities and prescribed authorities, and invite further submissions or observations within 8 weeks of receipt of such information or notification under this section,”.

Amendment put and declared lost.
Amendments Nos. 87 and 88 not moved.

As amendment No. 90 is an alternative to amendment No. 89, they may be discussed together.

I move amendment No. 89:

In page 11, to delete lines 10 to 23.

Amendment put and declared lost.

Amendment No. 90 was discussed with amendment No. 89.

I would like to speak on the amendment.

It has been discussed.

To the best of my knowledge, it has not.

I would like to hear what the Minister has to say on the issue.

I move amendment No. 90:

In page 11, line 10, after "meetings" to insert "in public".

This is a significant amendment to the Bill. In keeping with much of the thrust of the Bill, people will meet to sort issues out before a decision is made. It is crucial that these meetings take place in public where appropriate. It is particularly appropriate that the meetings being discussed should be held in public.

I know from my time as an elected representative at local authority level that substantial planning applications were discussed. Very often there was pre-application consultation and many felt they were not part of that discussion. Examples included the Spencer Dock or George's Quay planning application when the local community felt completely powerless. It was not part of the discussion which was not held in public. There was a significant lack of adequate notes to let people know what was being discussed. The public needs to be fully informed.

One of our more important amendments addresses the need to provide some resources for local communities, as happens in other jurisdictions. In the United Kingdom, for example, there is a principle that the public interest is met and adequate support is given. There are limited examples of this happening in Ireland, particularly in inner-city Dublin where Community Technical Aid provides some, albeit limited, planning assistance. This has been of huge importance, particularly for socially excluded communities. To be blunt, such communities do not have the ability to secure the resources they need to address planning issues. In my constituency of Dún Laoghaire there are residents' associations which can put tens of thousands of euro together to submit observations on a planning application. However, there are also communities that cannot rub two cent together to make their views known. These groups believe that, from a financial perspective, they are not in the loop.

The first step in ensuring the public is involved is to make sure meetings are held in public. That is why I am pressing the amendment.

I cannot accept it. I also cannot accept the comparison between the Irish and British planning systems. The Irish planning system is infinitely more democratic and certainly more open. I will give two examples. On the critical issue of third party appeals, there is none within the comparative basis in the British planning system. If we were to move in that direction, we would close people down. In Britain assistance mainly comes through the Royal Town Planning Institute, a voluntary body. It is not as has been portrayed. It is a different issue for another section of the Bill.

Deputy Cuffe inserted the caveat "where appropriate" and suggested all pre-planning discussions should be held in public. They would all turn into mini-oral hearings. It would not be practical to provide for this. We have discussed in some detail a number of issues on which the Deputy touched and in respect of which he has a valid point. For example, he was concerned that records would be kept. They will be. This will be made certain with regard to the nature of records and regulations. However, to accept the amendment would be to effectively eviscerate the main proposal in the Bill.

I am disturbed at the proposal that meetings be held behind closed doors. There is a real problem with the board not allowing such discussions to be held in public. In recent days there was an example of the board considering a proposal for a new road in an inner suburban area in Monkstown, in the heart of the Dún Laoghaire constituency. In a report running to 135 pages the inspector stated the road should not proceed but was overruled by the board. Reading between the lines, it seems it was divided on the issue, as it gave no substantial reasons for overruling its inspector's report. We would be much better served by having some insight into the conversation that took place in that instance. In a similar fashion, where planning consultation meetings take place with an applicant, the public interest would best be served by allowing access to the discussions. Otherwise we are allowing the movers and shakers and developers to enter dialogue with the planning authority. Joe Public is left outside and does not know what is being discussed, bar very brief minutes which might be kept.

I offer my condolences to the Chairman on his recent bereavement.

I strongly support Deputy Cuffe's amendment because we are not talking about a minor extension to somebody's home or other minor works but about major infrastructure. The public needs to be involved and have access to meetings dealing with matters that will affect not just one person or family but an entire community. On such a scale, it is essential that the public has access. If we were dealing with ordinary planning matters, I would accept that there was a need for privacy between an individual and officials but that is not true in this case as we are talking about major infrastructure. On that point alone it is essential that the public has access to meetings.

To briefly take up the last point made by Deputy Morgan, I find his differentiation even more difficult to understand. He is effectively stating we can have private consultations on development as part of the normal planning process but that in this area something different is needed. Pre-planning meetings are held in every local authority and that is as it should be. We must ensure, however, that administrative arrangements are properly put in place. Meetings are not held in public and it would not be practical to do so but it is critical that they are recorded and that the public have access to the recorded minutes placed on file.

Deputy Cuffe pointed to a recent decision of An Bord Pleanála to disagree with its inspector. Where it disagrees with an inspector, it must indicate reasons for the disagreement. By law, it could not have been done in the way the Deputy portrayed. He knows that in such circumstances the board must record the basis for disagreement. His comment that on reading between the lines there was a division suggests a rationale was brought forward.

We do not know. That is my concern.

One would know why the board took a different view. Judges do not sit in public in chambers.

This is not an issue about judges in chambers. It is a source of real concern. As the Irish Planning Institute pointed out, there may be increased scope for judicial review proceedings arising from proceedings held behind closed doors and the lack of an appeal mechanism in respect of decisions made by the board. I am greatly concerned. It is an important principle that the public should be inside the door and have sight of the proceedings rather than outside with the door locked. I am not convinced that the Minister's proposal relating to the minutes of meetings will ensure an adequate record of proceedings or the kind of discussion that took place.

As I stated, there will be a record of meetings. The comment with regard to the Institute of Planning of Ireland is somewhat bizarre because members of the institute are engaged in discussions — properly so — with persons who are looking for planning permission as part of the normal planning process. These discussions are not held in public. I regard the statement as a little odd.

Amendment put.
The Committee divided: Tá, 3; Níl, 8.

  • Cuffe, Ciarán.
  • McCormack, Padraic.
  • Morgan, Arthur.


  • Ellis, John.
  • Grealish, Noel.
  • Haughey, Seán.
  • Healy-Rae, Jackie.
  • Kelleher, Billy.
  • Moynihan, Donal.
  • O’Connor, Charlie.
  • Roche, Dick.
Amendment declared lost.

Amendments Nos. 91 and 92 are related and may be discussed together.

I move amendment No. 91:

In page 11, lines 40 and 41, to delete "such period as it may specify" and substitute the following:

"the period of 8 weeks of the date receipt of further information".

Planning is a quasi-judicial procedure, so it is important to have the utmost clarity as to how such proceedings are conducted. I am worried that much of this Bill is couched in a "make it up as you go along" type of procedure. For that reason, I propose that we insert a period of eight weeks in respect of the receipt of further information. If members of the public do not know for how long, in general, information might be fed into the system, they will find it difficult to make their views known within the process. A period of eight weeks is used in many contexts in current planning submission procedures. It makes sense to provide clarity and ground rules, rather than making the rules up as one goes along.

I agree that it is always safer and more logical to have a specified period and eight weeks seems acceptable in that regard. As matters stand, the process will be open-ended. The term used is "within such a period as it may specify". I presume the word "it" refers to An Bord Pleanála. In other words, it is not laid down anywhere what will be the period of time. If a person wants to make an observation, the first thing to define clearly is the period within which they may do so. If that period is laid down in the legislation, there could be no mistake about it and people could make their observations within the specified time. Currently, the system is too open-ended. The use of the term "within such a period as it may specify" could lead to situations being prolonged. More importantly, however, it could lead to a lack of clarity regarding the period of time involved. People would be obliged to inquire what period was specified, whereas it would make a great deal more sense to insert a definite period in the legislation. I see no reason why the Minister cannot agree with the thinking behind both amendments.

There is a specific reason I cannot do so. Deputy McCormack touched on the point when he cited the wording "as it may specify". The board may specify a period, so there would be clarity because the board will say that observations must be made within X number of weeks. To limit it to eight weeks would be unwise because one could be dealing with something of such strategic infrastructural significance that a longer period might be required. We are giving the board the power in law to exercise its discretion and make a judgment on the substantive issue. It would be rational, therefore, to give it the right to specify the period during which people may make submissions. They would be obliged to specify the period, so the ambiguity about which Deputy McCormack is concerned would not exist.

We could specify a period of eight weeks and include the term "unless otherwise declared by the board" or something of that nature, which would deal with the exceptional cases to which the Minister referred. If something is not clearly laid down in the legislation to the effect that it will be eight weeks, the situation will be unclear. If such a period was inserted, it would alert people to the necessity of making their observations within that time. It would be clear and there would be no room for any doubt or a need to wait for the board to specify a period. The Minister should name the eight-week period and could include a wording such as "except otherwise agreed by the board" or "except otherwise decided by the board". That would alert people to the second scenario. The most important thing is to have a time limit clearly laid out in the legislation.

The Deputy is conceding the point I made, namely, that more than eight weeks may be required. The amendment, as drafted, would confine the period to eight weeks, so I cannot accept it.

Amendment put and declared lost.
Amendment No. 92 not moved.

I move amendment No. 93:

In page 11, line 45, after "available" to insert the following:

"within the planning file on the application for public".

There is a certain ambiguity in this section where it is stated that the record shall be available for inspection. We need to clarify that it should be available for inspection by the public. Perhaps the amendment should read "for the public". It is important that we bundle all the documentation together in the one place. Many of us have experienced difficulties with ordinary application files whereby submissions by members of the public may be kept separately from the application, and that might be kept separately from some of the local authority officials' reports. In the interests of clarity, it is important that an entire file be made available to the general public.

I cannot see the circumstances where different elements on the same file would be kept under separate cover. It would be very bad and incorrect administrative practice to do so. The intention is that these records will be kept on file and the file will be available for public inspection. I cannot see the circumstances where this would arise. If it would be helpful to the Deputy, I will ask the Parliamentary Council, between now and Report Stage, to examine the wording to ensure that there is no ambiguity. I share the Deputy's concern that there should be no ambiguity. To my mind, there is none but I will request the Parliamentary Counsel to examine the matter. It is also something that could be dealt with by means of regulation. I will examine the matter further see if an additional word is required.

I appreciate the Minister's reply and am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments Nos. 94 to 100, inclusive, 102 and 103 may be discussed together.

I move amendment No. 94:

In page 11, to delete lines 50 to 53 and in page 12, to delete lines 1 to 6 and substitute the following:

"(5) Before making a decision under section 37G in respect of any development proposal applicable under thePlanning and Development (Strategic Infrastructure) Act 2006, the Board shall provide the Environmental Protection Agency with a copy of project EIS and request the Environmental Protection Agency to make a written observation on it with 3 weeks from the date of request by Board.”.

It is important that the Environmental Protection Agency is fully involved in the process within these applications. The EPA's involvement should be mandatory rather than discretionary and to that end I tabled this amendment. It must be made clear that the EPA will receive a copy of the project EIS as well as having its views made known. The EPA should not be silent on such issues. That resource should be harnessed so it would be appropriate for the EPA to make its views known on each strategic infrastructural project that comes forward. I would hate to think that a raft of projects might come through the process without the EPA commenting on them. One way or another, the EPA should be put under pressure to provide its views.

I see the Deputy's point but it is important that the interface between the board and the EPA be clear. Amendments Nos. 94 and 103 are unnecessary. The board has the power to consult with anybody it thinks necessary. It is normal practice to consult the EPA. The board is specifically required to consult it under section 37F when an IPPC or waste licence issue is included. The Deputy may not have spotted that specific requirement.

Amendments Nos. 95 to 97, inclusive, 99 and 102 are minor drafting amendments to the section. I discussed many of these drafting amendments in the Seanad, including the reinsertion of the indefinite article in a number of cases. My advice is that they are not necessary.

Amendment No. 98 appears to propose that the board should give consideration to an IPPC or waste licence application. This clearly would be unworkable because that is the EPA's job.

With regard to amendment No. 98, I cannot imagine that would be the effect. The effect would be that An Bord Pleanála would give consideration to an IPPC licence. An IPPC licence process already goes through the EPA. We have had lengthy discussions on this in the context of the nitrates directive. I cannot imagine that groups such as farming organisations would envisage a scenario where two hurdles would have to be jumped. Amendment No. 98 probably would have an unforeseen effect for that reason, and it is not workable. I cannot accept it.

The effect of amendment No. 100 would be to prevent the board from making a decision on an application where there is a live request to the EPA to make observations on an application which comprises, or is for the purposes, of an IPPC waste licence. I have pointed out that this is unnecessary and could potentially put an inefficient bureaucratic hurdle in the way of the board in making a decision. It could have unforeseen consequences.

I have given much consideration to these amendments and it is not the intention to exclude the EPA nor is it the intention to have a double hurdle. I will consider the amendments and see if anything further needs to be done between now and Report Stage. The issue is complicated.

Amendments Nos. 94 and 103 are unnecessary as the board has power to consult. Amendments Nos. 95 to 97, inclusive, 99 and 102, which are purely textual, are drafting amendments and it would be unwise to accept them. Amendment No. 98 is somewhat confusing. Amendment No. 100 could have a negative impact of preventing the board making a decision.

I take the point that the EPA will be directly involved if there is an application for an integrated pollution control licence. Nonetheless it would appear curious, to say the least, to the general public if not others if the EPA were seen to be silent on a substantial amount of the strategic infrastructural projects that come before the board. People want the EPA to give its views on the effects of major projects on the environment, regardless of whether an application for integrated pollution and prevention control licence forms part of the application.

It is sensible to draw on the talents — they are many — within the EPA and ensure its views are made known in the process. I accept there will be a need for resources to allow that to happen. I would hate to think the largest projects the country will have ever witnessed would go forward without the EPA giving a view on them. I wish to press the amendment.

The EPA will clearly see those amendments where the EPA's role would arise. There is also a matter with the IPPC licensing in that there is a sequential issue. If the Deputy looks again at the body of amendments being discussed, it confuses roles. It would be better to keep matters as they are.

The planning and IPPC licensing are separate although related issues. That is the point Deputy Cuffe was making. There is an interface between principles, and this is set out in the Environmental Protection Agency Act 1992, as amended by the Protection of the Environment Act 2003. One of the key features of the interface is the ability for somebody promoting a development to choose to pursue planning consent and an IPPC licence either separately or contemporaneously. That is available currently in law. It does not cause a problem, and trying to shoehorn the two processes into one could.

Amendment put and declared lost.

I move amendment No. 95:

In page 11, line 51, after "of" to insert "a".

This is very straightforward. All that is required is to move an "a" from line 53 and add it to line 51. It is a very insignificant move and a short distance to move the letter. It would make a significant difference to the meaning of the section.

It would not be practical to put in "of a" proposed development. Leaving the indefinite article out does no violence to the meaning at all. We discussed at length in the Seanad the issue of putting in or omitting the indefinite article. In the interests of sanity, we should not go through all this again.

I see the Deputy's point that a person reading the section would tend to state "of a" proposed development or "of the" proposed development. I am advised the "a" is excessive and should be left out. It is a common drafting issue. It arises throughout the Bill. Many of the textual amendments relate to language.

It would give a clearer meaning if the "a" was inserted. I believe Deputy O'Dowd was trying to achieve that in tabling this slight amendment to the line.

Is the amendment being withdrawn?

The Deputy should put it to a vote.

I would not put it to a vote to insert an "a" in the Bill.

The Deputy is tough on grammar issues.

Could we not borrow the "a" in line 53 and add it to line 51? The matter would be solved.

The matter will arise time and again. The "a" is left out intentionally as it is in the drafting. It was not an oversight.

: We want to omit it in line 53.

I know that. The Deputy is being consistent. I would not say the Deputy is being petulant. The draftsman advised me against it if I was disposed to say yes. I am advised that in the interest of consistency in drafting this and other legislation, we should omit the "a".

Amendment, by leave, withdrawn.

I move amendment No. 96:

In page 11, line 52, to delete "for the purposes of an activity for which".

This appears to make more sense. It would solve my difficulty with the "a" in the previous amendment. The meaning of the entire sentence will be changed.

In the interests of consistency I cannot accept the amendment.

Amendment put and declared lost.

Amendment No. 97 has been discussed with amendment No. 94.

I move amendment No. 97:

In page 11, line 53, to delete "a" .

I have already made my point on this. We thought the "a" to be necessary in line 51, but in this case it is unnecessary. I would like to hear the Minister's reasoning for why it is necessary. Perhaps the word should be "any"?

In this case it is "a waste licence" because the indefinite article is applicable. It is not specific to the waste licence being referred to. In the context, "a" makes sense.

Amendment, by leave, withdrawn.

Amendment No. 98 has been discussed with amendment No. 94.

I move amendment No. 98:

In page 12, line 6, after "development" to insert the following:

", and the Board shall not make a decision under section 37G without considering in equal measure the application for such a licence".

Amendment No. 98 appears to propose that the board should give consideration to an IPPC waste licence. I have already stated this is a job for the EPA. It could not be Deputy O'Dowd's intention in tabling the amendment that an IPPC waste licence would go over a double hurdle. The intention is not clear. For a licence to go through a double hurdle clearly would be unworkable.

Amendment, by leave, withdrawn.

Amendment No. 99 was discussed with amendment No. 94.

I move amendment No. 99:

In page 12, line 8, to delete "application" and substitute "application,".

The amendment seeks to have a comma included. I am advised that it is not necessary. There are a lot of commas being inserted and deleted in the Bill and the suggestion is that it should be kept as it is.

That is of less significance than including the letter "a".

Amendment, by leave, withdrawn.

Amendment No. 100 was discussed with amendment No. 94.

I move amendment No. 100:

In page 12, line 11, after "subsection (5)" to insert the following:

", and it shall not make such a decision within that period without having either—

(a) considered the observations of the Agency, or

(b) received notification from the Agency that the Agency does not intend to make a submission”.

This amendment would prevent the board making a decision where there was a live request to the EPA to make observations on an application which involved a risk for the purposes of an IPPC or waste licence. When the amendment was discussed in the Seanad, I pointed out that it was both unnecessary and potentially could put an additional inefficient bureaucratic hurdle in the way of the board in making a decision. I have not changed my mind on the issue. As the licensing arrangement lies appropriately with the EPA, there are good and cogent reasons for not changing my view.

This proposal would strengthen the relevant section of the Bill.

I do not agree.

It would leave the power with the person or agency making the submission.

I disagree. It would have the opposite effect. It could prevent the board from making a decision.

Amendment, by leave, withdrawn.

I move amendment No. 101:

In page 12, line 27, to delete "consider" and substitute "have regard to".

I am sure Deputy O'Dowd is well intentioned but the difference is largely one of perception. As proposed and drafted, the amendment means the same. Our time could be better spent by not dwelling on what is a drafting issue. I understand the Deputy is operating from advice received on the use of language but the wording used in the Bill is that used in section 175 of the 2000 Act. As there is a precedent and it has not caused any problems in application, the wording should be left as it is.

The phrase "have regard to" is stronger than the word "consider". One must take account of something when one has to have regard to it, whereas when one has to consider something, one can only think about it.

I do not think so.

The phrase "have regard to" seems to be more definite.

The wording is used in the 2000 Act, particularly in section 175. Given that there is a precedent and it has not caused any problem in use, notwithstanding what might be considered a better style, the wording should be left as it is.

I will press the amendment because it would make the relevant section of the Bill stronger. The board would have to have regard to all that followed an environmental impact statement submitted under section 37E(1), rather than merely consider it. Otherwise it would only be required to state it had considered such matters; it would not have to take them into account. The phrase "have regard to" is stronger.

Amendment put and declared lost.

Amendment No. 102 was discussed with amendment No. 94.

I move amendment No. 102:

In page 12, line 37, to delete "any".

It seems I kept missing the discussions that took place on the earlier amendments. This is similar to the point made by Deputy McCormack on whether it is mandatory to examine every issue, or whether there is discretion. All information should be examined, not just some of it. The definition of the word "any" may or may not include "all".

In the arcane world of drafting "any" means "all". It is all-encompassing.

Therefore, why not use the word "all"?

The convention is to refer to "any" information submitted.

My understanding of the law is that the man or woman on the Clapham omnibus would need to understand the phrase in the context in which they would use it.

Whether it is the person on the Clapham omnibus or the No. 84 bus——

He or she might have to wait.

That was my experience when waiting for the No. 84 bus but the service is much improved under the Government.

Another 200 buses would help.

The amendment proposes to delete the word "any", thus making the text less precise.

The thrust of my amendment was to ensure all information furnished would be examined. For instance, if it was planned to build a road across Dublin Bay and submissions from fishermen and An Taisce were received, the Minister, in his wisdom, if he was on the board, could just consider the information from An Taisce, not that from the fishermen.

No. This would not occur with the use of the word "any". One would be required to include information, not just from the fishermen and An Taisce, although the former might be more sensible than the latter——

That is the Minister's interpretation.

——but also from anybody who happened to be on the No. 84 or any other bus. The word "any" is used as a drafting device because occasionally there may be no information received. This is the draftsman's interpretation.

Unlike me, the Minister has the benefit of the advice of the Parliamentary Counsel.

These are arcane drafting conventions.

Amendment, by leave, withdrawn.
Amendment No. 103 not moved.

Amendments Nos. 105 and 106 are alternatives to amendment No. 104, while amendments Nos. 168, 180, 242, 255 and 293 are related. They will all be discussed together.

I move amendment No. 104:

In page 13, to delete lines 15 to 22 and substitute the following:

"(g) the matters referred to in section 143,

(h) any relevant provisions of this Act and”.

These amendments relate to the board's decision-making criteria in determining whether a proposed development constitutes a strategic infrastructure. This sets a broad canvas for the board on which it will set out its decisions. Amendments Nos. 104, 168, 180, 255 and 293 amend the list of issues that must be considered by the board in taking a decision on a strategic infrastructure application to standardise, in so far as possible, the considerations that must be applied. Currently, these sections of the Bill list considerations such as the national interest, the national spatial strategy, regional planning guidelines and any relevant policies of the Government or a Minister of the Government as being relevant. Section 143 of the 2000 Act which is being amended by the Bill contains a broader list of issues which must be considered. These include the national interest and any effect the performance of the board's functions may have on issues of strategic or social importance to the State.

The board has pointed out that any difference in the wording used in respect of issues to be considered may cause unnecessary confusion or problems for it. The best and most clear option would be to use the broad list of issues contained in section 143 and include a direct reference to that provision in the Bill. This has an added advantage in that it requires the board to consider any effect the performance of its functions may have on issues of strategic economic or social importance to the State. This is cited in section 143. That is the right and proper case concerning strategically important infrastructure where decisions taken by the board can have an impact for generations.

One issue that has arisen during the debate is whether local issues should always overrule the national interest. That would not be wise. Clearly, the national interest has a specific place in the pecking order.

The Minister is proposing to delete three categories from the list of matters to be considered by the board. These are: the national interest; the national spatial strategy and any regional planning guidelines; and any relevant Government policies. If my understanding is correct, he is seeking to reinsert the list of matters in section 143 of the original Act.

It is reinserting the reference to section 143.

Does section 143 include reference to the national interest?

Stated in that way.

It also includes reference to the national spatial strategy.

It is wider. That is the point I am making.

Fine. In that case, I wish to refer to a couple of issues. The matters that are now listed in this section are all documented, including, arguably, the relevant policies of the Government or the Minister. There would at least have to be some reference to them somewhere but the national interest is not defined at all. I am proposing that it should be defined by way of resolution of the Houses of the Oireachtas. I would like to hear what the national interest means in a planning context or what the Minister understands it to mean. I do not understand what it means. It is one of those terms that has been the subject of ridicule over the years. Satirists have had great fun with it. I recall that Eamonn Morrissey used to have a chant where he intoned that various things were being done in the national interest.

Since the Minister wishes to have the national interest included as a point that An Bord Pleanála must consider, I would like to hear his view on it. An Bord Pleanála is entitled to know what is meant by it. In the course of this detailed debate, we are entitled to be informed of the Minister's understanding of it. It needs to be spelled out because we are debating what is the national interest, although people have different views on it. What one person may regard as being in the national interest — whatever that means — another may regard as not being in the national interest at all. I would like to hear what the Minister means by it, since he wants to include the term in the Bill.

As I understand it, section 143 of the original Planning and Development Act places a requirement on the board to "have regard to certain matters". The Minister is proposing to state in the Bill before us that the board "shall consider certain matters". Are they not two entirely different concepts? Will the Minister explain why he is moving from the formula in the original Act that the board "should have regard to certain matters" to the formulation in this Bill under which the board "shall consider certain matters"?

The term "national interest" is commonly used. It is, for example, in the national interest that we should have good and flexible infrastructure. It is in the national interest — without necessarily defining the national interest — that we should have a good public transport system. It is clearly in the national interest that we should have good sanitary services. It is obviously in the national interest that we should have clean water. Clearly, it is in the national interest that we should have a power transmission network that can serve the purposes of economic and social development.

In the various cases to which I refer, the statement "in the national interest" will be widely accepted without necessarily looking for a specific and precise interpretation. In fact, the national interest is used frequently to describe issues where we would accept without debate that there is good public purpose to be achieved from certain things. For example, the infrastructure deficit from which we suffer in a number of areas is not in the national interest. It is interesting to suggest that we should have a clear definition of the national interest but I suggest that it is something of a chimera.

While we have a general concept of what is in the national interest, it is difficult to provide precise words that determine its nature. It is not in the national interest, for example, that we should continue to have stasis in planning on infrastructural issues. When we talk about the national interest we are talking about the good of the general body of the people of Ireland. We are not talking about their good in a more defined sense than that. The Deputy is correct. If one looks at where there has been debate and discussion in respect of the national interest since the foundation of the State, I suggest that many people who use the term have an inherent understanding of what they mean without necessarily having precise words to define it.

Why does the Minister not use the term "public interest"?

The phrases "public interest" and "national interest" are both commonly used but neither, in fact, is terribly different from the other.

Could they mean the same thing?

They may or may not do so.

I ask only because the Minister is including the term in the Bill.

It is a fair point and I am not in any way dismissing the question. It may be that the public interest and the national interest are the same thing. It may be that they are different. It is a somewhat philosophical debate.

What is the Minister's opinion?

In my view the national interest is superior, although I would find it difficult to say why. The public interest has been somewhat abused over the years.

Could the Minister give an example of something that would be in the national interest but not in the public interest?

No, but I can give the Deputy plenty of past examples where politicians have argued that something was in the public interest when that was clearly not the case. Many of the extreme political movements in Europe over the years would have argued that they were acting in the public interest when they were not doing so.

They also appealed to the concept of nationhood.

Yes, that is true.

It was not always with happy consequences.

It is a fair point but a rather philosophical one in the context of the Bill.

As we are on the point, is the national interest a 32-county term or is it defined by the parameters of the State?

It applies to the jurisdiction to which the Bill will be applied.

So it is a partitionist term in this context.

No. It is not a partitionist term. It applies to the jurisdiction to which the Bill applies. If the Deputy asked what would be my wish——

The Bill applies to Northern Ireland as well.

It does actually. That is an interesting point because it refers to trans-Border issues from time to time. My ambition, by the way, is that there would be no ambiguity as to where the term would apply and where the national territory would apply. I and at least one Deputy on the Opposition benches share a common view on that point. For the moment, however, we are stuck with the jurisdiction and rights that we possess.

Mr. O'Dowd

I apologise for being late. I had other issues with which to deal. The national interest is in addition to the other stated issues.

In theory, therefore, one could argue that the national interest might be against the interests of the Government and against the national spatial strategy. In other words, if it were included as a different issue, An Bord Pleanála could decide that the national interest was against Government policy. I am putting forward that point as an argument, although I am not sustaining it. I agree with the viewpoint that it is a loose term when everything else is already in the Bill. Can the Minister indicate the type of case where it would not be in Government policy or the national spatial strategy? In other words, this issue will come out of the blue at some point——

Deputy O'Dowd is right. It is difficult to envisage it but there is a natural progression. For example, issues that are dealt with in a regulation or guideline — guidelines were commonly drafted on planning — would not necessarily be ones that are in the national interest.

What would happen if an application were made to build a nuclear power station? That would be against Government policy and the national spatial strategy but, in theory, An Bord Pleanála could decide that it would be in the national interest and grant permission.

It could not because to do so would be illegal.

I am assuming that other law was changed. An issue could arise, in theory, that was contrary to all the existing policies but on which An Bord Pleanála could decide was in the national interest and grant it.

I understand the point the Deputy is making but it could not make a decision that would go against legislation already made.

Excluding the legislation, an issue could arise that would be against Government policy and the national spatial strategy that would give An Bord Pleanála a reason to grant permission. That is the point I am trying to make.

I cannot see how——

It is a theoretical argument.

It is a highly theoretical argument. On the example the Deputy gives, and I can see Deputy Morgan's blood pressure rising already, as was mine, let us take that canard out of the pen because the board could not make a decision which was illegal. The Deputy is asking if an issue that was in the national interest could arise which would run against Government policy. I suppose that could happen. The Deputy has frequently argued, from his vantage point in the House, that the national interest has been ill-served by decisions made on our side of the House.

I would agree with that. It is in the national interest that the Minister resign forthwith, but that is not going to happen.

I believe it is in the national interest that we should not do that. The term "national interest" is one of which we have an intuitive grasp. If the Deputy reads Article 143 and the way it was originally stated in this Bill, there is a natural progression or hierarchy and there are certain significant issues which can be in the national interest. The national interest is a broad stroke; it is not fine paint work. It is clearly in the national interest that we have better transport infrastructure, for example, as are all the others I have cited.

The national interest and the public interest is dealt with in every line of a document called the Proclamation, which was given to us 90 years ago. It is not defined in that document either but it is unfortunate that it is not. I support Deputy Gilmore's amendment because it would be in the national interest to have a fair and equitable tax system as opposed to one that allows half a dozen of the richest people in the country not to pay anything. It is in the national interest that our natural resources are not given away, buckshee, to whoever. It would be in the national interest to have a more vigorous campaign to close down Sellafield which is damaging our people's health.

It would be in the national interest to have peace and security in Northern Ireland.

Peace and security on this island is what we want.

We should stick to planning issues.

The Minister believes it is important to deal with the security issue in Northern Ireland, as I do, and if he wants to raise it, we will deal with it. We have covered a fair bit of ground here but the national interest should be defined because people have different perspectives on it. We should define it once and for all because that would be an important guideline, not just for the current Minister for the Environment, Heritage and Local Government but for all his colleagues, down to those in the public and Civil Service also.

If this Bill had been in place when the M3 issue had to be decided, there would have been a dispute as to what was in the national interest. In a situation like that, who decides what is the national interest?

That is an interesting example which goes back to the point I made earlier. There are local interests, regional interests and then the national interest. When that debate was taking place, the Deputy's party, my party, Deputy O'Dowd's party and Deputy Morgan's party weread idem during the course of a by-election that it was in the national interest to have a good road infrastructure. It was clearly in the interest of the people of Meath. I remember the Deputy’s party put up posters stating “M3 Now”.

That is correct, and we supported the proposal.

And properly so.

We support this Bill also.

That clearly indicates——

Is the Minister suggesting, therefore, that by using that term, it was improper and against the national interest to have opposed that route?

No. It is my view that it is in the national interest for all sides of the argument to have a debate.

Can we stick to the issue of the development? If An Bord Pleanála is confronted with an issue similar to the M3 motorway, Tara and all the issues associated with that, and a row erupts over what is the national interest, who makes the decision in that case?

The board decides.

The board decides what is in the national interest.

An Bord Pleanála now decides what is in the national interest.

An Bord Pleanála informs its decisions having regard to,inter alia, the national interest.

However, it has to figure it out.

Yes, in the circumstances of the case. Deputy Morgan referred to two of the finest documents we have in this State, namely, the original democratic programme and——

An Bord Pleanála has come a long way from deciding planning appeals.

I thought the Deputy's party supported the M3. I must be wrong about that.

I am just giving that as an example. I do not want to reopen the M3 debate. I just want to know who decides what is in the national interest. The Minister is telling me An Bord Pleanála decides what is in the national interest.

I am saying An Bord Pleanála is influenced in its decisions by,inter alia, the national interest. Is what we see every day in County Meath in the national interest? My view is that it is not. That is the view of the Deputy’s party.

What about preserving the heritage of Tara? Has that anything to do with the national interest?

It is in the national interest but we must also balance those interests. I am not sure where this line of discussion is taking us because the decisions on Tara and the M3 have been made. I do not take the view that the national interestvis-à-vis Tara was harmed by a decision made by An Bord Pleanála after a long discussion. In fact, the decisions I made will protect the heritage and the archaeology of Tara. Those were the only decisions I had to make.

That is the Minister's view.

I made other decisions in the case of the M25 in Waterford which resulted in the road being moved because of artefacts found.

The legislation would be better without that sweeping term, which does not add anything in terms of clarity.

Amendment agreed to.

Amendment No. 105 in the name of Deputy O'Dowd and amendment No. 106 in the name of Deputy Gilmore cannot be moved as a result of our decision on amendment No. 104.

I wish to speak to one amendment in the group we are discussing.

Which amendment?

The Minister's amendment No. 255.

The Deputy can speak to that amendment when we come to it.

I understand. As they were grouped I thought I could speak to it.

Amendments Nos. 105 and 106 not moved.

I move amendment No. 107:

In page 13, between lines 24 and 25, to insert the following subsection:

"(3) When making a decision in respect of a proposed development for which an application is made under section 37E, the Board shall, without prejudice to the generality of subsection (1), consult with any relevant planning, local or regional authority, so that it shall be apprised of the opinions of local people and their representatives, and the Board shall—

(a) take account of such concerns, and

(b) not overrule existing planning provisions,

save where there is good, justifiable and stated reason not to so do.".

What is the Minister's initial response?

This could be a NIMBY charter. We talked about interests earlier in the debate. There is clearly a sequence of interests. The essence of the amendment is dealt with in the Bill. The board is required to consult local authorities for the areas affected. The Deputy was concerned about this issue. The planning authority for the area in which a proposed development is situated is required to submit a report to the board setting out its views on the effects of the proposed development on proper planning and sustainable development. Before submitting the report to the board, the manager is required to consult the members and any recommendations from them must be attached to the report. The latter arrangement is unique in the Irish planning system, a matter to which the Deputy has referred. In fact, I introduced a clarifying amendment in the Seanad to provide that the board must consider the report and the attached recommendations in making its decision. Therefore, the essence of the Deputy's amendment is captured.

I do not disagree with the Minister but the amendment acknowledges that there are also regional and other authorities which theoretically ought to be consulted.

The term "prescribed bodies" covers such bodies as the NRA and the EPA. The essence of the Deputy's amendment is to capture a local democratic input through the local councils. That is captured by what is a novelty in Irish planning law since the 1960s, that is, the inclusion of a specific reference to the role of the council and councillors in making their views known.

Amendment, by leave, withdrawn.
Amendments Nos. 108 and 109 not moved.

Amendments Nos. 111 and 112 are alternatives to amendment No. 110. They will be discussed together.

I move amendment No. 110:

In page 14 , to delete lines 26 to 31.

The Bill provides that the board may decide to grant permission for development or any part of a development under this section, even if the proposed development or part thereof contravenes materially the development plan for the area in which it is proposed to situate the development. This, in effect, undermines the development plan which is democratically adopted. It has been described as a contract between the people and the State with regard to planning at local level. There is a procedure for materially contravening development plans and there is no reason strategic infrastructure should not go through it. This provision means that even though there might be a provision in a development plan, for example, relating to landfill sites or incinerators, the board can override the plan, even though the development would materially contravene it. This stands local democracy on its head. It is also a contradiction of the earlier part of the section where the board is required to consider the provisions of any development plan for the area. There is not much point in considering the provisions of the development plan if the development materially contravenes it. What is the point of considering the plan if it is intended to override it? I propose that this provision be deleted.

All planning law since 1963 has allowed the board latitude to make a decision in the circumstances outlined by the Deputy, particularly in the 1976, 1983 and 2000 legislation. The board obviously takes cognisance of the local development plan but this provision is certainly not a new departure. It is not a new departure to suggest the board can take this broad decision.

Local plans are drafted for local considerations specific to it. We discussed the national interest or interests which run beyond the particular region or area. Planning law has always allowed the board to take a decision in specific circumstances and sometimes to take decisions which run counter to the local area plan which is not necessarily a sacrosanct document. It is a document prepared for a local area which might not have a wider remit. It might state, for example, that there are to be no 220KV power lines in a particular area. However, the effect might be to deny areas on either side of that county council area access to the type of power grid they would want. Where would that leave the country?

This type of arrangement has always been necessary. The 1976 Act, the first major amending legislation to the original 1963 Act, specifically allows for this. This arrangement is also specifically envisaged in the 1983 amending legislation and the 2000 Act. There is no novelty whatsoever in this instance but there would be in reversing the arrangement which applies to individual developments and allows An Bord Pleanála in all the other circumstances, even in the case of speculative development, to have more latitude in its decisions on critical infrastructure for the nation. That would be a strange reversal of the arrangements which have applied since the 1963 Act.

What is different is that the Bill proposes to fast-track certain types of development and provide direct access to An Bord Pleanála for particular types of development. It provides a formula, whereby promoters of certain developments can talk in advance with officers of An Bord Pleanála, be steered through their application and then have the board make a final decision on it. What is provided for in this section is that An Bord Pleanála can make that decision, regardless of what is contained in the development plan. One could have a situation, for example, where a local authority decides an area is one of high amenity, a private developer comes along with a proposal for a landfill dump and An Bord Pleanála can give permission for it. That is what will be permitted by this section of the Bill.

Under the existing arrangement, if a developer came forward with such a proposal, what the Deputy is describing could happen. He is now suggesting that in such cases which are regarded as being of national and strategic importance and which would be much smaller in number than speculative developments a different set of circumstances should apply. It is not a tenable argument. In the first instance mentioned by him An Bord Pleanála, under current law, can make a decision and sometimes does which will run counter to the local plan.

The Deputy suggests there is a novelty in this instance because an application is fast-tracked. There is not. First, the fast-tracking device is merely an extension of a fast-tracking device which already applies to some developments where the local authority is the prime mover in the fast-tracking. If one considers it further, it is apparent that the members views will be taken on board but this will not in any way change the law as it applies to all planning cases that come before the board.

There is a difference involved. Under the current legislation, if there is a proposal from a private company to develop a landfill, it would be obliged to apply to the local authority for planning permission.

That is correct.

I presume that the first thing the local authority manager would say is that the proposed landfill, if it was to be situated in an area of high amenity, represented a material contravention of the county development plan. It would be advertised as a material contravention of the county development plan and a period of time, during which members of the public could have their say, would be allocated . It would then return for a vote by the elected members of the local authority. At the very least, that process would be undertaken. The Minister is correct to say that, theoretically, it is possible that the promoter could then appeal that decision to An Bord Pleanála, which might or might not decide to grant permission. At the very least, however, the process of the material contravention of the county development plan would be up for public consideration. The Minister is removing that provision, however, so there will be no process whereby members of the public can express their points of view or where elected members of local authorities can make decisions. It will go in the back door to An Bord Pleanála, be given the nod and then go back in the front door with the application. It would be a case of "Bob's your uncle" for the landfill, although it was a material contravention of the county development plan in the middle of a high amenity area. That is what the Minister is allowing.

The material contravention process would only arise — as Deputy Gilmore knows full well, I suspect — when the county manager is prepared to grant permission. So the hypothetical situation——

That is not the case.

It is when the county manager makes a call.

It is not entirely relevant. If the manager says no, the material contravention issue does not arise. It arises logically only where the manager is proposing to say yes.

The second and more telling point is that there is no substantial difference and that no new situation will be created in Irish law on foot of this. What has applied in areas throughout the planning process has been a matter of critical comment from members on all sides of the House, including, on one or two occasions, those on the side I occupy. An Bord Pleanála currently has the opportunity to refuse or grant planning permission, sometimes in direct opposition to local area plans. The Deputy is aware of that fact. That is the position at present. I can think of instances where it has happened and I have disagreed with it, but it exists under current law. The arrangements that apply to critical infrastructure should not be more onerous than those which apply to spec development.

Development plans are increasingly integrated, not just in terms of urban development plans but also in county and regional development plans. To a minor extent, it is even beginning to happen on a cross-Border basis. The bigger picture is envisaged in those plans when regional plans are considered by local authorities, usually in draft format. The local authorities have an opportunity to amend them, so I do not think there is much room for the broken or disjointed planning to which the Deputy referred. There is much more room for cohesive and clearly well thought out planning. My major concern about this matter is that it undoubtedly represents a further erosion of the powers of local authority members. They will again be ridden over roughshod to the point where, if they are asked to examine a county development, they would probably scratch their heads and say "What's the point, because An Bord Pleanála will run roughshod over us in any event?" That is an important issue which should not be treated lightly. This amendment deals specifically with trying to stop the floodgates opening with regard to the further erosion of local authority members' powers. I support it entirely.

I wish to make two points in respect of this important issue. In recent years, and particularly in the lifetime of the current Government, what might be broadly described as local democracy has suffered an awful battering.

Hear, hear.

This point concerns whether people feel they are being taken for a ride or whether they have any real say in such matters. The public is engaged in the development plan process. Let us say, for example, that there is a public debate with regard to a high amenity area. Some people might say that the area should be preserved free of development because it is an important place that includes great amenities. Under the terms of the Bill, it may be stated that there will be no development in that area. However, if somebody can claim that they are proposing strategic infrastructure in the national interest or makes another argument to An Bord Pleanála, they can proceed with it. That will make fools of people and it should not be done.

This section will return to haunt the Minister. Somewhere down the line a project will be proposed and local people will ask how it can proceed when they decided, during a major local debate regarding the area in which it was to be situated — which was one of high amenity — that the position should be otherwise. They will say that the development cannot proceed. The Minister must remember the row regarding gold mining on Croagh Patrick. Local people and bishops were involved in that because they saw it as something that was distinctly important and which should not go ahead.

Was it Croagh Patrick?

There was a big row a few years ago because somebody wanted to undertake gold mining there.

It would not be contemplated by the Bill.

I am not sure about that.

It could be in the national interest.

Do we have a national mint now? Would it qualify if we went back to the gold standard?

God bless Oliver J. Flanagan.

I am sure somebody could invent an argument that would justify it. People will ask how this happened but it was legislated for here. This is an important provision and it is something I want to press. All members of the committee should be asked to decide on this amendment. I would like to see where people stand on the question of county development plans. The same people will be coming in to vote for this legislation and as soon as there is a row somewhere, they will be the first to attend the community meeting and state that they support those present and that the fault lies with the county manager or An Bord Pleanála. It will be the fault of somebody other than the people who made the law. Under the Minister's proposed legislation, county development plans, in so far as this type of development is concerned, will not be worth the paper on which they are written.

None of what has been said is accurate because the Bill does not make that kind of change. The Bill applies the state of existing law in the matter of a local area plan. Regardless of whether one is talking about a spec development that is coming up under the existing law, An Bord Pleanála will take an application into consideration and will have due recourse to the local development plan. Sometimes it will make decisions which will appear to run counter to it for reasons it will state but it will not change the state of law.

Deputy Morgan is correct that a big effort has been made in the past two years to ensure more coherence in planning. Area action plans, county development plans, regional plans and the national spatial strategy are all coherently inter-related. It is interesting that there is a hierarchy which is decided by the national spatial strategy, that is, at the senior level. We have had a lengthy discussion on this issue and there is no change in the state of law.

I support Deputy Gilmore's amendment and point out that the Irish Planning Institute stated emphatically in its submission that if the Bill was enacted in its current form, there would be a problem, given the absence of a clear linkage to the hierarchy of planning policy instruments and, in particular, development and local area plans which are at the core of the planning system. This has not come from the Minister or me but from the professional body which represents planners in Ireland. It stated there was an absence of a clear linkage to the hierarchy of planning policy instruments. That is the source of a serious and deeply-rooted concern about the Bill.

It is a great pity the IPI did not read the Bill more carefully, given that it has made such an absolutist statement. It is nonsense. For the first time, the Bill makes statutory reference to the national spatial strategy. I read that section of the IPI's submission and was surprised by it. As Deputy O'Dowd commented, this is the first time there is a statutory reference to the strategy. I am amazed the IPI has made such a statement.

If nobody here knows better than the Minister what is contained in the Bill, or if the professional planners do not know, is there anybody who does?

Given that caustic, unflattering and rather silly comment——

I was just asking. The Minister has rubbished every comment made, whether by this side or the professional planners.

I am simply making the point that I am surprised the IPI does not recognise that, for the first time, the Bill gives recognition to the national spatial strategy. That is not my opinion but a fact. It is very surprising that an organisation such as the IPI suggests it does not.

The Deputy asked if I was well informed about the Bill. One would expect me to be well informed since I have lived with the darn thing for the past two years. Of course, I am well informed. Deputies opposite are better informed than any institute which states the Bill does not do something which it does. I think like Deputy Cuffe, I am surprised the IPI has made that suggestion.

The Minister needs to be careful. He is beginning to sound like the Minister for Transport, Deputy Cullen, or the former Minister of State, Deputy Callely.

There has been deep-rooted and serious concern at grassroots level and among the professional planners. They have included this core concern with two others — the absence of a clear linkage to the hierarchy of planning policy instruments and the threat to the impartiality of An Bord Pleanála, also one of my deeply held concerns. It is a little glib to simply dismiss a professional body and state it has not read the Bill. It has made a detailed ten-page submission which holds water and is valid.

I will make two points, the first of which is that the national spatial strategy is recognised in the Bill, while the second is that I found it odd that the IPI had entered the debate so late with its submission.

Amendment put.
The Committee divided: Tá, 4; Níl, 8.

  • Cuffe, Ciarán.
  • Gilmore, Eamon.
  • McCormack, Pádraic.
  • O’Dowd, Fergus.


  • Curran, John.
  • Grealish, Noel.
  • Haughey, Seán.
  • Healy-Rae, Jackie.
  • Kelleher, Billy.
  • Moloney, John.
  • Moynihan, Donal.
  • Roche, Dick.
Amendment declared lost.
Amendments Nos. 111 to 113, inclusive, not moved.

Amendments Nos. 114 to 120, inclusive, 164 to 167, inclusive, 177 to 179, inclusive, 199 and 259 to 261, inclusive, are related and will be discussed together.

I move amendment No. 114:

In page 15, line 3, to delete "or".

This is a fundamental issue. I welcome the principle of community benefit that the Minister has included in the Bill. Under it, the community will receive a benefit from infrastructure such as a waste management project that might not necessarily be welcome in the local area. The planning process, in the case of the Indaver incinerator, allowed for a condition to be placed in the planning permission which would allow for a charge per tonne or whatever to be provided.

On Second Stage, the Minister made reference to where there would be a community benefit. If I am correct, the example he used related to a third level scholarship. My amendments are designed to examine that proposal. This section should provide that the public would be notified of the intentions of the board. In other words, that there would be a public notice. That is the purpose of amendment No. 117 in my name.

The section should provide for a process through which members of the public could express views to An Bord Pleanála. This might form part of the initial process, namely, that when the intention is declared, the board would consider such a plan and in the event of it being granted, submissions would be sought. I am not trying to extend the time for consideration, I am trying to alert communities, first, that this is happening and, second, that they can have an input. I propose a statutory vehicle for conveying that opportunity.

The Bill seems to state that it should be not of such a benefit that the condition would substantially deprive the person in whose favour the permission operates of the benefits likely to accrue. While nobody disagrees with that, there needs to be an equal and opposite argument that the benefits which accrue to the community should be substantial.

Substantial may not be the word the Minister would ultimately accept. We heard the argument against that word on the previous occasion. If it is a €20 million or €50 million project, there should be some proportionality between the total spend and the amount allocated to this benefit. I am not sure how the Minister might measure that. I understand that a rule of thumb applies in the case of the arts when, for example, a motorway project proceeds. I am not saying that is necessarily enough, but I want such a provision written into the legislation. I tabled these amendments to tease out and debate these issues.

The board may not be fully versed on local needs and the process of putting the advertisement in the newspapers and asking the local authority for its view would inform the board of relevant needs. This would be preferable to An Bord Pleanála including conditions for a benefit that might not be necessarily what the community wants or would accept. That is the import of all my amendments in this group.

I understand what Deputy O'Dowd is trying to achieve and I sought some way in which I could accommodate him. In making what would be the community gain, it seems that we are bribing them to keep their mouths shut and that is not what Deputy O'Dowd intends. What the Deputy is saying is that it should be proportional because if one is referring to a project that costs €300 million or €400 million, giving an environmental studies scholarship once every three years would be more like an insult. What one is dealing with there is the matter that Deputy O'Dowd has tried to tackle in amendment No. 117.

I am hopeful that the board will use the power flexibly to ensure that there will be a substantial gain to communities. I firmly believe that if the national interest determines that a local community must host something that it clearly does not want to host — and which a nearby community or another beyond that do not want to host either — then that community is entitled to receive a planning gain. The purpose of such a gain would not be to quieten people, buy them off or anything else of a negative nature. If people are accepting nationally or regionally important infrastructure into their areas, it is reasonable that they should be substantially rewarded for doing so. I agree with Deputy O'Dowd that it is difficult to capture that with precision. The board will know from these debates, and be helped by Deputy O'Dowd's contributions to them, that this is precisely what the Oireachtas desires. For example, very few communities will jump up and down and state they want an incinerator down the road but we cannot continue as we are. Therefore, a number of incinerators will be built. The local communities affected should, however, gain substantially. Combined heat and power and district heating systems have been positive gains for communities on the Continent. The issue of a scholarship is broad.

It would be correct and appropriate for An Bord Pleanála to disclose the decision fully. Amendment No. 117 provides that the board should set the community gain but it should make the decision simultaneously. I have a difficulty with accepting this, although I acknowledge the spirit in which it was tabled. I agree with the Deputy the community gain must be substantial. The legislation cannot provide for a process that creates two or three stages for planning permission. I cannot accept the wording because it would have consequences the Deputy would not wish it to have. The general issue could be raised by the board during the pre-planning application stage. This is a good exchange process. The board could ask, for example, a company which proposes to build an incinerator on a site to which the public objects to come up with something realistic and imaginative for the community because it would have to carry a burden such as a proposal for a district heating system. That might be the way to do this. The danger is that if I were to accept the amendment, I would create a new stage in the planning process, thereby negating the purpose of the Bill.

The effect of amendments Nos. 114 to 116, inclusive, 164 to 166, inclusive, 177 to 179, inclusive and 259 to 261, inclusive, would be to change the wording of community gain provisions to explicitly refer to the provision of services or a facility or a combination of both. I appreciate the Deputy's intent but the amendments are unnecessary, as the current wording provides the flexibility sought. The word "or" is normally taken as including "and" in drafting terms. The section provides for both the provision of a facility such as a community centre or a service such as the funding of an existing centre. There is flexibility built in.

The weakness is that it must constitute a community gain. The provision does not outline whether the gain should be significant or proportional. If the Minister could improve the section before Report Stage——

The Deputy and I have discussed the issue of proportionality. The word "proportional" is used in the next section where it favours the developer or the promoter.

The provision favours the developer rather than the community.

The Deputy wants to provide for a substantial and proportional gain for the community. Both of us should table amendments in this regard on Report Stage. That would address the issue.

I will withdraw my amendments on the basis of the Minister's commitment.

I accept the spirit of the Deputy's amendments. The Bill will be improved following this discussion.

Amendment, by leave, withdrawn.
Amendments Nos. 115 to 121, inclusive, not moved.

As amendments Nos. 123 and 200 are related to amendment No. 122, they will be discussed together.

I move amendment No. 122:

In page 15, between lines 24 and 25, to insert the following:

"(10) The conditions attached under this section to a permission may provide that points of detail relating to the grant of the permission may be agreed between the planning authority or authorities in whose functional area or areas the development will be situate and the person carrying out the development; if that authority or those authorities and that person cannot agree on the matter the matter may be referred to the Board for determination.".

Amendments Nos. 122 and 123 provide that points of detail relating to the conditions imposed by the board can be worked out between the local planning authority and the person carrying out the development. They also provide that the board will act as the arbiter where agreement cannot be reached. A similar provision is contained in section 34(5) of the 2000 Act regarding standard planning permissions and it is designed to prevent the board getting bogged down in minor details which are more appropriately dealt with at local level. The amendments provide for points of detail to be determined at local level, which is sensible.

Amendment agreed to.

I move amendment No. 123:

In page 15, to delete line 25 and substitute the following:

"(11) Without prejudice to the generality of".

Amendment agreed to.
Sitting suspended at 4.40 p.m. and resumed at 5.05 p.m.

Amendments Nos. 124, 125, 128, 129, 131, 198 and 243 are related. Amendment No. 130 is an alternative to amendment No. 129. These amendments will be discussed together.

I move amendment No. 124:

In page 15, line 48, after "Board" to insert ", by the applicant,".

This would explicitly state in section 37H that costs to be paid to the board to cover the costs of making its determination would be paid by the applicant. We feel this goes without saying and is what was always intended. The amendment is unnecessary as it is already implicit in the Bill.

The thrust of amendments Nos. 125, 128, 129, 131 and 243 is to allow the board to set fees that would have to be paid by an infrastructure promoter up front when applying for permission and for the board to continue to be able to recoup its full costs from the promoter when it gives its decision. It is my intention that the board should be able to recover its full costs in respect of all strategic infrastructure developments, including for electricity supply, transmission lines, gas infrastructure in section 182A and local authority owned developments. The board has power to recover costs after a decision is given for strategic infrastructural projects, but it has argued and made a good case that it should have the power to get certain moneys up front. The board is concerned that if it refuses permission for an infrastructural project, it could find it difficult to recover costs subsequently. These amendments provide the board with the power to seek the upfront requirement to ensure this does not happen.

Amendment No. 125 will add to the text of 37H which, as it currently provides, is part of the notification of decision relating to the applicant for a strategic infrastructure. The board may set fees under section 144 of the 2000 Act and amendment No. 243 will permit the board to set fees in respect of various new types of application. Amendments Nos. 128, 129 and 131 are consequential.

The purpose of amendment No. 198 is to abolish the €20 fee required for making a submission or observation to a local authority in respect of a planning application. The Minister is aware the issue of this fee is before the European Court of Justice. In respect of applications requiring an environmental impact statement, EIS, I have always considered this fee a charge on what should be a democratic right.

I could not agree to abolishing the €20 charge. I tried to get the charge trebled. Perhaps it should even be €1,000. It is all very well for a genuine objector to object to somebody building just outside his wall or harming him in some way, but the Minister must take account of serial objectors. These people object continually to buildings 60 or 70 miles away from them. These projects have nothing to do with them, but they pay €20 so they can raise an objection. They involve An Bord Pleanála and cause serious damage to the development of projects. I could give examples of people from Tralee who have objected to developments in areas around Kenmare. One can hardly believe what is happening. I am opposed to the removal of the €20 fee. Is there any way the Minister could increase the fee?

Deputy Gilmore is within his rights, because we are discussing planning law in general, to move a proposition with regard to the €20 fee which applies outside this infrastructure Bill. There is a diversity of views on the issue. Deputy Gilmore makes the argument that the fee is a burden, but I do not agree. In the adjudication this week, the Advocate General took the interesting view, which I support, that this is a matter of subsidiarity and is, therefore, not something into which the European Court of Justice should stick its oar.

Deputy Healy-Rae takes quite a different view. There are regulations and I am due to make further regulations, arising from the Indecon report, in the near future. I intend making those regulations towards the end of the year and that would be the time to have a more wide-ranging discussion on planning fees.

On Deputy Healy-Rae's point, clearly the imposition of a fee has not stopped serial objectors. Two separate issues arise, one of which is the principle of whether somebody should be charged for writing to his or her county council about a public process. This is something they have every right to do. A person should not be charged for the privilege of writing a letter to his or her county council about a planning matter. The problem of serial objectors and people objecting by means of remote control, referred to by Deputy Healy-Rae, may need to be examined in a different way. However, driving up the fee will mean the only people who will be able to write to a local authority about a planning matter will be those who are well heeled. This will not necessarily solve Deputy Healty-Rae's problem either.

The Deputy is illustrating the complexity of this issue. For his information, the question of Indecon will arise next year rather than this year. This point is relevant to a range of issues; it is not specific to this one.

I have a certain sympathy on the second issue raised by the Deputy. Every time a public representative writes a letter to the council some smart alec is involved. I have had discussions with the Whips of all the parties, including the Labour Party, Deputy Gilmore' s party. I am prepared to meet members of any party to discuss the range of issues, including this one, arising in local authorities and which are unacceptable. I have had some preliminary discussions with management and the City and County Managers' Association. I have indicated that I expect public representatives, irrespective of which side of the House they come from, to be treated with courtesy and consideration.

To return to the specifics of the Bill, the €20 fee does not apply to the issues which arise under it. The point raised by Deputy Gilmore was referred to the Court of Justice which I believe will uphold the current fees arrangement for the generality of planning matters but not under this Bill.

I support Deputy Gilmore's amendment. While I have sympathy for the point made by Deputy Healy-Rae, fees will not stop the people concerned making objections. An objection only carries the weight of the argument it makes and does not necessarily stop anything. It requires sufficient numbers of planners and personnel to evaluate and deal with the objection quickly and proceed with it. An Bord Pleanála has a significant backlog of cases. There is a timelag of about eight months in some cases. I do not know if more inspectors would solve the problem but I acknowledge it may not always be as simple as that; that it may be a more complex problem. I suggest people should be allowed to make objections which should be dealt with quickly.

I support amendment No. 234 in the name of Deputy Gilmore. It suggests the term "absolute discretion" should be deleted.

We are not dealing with that amendment at this time.

Amendment, by leave, withdrawn.

I move amendment No. 125:

In page 16, line 12, after "costs" to insert the following:

", but does not include a reference to so much of the costs there referred to as have been recovered by the Board by way of a fee charged under section 144".

Amendment agreed to.

I move amendment No. 126:

In page 16, line 14, after "shall" to insert the following:

"be made as soon as may be after the making of the relevant decision but shall".

Amendment agreed to.
Amendment No. 127 not moved.

I move amendment No. 128:

In page 16, line 45, after "form," to insert "and".

Amendment agreed to.

I move amendment No. 129:

In page 16, to delete lines 46 to 49.

Amendment agreed to.
Amendment No. 130 not moved.

I move amendment No. 131:

In page 17, to delete line 1 and substitute the following:

"(b) make provision for matters of pro-”.

Amendment agreed to.
Amendments Nos. 132 to 137, inclusive, not moved.

As amendment No. 139 is an alternative to amendment No. 138, they will be discussed together.

I move amendment No. 138:

In page 18, to delete lines 10 to 19.

This is the provision whereby the Minister will have the right under the Bill to direct An Bord Pleanála on which applications are to be given priority. It might be argued that this direction will purely be given for administrative purposes but bearing in mind that under this legislation the board is required to consider the national interest, the policy of the Minister and the policy of the Government, it is required to determine what is of strategic importance, what is of importance to the State and so on. If the Minister sends a message to the board asking it to consider certain specified applications as a matter of priority, it will receive the message that it is the view of the Government and the Minister that, by definition, these applications are of strategic importance. Therefore, the board will be obliged to facilitate them by advancing them through the system and will probably grant permission. It is being given very significant powers under the legislation. The Minister should not be given the power to tell it the order in which it should consider applications.

I support the amendment. The proposal in the Bill sails very close to political interference exactly because of the point made by Deputy Gilmore. There is a raw political connection between the Executive and An Bord Pleanála which is not healthy. For that reason alone the amendment should be supported.

I do not share the same concern about this proposal. I am confident that will not be the case with this Minister but we must guard against future incumbents from whatever side of the House they come. If the Minister was to consider it necessary to indicate something to An Bord Pleanála, certainly it would be a public signal that he was concerned in a positive manner about an application. A Minister would not bother contacting the board unless he or she was concerned in a negative manner about an application. This would be a clear signal to it. Such a signal would never have been received prior to this and the board should never receive one. If we legislate to give this authority to the Minister, it will open up a new avenue for the Minister of whatever Government is in power to signal to the board that he or she has a particular concern about an application or applications. This is a very serious departure.

There is a vote in the House. Does the Minister wish to reply?

I am amazed at Deputy McCormack's contribution. Amendment No. 139 which has been tabled by a member of his party proposes to give the Minister powers to do specifically what the Deputy says would be the wrong thing to do.

I am concerned about giving my views on that amendment.

The Deputy will move it and we will come back to it. However, the wording of amendment No. 138 is identical to that used in section 126(5) of the 2000 Act.

Under the 2000 Act, the board does not have the power. The Minister is comparing entirely different eggs.

Section 126 of the 2000 Act applies to the rights of the Minister to make classes of appeal. The same wording applies in section 221(5) specifically in cases where the special consent process applies under the Act. This relates to items of strategic importance, roads and motorways. It simply transfers a power provided for in law for classes of acts under the 2000 Act. Perhaps we should vote on the matter.

Sitting suspended at 5.20 p.m. and resumed at 6.10 p.m.

I was making the point that amendments Nos. 138 and 139 are contradictory. In the case of amendment No. 138, there was concern that the Minister could give directions to prioritise a class or classes of infrastructure. This is fairly standard, as I have outlined by reference to previous legislation. Deputy Gilmore's amendment would seek to reverse the existing measure.

Deputy O'Dowd's amendment, No. 139, is precisely the opposite in that it gives the Minister the power to prioritise a particular application. I made this point to Deputy McCormack. I am opposed to the amendment because it would lead to the problem which Deputy Gilmore was arguing against in his contribution. Oddly enough, Deputy McCormack accepted Deputy Gilmore's argument. The amendment would mean the Minister could intervene in an individual case rather than in a class or classes of case. I must oppose both amendments for the reasons outlined.

Amendment put and declared lost.
Amendment No. 139 not moved.
Section 3, as amended, agreed to.

Amendment No. 141 is an alternative to amendment No. 140 and amendment No. 162 is related. They may all be discussed together.

I move amendment No. 140:

In page 18, to delete lines 31 to 47 and substitute the following:

"carry out development comprising or for the purposes of electricity transmission, (hereafter referred to in this section as ‘proposed development'), the undertaker shall prepare, or cause to be prepared, an application for approval of the development under section 182B and shall apply to the Board for such approval accordingly.

(2) In the case of development referred to in subsection (1) which belongs to a class of development identified for the purposes of section 176, the undertaker shall prepare, or cause to be prepared, an environmental impact statement in respect of the development.".

In the debate in the Seanad, some Senators stated there are major infrastructural problems, especially pertaining to power lines and particularly in the west. The Bill, as drafted, set 220 kV as the minimum target and I was happy enough with this. Subsequently, a number of Deputies from across the House, especially those from the Border, midlands and west, BMW, region, stated this was restrictive and asked why the lines should be confined to 220 kV given that a 110 kV line is probably very important in rural areas. Amendments Nos. 140 and 162 are intended to bring all electricity transmission lines of 110 kV or above within the strategic consent process.

Electricity lines can comprise a very contentious issue in any area and Deputy Gilmore and I will be familiar with a case in our area in which the displacement of electricity lines to facilitate a golf course caused widespread anxiety and led to the removal of hundreds of trees on Coillte lands. We need to employ every bit of the planning process we can in such contentious issues. I am very concerned about the proposal to loosen the required planning consent, as expressed in the Bill.

Amendment put and declared carried.
Amendment No. 141 not moved.

I move amendment No 142:

In page 19, line 16, to delete "proposed development," and substitute the following:

"proposed 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. 143 not moved.

I move amendment No. 144:

In page 19, to delete lines 17 to 26 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".

This makes a change to the textual presentation and we will stick to what we have in the Bill.

Amendment, by leave, withdrawn.

I move amendment No. 145:

In page 19, line 26, to delete "and".

Amendment agreed to.
Amendments Nos. 146 and 147 not moved.

I move amendment No. 148:

In page 19, to delete lines 38 and 39 and substitute the following:

"if carried out, and

(vi) specifying the types of decision the Board may make, under section 182B, in relation to the application,".

Amendment agreed to.
Amendments Nos. 149 to 151, inclusive, not moved.

I move amendment No. 152:

In page 20, line 6, to delete "if carried out." and substitute the following:

"if carried out, and

(c) 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
Amendments Nos. 153 to 157, inclusive, not moved.

I move amendment No. 158:

In page 21, line 1, to delete "effect" and substitute "effects".

This is a drafting amendment.

Amendment agreed to.
Amendment No. 159 not moved.

I move amendment No 160:

In page 21, to delete lines 35 to 48 and substitute the following:


(I) the times and places at which, and the period (not being less than 6 weeks) during which, a copy of the information and the environmental impact statement referred to in paragraph (i) or (ii) may be inspected,

(II) that a copy of the information 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

(III) that submissions or observations in relation to that information or the environmental impact statement may be made to the Board before the expiration of the indicated period, and".

The amendment concerns a drafting issue and I am not disposed to accepting it.

Amendment put and declared lost.

I move amendment No. 161:

In page 21, line 51, to delete "subsection (4)(b)—” and substitute “subsection (4)(b) or (c)—”.

Amendment agreed to.

I move amendment No. 162:

In page 22, to delete lines 24 to 26 and substitute the following:

"means of—

(a) a high voltage line where the voltage would be 110 kilovolts or more, or

(b) an interconnector, whether ownership of the interconnector will be vested in the undertaker or not.”.

Amendment agreed to.
Amendment Nos. 163 to 166, inclusive, not moved.

I move amendment No. 167:

In page 24, to delete lines 14 to 20.

We have discussed this amendment. I have made clear the basis on which the decisions have been made. I regret that I cannot accept the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 168:

In page 24, to delete lines 48 to 50 and substitute the following:

"(e) the matters referred to in section 143, and”.

Amendment agreed to.

As amendment No. 181 is related to amendment No. 169, they may be discussed together.

I move amendment No. 169:

In page 25, to delete lines 3 to 5 and substitute the following:

"(11) (a) No permission under section 34 or 37G shall be required for any development which is approved under this section.

(b) Part VIII shall apply to any case where development referred to in section 182A(1) is carried out otherwise than in compliance with an approval under this section or any condition to which the approval is subject as it applies to any unauthorised development with the modification that a reference in that Part to a permission shall be construed as a reference to an approval under this section.”.

While the board will take over the consent process for the classes of infrastructure contained in the seventh Schedule, planning authorities will continue to perform their current enforcement role. I propose cognate amendments to provide absolute clarity that planning authorities will have the same enforcement powers over electricity transmission lines and gas infrastructure as they do over other infrastructural developments. This is implicit in the current wording but it would be as well to put it beyond doubt. Much strengthened enforcement powers are given to planning authorities in Part VIII of the Planning and Development Act 2000 and I continue to monitor their performance closely. The amendments will extend the enforcement processes to two other classes of infrastructure.

Amendment agreed to.

I move amendment No. 170:

In page 26, line 7, 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. 171 not moved.

I move amendment No. 172:

In page 26, line 17, to delete "and".

Amendment agreed to.

I move amendment No. 173:

In page 26, line 29, 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 182D, in relation to the application,".

Amendment agreed to.

I move amendment No. 174:

In page 26, line 37, to delete "and".

Amendment agreed to.

I move amendment No. 175:

In page 26, line 41, to delete "the Commission," and substitute the following:

"the Commission, and

(iv) 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, the prescribed body of the relevant state or states,".

Amendment agreed to.

I move amendment No. 176:

In page 27, line 46, to delete "effect" and substitute "effects".

Amendment agreed to.
Amendment Nos. 177 to 179, inclusive, not moved.

I move amendment No. 180:

In page 32, to delete lines 1 to 3 and substitute the following:

"(e) the matters referred to in section 143, and”.

Amendment agreed to.

I move amendment No. 181:

In page 32, to delete lines 6 to 8 and substitute the following:

"(11) (a) No permission under section 34 or 37G shall be required for any development which is approved under this section.

(b) Part VIII shall apply to any case where development referred to in section 182C(1) is carried out otherwise than in compliance with an approval under this section or any condition to which the approval is subject as it applies to any unauthorised development with the modification that a reference in that Part to a permission shall be construed as a reference to an approval under this section.”.

Amendment agreed to.

I move amendment No. 182:

In page 32, line 29, after "development" to insert "or the environment".

Amendment agreed to.

I move amendment No. 183:

In page 32, to delete "Board" in line 38 and substitute the following:

"Board, after consulting the prospective applicant and such bodies as may be specified by the Minister for the purpose,".

This concerns the board consulting certain bodies and will address some of the comments made.

Amendment agreed to.

I move amendment No. 184:

In page 33, to delete lines 14 to 16 and substitute the following:

"such record shall be placed and kept with the documents to which any application in respect of the proposed development relates.

(7) The Board may, at its absolute discretion, consult with any person who may, in the opinion of the Board, have information which is relevant for the purposes of consultations under this section in relation to a proposed development.".".

This gives a general right to the board to consult.

Amendment agreed to.
Section 4, as amended, agreed to.

As amendments Nos. 186 and 187 are related to amendment No. 185, they will be discussed together.

I move amendment No. 185:

In page 33, before section 5, to insert the following new section:

"5.—The Fifth Schedule to the Principal Act is amended by the insertion of the following paragraph after paragraph 8:

"9.—Any development that concerns or comprises a nuclear power station or installation or any structure whose function it is to use, treat, store or otherwise handle nuclear material.".".

I will oppose these amendments. I am no fan of nuclear power but under section 18(6) of the Electricity Regulation Act 1999, the generation of nuclear power is specifically prohibited in this country and there is no proposal to change the Act.

When it comes to nuclear power, there is a need for a belt and braces approach to ensure we will not wish to consider the nuclear option on this island.

I accept that in many projects under the Bill, there is a variety of views, be they on archaeology, in respect of which some of us would favour the M3 not going as close to the Hill of Tara as is proposed, or on incinerators which many of us do not want to see at all, particularly in the heart of the capital city. I accept, however, that there are variations in opinion and that the Minister and his colleagues have publicly changed the law on archaeology and waste management to facilitate projects that may experience considerable opposition at local level. There is one issue, however, on which the vast majority of the public did, do and will continue to oppose: the placement of nuclear power stations within the State. The issue strongly influenced the formation of the Green Party-Comhaontas Glas 25 years ago and the then Government. It was contentious then and is contentious now. We remember the unequivocal support Des O'Malley gave to the construction of a power station in County Wexford. Fianna Fáil policy at the time strongly favoured the provision of nuclear power in Ireland.

The provision of nuclear power does not make sense on this island for a variety of reasons, from financial to the dangers involved. It makes sense to copperfasten our opposition to nuclear power in the Bill. I am happy to debate the issue because the reasons we brought forward would win the day but it is important to send a message to the people and our neighbours in Britain that we do not wish to see the construction of nuclear power stations on this island with all their intrinsic risks and dangers. I am, therefore, supporting the amendment.

I do not disagree. I happen to believe that if we have an energy crisis, as we do, the most stupid response is nuclear. I have a strong view on this. By the way, I was also at Carnsore in those days.

What was the Minister doing in Carnsore in those days?.

The same as what the Deputy would have been doing, if he had been old enough to have been there.

He was hardly strumming a guitar.

I shall let the Deputy have a look at the pictures.

Perish the thought.

He can have a look at a very hirsute Minister, in those days. Of course, I was not a Minister at the time.

There are two points to be made. The first is that the nuclear option is one that we have, very wisely, put outside for consideration in this country. I believe there is political consensus on this. I cannot believe that anybody is proposing the amendment of the Electricity Regulation Act 1999 which prohibits the production of nuclear power in this State. It is not necessary to put in an additional reference.

Amendment No. 186, tabled by Deputy O'Dowd, could have the power, I am advised, of having an impact even on the use of X-rays in hospitals, which I am sure is not intended. The point I make is that it is not necessary. We aread idem at least on the issue of nuclear power. It is not necessary to include it in the Bill.

We aread idem on the question of not building a nuclear power station. We are all of the view that one should not be built in Ireland. The Minister’s Bill, however, allows for the building of an interconnector or interconnectors which will import electricity to this country that has been generated from nuclear power stations. That is the case already in the United Kingdom. In the years ahead, this is going to be increasingly the case because we know the United Kingdom is moving back towards the nuclear option. That means generating electricity in the face of rising oil prices and limited oil availability and all that goes with that, including greenhouse gases and so on. Elsewhere in Europe and throughout the world, the issue of generating electricity from nuclear energy is back on the cards, given the situation as regards oil.

In this country we have a tendency to be an island when we want and insist we will not generate electricity using nuclear energy. However, it is hypocrisy to maintain that position while importing electricity generated by nuclear energy through an interconnector. In the case of this Bill, it is an interconnector which may be fast-tracked under the infrastructural legislation.

Deputy Gilmore made a very interesting point as regards our being hypocritical on this island. We are, from time to time. We have a very hypocritical attitude towards waste, for example. We are not prepared to build a hazardous waste dump anywhere on this island. We are not prepared to build a hazardous waste incinerator, but we are quite happy to export all our hazardous waste to be dealt with in the UK or in Europe. That is hypocritical. We are not prepared to have a nuclear power station, he suggests, but then it is hypocritical to have an interconnector. We will run into some difficulties if we do not have interconnectors.

We have a problem with interconnectors. Regardless of whether it is possible to differentiate as to how one buys electricity, it is possible for individuals to purchase only green electricity, as some businesses do. By accepting a slightly higher tariff, a marketplace is provided for green electricity, which is a much more practical way of achieving two objectives. One is what Deputy Gilmore regards as the moral and correct thing to do. The other, in a very practical sense, is to create a marketplace for green electricity.

I am not sure whether the arguments put forward by Deputy Gilmore mean we should not have any interconnector. I await, with some interest, to hear what Deputy Morgan has to say about interconnectors, given that we have had and will have North-South interconnectors. Interestingly, on this island, the idea of having a North-South interconnector undermines the reality that we live on one island of Ireland.

It depends on the capacity of the interconnector. As the Minister now knows, I have complete agreement with the interconnector established a few miles from where I live, which was not operating for many years.

We will not go into that.

I am very happy to go into that issue.

I accept that we live in different times.

I assure the Minister I shall be very happy to go into that issue.

We have no doubt the Deputy did go into the interconnector at some stage.

On page 33, line 35, the paragraph on industrial insulation is a blueprint for a nuclear power station. This legislation is being used to develop the foundation for a nuclear programme to be put in place in this State. The only thing stopping it at that point will be the electricity regulation legislation. That will have to be amended and all the rest can happen automatically.

There are many features of the Seventh Schedule to the Bill about which I have serious reservations and will, I hope, be amending on Report Stage, if we ever get this far on Report Stage. Given the guillotine, unfortunately it is probable that we will not. What is happening in the Seventh Schedule, in particular, is quite underhand. The foundation is being facilitated for the accommodation of nuclear interconnectors and even nuclear power on this island. It is just a matter of putting this in place, waiting in the long grass and softening up public opinion by putting emphasis on the oil shortage and other excuses. At the same time, nothing serious would be done on research and development into alternatives.

I acknowledge that some good work has been done by the Government in terms of other options. The recent announcement by the Minister for Communications, Marine and Natural Resources, Deputy Noel Dempsey, about incentivising renewable energy is very welcome. It is a small step, late in the day, but it is something. I will therefore table amendments in this regard on Report Stage.

I just want to make clear that if an interconnector is used, it will be contrary to this amendment. I will therefore press the amendment.

I want to contribute slightly to the debate on the issue of an interconnector. I am not so sure if it is hypocritical if it leads to a greater use of renewables than might otherwise have been the case. I can see the case for an interconnector, even more so as contractually it is now much more possible to specify the supplier of the electricity in the first place than it would have been a few years ago.

By the same token, I want to refer to hazardous waste incineration. By not having the hazardous waste incinerator here, if this leads to a more rapid transition to less creation of hazardous waste or carbon, a case can be made for putting a line in the sand. I am happy to stand over not having a hazardous waste incinerator in Ireland and having an electrical interconnector in the UK if it makes clear our policy direction and signals how we wish the rest of the world to go. It is a bit like saying one does not want to have a car or even a second one and that one will take a taxi more often. It points to a direction in which one wishes to go and may well lead to better availability of alternative services.

That is a good analogy. People decide that they will not have a car and that they will occaionally use a taxi. It is not hypocritical to do so. In fact, it is very positive because a market is created. I am not sure if it is possible to provide electricity through an interconnector, but it is possible to hypothecate that the electricity provided to our houses will be green electricity. One of the positive aspects of the new arrangement is that one can indicate that one wants electricity generated using a green source. This means that people will pay slightly more, but they will eventually create a market for it.

Deputy Morgan is concerned that the reference to 300 MW of power or more predisposes the provision of nuclear power. The Deputy has raised this question before. I checked out the position with the chief technical officer in the Department of Communications, Marine and Natural Resources. The reference to a thermal power station or other combustion installation with a total energy output of 300 MW or more does not and could not encompass a nuclear power station.

However, an output of 300 MW or more is endless.

The Deputy should go back to the default position which in this country is established by the Electricity Regulation Act.

Tomorrow, we will issue the national planning guidelines for wind farms. We cannot have it every way. If we want to have wind turbines, we must address the planning issues that pertain to them. The Energy (Miscellaneous Provisions) Bill is going through the Dáil. This is a very good place to discuss the point made by Deputy Gilmore about what comes through an interconnector, as well as Deputy Cuffe's point about creating a market on this island for green electricity, irrespective of which part of Europe it comes from.

Amendment put and declared lost.
Amendment No. 186 not moved.

I move amendment No. 187:

In page 33, between lines 34 and 35, to insert the following:

"—Nuclear power energy generation projects shall not be considered, or so determined by the Board, as falling within the category of energy projects listed under this schedule for which the provisions of the Act will apply.".

This amendment was discussed with amendment No. 185. Does the Minister have anything further to add?

Amendment put.
The Committee divided: Tá, 4; Níl, 8.

  • Cuffe, Ciarán.
  • Gilmore, Eamon.
  • McCormack, Pádraic.
  • Morgan, Arthur.


  • Curran, John.
  • Haughey, Seán.
  • Healy-Rae, Jackie.
  • Kelleher, Billy.
  • Moloney, John.
  • Moynihan, Donal.
  • O’Connor, Charlie.
  • Roche, Dick.
Amendment declared lost.
Amendments Nos. 188 to 194, inclusive, not moved.
Question proposed: "That section 5 stand part of the Bill."

Will the Minister clarify the position on the Poolbeg incinerator under the Bill? Is it correct to state all incinerators are covered by the Bill?

I have made it clear on numerous occasions that the Poolbeg project will be dealt with under the normal planning process. I am grateful that I have been given the opportunity to indicate this. As the debate has moved to such a level of maturity, the project should be dealt with under the process under which it commenced; it should not be given access to the process being introduced by the Bill. Hence, it is my intention that it will be dealt with under the existing process.

Previously, the Minister has told me that he intends to commence the legislation in October or November. What will happen if the planning application has not been received by the time he commences the legislation?

In such a scenario I will be obliged to face the issue. However, I have made my position clear to Dublin City Council. I understand its application will be submitted shortly.

Assuming that the promoters will not have submitted the application by the time the Minister commences the legislation, what will he be able do about it? In such a case they would be able to go directly to An Bord Pleanála.

I would be obliged to delay the commencement of the section. However, I have made it clear to Dublin City Council that its plans pertaining to Poolbeg will be dealt with under the existing planning process.

It will be a normal planning application to Dublin City Council.

Yes. I have made it clear to the council that because debate on the issue has reached such a level of maturity, it should be dealt with under the normal planning process.

Very well.

It has been suggested that some minor exemptions with regard to the airport included in previous planning legislation may have been caught inadvertently in the Bill. This constitutes a belt and braces approach and it does not please me greatly to be obliged to make this point. I do not understand the logic and have informed the Department in question that if it so wishes, it has until tomorrow to take action in this regard.

I do not wish to mislead anyone. Although I cannot see how, the relevant Department has argued that there is a possibility, pertaining to the Schedule to the Bill, that development which is currently exempted may lose its exemption because of the Bill. I have replied that if this is the case and current exemptions for features such as taxi ranks are affected, I will return to the issue on Report Stage. Although I cannot envisage how this could be the case, any change would be minor. From a technical perspective, I must put down a marker on this point, just in case.

I am mystified.

The Deputy is as mystified as me. It has been suggested to me that some exemptions under existing planning law might lose their status because of the introduction of this Bill. As exempted development is, by its nature, very narrow, I cannot anticipate or envisage what exemptions could conceivably be dealt with by the Planning and Development (Strategic Infrastructure) Bill. However, another Department which has adopted a belt and braces attitude towards it has raised the issue.

The committee will wait and see.

The committee will wait with bated breath.

Question put and agreed to.

Amendment No. 195 is in the name of the Minister. Amendments Nos. 258, 262 and 263 are related. They will all be discussed together.

I move amendment No. 195:

In page 37, to delete lines 32 to 44 and in page 38, to delete lines 1 and 2 and substitute the following:

"(c) any proposed state development referred to in section 181A(1),

(d) any proposed development referred to in section 182A(1),

(e) any proposed strategic gas infrastructure development referred to in section 182C(1),

(f) any scheme or proposed road development referred to in section 215,

(g) any proposed railway works referred to in section 37(3) of the Transport (Railway Infrastructure) Act 2001 (as amended by the Planning and Development (Strategic Infrastructure) Act 2006), or

(h) any compulsory acquisition of land referred to in section 214, 215A or 215B, being an acquisition related to development specified in any of the preceding paragraphs of this definition;”.

I intend to bring a series of State activities and developments within the requirements of the environmental impact assessment, EIA, directive. The amendment also provides for the inclusion of airport compulsory purchase order procedures in section 215B. Amendments Nos. 262 and 263 which constitute the major amendments in this group provide for the possibility of a State development being subject to the requirements of the EIA directive. I imagine this measure will be welcomed because this was not the case previously. Certain types of development relating to public safety, public order, the administration of justice, national security or defence are removed from the ordinary planning procedures under section 181 of the 2000 Act. Instead, they are subject to a local authority and public consultation process under Part 9 of the Planning and Development Regulations 2001, after which the relevant State authority or Minister decides whether the development should go ahead. However, recent amendments to the EIA directive mean that defence-related projects previously exempted from requirements under the directive must now be examined on a case by case basis.

An environmental impact statement, EIS, must be prepared for projects with major environmental effects, except where the application of the EIA directive would have an adverse effect on national defence. Therefore, Irish implementing legislation must be amended to provide for an environmental impact assessment and for a case by case exclusion, where appropriate. However, I have decided to go further and provide a statutory basis for the possibility of an environmental impact assessment for all State developments, based on the existing provisions for local authority development. This provision specifies that any necessary assessment will be carried out by the new strategic infrastructure division of An Bord Pleanála, hence the need for amendment No. 195. It will ensure that in any case where a State development would have significant effects on the environment, an environmental impact statement must be prepared and an independent assessment carried out by the board. The procedure also allows for mandatory pre-application consultation between the board and the relevant State authority.

Amendment No. 258 is also consequential and is a minor amendment to update the Bill and include a reference to the new consent procedure for gas pipelines and an environmental impact assessment for State developments. Section 174 of the 2000 Act provides for the Bill to take into account any submissions made by another EU member state on the transboundary effects of a development. This proposes to extend to the environmental impact assessment requirements to State developments and is probably necessary under EU law.

Will all State developments require an environmental impact assessment?

They will have to be screened first.

What will determine if they reach the threshold?

It is not a case of reaching the threshold; it is the basis of the environmental effects. That is the point made in the cases of the defence developments.

What has the Minister in mind for the defence developments?

I cannot say that we will have an opinion on the defence matters but in other EU member states, it is an issue because of the large tracts of land taken up by defence developments. It does not arise in Ireland. The most logical way to do this is to require all developments to undergo the screening process. Those that have an environmental impact, as well as those that exceed the threshold, will require an environmental impact assessment.

Who tabled these amendments?

I did. Planning law should always be consistent and that is provided for in the case of the gas pipeline to which I referred. In most cases, problems may not arise but it seems prudent to make a consistency ruling for planning law. It is also insurance against the environmental impact assessment process in Europe. We have been outside the tent to some extent. We wish to make certain we are in the tent from now on. These are progressive changes.

I am not sure the Minister should refer to the tent when discussing planning legislation. I would stay away from the tent if I were the Minister.

That is a good point. I have never been in the other tent to which Deputy Gilmore refers, hence my innocence in referring to it.

This sounds like a good idea but I wonder what is the catch.

Deputy Gilmore should not wonder about the catch.

Amendment agreed to.
Section 6, as amended, agreed to.

I move amendment No. 196:

In page 38, before section 7, to insert the following new section:

"7.—Section 3(2) of the Principal Act is amended by the addition of the following after paragraph (b)—

"(c) where land is used in such a way as to emit noise pollution,”.”.

Noise pollution is an issue that arises. We operate noise thresholds that are UK standards. It appears that little can be done. I received a complaint from residents about a generator operating behind a shop.

Is that in Bray? There is a similar case in Bray.

No. It is not too far from Bray. Problems of noise pollution emanate from private businesses, such as a shop that is operating noisy machinery——

Such as refrigeration units.

Yes. Irish legislation governing and controlling noise, such as the use of premises for music, is very weak. It is an area of environmental protection that requires attention. The only recourse at present is civil action under the Environmental Protection Agency Act. They must establish the facts. I suggest we use planning legislation, enabling planning authorities to put conditions on establishments to control noise.

I do not understand the basis of Deputy Gilmore's amendment and am opposing it. Regulations can be made to deal with noise. Our regulation of noise has not been good until now. It is not always the decibel level that is the problem. Sometimes a low background hum can be more irritating than a loud noise. Refrigeration units can be an example of this. It is not practical to do as Deputy Gilmore proposes. Regulations are a better way of addressing this.

I sent an official to check on the issues raised by the European Commission regarding noise. I indicated that I wanted to make some changes in this area. If Deputy Gilmore will bear with me and withdraw the amendment, I will revert to him on noise regulations.

I gave an undertaking to constituents who had raised the matter of noise from private businesses that I would raise the issue during this debate. If the Minister is examining this matter and will make proposals, I will not press the amendment.

This would not be the right place to make the amendment, but Deputy Gilmore has made his point and his constituents can be reassured. In my constituency I have a similar problem with a 30 year old generator in a dental surgery. It is used episodically but seems to make noise at all the wrong times. This case is not captured by noise regulations. Deputy Gilmore's amendment would not deal with the case involving his constituents; it would deal with future noise in a planning Bill. Deputy Gilmore makes a valid point but I will not accept his amendment. I will revert to him concerning noise regulations.

Amendment, by leave, withdrawn

I move amendment No. 197:

In page 38, before section 7, to insert the following new section:

"7.—Section 4 of the Principal Act is amended by the addition of the following after subsection (5)—

"(6) The erection or maintenance of such types of mobile telephone masts or antennae as may be prescribed shall not be exempted development.".".

Telecommunications masts, and the antennae erected on them, have been discussed by this committee. The planning regime governing telecommunications masts and antennae seems complicated. There are two exemptions, one general exemption applying to telecommunications masts and another for masts erected by State agencies. The Office of Public Works proposes to erect a new telecommunications mast in the grounds of the Garda station in Shankill in my constituency. It has been referred to An Bord Pleanála to determine if the proposed development constitutes exempted development. This amendment seeks to provide that telecommunications masts and antennae should be the subject of planning control. Placing extra antennae on a mast amounts to a change of use or intensification and a planning application should be made. It would give those who have concerns and those promoting it an opportunity to state their case.

While we are considering the Bill, our sister committee, the Joint Committee on Communications, Marine and Natural Resources, is considering safety issues with regard to telecommunications masts and antennae. I understood there was to be a moratorium on the erection of the masts pending the outcome of the deliberations of that committee. The immediate purpose of this amendment is to bring masts and the antennae attached to them clearly and unambiguously within planning controls.

I support Deputy Gilmore's amendment. I agree entirely with his contribution and the thrust of the amendment. We know we require modern communications. However, this can be achieved without plastering antennae all over the place. I recently saw antennae in Drogheda and Dundalk which were camouflaged with a brick-like coating to make them blend in with the sides of buildings. It is thought that if people do not see them, it is not an issue. We must grapple with this matter, on which the other committee is genuinely attempting to make progress. This committee has competency in planning and development matters. It would be helpful to the other committee if the amendment were accepted.

This is a useful amendment which I support. Hundreds of people in Shankill in south Dublin have expressed strong concern at the intensification of mobile phone antennae on a new mast beside Shankill Garda station. They were outraged that there was no consultation with them and the contractors had moved onto the site. Thankfully, there is now a lull in proceedings. I was taken aback in reading the regulations to realise one could place up to one dozen additional antennae on a mobile phone mast and that a mobile phone mast could be replaced with a larger one without having to go through the planning process.

Regulations in this area are extremely detailed and provide for painting antennae to ensure they blend in with the surroundings. However, the fact remains that people are extremely concerned about the intensification of use and replacement of masts without having to go through the planning process. I am sure Deputy Morgan would agree that some recently constructed masts look like British Army watchtowers, bristling with what seems to be surveillance equipment. In fact, they are the antennae of various mobile phone operators. I accept, however, that the Minister wants to combine the antennae of operators on one mast. I accept that it makes sense to put antennae on existing masts such as those which the Garda Síochána use for other purposes.

Some representatives have made extreme statements such as that antennae should be sited more than 600 m away from houses. That is not realistic in a built up area. Antennae are dotted along many shopping streets. However, as people have fears, we must have a stronger planning regime. There should be a minimum distance from people's homes. We should also regulate more carefully the maximum output of antennae. This should be prescribed in the Bill and regulations. Deputy Gilmore's amendment is sensible and would go far to address the concerns people have. For that reason I support it.

The amendment is useful in that it provides an opportunity to discuss the matter. I am fully aware of the concerns about masts as it was a major issue in County Wicklow a number of years ago. It was also a major issue when it was decided to facilitate an operator by allowing it to place antennae on Garda stations. The points made by Deputy Cuffe are sensible. The main fear people have is that of the unknown.

An issue is raised when a lot of material is clustered on one mast as it can be unsightly. To be fair to the operators, some of them make extraordinary efforts to disguise masts. The masts along the M50 look like well clipped Christmas trees. They look extremely odd. They are sited well away from houses.

There is constant confusion regarding the erection of masts which require planning permission. The amendment mentions maintenance which does not require planning permission. I am not sure that is what Deputy Gilmore intends. New communications masts require planning permission. The difficulty arises with the replacement or upgrading of existing masts, which is exempt. If someone wants to erect a new mast, he or she must get planning permission.

I recently had occasion to assist communities by giving them advice on combating masts. Deputy Gilmore is correct to state there is absolute confusion about what is required. The amendment is not necessary because new communications masts require planning permission. Maintenance does not.

Deputy Cuffe has read the regulations which provide for——

Additional antennae.

——up to 12 additional antennae. That is what creates the porcupine features when they are clustered together. It is sensible to argue masts should be shared. Otherwise there would be proliferation. A few years ago in County Wicklow there was major controversy about a proliferation of masts along the N11. One operator was not prepared to host the antennae of others and had to be forced to do so. We stated we would only give planning permission for a limited number of masts.

This creates a real dilemma. On the one hand, we want telecommunications and, on the other, communities are concerned. I agree with Deputy Cuffe that a better way to deal with the issue is to examine the output level. We had long debates on this issue in County Wicklow.

I will not accept the amendment because the matter is already covered under planning law. I know the other committee is examining this area. In September 2005 the Government approved the establishment of an interdepartmental advisory committee, an expert group working on the health effects of electromagnetic fields. My Department is represented on that committee. A number of years ago, prior to becoming a Dáil Deputy, I was involved in this issue and remember being laughed at when we discussed non-ionising radiation. Perhaps the Deputies will recall the first person to scientifically raise the issue was treated like a pariah but then won international prizes for identifying the problem.

My Department is represented on the committee which examines the health effects and which will report to the Government before the end of this year as to appropriate action to be taken. Regulation is probably the best way to go. Deputy Cuffe touched on what the issues wiould be — the output of masts and proximity to dwelling premises. It would be appropriate to examine the regulation after that committee reports rather than in this Bill.

The main point to make on Deputy Gilmore's amendment is that masts require planning permission.

This Bill is the appropriate forum to address the matter because it provides us with an instrument to facilitate the development of infrastructure. While the general emphasis of the Bill is on making it easier to progress infrastructure projects, telecommunications infrastructure is proceeding apace by means of a loophole in planning law. Planning permission must be sought to erect a new telecommunications mast but not to replace a mast provided no more than 12 additional antennae are installed. If that principle were applied to residential developments, the law would allow a house to be demolished and a new one built in its place without requiring planning permission provided no more than two or three additional bedrooms were built. That would be nonsensical, yet we allow a similar procedure in respect of telecommunications masts.

Shankill provides a good example of this matter. While I will not discuss the case in detail because it is before An Bord Pleanála, the argument made in Shankill was that a bigger and stronger mast was needed to install additional antennae and to consolidate the various service providers' equipment. However, that would have resulted in a physically altered structure and an increase in the level of radiation emitted because of the additional antennae, which themselves escape planning control.

A general principle of our planning legislation is that intensification or change of use requires planning permission. Provision needs to be made for telecommunications infrastructure in the Bill because I do not accept the matter can be addressed later through regulation. The Bill must unambiguously provide for planning control over the erection of new and replacement masts, additional antennae, intensification of use, consolidation of service providers onto one mast and, critically, use of State grounds and properties for masts. I ask the Minister to accept the principle of my amendment and address any difficulties with terminology on Report Stage.

I have listened to the Deputy's comments. The planning guidelines and regulations for masts are very detailed, setting out the dimensions of masts, the mixture of dishes and other types of antennae and the circumstances in which equipment should be shielded. That is the appropriate method to regulate for this matter. As for the point made by Deputy Cuffe on emissions, regulations provide that the attachment of additional antennae shall not result in the field strength of non-ionising radiation emissions from radio installations on the site exceeding the limits set by the Director of Telecommunications Regulation. It would be wrong to try to capture all that in primary legislation.

The amendment refers to maintenance of masts. It would be impractical to require planning permission before a fallen mast could be repaired. A report is due on the matter and the issue of electromagnetic and radio frequency emissions has been discussed. These matters should be dealt with in regulation. There is no ambiguity in terms of requiring planning permission for masts in new locations. Therefore, as the proposed amendment is unnecessary, we will have to agree to differ.

We are going to differ and, I am afraid, divide on the amendment if that is the Minister's opinion. I am aware of a number of cases involving telecommunications masts, of which the most recent is Shankill. I also dealt with an earlier case in Dalkey where an arrangement was reached between CIE and a telecommunications provider.

I see the Deputy's point.

If the provision were clearly stated, I would be happy with it, but it is overly complex. Our planning legislation makes it clear that planning permission is needed to replace a building. My amendment makes it clear that replacement, intensification, change of use and the other principles accepted throughout the planning code should be applied in respect of telecommunications infrastructure.

Is the amendment being pressed?

Intensification of use has already been dealt with in regulation and has been made subject to emissions levels. I do not disagree with the Deputy in principle that regulations need to be tightened but it is not practical to deal with the matter here. A trade-off must be made between proliferation of masts and intensification of use on individual structures.

Amendment put.
The Committee divided: Tá, 4; Níl, 8.

  • Cuffe, Ciarán.
  • Gilmore, Eamon
  • McCormack, Pádraic.
  • Morgan, Arthur.


  • Curran, John.
  • Grealish, Noel.
  • Haughey, Seán.
  • Healy-Rae, Jackie.
  • Kelleher, Billy.
  • Moloney, John.
  • Moynihan, Donal.
  • Roche, Dick.
Amendment declared lost.
Section 7 agreed to.

Amendment No. 198 has been discussed with amendment No. 124.

I move amendment No. 198:

In page 38, to delete line 23 and substitute the following:

"8.—(1) Section 34 of the Principal Act is amended by the insertion of the following subsection after subsection (3)—

"(3A) Regulations in respect of submissions or observations referred to in subsection (3)(b) may not require such submissions or observations to be accompanied by a fee.”.

(2) Section 34(4) of the Principal Act is amended by substituting the".

Amendment put and declared lost.

Amendment No. 199 has been discussed with amendment No. 114.

I move amendment No. 199.

In page 38, lines 37 to 40, to delete all words from and including "(and" in line 37 down to and including "operates)" in line 40 and substitute the following:

"(and the effect of the imposition of conditions for that purpose would not require such an amount of financial resources to be committed as would substantially deprive the person in whose favour the permission operates of the benefits likely to accrue from the grant of permission)".

This insertion would strengthen the section. It is similar to what is contained in the section, but if it is worded this way the section will be fortified.

I understood we had some agreement with Deputy O'Dowd on this. I have already discussed its major points and dealt with this at some length. This would be inappropriate. The issues of community gain are well set out in the Bill. This does not improve matters at all.

I would give the Deputy the specific point I made if I could find it. We have discussed this already, and I have already indicated that I will not accept the amendment. I thought we had agreement on the matter.

If that is the case I will not press the amendment.

Amendment, by leave, withdrawn.

Amendment No. 200 has already been discussed with amendment No. 122.

I move amendment No. 200:

In page 38, between lines 40 and 41, to insert the following subsection:

"(2) Section 34(5) of the Principal Act is amended by substituting "the person carrying out the development; if the planning authority and that person cannot agree on the matter the matter may be referred to the Board for determination" for "the person to whom the permission is granted and that in default of agreement the matter is to be referred to the Board for determination.".".

This amendment is merely a point of detail.

Amendment agreed to.
Section 8, as amended, agreed to.

I move amendment No. 201:

In page 40, between lines 3 and 4, to insert the following subsection:

"(2) It shall be a condition of any permission relating to residential property that no management company shall be required to operate save in respect of apartment developments, and that any such management company shall comply with such conditions as shall be prescribed by the Minister.".

This amendment deals with the use of management companies in normal housing developments. I propose that it should be a condition of any permission relating to residential developments that no management company shall be required to operate, save in respect to apartment developments. Any such management company shall comply with conditions prescribed by the Minister.

I do not wish to repeat the debate we had in the House on foot of the Labour Party private Members' motion some months ago. At that stage we argued that the use of management companies should not be generally permitted in the case of housing developments, and that they should be limited to apartment-type developments. In those cases, the companies should be limited to the areas within the curtilage of the apartment development and subject to regulation by the Minister in terms of how companies are established and run, what they may charge for and how they are controlled.

There is a rash of development companies, particularly along the western side of this city in the suburbs, stretching to Kildare and Meath. They are being used in the management of normal housing estates. It is a rip-off for the people buying their homes in those estates. They find that after paying for the purchase of the homes, they are being hit for €1,000 or €1,500 per year to keep the grass cut on the open spaces in such estates.

It appears there is an arrangement of convenience between developers and some local authorities. The developers bring the estate to a standard which is sometimes less than what the local authority would normally permit for estates it would take in charge. The local authority seems to have an incentive to allow that to happen as it allows the authority a reason not to take the estate in charge. This area urgently requires legislation and regulation.

I am taking the opportunity in this Bill to propose that they should not be permitted in what we would call normal housing estates.

I strongly support this amendment. I raised this matter on the Adjournment in the Dáil last night and the Minister of State, Deputy Noel Ahern replied to it. I ask the Minister, Deputy Roche, to read my contribution because I quoted three instances in this respect. I raised this matter seven months ago with the Minister by way of parliamentary question and I thought he indicated that he would contact the local authorities to encourage the disuse of this provision as a condition in planning permission. In my Adjournment Debate contribution I gave three instances in County Galway. In Loughrea, 80% of planning permissions granted were for detached, semi-detached and terraced houses and only ten apartments were granted planning permission. The development will include 45 or 48 semi-detached houses, four or five detached houses, ten terraced houses and ten apartments. Condition 19 of that planning permission stated that before any development would take place the applicants would have to set up a management company. I quoted two other cases in Galway city, one of a development of four detached houses where a condition was attached to the permission planning. That permission was only granted within the past month. I quoted another case involving the development of eight town houses where a condition was attached to the planning permission.

What is happening in reality, and it is not the fault of the developer, except where, as Deputy Gilmore said, there might be some agreement between the developer and the planning authority at the pre-planning meetings, is that the developer is obliged to set up the management company. The construction company sets up the management company, which generally has the same directors although it might include one or two outsiders to make it look well. Effectively, the construction company is the same as the management company and the owners of the houses have no control over that because many of them have entered into a contract and sold their house. They may be moving up in the market or buying a second house. If they are first-time buyers they are fearful of house prices increasing and have no option but to complete the sale of the house, even when they discover this clause in the planning permission.

I thought the Minister had given an assurance to the Dáil on this issue. The Taoiseach spoke about it two weeks ago in the Dáil and he appeared to frown very much on the idea of planning authorities inserting clauses demanding, requesting or ensuring that a management company be set up. Such management companies are responsible for roads and other facilities in the estate which would normally be the responsibility of the local authority.

I live in a housing estate and I have nearly paid off the mortgage. Many of my neighbours have paid off their mortgages and added extensions to their houses. We do not have to pay any management fees yet we get the services similar to the people living across the road from us who are struggling to buy their first house in a new estate where there is an obligation to set up a management company. That makes it almost impossible for those people to cope because they are hit with a bill for management fees in the first year of €400 or €500. Those fees increase to €700 or €800 within a year or two, yet the house owners have no control in respect of the management company.

I would like the Minister to clarify this but I understood that when the majority of house owners in an estate asked the local authority to take over the estate it was obliged to do that provided the estate has been properly finished. If an estate is not properly finished, the bond of the developer should be taken into account and he should ensure that the estate is finished properly. I know from personal experience that some developers——

I can assist the Deputy on that point.

My last point is that——

I wish to advise the Deputy that is the law at present.

The issue of the taking in charge of an estate is already determined in law. There are regulations governing it.

Yes, but I am aware of a developer of an estate of 350 houses in Doughiska, in Roscam, on the east side of Galway city, who built all the houses in the estate with the exception of some on three sides which he did not develop. The estate is not complete and therefore there is no possibility of the local authority taking charge of the estate, even if the owners of the houses already built want it. They will be told the estate is not complete. It is a deliberate ploy to the keep the management company in place, the operation of which is a gold mine. They literally have a licence to print money for the service they deliver. Much of that money goes towards the administration costs of the management company. Such fees are a more serious burden than that posed by house rates. At least the money collected from house rates accrued to the local authority to be used for the benefit of the community. The money collected in these fees goes to the contractors or speculators who develop estates. That practice should be discontinued. From what the Minister said in reply to a question I raised in the Dáil seven months ago, I am aware he has a desire to ensure that practice is discontinued but unfortunately nothing has been done about it since. I strongly support this amendment.

I wish to bring in Deputy Morgan.

What the Deputy said is not quite true. I have a circular letter, a section of which I will read for the Deputy as soon as we conclude.

Will the Minister also read my contribution to the Adjournment Debate last night?

I welcome the opportunity to address this serious issue through Deputy Gilmore's amendment, which I support. This problem dates back 29 years to the 1977 election when rates on domestic property were abolished. These fees represent the reintroduction by stealth of a version of rates. Hard-pressed local authorities are delighted when they do not have to take over or maintain new schemes and developments. There is a conspiracy between local authorities and developers to make this happen, which will gain significant momentum by June of next year. What we are seeing now is the soft preparation, so to speak, for that in a number of areas. All the areas we represent are affected to some degree but the turbo charge will only happen post the general election. This is the time to check that and this amendment is a good device to do that.

We all want to rush through this legislation to try to sort out the problem as quickly as we can but this is such a major issue across the country that it requires some discussion. Deputy McCormack was spot on. I could show the Minister several examples of this happening if he came to Louth.

I want to read——

Whatever about planning issues, they will be looking for the white smoke around the middle of June next year.

That depends——

I have drafted a circular letter the relevant paragraph of which I will read because I want to stop this scam. I believe a number of local authorities have a case to answer. I was not in the Dáil last night but I will read the debate because I had certain undertakings from councils and Deputies with whom I discussed the matter subsequently told me that the undertaking their council gave to me was not correct. I want to deal with this issue because it arose in the debate in the Dáil that a number of local authorities had exceeded planning law requirements. They had opened Pandora's Box in that respect and created a problem. In some traditional housing estates local authorities have exceeded what was required in law. I am still waiting to find out from one or two of them what they intend to do to address the problem they have created. It must be remembered that if a planning application has certain requirements one is stuck with them until it is amended.

I have drafted a circular. It is not finished for the simple reason that a number of caveats have been put into it with which I do not agree but the main thrust of it states that under no circumstances should a planning authority require the establishment of a management company for a traditional housing estate, i.e. of houses with individual private gardens, other than in the specific circumstances outlined.

The first of those circumstances would be holiday home developments, which I do not believe should be the responsibility of the local authority. The second is if the developer indicates it is not intended that the estate be taken in charge, which refers to some of the gated estates. If someone buys into a gated estate the taxpayer should not necessarily be affectedpost hoc. The third circumstance is where a specific service is provided, namely, a playground, specific facility, swimming pool or something of that nature. That is provided for in the circular. The debate is ongoing as to whether a local authority service is not available, for example, a water or sewerage plant being put in for a specific period, something on which I have mixed views.

I am determined, and I have made this clear to local authorities without including it in this legislation, that they are to stop this practice and they are to give some thought to how they amend any damage they have already done. Where there is multiple occupancy, for example, a block of flats, or where there are so-called high quality developments which sometimes might be townhouses but which have a very high standard internally, passing the cost of maintaining those on to the general body of taxpayers is probably not what the Dáil has in mind. However, in the traditional housing estates, such as those described by Deputy McCormack, management companies should not apply.

I am sure the Minister's circular is well crafted and well intended, but what is required is a change in the law. This is a relatively new phenomenon in housing estates. There have always been management companies for apartments and one could argue that there were some grounds for tidying up the regulations and so forth. However, what has happened here is that a loophole has been discovered and is being exploited where there are mixed developments. The development would include apartments, townhouses and so forth. As a result, there is a supposed requirement to establish a management company.

The second type of loophole is the one described by the Minister, that is, this idea that a development is finished to a higher standard than the local authority standard. This is codology. What is happening is that developers are installing fancy pavements, fancy ground level public lighting and lots of shrubbery where there should be open space and calling it a higher standard of finish which is then made subject to maintenance by a private management company. It is all a ruse to get these developments out of the local authority regime and to have people continue to pay a fee to the developers who will continue to bleed them for the next 20 years for annual charges.

This will not be resolved by the Minister sending out circulars. The law is ambiguous. The section of the legislation which provides that a plebiscite can be held and people can request that the development be taken in charge is not working. It is not working because the estate must be completed after seven years and it must be completed to the standard required by the local authority. If there is a dispute over whether it is up to that standard, there is a problem. There is a problem if the conditions in the planning permission are less than the standard required for taking in charge. In other words, it can be said it is out of the local authority remit anyway.

There are also issues arising relating to property. The management companies now say they have a property right in the estates. When we had the debate on this in the Dáil, the Minister was of the view that residents could request a plebiscite, even where a management company existed, and, having held it, could insist on the local authority taking it in charge. The problem in practical terms, as I understand it, is that where a local authority attempts to do that and where a management company is already in place, the management company is claiming to have a property right. It claims to own the management of the estate and that this right cannot be stood down.

It is a mess. It will have to be dealt with by legislating to ensure that the hole does not get any deeper, preventing it happening in the future and examining what can be done to rectify it where people are already caught in it.

I accept the Minister'sbona fides in this matter. I knew from his manner in the Dáil seven months ago when I raised this that he was serious about it. At the time he said he would contact local authorities. I conducted the research to find out if this practice is still taking place. I was sure it would have stopped as a result of the Minister’s displeasure and warning to the local authorities about it. That is the reason I got the up-to-date information which the Minister can examine himself.

The number in the case of Loughrea is quoted in my contribution last night so it will be easy to research. It did not take me seven months; I was able to do it in half an hour in the county council. In that case, 80% of the buildings are conventional houses and fewer than 10% are apartments. In other words, if the roof blows off the apartments, the people in the semi-detached and detached houses will pay to replace it. That is what the management company does and that is where it gets the money to do that.

I have no objection to the apartments having a management company. If a common area of the apartments is damaged, somebody must fix it and that is how to do it. However, in one estate east of Galway city, Roscam, there are 450 houses controlled by the same management company. It is taking in €250,000 per year in management fees at a little more than €450 per house. In the next ten years that management company will take in €5 million from the hard pressed householders in that estate.

I accept the Minister is serious about this but he must take on the local authorities and whoever is abusing the system. Householders in this new estate, most of whom are first-time buyers, will pay €5 million to a management company over ten years. It is beyond a joke. It is far worse than rates. That money can never be used again by the local authority because it has gone into a private management company.

I will examine the issues raised in last night's debate. Whatever possible excuse there was before this debate started in the Oireachtas, no planner in any local authority can be in any doubt as to what section 34 of the Planning and Development Act meant. It recognised the practice of establishing management companies by including a list of conditions. There is no ambiguity in that.

This is what I meant when I said to Deputy Gilmore that local authorities in a position to stop the practice will have to give some thought to the point he made, that is, when a management company states it has an established property right. That is where the issue arises and that is the reason the Law Reform Commission must compile a report on it. As an interim measure and arising particularly from the debate in the Dáil, I have instructed the local authorities. Deputy Gilmore's amendment provides that a limitation on management companies be prescribed by the Minister. I am using the powers I already have to issue the circular. The circular could not be any clearer. It says that under no circumstances should a planning authority require the establishment of a management company for a traditional housing estate.

That is where it is solely a traditional housing estate.

Yes, traditional housing, that is, houses with individual private gardens.

Where there is a condition in the planning permission, it cannot be removed from the permission. This is Deputy Gilmore's point. The management companies are now saying it was a condition for the permission——

That is the point I was making.

They are saying it was a condition of the planning and we can do nothing about it. The planning permission provides for management companies.

In the case of Galway, it is not just the planners but also the councillors who will have to examine their policies. I understand that Galway adopted a policy on the issue of management companies. I will follow it up when I have the opportunity to read the Deputy's contribution to the debate as to whether it was their planning——

They did. It was something they put in.

It was something they put in. I accept what the Deputy says but it is another question whether it is as a direct result of a plan or policy which the councillors accepted. Councillors themselves have something to answer for, or examine, and they will have to change whatever policy they have made locally.

It is not in the city development plan anyway. I know that for certain because I checked it.

It is the county plan. I am issuing this circular which is intended to clarify the existing state of law. It needs further work, including work to extricate councils from the mess and, more importantly, to extricate householders from the situation in which they have been landed by councillors who have acted inappropriately.

A number of matters are going on in parallel here. First, property rights issues will have to be resolved by the Law Reform Commission's working group. I am certainly not going to anticipate that, nor will I wait until it reaches its conclusion. Second, the circular I am issuing will make clear what they are or are not to do. Third, a working group, which includes the planning authorities, is being established to examine further the issue of management companies and the taking in charge of residential estates because both matters go hand in hand.

I made it clear on several occasions during the debate and in replies to parliamentary questions that I do not want to see management companies being used as a device by local authorities. With respect to Deputy Morgan, there are very few cash-strapped local authorities at the moment. That is the traditional crock of an excuse which is used by anybody in a local authority who wants to misuse the rules. Anybody who says that local authorities have had to put management companies in place because they lack cash is not telling the truth. I am sick of listening to local authorities putting forward that argument. In one way or another, €9 billion is available for local authorities this year. We all know that, especially in areas where rapid development is occurring, local authorities receive a substantial amount of money from levies, so there is no excuse for this abuse. I feel as angry about this matter as any member present.

I will oppose the amendment because I believe it is inappropriate. I am doing what I have already outlined. If the committee wishes to examine further the issue of how we can deal with local authorities, I will be pleased to take that up as a separate matter. Both the Taoiseach and I have said in the Dáil that there is no excuse for local authorities misapplying the rules. That is what the circular letter dealing with that matter states.

What will happen after the circular? What will we do? They will ignore the circular as they obviously ignored the Minister's last correspondence with them.

That is not true. I do not want to give the impression that they did. The last correspondence was a trawl to find out what they were doing and to ensure that they were operating the planning laws correctly.

I was not told that.

The circular emerged from that.

Is the circular letter a direction to local authorities?

It is, yes.

Is it under section 29?

I am not sure. It does not define which particular section. If the Deputy feels it would be——

It is a ministerial direction under the Planning and Development Act and they are obliged to comply with it.

They are, and I am looking at ways to strengthen it. I am as angry about this practice as members of the committee. For example, I have discovered a case in my constituency where there is a ludicrous proposition and I am just not prepared to accept it. Planning law in this country is reasonably well written. In this area it is not as ambiguous as it would seem when one looks at it. The Deputy referred to the Galway case and there is no excuse for that in a traditional housing area.

I differ from Deputy Gilmore over some of these cases where they have high standards of paving. I am familiar with one or two estates in his constituency where I would not want to pass the burden of maintaining them to the taxpayer. People have bought into a certain type of property which would be beyond Deputy Gilmore's and my means. If people buy into that, it is fine. If one has bells and whistles planning permission, so to speak, with a swimming pool or a sports facility, I do not want to pass that burden on to the taxpayer. I want to stamp out the management abuse, however, and I am determined to do so. I am prepared to come back to the committee to discuss it for the reasons I have outlined. I will not discuss this matter further now because we want to make a little progress.

Will the Minister keep us informed of what is happening?

I will go further. If the committee wants to have a meeting to discuss this issue, I would be delighted to attend it to do that. I am determined to stamp out any abuse of management companies. The reference in the Planning and Development Act 2000 was specific on that very point. We all accept that there are certain types of multiple occupancy developments where a management company makes sense but not in some of the other areas. I will examine the areas to which Deputy McCormack referred.

Having regard to the discussions we are having on every issue under the sun, I must conclude that members do not want to finish this Bill by tomorrow night either.

I understand the Minister is serious about the matter but I still think the local authorities are giving him the two fingers.

Is the amendment being pressed?

Amendment put and declared lost.
Section 9 agreed to.
Amendments Nos. 202 to 206, inclusive, not moved.

I move amendment No. 207:

In page 40, lines 27 and 28, after "paragraph (c),” to insert the following:

"being requirements of a general nature and for the purposes of promoting transparency and accountability in the operation of such organisations,".

This amendment is a bit unusual.

May I intervene to be helpful to Deputy Gilmore?

I have read Deputy Gilmore's amendment in the context of the section and, against all the advice of my officials, I think it strengthens the section. While I am being strongly advised not to accept the amendment, I will do so.


I think it is a good amendment. The officials to whom I referred, exclude present company. I am getting kicked under the table here.

Congratulations, Deputy Gilmore.

Thank you, Chairman. We are making great progress.

I was looking at the Minister's official in a different light, thinking she was very wicked.

I am grateful for that clarification.

Amendment agreed to.
Section 10, as amended, agreed to.
Sections 11 and 12 agreed to.

Amendments Nos. 208 to 225, inclusive, and 300 are related and may be discussed together.

I move amendment No. 208:

In page 41, to delete line 9 and substitute "matter with which the Board is concerned,".

As I indicated earlier, I was impressed by an argument that was made whether we should haveex parte reviews. In fact, the point was made by a number of Opposition spokespersons that there was something fundamentally odd about this process. The amendment revises section 50 of the Act to ensure that the board may seek the views of the High Court on a question of law on all matters in which the board is concerned. While the board very rarely uses this power, it is a good provision.

As for amendment No. 212, during the debate on Second Stage a number of speakers focused on the proposed change in judicial review procedures. There appeared to be significant concerns regarding the proposal to have applications for leave for judicial review madeex parte rather than on notice, as is currently the case. I was impressed by the arguments. That is why I have proposed the amendment indicating that, having listened to them, I agree with the arguments that were made. Amendments Nos. 213 to 225, inclusive, are consequential ones that renumber. Amendment No. 300 amends the judicial review provisions in regard the Transport (Railway Infrastructure) Act.

Amendments Nos. 209 and 211, inclusive, seek to change the application for a judicial review under the planning Act. In effect, this would result in local authority decisions in regard to compulsory acquisition of land under section 214 no longer being subject to judicial review as set out in the Bill and would instead be subject to the broad review provisions set out in the local government Acts. I do not propose to accept those amendments since I do not believe to do so would improve the efficiency or effectiveness of the process — in fact, it would have quite an opposite effect.

The changes have come about largely because of contributions in respect of "on notice" versusex parte. I listened carefully to the arguments made on Second Stage in the Dáil and in the Seanad and it would be better to go “on notice”.

Amendment agreed to.
Amendments Nos. 209 to 211, inclusive, not moved.

I move amendment No. 212:

In page 42, to delete lines 42 to 48 and substitute the following:

"(2) An application for section 50 leave shall be made by motion on notice (grounded in the manner specified in the Order in respect of anex parte motion for leave)—

(a) if the application relates to a decision made or other act done by a planning authority or local authority in the performance or purported performance of a function under this Act, to the authority concerned and, in the case of a decision made or other act done by a planning authority on an application for permission, to the applicant for the permission where he or she is not the applicant for leave,

(b) if the application relates to a decision made or other act done by the Board on an appeal or referral, to the Board and each party or each other party, as the case may be, to the appeal or referral,

(c) if the application relates to a decision made or other act done by the Board on an application for permission or approval, to the Board and to the applicant for the permission or approval where he or she is not the applicant for leave,

(d) if the application relates to a decision made or other act done by the Board or a local authority in the performance or purported performance of a function referred to in section 50(2)(b) or (c), to the Board or the local authority concerned, and

(e) to any other person specified for that purpose by order of the High Court.

(3) The Court shall not grant section 50 leave unless it is satisfied that— ".

Amendment agreed to.

I move amendment No. 213:

In page 43, to delete line 39 and substitute the following:

"(4) A substantial interest for the purposes of sub-".

Amendment agreed to.

I move amendment No. 214:

In page 43, line 40, to delete "section (2)(b)(i)” and substitute “section (3)(b)(i)”.

Amendment agreed to.

I move amendment No. 215:

In page 43, to delete line 42 and substitute the following:

"(5) If the court grants section 50 leave, no grounds".

Amendment agreed to.

I move amendment No. 216:

In page 43, lines 45 and 46, to delete "subsection (2)(a)” and substitute “subsection (3)(a)”.

Amendment agreed to.

I move amendment No. 217:

In page 43, to delete line 47 and substitute the following:

"(6) The Court may, as a condition for granting".

Amendment agreed to.

I move amendment No. 218:

In page 43, to delete line 50 and substitute the following:

"(7) The determination of the Court of an appli-".

Amendment agreed to.

I move amendment No. 219:

In page 44, to delete line 5 and substitute the following:

"(8) Subsection (7) shall not apply to a determi-".

Amendment agreed to.

I move amendment No. 220:

In page 44, to delete line 9 and substitute the following:

"(9) If an application is made for judicial review".

Amendment agreed to.

I move amendment No. 221:

In page 44, to delete line 20 and substitute the following:

"(10) The Court shall, in determining an application".

Amendment agreed to.

I move amendment No. 222:

In page 44, to delete line 24 and substitute the following:

"(11) On an appeal from a determination of the".

Amendment agreed to.

I move amendment No. 223:

In page 44, lines 25 and 26, to delete "subsection (9)" and substitute "subsection (10)".

Amendment agreed to.

I move amendment No. 224:

In page 44, line 29, to delete "subsection (6)" and substitute "subsection (7)".

Amendment agreed to.

I move amendment No. 225:

In page 44, to delete line 35 and substitute the following:

"(12) Rules of court may make provision for the".

Amendment agreed to.
Section 13, as amended, agreed to.
Section 14 agreed to.

Amendments Nos. 227 to 231, inclusive, are alternatives to amendment No. 226 and all may be discussed together.

I move amendment No. 226:

In page 44, to delete lines 46 to 49 and in page 45, to delete lines 1 to 44 and substitute the following:

""(a) one member shall be appointed from among persons selected by prescribed organisations which in the Minister’s opinion are representative of persons whose professions or occupations relate to physical planning, engineering and architecture;

(b) 2 members shall be appointed from among persons selected by prescribed organisations which in the Minister’s opinion are representative of persons concerned with the protection and preservation of the environment and of amenities;

(c) one member shall be appointed from among persons selected by prescribed organisations which in the Minister’s opinion are concerned with economic development, the promotion of and carrying out of development, the provision of infrastructure or the development of land or otherwise connected with the construction industry;

(d) one member shall be appointed from among persons selected by prescribed organisations which in the Minister’s opinion are representative of the interests of local government;

(e) one member shall be appointed from among persons nominated by such trade unions or organisation of trade unions as may be prescribed;

(f) one member shall be appointed from among persons nominated by such bodies representing farmers and bodies that, in the opinion of the Minister, have a special interest or expertise in matters relating to rural and local community development, the promotion of the Irish language or the promotion of heritage, the arts and culture, as may be prescribed;

(g) one member shall be appointed from among persons nominated by such voluntary bodies, bodies having charitable objects and bodies that, in the opinion of the Minister, have a special interest or expertise in matters relating to the promotion of the Irish language, the promotion of the arts and culture or that are representative of people with disability, and representative of young people, as may be prescribed;

(h) one member shall be appointed from among the officers of the Minister who are established civil servants for the purposes of the Civil Service Regulation Act 1956.

(2) The Minister shall prescribe at least 2 organisations for the purposes of each of paragraphs (a) to (g) of subsection (1).”.”.

These amendments concern the method of appointing the members of An Bord Pleanála. A very fine-tuned method of nominating the members of An Bord Pleanála from different bodies is already in place. As I understand it, the new method proposed in this Bill arises primarily from the fact the membership on An Bord Pleanála is to be increased given the enhanced role it will have. However, the method proposed by the Minister is one which could result in the appointment of an unbalanced board.

The method in the existing Act is that one member is nominated from particular categories of nominating bodies. What the Minister proposes is that two members will be appointed from a larger batch of nominating bodies. The effect of what he is doing will be to increase his discretion in appointing the members of An Bord Pleanála against a background where the role and nature of the board are being fundamentally changed in this legislation. An Bord Pleanála is being given critical functions in regard to deciding what is strategic infrastructure and what may be submitted as an application for fast-tracking. It will decide on those applications and, as was said earlier, the board will now decide what is the national interest.

It is not appropriate that the power of the Minister in regard to the appointment of members of An Bord Pleanála is being increased. The existing formula for appointing members to An Bord Pleanála limits the Minister's discretion. While the Minister makes the appointments, his discretion is quite limited because he must conform to the nominations that come from the nominating bodies. The grouping arrangement proposed in this Bill will widen that discretion. The purpose of my amendments is to keep faith with the formula in the existing planning Act in regard to the appointment of the board although widening it to take account of the fact that additional members will be appointed.

There is no underhand plot to somehow change the balance. We all accept that overall the size and composition of the board must change to take account of the establishment of a new division. It will have a significantly expanded workload which we all accept. It is also necessary that the board is fully representative and reflects the broad range of interests active in our planning system. It is skewed in that people representing rural interests, for example, are not involved in the board. That is a fundamental mistake. As other Members evidently do, I believe the alignment of groups that may nominate needs to change. We are probably agreed on all I have just said.

However, the diversity of interests is well illustrated by the fact that our proposals properly reflect that diversity. I will give Members an idea of how it is made up at present. The current panel format is: one from physical planning, engineering and architecture; one from protection and preservation of the environment; one from economic development, infrastructure and construction; one from local government; one from the trade unions, farming and rural and local community; one from the voluntary bodies; and one from the Civil Service. I propose to have two from physical planning, engineering and architecture; two from economic development, infrastructure and construction; two from local government, farming and trade unions; two from the protection and preservation of environmental amenities, voluntary bodies, charities, local and rural community development, disability and young people; and one from the Civil Service. I do not believe that unbalances it.

There is one area in which I strongly believe there is a gap, namely, people representing rural interests. There has been a campaign from organisations such as the IRDA to have the right to make a nomination. That argument is well made because there are different sides in the debates that take place. I do not see the point Deputy Gilmore made is well supported. I am anxious for the diversity of interests to be well represented. I have spent much time mulling over the various options to update the way board members are nominated and aligned. The means by which I have chosen to do so have been arrived at after long consideration. There needs to be a balance in the process.

The appointees to the board do not represent their nominating bodies. They are appointed to make independent assessments of applications, appeals and referrals. It is important to make that point to anyone who comes through the nominating process to the board. He or she is not there to do battle for a particular group but to give balance. Neither the amendments proposed by Deputy Gilmore nor those tabled by Deputy O'Dowd would be an improvement to the composition I propose which would give the board the requisite range of backgrounds and skills to carry out its role. As the board is not meant to be a representative body, it would benefit from this arrangement. We all accept there will have to be more members on the board to deal with the new division.

Will the various organisations nominate people who the Minister will formally appoint?

That is what happens at present.

Is that what will happen under this proposal?

That is what will happen.

When this legislation is passed, when will this new board be appointed?

The existing members will continue. The process is quite complex because members join and leave the board. If my memory serves me correctly, at present there are two places which are due to turn over this year in the normal course of events and the nominating bodies concerned will make their nominations.

When this new process is in place, the new board must be picked and we will need a larger membership from which to pick. As members become necessary, the relevant nominating bodies will put forward their nominations.

Where there are extra places, will those extra members be put on the board after this becomes law?

There are additional members already appointed. Currently, there are ten members on the board.

How many will there be on the board when this Bill is passed?

There will be two members leaving the board and they must be replaced. That will be it. There will not be a further expansion. There is extra provision on the board at present. The board has been under pressure for some time and that is from where the additional membership has come. One must remember that there has been a considerable increase in the volume of the board's work.

It is generally acknowledged that the existing method of appointing the membership of An Bord Pleanála has been acceptable and the people who have been appointed are of a high quality. I would not take issue with the way in which the board is appointed. Obviously, people might have issues relating to what they do but, generally speaking, it has worked.

Two problems arise here. One is that the nature of the board is changing and, therefore, an issue arises about the method of appointing a board. The current board is primarily an appeals board. I acknowledge it has been given some additional functions in recent times, especially on road development, and we debated that matter in this forum previously. The board's function in the case of infrastructure is being dramatically changed.

If a Minister wanted to get a board that would take a particular view on infrastructure development, it would be easy for him or her to bring about a board which was a Minister's patsy. Let us look at the method here. First, the Minister prescribes the organisations which nominate. One must end up with a balance under the existing formula where the Minister may only appoint one from each panel. The Minister is restricted in that regard. There is one from the construction industry professions such as engineers and architects, one from economic interests, one from environmental, heritage and conservation interests, one civil servant etc. The current formula provides limits.

The Bill provides the Minister with a list of organisations and he must pick two. A Minister could easily put together a board where those coming through would be, for example, the nominees representing landowners, the professional——

One cannot do that.

Of course one can.

Let us run through the bodies quickly. In the first category there are the Irish Planning Institute, the Irish branch of the Royal Town Planning Institute, the Institute of Engineers of Ireland, the Society of Chartered Surveyors, the Royal Institute of Architects and the Association of Consulting Engineers. In the second category there are An Taisce, Bord Fáilte, the Irish Architectural Archive, the Irish Resource Development Trust, the Royal Irish Academy, Comhar and the Heritage Council. In the third category there are the Construction Industry Federation, Forfás, the Irish Business and Employers' Confederation, the Chambers of Commerce, the Irish Tourist Industry Confederation, the Irish Auctioneers and Valuers and the Institute of Professional Auctioneers and Valuers. In the fourth group there are the City and County Management Association, CCMA, the General Council of County Councils, the Association of Municipal Authorities of Ireland, the Local Authority Members' Association and the Institute of Public Administration. In the fifth group there are the Irish Congress of Trade Unions, the Irish Farmers' Association, ICMSA, ICA and Muintir na Tíre. In the sixth there are the National Youth Council of Ireland, the National Women's Council of Ireland, the Irish Council for Social Housing, Comhdháil Náisiúnta na Gaeilge, the National Disability Association, People with Disabilities in Ireland and the Combat Poverty Agency. It is simply not true to state that the Minister somehow or other can determine who comes forward as nominees.

How many are on the present board?

The Minister picks two out of each group.

Of course the Minister does. The Minister picks one out of each group at present.

Yes, but they are smaller groups. The Minister will be re-jigging those groups.

It would not change dramatically the number of bodies which will make the nominations. The only change is that there is a rural development association that has been looking to get nominating status for some years and, in my view, it is appropriate that it should get such status, and I stated that already.

I agree with the Minister in that regard.

I thank Deputy McCormack. There has been some disagreement but my view is that the chosen people will be aware that they will be appointed not to represent sectoral interests but to do the board's job. There is always suspicion and argument made that a person from an environmental non-governmental organisationipso facto behaves to shut down planning in rural areas. In fairness to the people who have come forward from these organisations, there is no evidence that such is the case.

Under the existing arrangements, there are ten members on the board. Two places on the board are due to be turned over because the persons' terms of office are finished. The nominating bodies which have nominated those people will nominate the incoming members. It is simply not true to suggest that a Minister, unless he or she held office over a particularly long period, could influence the board in that way because the appointments are staggered.

I would be quite happy to hold back on this until Report Stage if the Minister would let me have in the interim the list of organisations that it is proposed to designate for each of the new categories.

It essentially will be the same bodies, but redistributed over——

How did the bodies to which the Minister refer finish up only nominating ten?

I have made one nomination. The Minister receives six or seven names from all the different bodies and picks somebody. I picked someone who I regarded as a person of the highest probity. I know nothing about the lady's politics. She was a distinguished member of the Irish Georgian Society who I believe has been a tremendous addition to the board.

Does the Minister receive many more nominations than there are places?

Does Deputy Healy-Rae, who may not be able to be here tomorrow and who has been here all day, wish to contribute on this matter?

I was delighted to hear the Minister mention the IRDA because it is a widely based group which is representative of every section of the community in towns, cities, villages and various places throughout the country. In fairness, the association hopes it will have a representative on that board and it is rightly entitled to one.

I should make clear that it will be a nominating body. It will not necessarily have a representative, no more than An Taisce or any other body has a representative. No body has a representative, but bodies have a right to nominate people. I realise that is what Deputy Healy-Rae meant.

Tomorrow I will try to get Deputy Gilmore the list showing how the bodies will be re-disposed among the groups.

There is no reference to gender balance in the Bill.

Gender balance is an overarching consideration. An examination of the appointments I have made to all boards under my remit would show that I have exceeded that requirement.

I am not worried about the Minister, I am concerned about his successors.

The gender balance issue is being dealt with. The Deputy made a good point and, like Deputy McCormack, he wants to examine the gender balance on the nomination bodies that were established on the last occasion. They talked about gender balance but a number of their members had not heard of it. I will not embarrass them by saying anything further.

Amendment, by leave, withdrawn.

As it is now 8.30 p.m., I propose that we conclude business and reconvene at 5 p.m. on Thursday, 29 June 2006.

I thank the Minister for his statement in the House earlier.

We have made good progress.

I thank the Minister and his officials for attending.

I thank members because we have made progress. The amendments we have made have improved the Bill. I regret that I will not be present at the beginning of tomorrow's meeting but a Minister of State will attend. I will do my best to return.

Progress reported; Committee to sit again.
The select committee adjourned at 8.30 p.m. until 5 p.m. on Thursday, 29 June 2006.