We reconvene today for Committee Stage of the Planning and Development Bill 2023. I have received apologies from Deputy O’Donoghue, and Deputy Pádraig O’Sullivan will substitute for Deputy McAuliffe for the duration of this meeting. I need to go into private session for a short period to deal with a housekeeping matter. Is that agreed? Agreed.
Planning and Development Bill 2023: Committee Stage (Resumed)
The select committee went into private session at 2.19 p.m. and resumed in public session at 2.42 p.m.
SECTION 4
I welcome the Minister of State, Deputy Noonan, to the committee. Amendments Nos. 36 to 42, inclusive, are related and may be taken together. Amendment No. 37 is a physical alternative to No. 36.
I move amendment No. 36:
In page 38, line 17, to delete “or expedient”.
While all the amendments in this group relate to amendments, they are all quite distinct, so I am going to deal with each of them separately if that is okay.
Amendment No. 36 seeks to make a change to section 4(2). That subsection currently reads "Regulations under this Act ... may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations". The dictionary definition of "expedient" is as follows: "convenient and practical although possibly improper or immoral". I do not understand why the Government would want to use a word with a dictionary definition that can include the words "improper" or "immoral". Clearly, regulations should be introduced when they are necessary. The word "expedient" should not be there. I am very interested to hear not only why the Minister of State thinks it should be there, but what might be expedient that would not be necessary, given there is an "or" there. The amendment is very straightforward. It seeks to remove the words "or expedient".
I too want to know why the Minister is proposing the word "expedient" here, given its definition include actions and behaviours that are immoral and improper. Why is that appropriate language to be putting in a planning Bill, given how seriously we all take planning?
This section centralises control with the Minister. It gives him or her particular powers. I am very concerned at the lack of any safeguards around that and the lack of curtailments around those centralised powers. The word "expedient" has the opposite effect of a safeguard or curtailment. It gives a very broad justification for the Minister to use these regulations. I almost cannot think of a worse word to put in. We are seeking to delete the word. Will the Minister of State explain why he thinks "expedient" is good language? Why does the Minister need such sweeping powers to be expanded, through the use of such language, rather than curtailed? It would be very useful.
If is okay I will address amendments Nos. 36 and 37. Deputy Ó Broin has asked that I deal with these two specifically because of the term. It is normal language. It is in the 2000 Act. Amendment No. 36 seeks to remove the reference to "expedient" in section 4(2). The subsection provides that regulations under the Act may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations. Amendment No. 37 also seeks to delete the reference to "expedient" and add that the Minister "shall exercise a conservative approach to determining such matters are required to be addressed in the regulation".
"Necessary and expedient" is a phrase used widely across the Statute Book in regulation-making powers when referring to making regulations for incidental, supplementary and consequential provisions and it is appropriate in this regard. I, therefore, cannot accept amendments Nos. 36 or 37. I note the points the Deputies are making, but as I said, it is in the 2000 Act already. It certainly does not confer any sweeping powers on the Minister. I think the powers are the same as in the 2000 Act. In that regard, I cannot accept these amendments.
I will stick to amendment No. 36 for the moment and come back to amendment No. 37 afterwards. First, just because something has been done in the past does not mean it should be done in the future. A Green Minister of State should know that better than most people. In addition, the Minister of State has not explained what the function of the word is. I would have thought "necessary", which is the word that precedes it, is the only word we need. Surely we would not want regulations that are unnecessary, that are unrequired. If something is necessary, then we do it. What does "expedient" allow the Minister to do? What kind of regulation would be expedient, but not necessary? I just do not understand. Legislation is all about the established meaning of words. Given the fact the definition of this word is broader than the original drafters of the 2000 Act may have understood at the time, it is quite concerning. In rejecting the amendment, the Minister of State is not telling us why that word needs to be there at all. My worry of course is that by leaving it there, we open the door to regulations that are not necessary at all but that someone thinks are politically expedient. That would be a very bad thing indeed.
As this is the first major planning Bill in 25 years, we should try to improve the legislation and, therefore, language having been used in the past is not necessarily a justification for our continuing to use it. "Expedient" includes possibly improper or immoral acts, so I want a justification from the Minister of State as to why he thinks it is appropriate to put in legislation these sorts of powers for the Minister and that the Minister can access them in ways that include improper and immoral ways.
Nothing the Minister of State has said so far seems to suggest any justification for this type of language. He said this provision is similar to that in the 2000 Act. However, it is quite different in this context because the Bill gives sweeping powers to the Minister in respect of regulations that the 2000 Act did not. Specifically, while the 2000 Act required the Minister, when making regulations in a whole range of areas, to get the approval of both Houses of the Oireachtas by resolution, this Bill only requires that for two sets of regulations by the Minister for housing. Everything else the Minister can do without approval by resolution from the Houses.
There is a very big change in the centralisation of power under these provisions in the Bill compared with the 2000 Act. I will give an example. Under section 262 of the 2000 Act, multiple sets of regulations require resolutions approved by both Houses, specifically, sections 4(2), 19(3), 25(5), 100(1)(b), (c) or (d), 126(4), 126A(2), 176, 179(1), 181(1)(a), 221(4), 230(1) and 246. That is all being got rid of. Under the Bill, the Minister does not require approval by the Houses. This is being coupled with the word "expedient". The use of "expedient" is now in a different context because where there were safeguards for regulations previously, which included needing approval by the Houses, the Bill is now getting rid of those safeguards. This is then added to the use of the word "expedient", which allows for possibly improper or immoral acts. How can this possibly be justified? It is absolutely shocking.
Recommendation 3.61 from The Final Report of the Tribunal of Inquiry into Certain Planning Matters and Payments states, "The Tribunal is concerned at the extent of the Minister’s powers in the planning system as a whole." That related to the 2000 Act, under which the Minister's powers in making regulations are much more limited and curtailed than what is in the Bill. If we take the tribunal report seriously, which we should, we should not centralise more power in the hands of the Minister. We should be doing the opposite by putting in more safeguards. The Bill is doing the opposite. It is removing safeguards and leaving in a wording that implies improper or immoral is possibly okay in the setting of regulations.
Improper or immoral is not the meaning behind this provision in the Bill. The wording is "necessary or expedient". Section 4(2) states, "Regulations under this Act ... may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient". Expedient in this sense means quicker, where it is required. It does not mean those regulations could be construed as improper or immoral. It also means they are suitable to the circumstances as appropriate. There are checks and balances. There is no doubt the dictionary meaning the Deputies are putting forward is absolutely not the intention behind this.
On getting rid of Oireachtas approval of regulations that are operational and procedural, they still have to be laid before the Oireachtas. The Bill is keeping exempted development regulations as there are significant declaring works that are not developments. On what the Deputies said about the meaning of the word "expedient", it is certainly not the case that the Bill supports that meaning. The meaning of "necessary or expedient" in the Bill is quicker for the purposes of the regulations. I hope that clarifies it. That is our position on it.
I will also speak to amendment No. 37. What the Minister of State said does not clarify it. If the Government wanted to use the word "quicker", it should have used the word "quicker". Part of the problem with this is if the language in the legislation is not clear, it will end up in court. In court, the threshold will not be that the Minister of State said at committee the intention behind the use of the word was X; people will look at the standard meaning of the word. That is why a dictionary definition is important. We did not invent the dictionary definition, which states expedient means convenient and practical, although possibly improper and immoral. A piece of language is being put in that is a hostage to fortune. I do want to make too much of this because it is one of a plethora of examples of unclear language in the Bill.
I will go back to my earlier question. The word "necessary" is sufficient. If the Government believes it is necessary to produce a regulation, it should go and produce the regulation. We can argue about whatever the process is later. I do not see what we get by including the word "expedient" because the implication is we might have a regulation that is expedient but unnecessary. That is what that phrase means. It gives the option of something that is not actually needed but could be expedient. If we wanted to play interpretative bingo with the word, we can say it could mean politically expedient as opposed to expedient from an efficiency or time point of view. To go back to Deputy O'Callaghan's point, for far too long, politically expedient decisions have been made through our planning process with devastating effects. Again, the Minister of State knows all about that because he campaigned against much of it at an earlier point in his career.
I will ask a final question on this and will then speak to amendment No. 37. Is there an example of regulation that is expedient but not necessary? If the Minister of State can give a real-life example, I might be willing to be convinced. On amendment No. 37, and this speaks directly to Deputy O'Callaghan's point, the Minister of State's officials have gone through with us and explained the very substantial volume of regulations that will be required on foot of the Bill. We have a separate set of amendments around that, which I will come to shortly. There is also much more scope for regulations of a much more significant measure. The amendment seeks to constrain the parameters and scope of this, or any future Minister, as regards the range of those regulations, and to adopt a much more conservative approach to regulations that are required. Increasingly, if the finer grain detail of our planning system is done by way of regulations, especially those that are subject to no Oireachtas scrutiny, that is then a recipe for poor-quality regulations. That is not because the officials do not write them well, but because those officials could be put under undue pressure to produce regulations in short periods for politically expedient reasons, as per the wording in section 4(2), with very negative effects. We have seen that in a variety of planning and other legislation that has gone through the Department, in both the current and previous Oireachtas. Will the Minister of State give me an example of an expedient but not necessary regulation? I would be very interested to hear it.
On the Minister of State's response, what are the checks and balances? I cited that most of the checks and balances for these regulations are not only not present, but have been taken out by the Bill. The checks and balances for these regulations previously meant Oireachtas approval by a resolution. That safeguard is being removed for nearly all the regulations. What are these checks and balances the Minister of State talked about? He referenced that the regulations will still be laid before the Houses. Let us be very clear. In practical terms, the difference between requiring a resolution of both Houses and laying a resolution before both Houses is massive. When a resolution is required to be passed by the Houses of Oireachtas, virtually every Member turns up for those votes, for or against. If they want, Members can ask for a debate on resolutions and for time to be allocated for that debate. That can be allocated. When something is laid before the Houses, it is safe to say the vast majority of Members are absolutely unaware of what is laid. It happens all the time.
There is a massive difference between scrutiny and oversight.
I have outlined the sections in the 2000 Act. In section 262, there are multiple sets of regulations that require resolutions and approvals by the Houses of the Oireachtas. That has been taken out. A key safeguard and checks and balances have been removed, and the Minister is telling us there are checks and balances. Will he tell us what those are?
Section 4(5), which deals with orders and regulations, states:
Every order (other than an order under subsection (2) of section 1) of the Minister and every regulation (other than a regulation referred to in subsection (4)) of the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next 21 days on which that House sits after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
I do not have a specific example for Deputy Ó Broin-----
I suspect they do not exist.
I will try and get that. On the term "expedient", the language used in the section is, as I have stated previously, normal in legislation. The wording we are using is being used on advice on the Office of the Parliamentary Counsel. That is part of our rationale for using words such as "necessary" and "expedient".
My final point on these two amendments is that the procedure for a resolution to annul the regulation is not a check at all. One assumes that the Government will have a majority and that it will be able to defeat a motion to annul the regulation. I am not aware of any such resolution even having been tabled during my time here. If one were tabled, it would be lost. The idea of a check is that, for example, the Minister would come before this committee and we would scrutinise and discuss matters and suggest improvements or changes. Where that has happened, particularly when there are proposed changes to exempted developments, it has actually proved very fruitful. The committee has worked very well in such circumstances. If that is the Minister of State’s suggestion of a check, then it really is opaque, weak and - as I know from my 12 or 13 years in the Oireachtas - has not been used on a planning-related matter.
If that is one of the checks and balances, it is very weak. It is not a sufficient substitution for Oireachtas approval being required in terms of regulations. There will be regulations going through that people are not aware of. They do not manage to get motions seeking annulments in time and so on. These provisions are being used to try to design a system to minimise accountability, transparency, scrutiny and oversight. Whatever about other legislation, there is a problem with using the word "expedient" in planning legislation. Since 2000, when the Act became law, we have had the Final Report of the Tribunal of Inquiry into Certain Planning Matters and Payments, or the Mahon tribunal. It was very clear that the tribunal was concerned about the extent of the Minister’s powers in respect of the planning system as a whole. Since then, the Minister’s powers have grown significantly. In this Bill, it is proposed to expand them even further. Under this section, it is proposed to remove safeguards, oversight and scrutiny. So how can any of the Ministers in government defend that? I do not understand. It goes against everything the Minister of State has stood for over the years. It goes in completely the opposite direction.
The problem is that we have had expediency in respect of the planning process, and we have had improper and immoral behaviours and acts. We are seeking to delete wording that could be construed as allowing for the latter. As Deputy Ó Broin said, it is not necessary. If our amendment was accepted, the Bill would state: "Regulations under this Act ... may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations". That would be a very strong provision. I do not see anything lacking in it. Why the Government feels the word “expedient” is necessary I cannot understand. I urge that our amendment be accepted.
I have said this previously, but we have to draft legislation bearing in mind who might be the officeholder. I am not saying anything about anyone who is in place at present, but we have to draft legislation based on worst-case scenarios. Unfortunately, in the past we have had worst-case scenarios in the area of planning. As a result, we should be tightening and improving scrutiny and limiting or shutting down the ability for expediency. We should not be creating openings for bad actors and bad behaviour in future. What happened in the past has proven far too costly. Ten years on from the Mahon tribunal report and we are going completely against its recommendations.
I respectfully disagree with both Deputies on this matter. As I outlined previously, this is normal language to use in legislation. The wording is used on the advice of the Office of the Parliamentary Counsel. As a result, I cannot accept these amendments.
Does Deputy Ó Broin wish to speak on amendment No. 37?
No. I will move on to amendment No. 38. The Minister of State did not fully respond on amendment No. 37. Perhaps he could do so when responding to amendment No. 38, which also relates to section 4. Obviously, it follows on from our discussion on what the Government is proposing. Section 4(4) states:
Where regulations are proposed to be made under subsection (1) of section 9 or subsection (2) of section 412, a draft of the regulations shall be laid before each House of the Oireachtas and the regulations shall not be made unless and until a resolution approving the draft is passed by each such House.
One of the problems is that there is no public engagement at all. These are not always minor regulations; they can be quite significant and have a major impact on the system. I want to amend the subsection to provide that the relevant Minister shall:
(a) establish a list of prescribed bodies for the purposes of consultation on regulations and other matters under this Act under their jurisdiction,
[...]
(c) before making regulations under this Act, consult with the prescribed bodies that are connected with or relate to the matters to which any proposed regulations the relevant Minister is preparing, and provide them with an effective opportunity to participate and comment on the proposed regulations, and take due account of the consultation input.
One of the interesting things is that this can happen in real life. Officials sometimes decide that they will do some engagement and consultation, and they have key stakeholders. However, it does not always happen, and it is not necessarily done in a transparent or above-board way. It seems there would be real value in doing this. I am not suggesting something very long, cumbersome or resource intensive. We certainly do not want to see the kind of delays we see when building regulations are being amended, for example, because that can sometimes take several years, as is happening currently with the fire safety regulations review. Given the complexities of regulations from the planning, environmental and legal perspectives, there would be benefit to some level of consultation - if not in the way I have proposed, then at least in some other way. Increasingly, planning law is determined as much by regulation as by primary legislation. In that context, some form of consultative process would be extremely valuable. I will be pressing the amendments.
Amendment Nos. 38 and 39 propose to add two new subsections to section 4 to provide that the Minister shall establish a list of prescribed bodies which include organisations engaged in either environmental protection, protection of built heritage, archaeological, historic or cultural heritage that will be consulted with when making regulations. The amendments also propose that there should be public consultation on regulations which may have a significant impact on the environment.
Where regulations are screened for SEA and where SEA is required, a public consultation takes place as part of that process. For example a public consultation ran during the summer of 2022 in relation to draft solar exemption regulations, with which Deputies will be familiar, which provided for the installation of a range of solar infrastructure on schools, community and sports facilities.
The regulations were then introduced towards the end of 2022 following a review of the submissions and observations received as part of that consultation process. As with all law, the principles and policies of planning law are set out in this Bill. Regulations as secondary legislation are a function delegated to the Minister and merely give effect to the principles and policies which are contained in the Act as approved by the Oireachtas. It is at the Bill stage where the significant consultation should take place and there was extensive engagement on this Bill through the planning advisory forum as well as the significant pre-legislative scrutiny of the Bill undertaken by this committee.
There will be consultation on regulations where necessary and appropriate but I do not consider that it is the requirement to do so as set out in the Bill. Many regulations are of a technical nature and it would not be appropriate or necessary to consult on them. Others are more substantial in nature and when they are being drafted it would be normal to have some consultation with relevant stakeholders on them. For example, in relation to the solar regulations mentioned, my Department would have consulted extensively with the Irish Aviation Authority, the Department of Defence and the HSE in order to provide appropriate safeguards in close proximity to aviation sites such as airports, military barracks and emergency helipads. Further, there was an internal engagement with the architectural heritage part of the Department to ensure adequate safeguards for the character of architectural conservation areas, ACAs.
For these reasons, I cannot accept amendments Nos. 38 or 39.
With regard to amendments Nos. 38 and 39, and the need for public participation for our compliance with the Aarhus Convention, will the Minister of State explain this to us? He said that sometimes there is some consultation and sometimes there is not - that it is not necessary sometimes. In terms of compliance with the Aarhus Convention, how is that decided? I am concerned by the Minister of State's answer because there seems to be a very high level of discretion on that, that it will not be laid out in the legislation and we are just relying on discretion. That is more ministerial power and centralisation of power. Will the Minister of State explain how it is decided? Is my interpretation that there is a lot of discretion there correct or does the Bill set out where that discretion is not there? Our amendments are trying to make sure there is less discretion there and that it is set out in the legislation.
I have three points. First, it is a bit bizarre to say that planning regulations are of a technical nature and, therefore, we do not need to consult on those. I would have thought some of the more technical regulations would benefit from third-party engagement, particularly if it is by way of prescribed bodies and, therefore, you would be setting out the kinds of bodies that would be consulted on different levels.
Also, we have seen technical planning regulations and we have seen very technical section 28 ministerial guidelines go out to public consultation. Unfortunately, they had no Oireachtas oversight or engagement. I can think of, for example, building heights and design standards for apartments. They were very technical. In fact, most of those documents - from memory - comprised drawings, graphs and equations rather than text. Arguing that things of a technical nature do not need consultation is a mistake.
When the Minister of State outlined that there are sometimes occasions where this happens, that is precisely the problem. It is left up to the Minister and-or the officials of the day to decide whether there will be any consultation and with whom that consultation takes place. That is not an adequate approach because we could have a very progressive Minister who believes strongly in good public consultation. We could have officials with a very inclusive mindset who believe in the benefit of that technical expertise from outside bodies. We could also have officials and-or a Minister who does not want to do that and, therefore, the process and ultimately the outcome of the regulations could be enormously different. Therefore, it is better to have a simple, clear process that is outlined in legislation.
I have to pull the Minister of State up on his description of the planning advisory forum. It is not because I have any knowledge of it because we were not involved. We had an engagement through the committee, which was useful. If the Minister of State goes back to check the record, he will note there was very significant testimony to this committee during pre-legislative scrutiny, or organisations, such as the Irish Planning Institute, being incredibly critical of the planning forum and what they described as the enormous difference between very high-level theoretical discussions that happened at the planning forum and the actual content of the Bill when published. One of them said to the committee they were genuinely surprised at the content of it because it did not reflect anything that had happened at those high-level discussions. Again, that is another good example of a process that took up a lot of time.
There is no doubt the Minister of State's Department officials spent an incredible amount of time during that process, prior to the publication of the outline Bill in January or February of last year. Spending time engaging and consulting in a meaningful way are not the same thing. Therefore, I think it would be much better if the process for consultation with respect to regulations is set out in legislation. Everybody is then clear. We know who the prescribed bodies are and we can proceed on that basis. I know the Minister of State is not accepting the amendment but I hope he will at least listen to or consider the arguments we are making because I suspect we will return to this at some point in the future.
There are a couple of things. I absolutely accept the points made by both Deputies. Compliance around Aarhus is important in planning, generally. Going through the strategic environmental assessment, SEA, process, as I mentioned, public consultation does take place. Also, under our orders and regulations section, the Minister shall, before making regulations, consult with State authorities. I gave some examples of that. We would be happy to engage further with the committee on how the regulations will be updated once the Bill is enacted. I will give an assurance that I will take a further in-depth look at what these amendments are seeking to achieve. I will also give a commitment to engage further with the committee on how regulations could be updated once the Bill is enacted by way of an assurance to both Deputies with regard to these amendments.
I have one final comment on amendment No. 39. It obviously reinforces amendment No. 38 in terms of effective public participation. Effective public participation is not just having a meeting where people say stuff. Ultimately, for public participation to be meaningful, it has to in some way influence the outcome. Killian Woods had a very interesting article in the Business Post published on its website yesterday:
Builders, NGOs and planners demand planning reform - now as it is being delivered nobody wants it. The Government's landmark planning Bill was supposed to speed up planning applications, but many industry observers feel that's already happened.
In that article there is a really interesting quote from Gavin Lawlor, president of the Irish Planning Institute. It is not a radical body. It is very cautious and represents the wide spectrum of public sector, semi-State and private sector planning professionals. He said that his body, the Irish Planning Institute, which represents public and private sector professionals involved in planning, had lodged many submissions to the Government recommending how the law, which we are dealing with today, could be improved.
Lawlor feels that they have been ignored:
'We're disappointed at the level of engagement we've had. The submission that we initially made to the joint Oireachtas committee has been given little regard in terms of framing the amendments.'
He added he is concerned that the government is rushing through the new planning laws.
'We're fully convinced, it's too fast. We welcome meaningful change if it's going to improve the system, but it has to be done in a considered way. Not at speed. ... Nobody is asking the government to do it at speed. Nobody that I'm aware of.'
I am putting that on the record because what that shows is that even within the confines of the legislative process and with pre-legislative scrutiny, the body that represents planners - this is the Planning and Development Bill and these are the men and women who will have to implement it whether in local authorities, making decisions, with public, private or semi-State bodies making development consent applications - are telling the Minister of State they are disappointed with the level of engagement and that the Government has given little regard in terms of framing the amendments. Imagine what they feel like with respect to the regulations. The Minister of State should come back to the committee and set out any intention he has to improve the process but until such a time as that is done, I am certainly pressing an amendment that I believe will at least give us some level of formalised legislative process for consultation.
I am interested in hearing the Minister of State's response to the Irish Planning Institute's, IPI, comments on the Bill and its view that there has been inadequate consultation on it.
On that, I want to try to steer us away from opinions printed in newspapers and for us to stick to a back-and-forth on the amendments. There was good engagement throughout the pre-legislative scrutiny sessions and outside of them as well, as I am sure all members met the IPI.
It is not just any comment. The IPI is a hugely important body in terms of this legislation because it represents the country's planners. It engaged with the committee and the Chair may remember that some of its commentary was quite stark and very forthright. The institute made a subsequent submission to the Department which was then shared with the committee after the final text of the Bill was published. Public comments made by the president of the IPI are important. I am not suggesting we bring everybody's opinion into this committee but of all the bodies we reasonably could request the Minister to respond to, if the IPI, the body that represents professional planners, is saying there is a problem, then it should be looked at. One of the reasons we are asking for greater levels of public participation, particularly from prescribed bodies with respect to regulations, is that professional planners and their representative bodies are telling us that they are not being listened to. If that is the case with the Bill and, as the Chair correctly pointed out, formalised pre-legislative scrutiny, I can only imagine how the IPI feels with respect to regulations in which it may have no role whatsoever, despite being one of the prescribed bodies we would expect to be included on foot of the amendment we are proposing.
Sure. My point is just that we had the Irish Planning Institute before the committee many times. I have listened to its representatives and I will respect their views.
Their point is that the Government is not listening to them.
I just do not want the debate on Committee Stage to deviate into opinions expressed in the papers because there are a lot of opinions expressed on planning by a lot of people. If we can stick to this, I would appreciate it.
I take the Chair's point.
I do not want to disrespect the Chair but from my point of view, the opinions of the IPI on the planning process and this legislation are highly relevant.
That is not disputed.
Yes, but we should be able to cite those opinions, especially when we are talking about prescribed bodies and the IPI could be one of the prescribed bodies. That is in our amendment so I think it is relevant.
Okay.
I do not mean to disrespect the Chair with this comment.
I want to follow up with the Minister of State in relation to two aspects of amendments Nos. 38 and 39. I raised compliance with the Aarhus Convention. The Minister of State said that there has to be public participation as part of any SEA process. We know that, but Aarhus compliance goes way beyond an SEA process. There is meant to be public participation, not just in terms of the SEA process. Amendment No. 39 states that there would effective public participation at an appropriate stage. This is going beyond SEA processes and would ensure compliance with the Aarhus Convention. Will the Minister of State address this? The SEA process alone is not enough to ensure compliance with the Aarhus Convention so this amendment seeks to ensure compliance in a broader sense. If the Minister of State is not accepting the amendment, how will compliance with the Aarhus Convention be ensured with respect to regulations?
I have to agree with the point about technical documents. I find that the more technical documents are, the more public consultation is needed. Technical documents can be very complex. What is thrown up in public consultation on complex technical documents can be very valuable when there is input from other people with expertise in the area. Surely if regulations are technical, the more technical they are, the more we need public participation. There is really nothing to be lost from getting input. If it is completely off the mark, it can be disregarded. However, if it is relevant and throws up weaknesses or issues, it gives an opportunity to improve the regulations. Why would we not include amendment No. 39 in the legislation to ensure effective public participation?
I will offer last comments on these amendments. I agree with both Deputies regarding the IPI. It is a hugely valuable contributor to our planning system. It is highly regarded and respected by Government. There has been significant engagement with the IPI. There have been quite a number of meetings with officials, so the IPI was very much an active participant in the process of developing this Bill.
In terms of the Aarhus Convention generally, the Bill has been drafted to ensure full compliance with the convention. Public participation takes place at many different levels, probably most critically at development plan level. It is of huge value, particularly to environmental organisations, but also to the wider public. Perhaps in the past it was not always done and there were box-tick consultations. Active participation in our planning system is something we all want to strive towards. It should be the default.
I have given a commitment that my officials are happy to engage with the committee on how the regulations would be updated once this Bill is enacted. I hope this commitment is useful to the members.
I ask for clarification on one point. At times, amendments to regulations come before the committee. There were quite a lot of them last year and the year before. Will the Minister of State ask his officials to set out the criteria for determining what regulations come before the committee? It was a very helpful process. Some of the amendments were significant, involving changes of uses and exemptions. Some were related to the ability to relocate bus stops without requiring a licence. That is probably expedient in terms of BusConnects but it may not be necessary. It is helpful, but it could be argued that it is not necessary, and that the normal licensing process could be used to do that. It is expedient, however. A note on that would be appreciated.
Yes. I appreciate the points made by Deputies Ó Broin and O'Callaghan about regulations of a more technical nature benefiting from input. I give a commitment on this once the Bill is enacted.
On Aarhus Convention compliance, the Minister of State referred to the SEA process. Article 7 of the convention is about SEA consultation and public participation. Article 8 is about compliance as regards laws and regulations, and secondary legislation falls into that. Our amendment seeks to ensure compliance with Article 8. The Minister of State is not accepting it. He will look at compliance with Article 8 and come back to us on it. Is that the case?
Yes. Generally, the Bill is drafted to ensure full compliance with the Aarhus Convention. I have also given a commitment regarding the regulations.
The Minister of State will come back to us at a later stage in terms of compliance around this part of the Bill and Article 8 of the Aarhus Convention.
I thank the Minister of State.
I should keep a record of all of the memos the Minister of State has promised to bring back to us because his officials, who are already overworked on this Bill, are going to have ever-growing mountains of paper to produce.
This is my last word on the IPI for the moment. The difference between the Minister of State's and the IPI's description of the consultation process is interesting. That should be noted.
Amendment No. 40 seeks to ensure that where regulations are laid before the House, there would have to be a Dáil debate on them. My understanding - and correct me if I a wrong - is that, generally speaking, the only regulations we get to deal with through the Oireachtas are those in which there are changes to exempted development regulations. Generally speaking, a motion is laid before the Dáil to refer the regulation to committee. There is a very technical discussion at committee which can often be very useful. Sometimes there is a commitment to change the regulation if an anomaly or mistake is highlighted. The motion then goes back to the Dáil for it to proceed. There is not a vote on the regulation, per se, but on it having come from a committee. Like the Chair, I found those engagements really useful. On a number of very controversial areas, the committee has shown itself to be very responsible in that regard.
However, it is only on exempted development regulations and not on all the others. The motion is taken without debate unless we force another motion to have a debate, which seems a bizarre procedure. Amendment No. 40 seeks to ensure that where regulations are laid before the House, there is a formal debate. As a belt-and-braces addition, amendment No. 41 then lists the areas from the Bill where regulations may arise that should be subject to that Oireachtas oversight and scrutiny. Sometimes something that is technical can have very profound consequences for the public. With no disrespect to the media, technical discussions of this nature in committee do not very often generate headline news reportage. When those same issues are discussed on the floor of the Dáil, however, there is a greater media and public awareness of it, which may generate more public knowledge and understanding, and that is always a good thing. Amendments Nos. 40 and 41 are complementary and seek to ensure adequate Dáil debate of at least one hour and stipulate specifically the types of regulations that should be subject to that kind of Oireachtas oversight.
Amendment No. 40 seeks to replace section 4(4), which relates to regulations requiring positive approval to include references to regulations or orders under Part 9, judicial review, requiring positive approval before they can be made. It also provides that all regulations requiring positive approval shall have a debate of no less than one hour in each House. With regard to including references to Part 9, the regulations under this Part will be made by the Minister for the Environment, Climate and Communications, and relate to prescribing monetary amounts for the costs awarded to applicants by a court in respect of proceedings and in which an applicant succeeds in obtaining relief; the contribution made from the environmental legal costs financial assistance mechanism to the costs of an applicant who does not succeed in obtaining relief or succeeds in obtaining relief only in part; and the contribution made from the environmental legal costs financial assistance mechanism to the costs awarded to an applicant under section 270(7).
Section 266(2) provides that the Minister for the environment must consult with the Ministers for housing and Justice and must get the consent of the Minister for Public Expenditure, National Development Plan Delivery, and Reform to prescribe monetary amounts. I am happy that this is sufficient.
In respect of the element of these amendments that relates to a debate of no less than an hour for regulations requiring positive approval, the timing of debates is not a matter for this Bill. The scheduling of time in the Dáil and the Seanad is a matter for each House, respectively. I, therefore, oppose amendment No. 40.
Amendment No. 41 seeks to replace section 4(5), which currently provides that all regulations and orders other than those requiring positive resolution under section 4(4) and commencement orders shall be laid before each House of the Oireachtas and that there is a 21-day period for either House to pass an order annulling the regulations or orders. The proposed amendment seeks to provide that regulations made under most Parts of the Bill shall be subject to a positive resolution in each House. This is highly impractical and, as mentioned earlier, regulations merely give effect to the principles and policies which are contained in the Act. This would drastically slow down the making of secondary legislation and the ability of the Minister to improve the practical operation of the process. I, therefore, oppose amendment No. 41.
I will deal with those arguments in reverse. Experience shows that where exempted development regulations are brought before the House, they are expedited in a timely manner. Members of this committee both during this Oireachtas and the previous Oireachtas took seriously our responsibility regarding those regulations. When we were asked to deal with them in a timely manner, we did so, both in terms of scheduling and our constructive engagement with them, so I do not accept what the Minister of State said is the case.
With regard to scheduling, nobody is telling the Dáil when it should schedule the debate. This is simply stating that the debate should last for at least an hour, which is reasonable.
With respect to Part 9, we will discuss the substance of the matters the Minister of State has raised when we get to it and the related amendments. However, given the enormity of what is being proposed in determining whether people have access to justice, which is a fundamental right enshrined in Irish, European and international law and agreements, at the minimum, orders made under Part 9 absolutely should require a level of Oireachtas scrutiny. Perhaps even stronger scrutiny than I have outlined here is required but, at a minimum, we need what is in the amendment. On that basis, I will press amendments Nos. 40 and 41.
The Minister of State indicated that the amendments about scheduling specific times was an issue. Is he saying that he is happy with the principle of the amendment that there should be debates, and more flexible language around the timing of those debates and for how long they are scheduled would be acceptable?
Exempted development is still required to be before the Oireachtas. As I said, the timing of debates is a matter for the scheduling of the Dáil. As I have said previously, the Bill states that every order and regulation "shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next 21 days...". It is a matter of timing, as I said, and being prescriptive in respect of the elements of the amendments that relate to the debate. Amendment No. 40 calls for "a debate of no less than an hour" and a need for positive approval. As I said, the timing of those debates is not a matter for this Bill. It is keeping a role for the Oireachtas for exempted development regulations.
As regards judicial review regulations, we could look at the issue. It may not be a matter for this committee but a matter for the Joint Committee on Environment and Climate Action. It may not be for this committee to consider judicial review regulations. Another committee may be more appropriate.
I have one more amendment in this group. I do not know if Deputy O'Callaghan wants to come in.
Is the principle of a resolution being passed by the Houses of the Oireachtas for all of these regulations one the Minister of State is willing to accept even if he is not willing to accept the principle around the timings around the debates?
I will move to amendment No. 42, the last in this group. I appreciate that we are spending a lot of time on this section, which is only three quarters of a page. However, it governs the issuance of regulations and I suspect that when we get to the next group of amendments and discuss the regulations and enactment, the actual pile of paper containing the regulations arising from the Bill will be substantially bigger than the legislation itself. This is a very important section because if we do not get the process for producing regulations correct and if we do not have adequate public and Oireachtas involvement and oversight, we will have some problems. That leads me to the last amendment on the section.
Section 4(6) states:
If, in any respect, any difficulty arises in bringing any provision of this Act into operation or in relation to the operation of any such provision, the Minister may, by regulations, do anything which appears to him or her to be necessary or expedient for removing that difficulty, for bringing that provision into operation or for securing or facilitating its operation, and any such regulations may modify any provision of this Act [and I emphasise that] in so far as may be necessary or expedient for carrying such provision into effect for the purposes aforesaid, but no regulations shall be made under this section in relation to any provision of this Act after the expiration of 3 years commencing on the day on which the provision comes into operation.
That is an incredibly broad power. I thought I had misread it. "If ... any difficulty arises in bringing any provision of this Act into operation" takes me aback at the range of its scope. We already have a provision stating the Minister can, subject to the various provisions, make any regulation required under this Act to give effect to the relevant sections. What the hell is this subsection about? What is envisaged here?
Is there an anticipation of difficulties? I do not know if this provision was in the original 2000 Act. Is it that the Government accepts there will be a greater volume of difficulties given the complexity and controversial nature of this Bill? It is very broad. I pick up on the concerns raised by Deputy O'Callaghan. Since 2000, the power of the Minister has been greatly expanded. Even if this wording is identical to the provisions in the 2000 Act, it is operating in a radically different context. I, therefore, have enormous concerns about the range of scope and would like some explanation as to why this section is included, what difficulties are envisaged and what could be the scope of the kind of regulations required by this provision, and that sections 4(1) to (5), inclusive, do not already cover?
I am really alarmed by this wording on orders and regulations in section 4(6). It is incredibly sweeping. Given that the Bill is centralising more powers to the Minister overall, and removing safeguards and curtailments, having such a sweeping provision in the Bill in that context is quite disturbing. That is not least because we do not have a good history in this country in respect of planning. We have a well-documented history of abuses. To give such sweeping power to the Minister in this Bill, especially in the context of all the other changes and removals of oversight, is moving towards a form of legislation that removes democratic oversight. The fact that it applies to anything and may modify any provision of this Act insofar as may be necessary or expedient. That is an incredible power. What is the rationale for this? Will the Minister of State give examples of where this might be used and be given context? This of course could be used on anything. Are there any safeguards at all with this provision? What are the safeguards and curtailments on such sweeping powers being granted to the Minister?
Amendment No. 42 proposes to delete section 4(6), which restates section 269 of the 2000 Act - they are almost identical - and is a standard technical provision to enable the Minister make regulations to remove any difficulty in the operation of any section of the Bill, within three years of the commencement of the Bill. For the benefit of Deputy O'Callaghan, it has never been used, so I cannot give an example. We have checked with the Office of the Parliamentary Counsel, OPC, and it is included in many Acts, including the Local Government Act 2001. It is a standard technical provision that would allow regulations be made to remove any difficulties to facilitate the operation of a particular provision. The provision can only be used for a period of three years from the date of commencement and is provided to correct any provision that could not be brought into force because of a technical or drafting matter, or a transitional difficulty. Although this provision was included in the Act of 2000, it was never used. It is included as a purely precautionary measure and with the advice of the OPC. Any changes made to the legislation under such regulations would be regularised through an amendment to the legislation at a later date. Given the scale and complexity of the Bill, it is important to have this provision to ensure any such problems can be efficiently remediated to allow the provisions of the Bill be commenced as quickly as possible and I cannot, therefore, accept amendment No. 42.
This is like the legislative equivalent of unauthorised development. We have a provision, which allows that the Minister can modify any provision of the Act. It means that without due process through the Oireachtas, the provision of the Act can be modified by him or her within three years. We are told that is okay and not to worry, because they will then retrospectively look for retention of that change through regularising the amending legislation. By that stage it will be too late. What happens if the provisions of this subsection are used, a provision of the Act is altered, and then at some later point undefined amending legislation is brought before the Oireachtas and the Oireachtas rejects that legislation? That would be a bizarre position. I am reassured that the Minister of State has mentioned the provision was never used in the previous Act. However, I have to ask myself: if it was never used in the last Act, why have it in this one? Everything that is needed is in sections 4(1) to 4(5), inclusive. This makes no sense at all. One of our concerns is that this is not just any legislation. This is hugely important. complex, and potentially litigious legislation impacting on all aspects of public, semi-State and private development. I see no reason this should be there.
On the one hand, the Minister of State is making the case for not having it there because it was never used the last time, so it will never get used and we should not worry. However, at the same time, he is telling us that the Minister will still be allowed have the power to modify a provision of the Act by way of regulation and subsequently come to the Oireachtas to look for that to be regularised by way of amending legislation. Why not just introduce the amending legislation in the first place, which is what really should happen? I am not encouraging the Minister of State to ram through non-consequential amendments in tens of pages at the end of a Dáil session, but that is typically what government does when it wants to change other legislation. Why not just bring forward the amending legislation? Why have this deeply undemocratic and problematic procedure of allowing amendment of primary legislation by way of regulation? That is something, until I had properly read this Bill, which I did not fully appreciate. On that basis, we will press the amendment.
Did the similar provision in the 2000 Act require any regulation, under the wording of that Act, to be passed by both Houses of the Oireachtas, or can the Minister do that without a resolution being passed in both Houses? Is there a safeguard in the current section 4(6) requiring a resolution to be passed by both Houses of the Oireachtas, or does that not apply to section 4(6)?
It would be treated the same as any other regulations, and regulations under this Act "may contain such incidental, supplementary and consequential provisions as appear", and as we stated, and, "Regulations are proposed to be made under subsection (1) of section 9 or subsection (2) of section 412, a draft of the regulations shall be laid before each House of the Oireachtas and the regulations shall not be made unless and until a resolution approving the draft is passed by each such House." It is included as purely a precautionary measure, and as I have stated it was not used in the 2000 Act and was put in on the advice of the Office of the Attorney General. Any changes made to legislation under regulations would be regularised through an amendment to the legislation at a later date. As the Deputy can appreciate, it is a very large Act and it is purely precautionary and included on instruction of the OPC. In that sense it is as in 2000, and it is there from a precautionary point of view given the complexity of the legislation and, in particular, if there were any provisions that could not be brought into force because of a technical or a drafting issue. That is the reason it is there.
The Minister of State can correct me if I am wrong. The 2000 Act had the safeguard that any regulations made under this would require approval by a resolution of both Houses of the Oireachtas. With this, most of the regulations that could be made under it do not require approval by both Houses of the Oireachtas. Is that the case?
There is a difference between the provision in this Bill and in the Act of 2000. This Bill provides that "no regulation shall be made under this section in relation to any provision of this Act after the expiration of 3 years commencing on the day on which the provision comes into operation". That is not in the Act of 2000. Again, by way of assurance and as I stated, any changes that would be made to the legislation through regulations would have to be regularised through an amendment to the legislation at a later date.
The specific question I asked is whether it is the case that under the 2000 Act most of the regulations would have required approval by a resolution of both Houses of the Oireachtas whereas under this provision, that safeguard is not in place for most regulations.
It is the same, in terms of the regulations. Section 4(5) provides that "...every regulation (other than a regulation referred to in subsection (4)) of the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next 21 days on which that House sits after the order or regulation is laid before it, the order or regulation shall be annulled accordingly".
To finish out on this, am I correct in saying that the 2000 Act required a resolution?
Yes, it is the same.
I am suggesting it is not the same. The 2000 Act required a resolution to be passed by both Houses of the Oireachtas, which is a key safeguard. This legislation does not require a resolution to be passed by both Houses of the Oireachtas but merely requires a regulation to be laid before the Houses of the Oireachtas, with the option of a motion to annul within 21 days. The sweeping power given to the Minister in the 2000 Act had a key safeguard which is being removed under this legislation. We have a sweeping power-----
Only certain ones would.
Yes, but we have a sweeping power now in this Bill that had a form of safeguard in 2000 but that is now gone.
As I said, this provision is here specifically as a precautionary measure. It has not been used to date but it is in other Bills and other legislation, including the Local Government Act.
It is a sweeping power. These are planning matters and this is a planning Bill. We had an incredibly expensive tribunal looking into planning matters and one of its recommendations and conclusions was that there was too much centralised power in the hands of the Minister but since then things have only gotten worse. This Bill makes it worse again and gives the Minister sweeping powers to be able to issue regulations to modify any provision of the Act at all. The one safeguard that was in place in the last Act is now gone. Under this Bill, regulations do not require a motion to be passed by both Houses of the Oireachtas so the democratic oversight and scrutiny that was there for this incredibly centralised and sweeping power for the Minister is now gone. That is absolutely indefensible.
The Deputy will appreciate that this provision is here specifically to deal with the eventuality of a technical or drafting issue that requires correction or a transitional difficulty.
I appreciate that but the appropriate thing to do in legislation is to provide safeguards. The safeguards around this that were in the 2000 Act are being removed and that is the issue.
It is not the case that this is only for technical or drafting issues or transitional matters. The Bill states that "any such regulations may modify any provision of this Act". If this was simply about a procedure whereby within three years somebody notices a drafting or technical error or some transitional arrangement, that is fine and that could be an explicit provision in the Bill. However, this allows the Minister, whoever he or she may be, to introduce "any such regulations that may modify any provision of this Act". I actually think it is even worse than Deputy Cian O'Callaghan suggests because twice now the Minister of State has said that notwithstanding the fact that the Minister can, by way of regulations, change provisions of the Act, that is, use secondary legislation to change primary legislation, that would then have to be regularised through primary legislation. Where does it say that? Where in the Bill is there a provision that any regulation introduced under section 4(6) would require primary legislation and within what period of time would it require that primary legislation? Is it in the Bill?
This is on the advice of the OPC. As I said, any changes made to the legislation through regulations would have to be regularised through amendment.
Where in the legislation does it say that, with the greatest of respect?
It does not say it.
Okay, let me tease this out. Here we have a general provision that will allow any future Minister, by way of secondary legislation, to change or modify any provision of this legislation. The Minister of State has told the committee that this would then have to be regularised by the Oireachtas through primary legislation but there is no legal requirement to do that in this Bill. On what basis is the Minister of State saying that it would have to be regularised through primary legislation?
It states that "no regulations shall be made under this section in relation to any provision of this Act after the expiration of 3 years commencing on the day on which the provision comes into operation."
That does not answer the question, with the greatest of respect.
Again, it states that the Minister "may, by regulations, do anything which appears to him or her to be necessary or expedient for removing that difficulty, for bringing that provision into operation or for securing or facilitating its operation, and any such regulations may modify any provision of this Act in so far as may be necessary or expedient for carrying such provision into effect for the purposes aforesaid". As I said, it is there as a precautionary measure in the Bill and it exists in other legislation such as the Local Government Act.
Here is my final question on this. Is there anything in legislation here or elsewhere that would compel a Minister who has used this provision to change primary legislation by way of secondary legislation or regulations to then have to come before the Oireachtas with amending legislation? I put it to the Minister of State that there is nothing that compels a Minister to do that. It may be the desire, practice or hope but there is nothing compelling a Minister to do that if he or she uses this provision to effectively amend the legislation by way of regulation.
Just to move this forward, we could look adding that the regulations require positive approval, by way of assurance to the Deputies.
Before the Minister of State does that, I just want to be very clear on this and I am not trying to be in any way adversarial here. There is an enormous amount of interest in this Bill. What happens in these committee sessions is going to consume the attention of people who are going to work in this area. I am asking the Minister of State to be as clear as he can. Even though he said twice that there would be a requirement for the Government to bring forward amending legislation, there is no such requirement under any legislation currently. Am I correct in that?
Yes. It is an operational matter.
It is an operational matter but there is no requirement for the Minister to do that. The Minister can do it if he or she wants to. I just wanted to be clear on that.
I am going to move this along. Several matters have come up here. One is the matter raised by Deputy Cian O'Callaghan about laying before the Oireachtas something under section 4(6). Another is the fact that there does not seem to be anything to compel an amendment to primary legislation for something that is done under section 4(6). The third issue is that the amendment submitted proposes to delete this completely but the advice of the OPC is that this should be included, notwithstanding the two issues raised by Deputies O'Callaghan and Ó Broin.
That is my understanding of the issue with amendment No. 42, but you will have a look and see if that-----
Yes. May I make one final comment? It is not a question. It is remarkable, notwithstanding the fact that this was in legislation previously, that primary legislation can be amended by secondary legislation without any legislative requirement, then subsequently amend primary legislation. I am just astounded that somebody even thought of such a provision back in 2000, but I think we have made our point and we can move to taking the amendments, Chair.
By way of responding, we can take OPC advice on legislation to regularise any regulations, if that is of any assurance to the Deputies.
That is the least the Minister of State could do.
Amendment put:
The Committee divided: Tá, 3; Níl, 6.
Tá
- Gould, Thomas.
- O'Callaghan, Cian.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- Noonan, Malcolm.
Amendment declared lost.
I move amendment No. 37:
In page 38, line 17, to delete “or expedient for the purposes of the regulations” and substitute the following:
“for the purposes of the regulations and shall exercise a conservative approach to determining such matters are required to be addressed in the regulations”.
Amendment put:
The Committee divided: Tá, 3; Níl, 6.
Tá
- Gould, Thomas.
- O'Callaghan, Cian.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- Noonan, Malcolm.
Amendment declared lost.
I move amendment No. 38:
In page 38, between lines 20 and 21, to insert the following:
“(4) The relevant Minister shall—
(a) establish a list of prescribed bodies for the purposes of consultation on regulations and other matters under this Act under their jurisdiction,
(b) the list prescribed under paragraph (a), shall include organisations engaged in either environmental protection, protection of built heritage, archaeological, historic or cultural heritage, and
(c) before making regulations under this Act, consult with the prescribed bodies that are connected with or relate to the matters to which any proposed regulations the relevant Minister is preparing, and provide them with an effective opportunity to participate and comment on the proposed regulations, and take due account of the consultation input.”.
Amendment put:
The Committee divided: Tá, 3; Níl, 6.
Tá
- Gould, Thomas.
- O'Callaghan, Cian.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- Noonan, Malcolm.
Amendment declared lost.
I move amendment No. 39:
In page 38, between lines 20 and 21, to insert the following:
“(4) The Minister shall facilitate effective public participation at an appropriate stage, and while options are still open, during the preparation of regulations which may have a significant effect on the environment, and shall take the following steps:
(a) set time-frames sufficient for effective participation;
(b) publish or otherwise make publicly available the draft regulation;
(c) provide the public the opportunity to comment, directly or through representative consultative bodies;
(d) take the input from the public participation into account as far as possible.”.
Amendment put:
The Committee divided: Tá, 3; Níl, 6.
Tá
- Gould, Thomas.
- O'Callaghan, Cian.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- Noonan, Malcolm.
Amendment declared lost.
I move amendment No. 40:
In page 38, to delete lines 21 to 24 and substitute the following:
"(4) Where regulations are proposed to be made under subsection (1) of section 9, or under Part 9, or subsection (2) of section 412, or an order is proposed to be made under Part 9, a draft of the regulations or the draft order, shall be laid before each House of the Oireachtas and the regulations or the order as the case may be, shall not be made unless and until a resolution approving the draft is passed by each such House, following a debate of no less than an hour in each such House.".
Amendment put:
The Committee divided: Tá, 3; Níl, 6.
Tá
- Gould, Thomas.
- O'Callaghan, Cian.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- Noonan, Malcolm.
Amendment declared lost.
I move amendment No. 41:
In page 38, to delete lines 25 to 31 and substitute the following:
"(5) Where regulations or an order are proposed to be made under—
(a) Part 3 - Plans, Policies and related Matters,
(b) Part 4 - Development Consents,
(c) Part 6 - Environmental Assessment,
(d) Part 7 - Housing Strategy and Supply
(e) Part 8 - Miscellaneous powers of Planning Authorities
(f) Part 9 - Judicial Review and Decision-Making
(g) Part 10 - Architectural Heritage
(h) Part 17 - An Commisiún Pleanála
(i) Part 18 - Office of the Planning Regulator
(j) Part 19 - Further Provisions Relating to Planning Bodies,
(k) Part 20 - Financial and Miscellaneous Provisions
(l) Part 21 - Strategic Development Zones
(m) Part 22 - Urban Development Zones
a draft of the regulations or the draft order shall be laid before both Houses of the Oireachtas and the regulations or order as the case may be shall not be made unless a resolution approving the draft has been passed by each such House.".
Amendment put:
The Committee divided: Tá, 3; Níl, 6.
Tá
- Gould, Thomas.
- O'Callaghan, Cian.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- Noonan, Malcolm.
Amendment declared lost.
I move amendment No. 42:
In page 38, to delete lines 32 to 40.
Amendment put:
The Committee divided: Tá, 3; Níl, 6.
Tá
- Gould, Thomas.
- O'Callaghan, Cian.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- Noonan, Malcolm.
Amendment declared lost.
As it is now 5.10 p.m., I propose that we take a break at this point. When we recommence, we will consider the question, "That section 4 stand part of the Bill".
Sitting suspended at 5.10 p.m. and resumed at 6.15 p.m.
I welcome everybody back as we continue our Committee Stage consideration of the Planning and Development Bill 2023.
Question put: "That section 4 stand part of the Bill"
The Committee divided: Tá, 6; Níl, 3.
Tá
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- Noonan, Malcolm.
Níl
- Gould, Thomas.
- O'Callaghan, Jim.
- Ó Broin, Eoin.
Question declared .
Sections 5 and 6 agreed to.
NEW SECTIONS
Amendment No. 43 has been ruled out of order. Amendments Nos. 44, 45, 129, 171, 176, 180, 189, 190, 525, 526 and 1042 are all related and will be discussed together.
Amendment No. 43 not moved.
I move amendment No. 44:
In page 39, between lines 5 and 6, to insert the following:
“7. The Minister shall, within seven months of the passing of this Act, lay before the Oireachtas and relevant Committee a report on the regulations required consequent on
the commencement of this Act and providing a detailed timeline for the enactment of each section of the Act.”.
I know the Minister of State is not going to support the amendment. Its purpose is to give him an opportunity to set out for the committee and anybody watching from sectoral organisations or the wider public as much information as he is in a position to do at this stage with respect to the commencement schedule. There are initial workings on what could be a commencement schedule. Within that, I am also interested to know certain elements of the Bill, for example, statutory timelines from An Bord Pleanála, something I fully support. There is a question as to how can that be implemented now, given that the board has such a backlog. Is there a plan for how they would be phased in?
I would like as much information as possible about the process of the regulations. We know from the Department officials informing the committee previously that there is a process of reviewing the regulations. There is a lot of interest both on this side of the committee and among interested sectoral and professional organisations to get as much information and clarity as is possible at this point in time on what the schedule of enactment, phasing and regulations are. I would love if the Minister of State supported the amendment because I would like him to publish a full report in seven months. However, the more information here is what he can give the committee at this point in time.
Amendment No. 44 provides that the Minister shall lay a report before the Oireachtas and the committee on the regulations required for the Act and a detailed commencement plan for the Act. I cannot accept this amendment as it would not be appropriate to have such a provision within legislation. However, I am happy to keep the committee informed on work being undertaken to repair and update planning regulations, as well as how it is intended the Act will be commenced.
It is also important to note that extensive work is currently being carried out with my Department, in parallel with the work on this Bill, on the revision of the planning and development regulations. I would be happy to give an update here this evening if that is okay?
Perfect. That would be great.
While it is often difficult to anticipate the time it may take for a Bill to progress through the Oireachtas, the following timelines are provided on the basis that this Bill will be enacted before the summer. It is also important to note that extensive work is currently being carried out, in parallel with the work on this Bill, on the revision of the planning and development regulations. The commencement of the various parts or sections of the enacted Bill will be dependent on further work. For this reason, the estimated timelines may be subject to change.
There are three key areas of the Bill that I intend to focus on for the remainder of this year following the Bill's enactment. The first of these areas relates to the planning authorities, which are provided for under Parts 17 and 18. The commencement of these Parts will provide for the establishment of An Coimisiún Pleanála and the continuation of the Office of the Planning Regulator.
I will also look to commence Part 16 of the enacted Bill, which provides for events and fun fairs. I anticipate that each of these parts will be commenced by the end of Q3 of this year.
In Q4, the third area I intend to commence will consist of those parts relating to plans and the concept of development, these being Parts 2 and 3.
I also expect to be in a position to begin commencing elements of Part 6 before the end of the year. This Part relates to environmental assessments. I ask Deputies to note this Part may need to be commenced over a number of stages throughout 2024 and 2025.
In early 2025, I will look to commence Parts 4 to 12, which will include the provisions for development consents, housing strategies, architectural heritage, urban development zones and a range of associated enforcement and procedural provisions. For the remainder of 2025, my attention will turn to Part 9, concerning judicial reviews, and Parts 13 to 15, relating to appropriation, acquisition and compensation. As can often be the case with the legislative process, the commencement of some of these areas may need to be advanced or pushed back as competing demands dictate but I will continue to progress the excellent work done to date in revising and renewing this important legislation.
I will give an update on the revision of planning and development regulations. I have it in tabular form as well and can provide it to the Deputies. I am acutely aware the progression of this Bill through the Houses and its subsequent commencement is a matter of the highest priority. A core element of ensuring commencement can occur is the development of the relevant secondary legislation. This is a task of considerable scale and complexity and one which my Department continues to prioritise. An initial scoping exercise undertaken in the Department determined that a sizeable number of the existing regulations would simply require updating to reflect the structure and language of the Bill and to ensure the language is consistent throughout the regulations. There is a small number of areas in which major revision of existing regulations or entirely new regulations are required. Work on drafting the secondary legislation has commenced. It is intended that this will be completed when the Bill is enacted and will be progressed in line with the transitional arrangements for the commencement of the legislation. My Department is working closely with the Office of the Attorney General on this. It remains the intention that the review of the regulations will be completed on enactment of the Bill and progressed in line with the transitional arrangements and commencement of the Bill.
In August last, my Department established the planning regulations review working group to review and prepare secondary legislation particular to its section. The initial scoping exercise undertaken by the working group determined a sizeable number of existing regulations would simply require updating to reflect the structure and language of the Bill and to ensure the language is consistent throughout the regulations. There is a small number of areas in which major revision of existing regulations or entirely new regulations are required.
Recognising the importance of consultation, my Department invited the Local Government Management Agency to nominate individuals to participate on an advisory group which will examine potential improvements to regulations relating to the consent process at local authority level. It is intended that this advisory group will work closely with members of the planning regulations review working group, providing valuable insight into the current operation of the regulations at local authority level. There will also be further engagement with An Bord Pleanála and other stakeholders on the preparation of the regulations.
If the Minister of State was in a position to share the tabular form of the commencement schedule with the committee, we would all appreciate that.
I have some follow-on questions. The first is to help us understand the process. The Minister of State has set out an ambitious schedule for commencement of the various Parts of the Bill. He might commence sections, but there will be multiple regulations required to give effect to those sections. While certain sections like those concerning An Bord Pleanála or An Coimisiún Pleanála could be enacted be the end of quarter 3 of this year, there will be a range of regulations consequent to that which will take a period of time. For example, is there an expectation that statutory timelines will come in this year? With no evidence to the contrary, I assume not. It would make no sense to put in statutory timelines for a board with a backlog of 60%. For the person on the street who wants to know when the various bits of this legislation will apply in the real world, I presume the actual schedule is further out because some time can be added to each of the timelines the Minister of State has given. What is the Minister of State's hope? I presume there is negotiation with the board on those timelines. That is one that is eagerly awaited and I would be interested to hear about it.
The next question relates to plans and developments for the end of quarter 4 of 2024. Much of that will depend on staffing. The board has recently recruited staff from local authorities. Those authorities have made it clear they need additional planning authority staff just to fulfil their current responsibilities before this is taken into account. How much of the phasing in of this, post commencement of the regulations, will be dependent on staffing?
Some of Part 9 is connected to the work the Department of climate is doing on the legal aid scheme or cost protection scheme, whatever we want to call it. Does the Minister of State have information on where it is at with those elements of Part 9 commencements?
On the first question, it is a well-made point on multiple regulations overlapping, particularly in relation to An Coimisiún Pleanála. The Department established the planning regulations review working group to review and prepare the secondary legislation. The timelines are ambitious and may change according to the demands. The Department is working with An Bord Pleanála to prepare for the establishment of An Coimisiún Pleanála. The issue of multiple interdependent and inter-related regulations is being addressed through that process.
On the second question in relation to staffing and recruitment, the Deputy is correct that the board has received a significant intake of additional staff, which is a hugely important and significant part of the reforms the Minister, Deputy O'Brien, introduced. That intake of staff is working to reduce backlogs in the planning system. That has been the priority. This transition to An Coimisiún Pleanála under the new Bill has to happen relatively seamlessly but there are always challenges in these processes.
I can provide the tabular form. It provides a useful project timeline for enactment of the Bill.
On Part 9, the Department of the Environment, Climate and Communications has set up an interagency working group looking at the scale of fees and the cost mechanisms. I think it is due to report back to Government within three months of the enactment of the Bill.
I have three follow-up questions. I will press the Minister of State for additional information on whether there is a timeline for the introduction of statutory timelines for the board. The answer may be "No" and that it is not possible at this stage but a sense of when the Government hopes or expects to introduce these would be helpful.
Second, my question on staffing and resources was more to do with local authorities. The Minister of State spoke of quarter 4 of 2024 for commencement of the plan-making and concept of development parts of the Bill. The real issue in terms of staffing resources concerns the local authorities. According to them, in quarter 2 of last year, they needed an additional 500 staff. They have had sanction at the planning authority level for an additional 100 and the recruitment of those is slow. To what extent is the timeline for commencement of the plan and concept of development sections of the Bill related to workforce planning with the local authorities? It is a lot of extra work for them.
Third, I forgot to mention the transitional arrangements and the process whereby the Minister may seek to turn section 28 mandatory ministerial guidelines into national planning policy statements. Has there been a discussion of what that looks like? I cannot remember off the top of my head how many mandatory ministerial guidelines have been issued since the legislation.
On that corpus of the specific planning policy requirements, SPPRs, is there a notional timeline for working through those? Some of them have been subject to significant discussion at this committee, such as rural planning, Gaeltacht planning and so on. Any information the Minister of State can give to us on the timelines for the transitional arrangements and the transposition of the SPPRs into national policy statements would be very helpful.
On the Deputy's first question, early 2025-----
For the timelines?
Yes, early 2025. On the second question about local authority staffing, there are challenges in recruitment across the local government sector. Notwithstanding this, there has been an intake of additional planning staff across all local authorities. The Minister, Deputy O'Brien, sanctioned that last year or the year before. The bigger issue for this legislation is as part of a broader reform agenda in the planning sector. Significant progress is being made in Government policy measures through the national planning framework, which is to conclude in April 2024. In addition, there is the publication of the draft sustainable compact settlement guidelines. From our perspective, it is essential the planning system is properly resourced to meet these challenges and the significant work burden on local authorities with workforce planning. That is an integral part of it.
A ministerial action plan is being prepared by the Department to support the broader approach of the requirement to ensure our entire planning system, right down to the local government level, is able to cope, manage and deal with the additional requirements that will be placed on it.
And the transitional arrangements?
On the SPPRs, the guidelines become national policy statements under section 25. They remain in place until replaced by the new national policy statements.
My question was a slightly different one. Do any of the Minister of State's officials actually know off the top of their heads the number of SPPRs? Perhaps they could share it with us. If they do not have that information to hand, then do not worry about it. I could not expect everybody to remember the total number. My question was a different one. The legislation, if it passes as is, obviously means the SPPRs continue in force as they were prior to the legislation passing, but there is a mechanism by which SPPRs can be subject to the desire of the Minister and approval of the Government. They can become national planning policy statements. Has any work been done or has it been initiated with the Department to go through that list of SPPRs and prioritise for decision which become national planning policy statements and which are to be ditched?
They are under consideration at present. Again, I do not have to hand which specific ones. I can revert back to the committee on those.
The Minister of State is becoming increasingly unpopular with the officials every time he promises to give us a note on something.
I know that.
I would not even ask for a note, but when we come to that section of the Bill, perhaps the Minister of State will give us an update orally. That would be very helpful.
Yes, we can do that.
The Minister of State said a ministerial action plan is being prepared.
That sounds really interesting and something our committee would probably be interested in getting sight of when it is ready. Would such a thing be possible? Is this something the Minister of State can take back to the Minister?
Yes, that is something we must take back to the Minister. As I said, it is being prepared at present so it is still a work in progress.
I thank the Minister of State. I have two amendments in this group under discussion but I will leave my amendments until the end so a member can take the Chair while I discuss those.
I will now speak to amendment No. 45. Again, this is just an opportunity to raise four very important areas which many of us had hoped would be included in this Bill. During the interactions we had in the committee last year when Maria Graham and the team come in to speak to us, we had flagged some issues we thought should be part of the review and ultimately part of the Bill. I was also working on amendments in these areas to submit before Committee Stage but did not get a chance. I reserve the right to introduce amendments on Report Stage. I will go through them briefly and individually.
We have had two very significant reports from the Law Reform Commission on the reform of compulsory purchase order, CPO, one of which was in the past year. It is very important research. CPO is a very slow and a very expensive process for our local authorities, whether it is acquisition of land or of vacant properties. Given the Government's stated aim of wanting to be more assertive in tackling vacancy, dereliction and unused land, this seems to be a really important opportunity. There appears, however, to be very little change in that section of the Bill relating to appropriations, which is at the end. Is the Government in any way considering bringing forward amendments to this Bill, either on Report Stage or in the Seanad, on CPO reform or will that be another piece of legislation? If so, when?
The second issue is the land value sharing tax. I suspect this fell victim to a very large amount of lobbying and the electoral cycle being upon us. I am not asking the Minister of State to comment on that but is there any update he can give us on it? Will it be a stand-alone Bill or will there be an attempt to insert it into this legislation after the local elections, for example?
The third issue is a real frustration for many of us. The Minister of State's predecessor, Deputy Damien English, worked very closely with this committee on selecting a really good expert group on Traveller accommodation with three absolutely expert individuals. They deliberated, they consulted and they met with our committee on a number of occasions in the previous Oireachtas. They produced a report with 32 recommendations. A number of those recommendations would require legislative reform in planning. They are absolutely key to unblocking the continued scandal of the failure of our local authorities to provide culturally appropriate Traveller-specific accommodation. It would have made eminent sense to have them in this Bill and it would not have been a huge amount of work. I am interested know why they are not included in this Bill. Is there any plan on Report Stage, or when the Bill is before the Seanad, to address that?
It is ironic that we were talking about the Irish Green Building Council's manifesto launch tomorrow on embodied carbon in the built environment, as my last point concerns this topic. Our committee did what I thought was a very good piece of work and published a report, which was forwarded to the Department last year. It is one of the big frustrations for many of us that when the officials from the Department came in to talk to us, for example, about whether there will be changes to planning legislation, building control, greater integration of transport or development into planning, or changes to public procurement particularly to ensure lower embodied carbon building materials, there was a sense that the Department and the Government were waiting for work at an EU level to conclude in 2027. Some European jurisdictions, for example, Denmark and France, have already started to move ahead and made very significant advances in this area. That issue of the whole life of carbon quantification and assessment is key. The Minister of State does not need me to tell him that if we continue to make progress on the renewable energy side, then embodied carbon in the built environment is going to become an ever greater feature in greenhouse gas emissions. There are things that could be done now in the legislation of planning in that regard. I refer to some of the recommendations from our own report, such as demolition audits, the reuse requirements where demolition takes place so that valuable building material does not go into landfill, the need for some system of quantification, authorising planning authorities to make decisions based on volumes of embodied carbon used in building materials, and changes to public procurement, specifically mandates to use lower carbon cement and more environmentally friendly products, including timber-based products. It appears to be such a missed opportunity. I will have significant amendments on this area on Report Stage, and my colleagues in the Seanad will do likewise, where this Bill could have addressed all of that. The fact it is not doing so means in real terms it will be 2026, 2027, 2028 or 2029 before we start tackling these issues, if at all.
I am keen for the Minister of State to respond to the cluster of questions on these four key areas of planning reform that are absent in this Bill.
I wish to speak in support of this amendment. I have also submitted amendments on some topics in the Bill, which will be dealt with later. I will also ask about two specific parts of the Bill. On the issue of land value sharing tax, when we engaged with the Department on this, we were told it might be incorporated into this Bill.
Clearly, that did not happen. What are the plans and timelines around that? There have been media reports stating that lobbying has meant it is delayed. I do not know where those reports come from. Will the Minister of State comment on the delays and what the issues are with that?
Regarding reform of the compulsory purchase order power, from my read of the Bill – as I said, I have a later amendment on this later – there are not significant changes between this Bill and previous legislation. The Law Reform Commission report is ready-made and includes expert recommendations. They did the work on how to improve it. We all know from our interactions with local authorities that the CPO process can be very cumbersome and very long to the point that even when it would be useful to use a CPO process, because it is so long and cumbersome, local authorities can be reluctant to use it. That can then have knock-on impacts on delivering key pieces of infrastructure or housing. As an area we could get right that could really help with the delivery of infrastructure and much-needed housing, getting the CPO process reformed seems to be eminently sensible. Given that all that work has gone into the Law Reform Commission report, how come its proposals have not been incorporated into the Bill? Was it looked at? If not, will it be looked at? Could it be looked at before Report Stage? What is the thinking on that?
Like many others, I have concerns about the current powers of CPO, in particular those Uisce Éireann has and its belief that the existing powers in the Planning and Development Act 2000 would cease and that similar or effective powers would not be available in the new Bill. I note there has been some engagement with the Department on the matter and I think some reassurances have been granted. However, a clear commitment to that would be welcome.
Amendment No. 45 provides that the Minister shall lay a draft schedule of future legislation to deal with the following topics before the Oireachtas and committee, as mentioned by the members: reform of CPO powers, land value sharing tax, implementation of planning recommendations from the report of the expert committee on Traveller accommodation, and legislation relevant to the Act that addresses the State’s Paris climate agreement commitments to reduce embodied carbon in the built environment.
I do not propose to accept this amendment because it is not appropriate to set in an Act what future amendments will be made to it. If, after the Bill is enacted, it is decided that future amendments are necessary to address certain matters, then the necessary arrangements will be put in place to do so and there will be engagement with the committee on this, as there is with all legislation.
Specifically on the reform of CPO legislation, the Bill includes provisions regarding CPO powers for local authorities. The provisions replicate the provisions in the 2000 Planning and Development Act.
In March 2023, the Law Reform Commission published a report on the compulsory acquisition of land, which was referenced by Deputies. The Planning and Development Act 2000 and the Bill deal with the acquisition, or compulsory purchase, of the site and the LRC report deals with the process after the CPO has been confirmed, mainly dealing with the valuation process. As the LRC report was published while the Bill was being prepared, Government made a decision that the CPO provisions in the Bill should reflect those in the current Act and that a more comprehensive review of CPO provisions, looking at both the steps up to when the CPO has been confirmed as well as the steps after that, should be undertaken and should also take into account the LRC report. If appropriate, further legislation will then be brought forward. No decision has been made on the format of this legislation, whether it would be a stand-alone Bill or amend existing legislation.
On land value sharing tax, LVS proposals are being progressed by our Department, the OPC and the Office of the Attorney General with the intention to publish the Bill in quarter 1 of 2024 for introduction into the Houses of the Oireachtas.
Specifically on the planning recommendations from the report of the expert group on Traveller accommodation, the expert review report, which is intended to improve the effectiveness of the arrangements for providing accommodation for members of the Traveller community, has 32 recommendations across four categories, as follows: category A - delivery reflecting need, which is aimed at addressing deficiencies in how information is gathered and used; category B - planning, which is aimed at removing any potential delays and obstacles in the planning system in terms of delivery; category C - capacity and resources, which is aimed at increasing resources and delivery capacity; and category D - governance, which is aimed at strengthening governance arrangements. The programme board selected 27 out of the 32 recommendations for inclusion in the ongoing work programme. To date, ten of these 27 recommendations have been completed.
On legislation to address the State’s Paris climate agreement commitment to reduce embodied carbon in the built environment, it is the function of planning to promote development, which is in the interests of the proper planning and sustainable development of an area. The challenge of mitigating and adapting to climate change is central to planning through the promotion of more sustainable formats of development, for example, more compact urban growth. However, at its heart, the operation of the planning system, which this legislation governs, is the working out of countervailing elements, including those directly related to sustainability, for example, efficient use of land in the provision of particular forms of development, with the promotion of compact urban development or the decarbonisation of our power systems with other environmental considerations.
In respect of the issue of dealing with embodied carbon in the context of climate change mitigation and adaptation, this is a highly complex and multifactorial task. It encompasses many areas not directly related to the scope of this Bill, for example, the sourcing and type of materials used in construction. This is a matter more relevant to building control legislation. In view of this, the application of overarching climate adaptation goals being applied to multifactorial planning decisions solely though planning legislation would not be appropriate, effective or practical.
Returning to the CPO powers and the point raised by Deputy McAuliffe, we have been in discussions with Uisce Éireann about CPO. It uses CPO powers under the 2000 Act. This will be dealt with by way of an amendment on Report Stage. In addition, the Water Services Act needs to be amended in line with that.
Deputy McAuliffe had a hand up but it is gone now. I will go to Deputy O'Callaghan.
The Minister addressed the point.
On the issue of embodied carbon and the need to have whole-life carbon limits, the Minister of State said this is not directly related to the Bill and that it is highly complex. I would not take that view; I think this is a planning issue. What is happening now in the planning system is applicants are looking for planning permission, and not only is there no limit on the embodied carbon as part of their planning application but there is not even monitoring of that. There should be whole-life carbon limits in respect of anything that is developed. Other countries are ahead of us on this. It is easy to say that any measures to do with the need to tackle climate change are highly complex and therefore we cannot do something. However, those sorts of excuses will not get the planet to where we urgently need to be. In a way, it is not that complicated.
I see the following happening in my own local community. There are buildings with a lot of embodied carbon and developers look for planning permission to demolish them. The developers get planning permission and they demolish and tear down those buildings of huge carbon cost. They transport the material waste from those buildings away at a significant carbon cost and then totally replace them with new materials and buildings at a high carbon cost. It is incredibly destructive for the environment and completely unnecessary. There is nothing in the planning process now that addresses this, unlike in other countries, which are showing leadership in this area. I respectfully say to the Minister of State that this is not highly complex; it is quite simple. Wasteful demolition of existing buildings that should be renovated, rejuvenated and added onto, where appropriate, is occurring. By no means will that be the situation in every case but it certainly will be in many situations.
In my immediate locality, I have seen perfectly good buildings, some of which were not built too long ago and others that, while older, are in good enough condition to be renovated, being torn down for the sake of convenience and expediency, a word I use with all the negativity it has. The Government is quite happy with expediency, given some of the measures in the Bill. This situation could be addressed and changed, and needs to be urgently.
The Minister of State may not accept Deputy Ó Broin's amendment, but we need a much better response to embodied carbon than saying that it might be considered in future legislation on building control. Planning permissions are given to demolish and rebuild in the most unsustainable way. That is a planning issue, not a building control legislation, kick it down the road for a future Government or whatever issue.
I will go through each of the issues. I am not clear what, if anything, the Minister of State is proposing in respect of a CPO. He confirmed to us what we already knew, that what was in the Bill was broadly a restatement of what was there previously. That does not address the two key problems, namely, the CPO process is too long and too expensive. In many cases, a public agency does not just pay market value, but also a premium, and that is to leave aside the time it takes to progress a CPO. I liked one of the innovations in the urban development zone general scheme that allowed undeveloped land to be bought at a discount. It was the market value minus the land value sharing tax, if I understood it right, although there is an argument to go further than that. Has the Government any plans to introduce legislation on reforming CPOs between now and the end of its term? That is vital if we are to make it easier and lower risk for our local authorities to acquire vacant and derelict properties, something that has been a significant issue for almost all members of this committee, Government and Opposition alike. If the Minister of State set out what the Government planned to do in this regard, I would appreciate it. At least we know that land value sharing will be dealt with on the other side of the local elections, which is probably the primary reason it was taken out of this Bill. That is for another forum, though.
The Minister of State’s response on the review of Traveller accommodation was disappointing. My question was specifically on the planning-related elements in part B of the report. I am not aware of any of those being progressed, as the implementation group does not deal with issues of legislation, only with matters within its remit. Please, correct me if I am wrong. I have to give Deputy English credit for being so forthcoming in ensuring there was a report with sufficient independence to make strong recommendations. Many of us were nervous about the recommendations on taking powers away from elected members, even temporarily, to address the scandalous lack of appropriate Traveller accommodation, but the Fianna Fáil members and I took a view at the end that, in the absence of any better proposal, we would support the expert group’s recommendations. Unless these planning elements are enshrined in legislation, though, nothing will change in the advancement of adequate accommodation for Travellers. I wish to press the Minister of State on this.
Regarding carbon, let us be clear. Alongside building control and public procurement, the planning system has an integral role to play. The Minister of State is right about us needing to make changes to building controls to ensure that we can make greater use of timber and timber-based products above two storeys or 10 m. Right now, there are two types of cement in Ireland – a high-carbon dirty cement and a lower carbon cement that has approximately 50% lower emissions. Both are readily available and the same price. If I submit a planning application for a project that is predominantly concrete based, though, there is nothing in the planning system that allows a planning authority to say as part of its consideration of the planning grant that it would like to know whether I am using higher or lower carbon cement. There is nothing in our planning system that allows a local authority to condition or refuse a grant of planning on the grounds of using higher carbon, dirtier materials despite the fact that there is an equivalent material available at the same price with just 50% of the embodied carbon content. That makes no sense whatsoever. While there is a move towards an EU taxonomy so that there is an agreed mechanism for counting these elements, measures can be taken in the interim to be able to quantify those. Therefore, if our planning system is empowered to include such assessments in its decision-making on applications, we could be much further along. There should not be a planning application granted, particularly for public utilities, which use cement heavily, whose consideration does not insist on the use of lower carbon cement.
Likewise, there is a role for public procurement. Deputy O’Callaghan made a case about demolition. Where people want to demolish a building, they should first have to demonstrate through a demolition audit at the planning stage why demolition is the correct option and more appropriate than a reuse of the existing structure. Our local authorities should be empowered to require or request those and refuse a grant of permission or place conditions on it to maintain all or portions of the stock. Likewise, when permission for demolition is granted, a planning authority should be able to attach a condition to the grant of planning that the material lifted from the demolition site does not just go into landfill, but is appropriately reused, as per the circular economy legislation that the Minister of State’s party colleague steered through the Houses the year before last.
The idea that there is not a role for planning legislation or that we cannot start making the changes to our legislation in advance or in parallel with changes to building controls or public procurement makes no sense. Given how long it takes to get substantive planning reform and that we must reduce our embodied carbon in the built environment – I do not know what is in the Government’s legally binding climate action plan, but let us say it is 50% by 2030 – it is remarkable that the Bill does not cover these issues. The Minister of State’s answer seems to not understand the role that planning and planning reform have in tackling these issues. It is not as if this is the first time we have said it to him. Our committee held hearings, the relevant officials from the Department of the environment were here, and experts from the Irish Green Building Council, the industry and professional bodies appeared before us. This Bill is where it should be. Will it be in separate legislation? Is the general scheme of that legislation going to be published in 2024, 2025 or 2026? The Minister of State knows as well as I do that there is an urgency in addressing this matter. In our public debate on the climate, we rightly spend a great deal of time talking about energy, transport and agriculture. Embodied carbon in the built environment is one of the big four, yet it is virtually absent from the public debate and this Bill.
I wish to press the Minister of State more on the issues that Deputy O’Callaghan and I have raised and on when the Department intends to grapple with them from a primary legislative point of view.
If it is okay, I will deal with that first before moving on to Traveller accommodation and planning.
Deputies O’Callaghan and Ó Broin are correct about the need to consider reducing embodied carbon in our built environment. The point about the demolition of buildings was well made. Across Dublin, we routinely see perfectly good buildings that were built in the 1940s or 1950s and could be repurposed being demolished, with the construction and demolition waste probably ending up in landfill. Our waste management legislation is also important in this regard. I recall being involved 20 years ago when we were looking at mobile crushers taking C and D waste and using it for road aggregate. It is important that C and D waste be repurposed and reused. Primarily, though, the building should not be knocked in the first place if it still has a function. That is the role of planning authorities within development plans. Our Department launched a good architectural policy close on two years ago. It supports the repurpose and reuse of buildings. This is significant.
The other element is procurement policy.
That is being worked on by the Government. Deputy Ó Broin mentioned the difference between Portland cement and GGBS cement. I anticipate that the procurement policy will direct local authorities to support applications that specify the use of GGBS cement or low-carbon cement. At some point, it should become a default but it is probably not as widely available as it should be. Those are important. It is also critical to note that building materials are not necessarily a planning matter for the purposes of this Bill. The Deputy would probably challenge that but, looking at the recommendations in his own committee's excellent report on embodied carbon in the built environment, many of them look to regulations to address the issues he is talking about. Recommendation No. 12 "recommends that the Department consider introducing embodied-carbon focused regulations in the planning system". Regulations may be the most appropriate way to deal with this, rather than in this overarching Bill. There is no doubt that it is a multifaceted issue and must be addressed through procurement policy, as I have said, but also through good design guidelines and ensuring the repurposing of materials and of buildings. That is very important. The use of low-carbon materials and sustainably sourced timber can be addressed through procurement policy. Again, looking at the report, there are many really excellent recommendations, none of which really call on this Bill to address issues. They cover a lot of interaction with other Departments and look at regulations as a means of addressing issues. I am happy to respond to any other queries in that regard.
I have information on the recommendations regarding category B, planning, from the report on Traveller accommodation in tabular form, which may be of use to members. Some of the recommendations are completed and others are ongoing. Some will form part of a future work programme. If it is of use, I can provide that to the members. Again, it is a very important and significant area as regards the delivery of Traveller-specific accommodation. I note that significant improvements have been made in respect of local authority spend, the drawdown of funding and Traveller accommodation committees at local authority level. The work of those committees in the delivery of housing and supports for Traveller families has improved significantly over recent years.
To address the issues in reverse order, in June, it will be five years since that expert report on Traveller accommodation was published. The core planning recommendations of that report have not been implemented. The committee spent considerable time engaging with the three members of the panel and with the Minister to ensure that Part 8 and section 183 planning permissions and land transfers could not be abused to prevent or block the delivery of much-needed Traveller-specific accommodation. The Minister of State is absolutely correct that, during the Covid pandemic, the chronic underspends in the budget were finally dealt with. However, it is interesting that, when you look at what the money is spent on year on year, you see that very little, if any, is spent on new homes and new Traveller-specific and culturally appropriate sites. A lot of it has been going towards site works, site maintenance and post-Covid pandemic matters. My question is very simple. Is it the intention of the Department to bring forward the legislation required for those elements of category B of the expert group on Traveller accommodation report to be implemented at any point in the lifetime of this Government? I suspect the answer is "No" but I would like to hear from the Minister of State on that.
I will give three quick responses to the Minister of State's commentary on embodied carbon. Here is the problem. He is correct that reducing the amount of carbon in building materials is not a matter for a planning Bill. However, ensuring the use of lower-carbon building materials in the development process absolutely is. There is nothing in law that allows a planning authority to make a grant of planning conditional on the use of lower-carbon cement, for example. That makes no sense. As I understand it, nothing exists in current planning legislation that says, where a building is being demolished, reusable brick or light gauge steel should not be directed into infill or made into aggregate for roads and should instead be recycled and used in other developments. I refer to the recycling of steel for modular 2D or 3D panelised systems or the recycling of bricks. I ask the Minister of State to please correct me if I am wrong but the only way we are going to get the public, semi-State and private sector development communities to use lower-carbon building materials is to change not only the building regulations, but also the planning regulations so that such conditions are enforceable. It is a real frustration. There needs to be a rethink at the level of the Department and of the Minister as to the Department's contribution to this.
I cannot remember the name of the person from the Climate Change Advisory Council who was commenting on this in the media yesterday but they were not very complimentary of the response of the Department of Housing, Local Government and Heritage as regards its level of preparedness for the kinds of changes that are required across all three areas, namely, planning, building control and procurement, to meet our 2030 emissions reductions targets. This area is relatively uncontroversial. Nobody cares which cement is used, whether a lower-carbon cement or a higher-carbon cement. It is a very easy win politically as regards addressing the issue of embodied carbon. However, this area, which is the least controversially politically, is the furthest behind the curve in the advancement of the legislative changes, including changes to planning legislation, that are required. That is my last comment on these amendments.
The expert report on Traveller accommodation was a cross-party report and there was consensus on it. It is a real missed opportunity not to incorporate those recommendations on the planning side into this Bill. It is five years later so you would expect the Government to incorporate them into this planning Bill, even at this late stage. It had five years to take them on board and work with them. Given that there was cross-party agreement and consensus on it and that it came from the committee, that opportunity really should have been taken. At this late stage, I urge the Minister of State to look at doing that on Report Stage.
On embodied carbon and the demolition of buildings that could and should be reused, renovated or repurposed, the Minister said there was a role for planning authorities and development plans in addressing this issue. It has certainly been my experience that, when councillors bring forward amendments to local authority development plans to try to do those sorts of things, they are told there is no national legislation to back up what they are trying to do and that it is an issue for national legislation and not one for councillors to deal with through development plans. We cannot allow national government to say that some of the most important things we need to do as regards climate change and embodied carbon are for local councillors to deal with, while those councillors are told they are matters for national government and primary legislation. This Bill has 750 pages. Measures to address measuring carbon in the construction process and limiting carbon would not take up a lot of space within that. The most unsustainable practices would not be happening if building projects were subject to what would effectively be carbon budgets. It has been well talked out at this committee that, while it is laudable to aim for net-zero construction of buildings, if we do not look at the entire construction process and the entire life cycle of the building from start to finish, we are only looking at a bit of the picture. With regard to what we need to do on climate change, especially given the substantial amount of emissions from this sector, we need to do this urgently.
Given that this is the main planning Bill for 25 years, since the year 2000, there is no better opportunity to address this very pressing issue. Of course that does not mean there are not other things to be done in other areas as well, but this should certainly be a core part of the Bill. I urge the Minister of State to look at what can be done in that area between now and Report Stage. It is not too late to address this very urgent area.
I agree with what my colleagues have said about Traveller-specific accommodation and the recommendations not being included in the Bill. There were groups here last week about the Spring Lane site in Cork. What I could never understand as a councillor is that when city development plans were produced we knew the population and the increase in the Travelling community, yet local development plans had no allocation for the next five years for the amount of additional Traveller-specific accommodation that would be delivered. Five years ago, a lot of work went into developing recommendations for Traveller-specific accommodation. They need to be in this Bill. This planning Bill might not be touched again. When people look back at what we are doing now, they might not want to ever do it again. That is why it is really important that it is included.
I also wish to touch on embodied carbon. Knocknaheeny in Cork is one of the three big areas of regeneration. Ballymun and Moyross are the other two. In the first part of the Knocknaheeny regeneration plan, they retrofitted houses. I must say it was done very badly but they made an attempt. The second stage was to knock Knocknaheeny and that is what they are doing at the moment. We are talking about embodied carbon, climate change, and everything we should do. We should have the environment in mind. That is the case right now. They are knocking houses in Knocknaheeny today to build new houses. They are knocking 420 houses to build 620 in an area where we have huge social challenges. We have done damage to that community by knocking their homes and dispersing the community all over Cork city. At the same time we are talking about climate change and reducing our impact on the climate. There are other issues. It is not only happening in Knocknaheeny but that is just an example of where 420 houses are being knocked.
There are areas right across my constituency where a number of properties are currently lying vacant. I know the Government has one or two little schemes at the moment. I have been up here for four years. In 2020, I walked around Blackpool in Cork with the then city manager and the local councillors. At least half the buildings that were idle, vacant or derelict in 2020 are the same way now. We are talking about embodied carbon. These are buildings that the planning regulations should ensure local authorities bring online.
That ties into the argument about compulsory purchase orders, CPOs. In our main street - the main thoroughfare for the north side into the city - we have massive buildings falling down. The council had to go in and prop them up because they were at risk of collapsing. Anyone walking the streets to Dublin can see the number of vacant and derelict buildings that different local authorities have left in Dublin. There are all these things. We need to bring all these buildings back into use, whether for housing, business, or the community. That needs to be included in this Bill, so that it is delivered.
What we sought in amendment No. 45 is that within eight months of the passing of the Act, the Minister would lay before the relevant Oireachtas committees a draft schedule of amendments. I will skip ahead to the reform of compulsory purchase orders. Every local authority that has been before the housing committee in recent years has said it is complicated, it takes too much time, it costs too much money, and they do not have the staff to do it.
If we are really serious about compulsory purchase orders and making a change to the planning, all the local authorities will have to be resourced. Changes to the planning Bill will only work if they have the staff in the planning sections. It is good to see An Bord Pleanála taking on additional staff but we are robbing Peter to pay Paul because what we are doing is stripping local authorities of the expertise and we do not have them coming in. There are loads of challenges here.
The Minister of State is probably not taking the amendment on board but he should seriously consider the amendments we have put forward.
I will respond to the issue of Traveller accommodation first if that is okay, in regard to category B and planning. Deputy Ó Broin raised the Part 8 approval process. Action B.2 in category B was to put in place the legislative provisions to suspend the reserved function of elected members for approval of Part 8 proposals for Traveller accommodation, and also to suspend the reserved function relating to the agreement to dispose of land for the purposes of developing Traveller accommodation and provide these as executive functions.
As I said, this is an ongoing work programme. A temporary exemption has been provided for local authorities from the Part 8 approval process to construct housing developments on local authority and designated State-owned lands zoned to include residential use, and subject to compliance with the requirements of the recently inserted section 179A of the Planning and Development Act 2000. A temporary exemption has been put in place for local authorities for that.
I agree with what has been said about the provision of Traveller-specific accommodation. Many young Traveller families are choosing different options as well in terms of living in private rented accommodation or other local authority housing. The nature of Traveller accommodation is changing but this is an important part of the recommendations of the Traveller accommodation expert review to ensure that where families require housing that it is not being blocked for political reasons locally. That is important.
I will wrap up by referring to embodied carbon. It is a hugely important issue. There is no doubt that it is complex. I remember many years ago trying to put stipulations in development plans for low-carbon cement. In the absence of a procurement policy that would back it up, competition issues were raised by other providers. At the time we did not have a climate Act to back us up either. That landscape has changed significantly, which is for the better. Procurement policy is an important part of it.
Looking at the conditions that may be attached to a consideration of a grant of planning permission, something could be included on embodied carbon. That is something we could consider. Rather than prescribing something specific on low-carbon cement or certain materials, given that building materials per se are not a planning matter, and that it already states that there are conditions requiring construction and demolition waste to be recovered or disposed of in such a manner such as the extent may be specified by the planning authority, but I could ask the team to perhaps look at including a broader reference to embodied carbon.
This is Deputy Ó Broin's amendment but I would certainly welcome the Minister of State doing that. We should be well beyond putting in that planning authorities may put in conditions that might address it.
I appreciate that.
That would be helpful and would be a small step in the right direction but in my view what is required is much more than that.
Some planning authorities might put in conditions around a requirement that in all construction projects the embodied carbon is measured, that there are carbon budgets and limits are set. We need to be moving towards that fast. The current plan is to have it measured by 2027. We should have limits in place by 2027. Other countries are ahead of us on this.
The temporary exemption in Part 5 has nothing to do with Traveller accommodation. It is for a completely different purpose. While some local authorities, including my own, use it to advance a much-needed Traveller accommodation project, that project would have progressed just as well and within the same period of time under the old Part 8 because our local authority would not have blocked it. The difficulty lies with those local authorities that do not have a decent track record of providing Traveller-specific accommodation. I am not asking the Minister of State to come back on it but we are five years on from those sections of the traveller accommodation report, and I suspect there will be significant reluctance both from the CCMA and from the Department to give effect to those crucial recommendations. The problem is that it means the actual volume of new Traveller-specific accommodation that will be delivered year-on-year will continue to be far below what is required. That is one of the reasons Travellers are more likely to be in emergency accommodation or insecure and inappropriate private rental accommodation.
It probably falls more under the remit of the Minister of State, Deputy O'Donnell, rather than Minister of State, Deputy Noonan, as it did with Deputies Peter Burke and Damien English before. The issue has to be raised because we need that change to legislation. Ultimately, it will be a change to this Bill. The sooner we get it, the better.
We will look at that again. In regard to the conditions, they have to be enforceable. That is important. It is not the function of planners in local authorities to calculate embodied carbon. Obviously, in terms of a development that is brought forward, it is an important skill and competency within the profession. The architectural profession and the building profession will evolve over time and have to evolve very quickly.
I will move on to the next amendment.
I will move on to amendment No. 171, the next one.
I wish to speak to amendment No. 129, so Deputy O'Callaghan is going to step in.
Perfect.
Deputy Cian O'Callaghan took the Chair.
Amendment No. 129 relates to the national planning framework and section 19. It is adds to section 19(1) where it states: "The Government shall prepare and publish a document to be known as the National Planning Framework." My suggested amendment adds, "which should be adopted by a resolution of the Oireachtas". The reason I tabled this is that all of our planning documents, from the lowest level, from local area plans to county plans and regional spatial strategies, are all adopted by elected members and they set out a blueprint on planning and on how an area is going to develop. However, this one, which is our national document under which all of those are meant to sit within a hierarchy and align with, is not required to be passed by the Oireachtas. We do not even get to debate it, as far as I know. It would be very helpful because much of the conflict we see in planning is blamed on planners making decisions. We have to realise and the public needs to know the national planning framework is from where all of these things are guided, whether that is national objectives, such as compact growth. It is often controversial when we try to have compact growth or high-density development. It is because it is a national objective and that feeds down through the plans.
I think we have a roadmap for the national planning framework, this March or April. There is an opportunity there to have that debate in the House about what proper planning and sustainable development is. Members can stand up for the planning system because our planning system is not all bad. Planning is for the good. It is generally where we get these conflicting arguments, as though at some level we can wash our hands of it and say, "It is nothing to do with us."
These things come from the Oireachtas. I know the national planning framework is Government policy. It could reasonably be argued that it is Government policy, the Government sets policy and, therefore, everything below it should agree with it. It is an opportunity and it would be helpful for the planning system in general. National representatives cannot just wash their hands of the planning system that comes from something they put forward.
There is a lot of history to this particular issue. It is worth putting some of that on the record of the committee. This is not a minor amendment. I support the Chair's amendment. It is maybe a more elegant version of my own. We used to have national spatial plans. Those national spatial plans were not implementable because they were not statutory. Therefore, a decision was rightly taken to ensure the successor to the national spatial plan would be a statutory plan. That means it has the force of law. One of the important aspects to understand about the national planning framework, particularly the specific planning policy requirement, SPPR, contained within it is that they are law. There is no other way to describe them.
Deputy Alan Kelly was the Minister for the environment when the legislation underpinning the production of the first national planning framework was produced. We had substantial rows about this in 2018 and 2019 on the floor of the Dáil when he was then in opposition. Deputy Kelly was categorical that the legislation that he oversaw as Minister not only provided for a debate on the national planning framework, which we had when the last plan was produced, but a vote, and that the plan would have to be approved by the Houses of the Oireachtas because it is law. You cannot have a situation where a law as profound in its impact for every part of the State could be approved by a Minister or the Minister and the Government. It is not conscionable that that is how laws would be made.
However, because of the confidence and supply arrangement, and the particular peculiarities of that arrangement, the Government of the day, namely the last Government, contrived to deny the Oireachtas the vote. This is really important because it is not my opinion that there should have been a vote. Deputy Alan Kelly repeatedly said on the floor of the Dáil that this was not either within the spirit or the letter of the relevant legislation. That explanation was just for the Chair's benefit.
There should have been a vote on the national planning framework. Previous legislation required that. In fact, what is most egregious about sections 19 and 21, to which the amendments of both Chair and myself relate, is that it changes it. It codifies the situation that emerged in confidence and supply arrangement that there would not be a vote. One of the consequences of that is exactly as the Chair said. Backbench politicians from Government parties can rail against all sorts of matters in our planning system while their Minister and their Government quietly enact those said matters. That is the very worst way of making legislation.
Also, the fact the national planning framework does not require the democratic approval of the Oireachtas makes it legally weaker. One of the challenges in some of the judicial reviews of developments has been due to the way in which the SPPRs jar with specific details of the city and county development plans. That is going to continue into the future, albeit hopefully to a lesser extent than it has in the recent past.
The fundamental point is the idea of allowing a Minister, with the approval of Cabinet, to pass laws without any reference to or any involvement of the Oireachtas. Again, it goes back to Deputy O'Callaghan's point around the Mahon tribunal expressing enormous concern at the over-concentration of power within the hands of what was then the Minister for the environment. Yet here we are stripping away the provisions of previous legislation, albeit provisions that were ignored when the national planning framework was last provided for.
I can see no set of circumstances where this amendment could not be accepted. I can see no justification for why a Government would say, "We do not want a vote of the Oireachtas" other than it believes it would not get the support of backbench Members.
By not putting it to a vote, therefore, the Government might be able to get through the policies it wants. This is the very opposite of democracy and an approach I do not think is defensible under any set of circumstances. I will be really interested to hear the view of the Minister of State. I suspect that if he reads out a note, it will not be one he necessarily concurs with. I will be really interested, though, to hear how he can justify a statutory plan that has the force of law and is not voted on by any democratically elected body, particularly the Parliament of the State. For me, this is one of the really problematic parts of this Bill, and it is not the last time we will be discussing it in the course of the amendments.
I support the amendment moved by Deputy Matthews. As Deputy Ó Broin said, the national planning framework should be adopted by a resolution of the Dáil. It should go to a vote and it should be debated. Good laws come from debate, discussion and votes. Even if we were to have the best Minister, this process supersedes the right of the Oireachtas to set these laws. The opposite perspective is one where we would have a bad, weak or poor Minister. God help us then when it comes to the national planning framework.
Deputy Ó Broin asked the question of how this can be justified. I think the amendment from Deputy Matthews should be accepted. We have an opportunity now in this legislation to correct something that was in place anyway. To be honest, I am no big supporter of Alan Kelly, but if this should have happened, this is an opportunity for the Minister of State to correct the action of a previous Government in going around rules and regulations that were there. I hope to hear the comments of the Minister of State in this regard and I also hope he will accept the amendment.
For my own part, I think this is an excellent amendment and I am very supportive of it. The national planning framework is highly significant. The idea that it would not be debated, discussed and scrutinised thoroughly and then subject to a vote of the Oireachtas just does not make any sense to me on any level. As I said before, one of the really disturbing parts of this Bill is that there is this centralisation of power. The safeguards that could be instituted in this context are not in place. This is very serious.
Amendments Nos. 129, 171, 176 and 180 relate to the national planning framework. Amendment Nos. 189 and 190 relate to national planning statements. Amendment Nos. 525 and 526 relate to an urgent direction requiring a chief executive to vary a development plan. Amendment No. 1042 relates to the proposing of fees by the commission. All these amendments deal with the same substantive issue, namely, whether the key frameworks and policies of the planning system should be agreed by the Government or passed by the Houses of the Oireachtas. I cannot accept these amendments as they represent a deterioration of what is already comprehensively provided for within this Bill.
It is widely acknowledged that planning is a discipline that affects almost every facet of day-to-day life and is critical to the well-being of our citizens, as well as to the success of the wider economy and our response to the climate challenge. This is rightfully reflected in the whole-of-government approach taken to the development of the national planning framework, for example, which is of key importance to the delivery of objectives across education, the environment and housing, among others. Section 21(1) of the Bill provides for extensive consultation on the development of the NPF with all stakeholders including the Oireachtas, key delivery stakeholders such as local government and the Environmental Protection Agency, the wider general public, the Office of the Planning Regulator, MARA, any department or body in Northern Ireland having responsibility for regional development, Members of the Oireachtas, regional assemblies, local authorities and the commission. All these are included.
The Bill also provides for such plans to be subject to the strategic environmental assessment directive, the strategic environmental assessment regulations and the habitats directive. It is only after all of this takes place that the whole of government reconvenes to approve the NPF. This is a highly participative, transparent and deliberative process that goes beyond the level of consultation, assessment and scrutiny typically involved in Government policy formulation and implementation.
Ultimately the Government of the day must negotiate and agree an approach, including its associated targets, that will play a huge role in guiding infrastructure delivery across almost every Department and that is why the Bill provides for Government approval. The proposed amendments wish to add a further level of Oireachtas approval but are unclear as to how this can be reconciled with the extensive assessments and consultations already provided for within the Bill or with the wider programme of the elected Government. Similar amendments are proposed to section 23 regarding national planning statements, a key mechanism introduced in this Bill to improve consistency within the tiers of planning.
It was suggested by some at the pre-legislative scrutiny stage that these statements were a form of proxy legislation but as explained at the time, not only are the national planning statements themselves subject to consultation processes and Government approval but, once issued, the Bill provides for other tiers of planning, whether regional or local, to review their own plans for alignment with the national policy. It does not dictate that the national planning statements are applied inflexibly or unilaterally. The process as drafted, therefore, improves alignment throughout the planning system while allowing the necessary flexibility for regional and local plan-led approaches to continue.
Amendment No. 1042 also proposes to subject commission fees to full Oireachtas approval. Reviews of such fees are already evidentially based and subject to ministerial sign-off. Therefore, I consider this amendment disproportionate in its aim and unnecessary. I therefore oppose amendments Nos. 44, 45, 129, 171, 176, 180, 189, 190, 525, 526, and 1042.
On section 21 and the procedure for the review of the NPF, in carrying out a review under this section the Government shall have regard to any observations made on foot of the consultations under section 21(2), including any resolution or report of the Oireachtas or any committee of the Oireachtas in respect of the matters to be included in the national planning framework. I think this gives a really robust opportunity for consultation with a broad range of stakeholders to ensure there is broad input into the national planning framework.
I suggest that we deal first with amendment No. 129 from Deputy Matthews. This will allow him to resume the Chair and me to contribute to the debate on my amendments.
I thank the Minister of State for his response, in which he touched on several things. Much of our planning system is good. It comes in for a great deal of criticism, but there is a lot to our planning system that is good. One of the extremely good aspects is that it is very participative at all stages, from the people we elect to adopt and craft our plans at every level to the ability for anybody to submit a submission, an observation or an appeal or to make use of the other mechanisms available to us. This has always been one of the good parts of our planning system. It does create problems and conflict, but it is good because the more people we get involved, the better. Not everybody comes out with a result they are happy with, but at least they have been able to be involved in the process.
I accept the national planning framework goes through a certain number of stages where there is stakeholder involvement and consultation and it is possible to make submissions. I refer to one of the weaknesses of the national plan. A Government should be proud to stand over its national plan and offer it up for debate. My proposed amendment is not intended to offer up the national planning framework for debate and amendments as we would with a Bill. The objective is to allow us to debate where we want to go as a country in terms of how we achieve a regional balance, our challenging climate objectives and a low-carbon future that builds for the population of 6 million people we are looking at reaching in the timeframe of this national planning framework. I ask that the Minister of State bring this back and consider if this is a weakness in our system, notwithstanding that there is all that other input into it before the Government publishes this document.
It is when the document is published that I am talking about. When the Government has made its decision, taken account of all of that input and published it, we really should have a debate in the Oireachtas. It could turn into four hours of debate on one-off rural housing, and I would not be surprised if it did, but we should give people the opportunity to debate a national plan that has such far-reaching implications. The national development plan involves very large infrastructural spend and it follows the national planning framework, so there are other implications to being able to have that debate. I ask the Minister of State to consider whether the passing of it by resolution gives us the opportunity to have a couple of hours of debate on such a far-reaching and important document.
Does the Minister of State want to respond specifically on amendment No. 129?
I will allow Deputy Ó Broin to respond first.
Deputy Steven Matthews resumed the Chair.
I want to pick up on amendment No. 129. The Minister of State's response is astonishing.
In what way?
Let us think of the national planning framework as the development plan for the State, because that is what it is. It is a statutory plan that is produced following extensive consultation and deliberation to set in place not a set of policies but a set of legally binding planning requirements which then feed into the national development plan, exactly as the Chair said, but also have a profound impact on all layers of plan-making. What the Minister of State is saying is that that should not require a democratic vote of any elected body. If that is the case, why not dispense with the votes at the end of the county development plan? The vote at the end of the development plan process or, indeed, the strategic development zone process is very important because it gives it a democratic imprimatur. It is not the same for the Government to agree something in Cabinet and have a vote in the national Parliament, as it is called, on the national planning framework. It is just not the same because there is a level of transparency and accountability that arises from the very debate that the Chair has asked the Minister of State to consider.
What we are saying is that it is okay that when a local authority is doing a development plan, there has to be a vote at the end, or when a local authority is doing an SDZ or an urban development zone, if that makes it into law, there has to be a democratic vote at the end. However, when it comes to the single most important, legally binding statutory plan governing the entire State, and multibillion multi-annual investments for infrastructure, housing and industry, sorry, but we do not need a democratic vote for that. That has to rail against every democratic principle in the Minister of State's body.
I go back to the point that the legislation underpinning the original national planning framework requires a vote of the Oireachtas. Why was that not adhered to? We know the reasons. Why is it not in this Bill? I do not understand. There is nothing the Minister of State has said that justifies why there should not be a vote of both Houses of the Oireachtas on a plan that has the force of law because it is, effectively, legislation.
We will have a debate when we get to the other amendments on all of the Minister of State's expedited, retrospective shoehorning of central government policy into local plans. I want to make clear that I think the national planning framework is a good thing. It should exist and have the force of law but for it to have real democratic legitimacy, there should be a debate and, crucially, a vote on the floor of the Dáil and Seanad. Not to have that suggests the Government is scared that it would not be able to get the types of things it wants in a national planning framework through the Chambers. That is the only reason it would not do that. That is why it did not happen the last time. Fianna Fáil Members did not want to have to vote on the planning framework. They wanted to get up and rail against it but not disrupt the work of the Government, so a vote was quietly dispensed with. Again, that is not just my opinion because the Minister who was originally responsible for that legislation, Deputy Alan Kelly, made that clear.
I urge the Minister of State to give us a reason there should not be a vote in the Oireachtas. Really, that is what this comes down to. There will be a debate but why should there not be a vote? What is wrong with allowing the elected Members of the State to take a vote on the State’s development plan? That is essentially what we are talking about and nothing the Minister of State has said addresses that fundamental point.
To follow on from that, the development plan process at local government level is one of the most extensive parts of the democratic process. This applies in terms of the public consultation element of the development plans and, certainly, in terms of the meetings over many hours and weeks, and the multiple stages where councillors are involved, with thousands of amendments and a huge amount of scrutiny, debate and discussion, which is all voted on throughout and then voted on at the end of the process. We contrast that with the national planning framework, where there is no debate, oversight or scrutiny and no vote, yet the national planning framework, in terms of the hierarchy, is more significant because, effectively, what is in it will guide what goes into the development plans and the entire planning process. It is strange to have a lot of democratic input at the lower level but then, at the higher level, to effectively have none, despite that being the level which controls what is happening at a development plan or local authority level.
That is hugely problematic from a democratic point of view because it gives immense power to the centre. As I said earlier, we have to think not just in terms of the current Government or recent Governments. What if there is a bad actor as Minister for housing, for example, a Minister with huge influence over this process who has taken donations or raised funds from developers and is politically close to developers? How would that influence what is going on? As a country, we should not be leaving ourselves open to that.
I ask the Minister of State to outline the policy basis and rationale for excluding the Oireachtas from this. What is the justification for it? Why is this going to be better legislation without Oireachtas input and involvement? The Minister of State cannot possibly be making the case that the national planning framework is not highly significant because it is clearly highly significant. Given how significant and important it is, how could this non-democratic approach be justifiable? We also have to wonder about the constitutionality of taking this out of the democratic process. Does that not leave this part of the legislation more open to potential challenge, conflict and delay?
This is legislation for 30 years so we have to think not just of this Government or the next Government, but of Governments after that. Let us imagine that the Minister of State, Deputy Noonan, is in opposition and that the extensive consultation process was not undertaken, or imagine that there was an extensive consultation process but the issues raised were fundamentally ignored by the Government when it came to publish the final plan. As an Opposition Member of the Oireachtas, Deputy Noonan would want to have the check of a public debate and a vote to say to people that either, first, the Government did not have the consultation and we want to hold it to account on the floor of the Dáil, or, second, that it did a lot of consultation but it did not listen to anybody, and it went ahead with the plan as it had originally intended to. If Deputy Noonan was in opposition, that is what he would want. As he is in government, that is what he should also want, that is, to make sure the plan is the most robust plan. The very fact that a Government knows that if it ignores the public consultation and does not do that properly, and there is a chance that in the debate or the vote it might have trouble, disincentivises less proper behaviour in the legislative process. Therefore, there are so many advantages to having that debate and a vote at the end that I cannot, for the life of me, see why the Minister of State would not want that. I await his answer with interest.
Maybe I am looking at it differently but I see this as being very democratic.
Section 21 states:
(2) The Minister shall make provision for public consultation in the review of the National Planning Framework, including arrangements for consulting—
(a) members of the Oireachtas,
(b) regional assemblies,
(c) local authorities,
(d) the Commission,
(e) the Office of the Planning Regulator,
(f) the Environmental Protection Agency,
(g) the Maritime Area Regulatory Authority,
(h) members of the public,
(i) any Department or body in Northern Ireland having responsibility for regional development (where that Department agrees to such consultation), and
(j) such other persons or public bodies as the Minister considers appropriate.
[...]
(4) In carrying out a review under section 20, the Government shall have regard to any observations made on foot of the consultations under subsection (2), including any resolution or report of the Oireachtas or any committee of the Oireachtas, in respect of the matters to be included in the National Planning Framework.
That could not be clearer. The Oireachtas is involved early in the preparation of the NPF, elected members sign off on county development plans, a CEO's report is furnished and all of the items in it are addressed. If we were to have a four-hour debate in the Dáil and a vote thereafter, one would assume that a Government majority would still win. We are providing for very broad public consultation and engagement on the NPF. The phrase "the Government shall have regard" could not be stronger regarding the role of Oireachtas Members and the wider role of members of the public. My view and that of the Government's is that it could not be stronger about the broad consultation that has to take place regarding the NPF.
I do not accept the view that has been genuinely put forward by the Minister of State that this is a very democratic process. A consultation process is no substitute for a democratic process.
Consultation is a democratic process.
In the context of a development plan, a democratic process involves public consultation where everyone can put in their views, councillors tabling amendments, debates and votes on all of those amendments and full scrutiny of every aspect of the development plan. This would happen across multiple stages over the course of more than a year. Having a consultation process whereby the only provision is that someone shall have regard to something is not robust. It means it cannot be ignored and needs to be taken into consideration. That is along with not having votes, debates or the ability to put forward amendments for scrutiny, etc., specifically in respect of the plan. A committee can meet, pass resolutions and so on and the Minister shall have regard to that, but that is as far as it goes.
The Minister of State said that a four-hour debate would not be not of use because the Government will have a majority and win the vote anyway. We have the tightest Whip system in the western world. Even under our system, however, things sometimes change democratically through the process because if Government backbenchers say they absolutely cannot vote for something, the Government sometimes shifts its position and things can be changed and evolve. It does not happen as often as I would like, but it does happen. Even a four-hour debate with a vote has some democratic basis beyond not having such a process. It would mean that if the NPF was very weak on biodiversity or embodied carbon and if Government backbenchers felt really strongly about that, a vote would give them some leverage to say that biodiversity or embodied carbon are not mentioned and that the Government has to do something in order that they could vote in favour. It would provide some ability for the democratic process to respond to matters and would avoid all the control effectively lying with the Minister.
There is a problem with Cabinet approval on these longer documents. I have seen situations where 100-page documents have been approved by Cabinet and when one questions Minister about the relevant document, it emerges that they do not know the detail of what they signed off on. There are major implications for the public in this regard. I will not go through the different instances now. They do not necessarily relate to planning. I have seen it happen in respect of transport matters. There are only things to be gained from the democratic process. A consultation process in legislation, the end result of which is that someone shall have regard to something, is not a substitute for this. A full democratic process involves votes, debates, elected representatives, the ability to put forward amendments and so on, and consultation. A consultation process alone or where it is all controlled by one stream is not a substitute for a proper democratic process at all. That is my strong view on the consultation process. Used on a stand-alone basis and without the necessary mechanisms, such a process can sometimes give the appearance of involving democratic input but there is an absence of full scrutiny and of an ability to reject or accept things by means of democratic votes.
I call Deputy Ó Broin.
I am conscious that we will not get this discussion finished this evening.
I do not expect we will. We will continue the discussion. We are due to finish at 8.15 p.m.
It really sounds like the Minister of State is trying to convince himself rather than us.
No, I am not.
I am convinced. That is even more disappointing. Let me reiterate the point. Why do we have votes at the end of anything? The Minister of State is saying that there is such a great volume of consultation and involvement of various Members, although there is no structure involved in the Oireachtas whatsoever. Why do we have a vote at the end of anything? One reason is to ensure that it has the democratic imprimatur of the elected Parliament of the State. That is the function of this body, above almost anything else that we do, in order that when laws that have material impacts on people every single day, are made, it is obvious that a group of people took a clear decision and that they are responsible for that decision. There is a world of difference between a consultative process and a closed-door decision of Cabinet and a consultative process and an open-door debate by and decision of the Oireachtas. They are worlds apart. I am genuinely taken aback by the fact that the Minister of State cannot see that crucial difference.
Governments do not always maintain their majorities. The last two general elections were precipitated by the collapse of Government majorities or working majorities. We will have a debate tomorrow when we deal with the subsequent amendments on planning policy statements. This is a statutory plan. The SPPRs have the force of law. We can have a debate about how they are applied when we get into the national planning policy statements, the expedited retrospective and the many procedures for the various levels of plans, but there is something so fundamental about a democracy where things in law that impact on people's lives are voted on and a group of people are held to account for those decisions.
Here is the problem. Right across the country, Fianna Fáil and Fine Gael backbenchers rail against the Planning Regulator. We see this regularly. Members of this Oireachtas from Government parties rail against the Planning Regulator. In fact, I have heard some people call him a Marxist and others refer to him as a fascist. For doing what? For implementing the NPF. When the Office of the Planning Regulator issues draft directives on zoning, it is implementing the legally binding provisions of the NPF. The Office of the Planning Regulator does not make that policy and did not debate that policy, although the individual involved was obviously involved in the Department. How is it that a plan agreed by a Government can then be attacked and criticised publicly by members of that same party, including Members of the Oireachtas and members of councils? The reason is because there was never a vote on it, which then absolves those individuals of any responsibility for a plan that the Government of which they were a part implemented.
For no other reason than making it crystal clear that a national planning framework is the decision of a Government, or the decision of a Government and Opposition if there is consensus, individual members of the Government and-or Opposition should take responsibility for the plan they approve. This is the way democracy works. One of the negative consequences of the very expedient – let us use this word in another context - decision not to have a vote of the Oireachtas on the last national planning framework is that it allows a whole bunch of people off the hook and they can all go off reservation and make all sorts of claims about important elements of our planning system that simply are not true.
What the Minister of State has not answered is why there should not be a vote. He has told us about great consultation. That is fine and we are all for great consultation. What he has not said is what the value is of not having the vote. This legislation proposes a change to the existing planning and development Acts, which did require a vote. Why is the Minister of State taking out the vote? What is he scared of? What does he not want? What does he gain from not having a vote on this fundamental Statewide plan that will have statutory effect and impact the lives of millions of people for generations?
I am reluctant to get involved in what is essentially a political debate between the Minister of State and the Opposition. On a number of occasions Deputy Ó Broin has characterised the way in which those who support the Government in the House prosecute or pursue an argument they may have in regard to the Planning Regulator or elsewhere. It is important for us to reflect on the Constitution. The Government is made up of the members of Cabinet. It does not include the Members of the Dáil who support or vote for that Cabinet. In fact the word "Cabinet" is foreign to the Irish Constitution. The correct term in the Irish context is "Government".
The idea that a decision of 15 people could not be disagreed with by other Members of the Oireachtas simply by virtue of the fact they are in the same political grouping would be a significant restriction on the right of any Member to speak on an issue. Equally, by us voting in favour of the nominations of Ministers and, ultimately, for Bills that come before the House, we demonstrate our confidence in the Government. This is a very different thing from us having to speak with one voice.
I would be quite concerned if it were a political ambition of any political party that a number of key people at the top could make a decision and that every other Member of the Oireachtas affiliated with that political party would have to speak with that same voice. There can often be very healthy debate when Members of the Oireachtas who support the Government disagree with their own Ministers. In fact, it can often prompt change and a shift in Government policy. I object to the way in which Deputy Ó Broin has characterised Oireachtas Members and their right to speak and the suggestion that it should in some way be limited. This is an entirely separate matter to what is proposed and the Minister of State's response to it.
I have some sympathy with the Minister of State's response when he says the Government majority clearly would support it. Given that it has been mentioned on three or four occasions in the debate, I have to speak on the idea that Members of the Oireachtas should be limited in some way merely because they vote in favour of a Government. A Member of the Oireachtas has the right to speak out and have a differing opinion from that of any other Member of the Oireachtas. It is important for us to maintain this.
I do not really want to get into a debate between members.
I have a very brief point of clarification. Deputy McAuliffe's defence of his colleagues is admirable. My point is a different one. I am not at all suggesting that members of Government parties should not criticise a Government. In fact, I would encourage them to do it as often as possible. My point is a fundamentally different one. I used the example of the Planning Regulator because the Planning Regulator is often criticised for policy decisions of the Government. The Planning Regulator's job is to ensure local authority compliance with those decisions. One of the frustrating things about the way in which the national planning framework was approved on the previous occasion was that it created a situation whereby some Government backbenchers have been able to criticise the Planning Regulator rather than criticise the Government, which Deputy McAuliffe is defending their right to do and I encourage him to do it. This is because they did not have to vote on the plan because the requirement for a vote was evaded by the confidence and supply Government. The national planning framework was a decision of the Government. If people have a criticism of it, and there are some areas about which I have criticism, that criticism should be directed at the people who made the decision. This is the point I am making. I champion every Government backbencher who wants to criticise the Government. I would join them happily on the floor to do so. It is a fundamentally different point from the one Deputy McAuliffe seems to think I was making.
Deputy Ó Broin seems to be questioning the idea that a backbencher could speak against a Government Minister. In fact it happens every day in the House. It is not limited to the Office of the Planning Regulator. It extends to the HSE, the Department of Education and many other areas. We do not live in a perfect system where people are happy with everything. I am a bit bewildered by the argument.
On that note, it is just after 8.15 p.m. and we agreed to finish at 8.15 p.m. I will adjourn the select committee until 10.30 a.m. tomorrow. I thank the Minister of State, Deputy Noonan, and the officials for their engagement.
Progress reported; Committee to sit again.
The select committee adjourned at 8.17 p.m. until 10.30 a.m. on Wednesday, 21 February 2024.