Select Committee on Housing, Local Government and Heritage díospóireacht

Planning and Development Bill 2023: Committee Stage (Resumed)

NEW SECTION

Debate resumed on 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.”.

- (Deputy Eoin Ó Broin)

An Cathaoirleach

I welcome everybody back to the continuing Committee Stage of the Planning and Development Bill 2023. I welcome the Minister of State, Deputy O'Donnell, and his officials. Yesterday we adjourned while discussing a grouping associated with amendment No. 44 - amendments Nos. 44, 45, 129, 171, 176, 180, 189, 190, 525, 526 and 1042. The Minister has spoken to these and indicated he will not be accepting any of them. I now go back to the members. We have covered amendments Nos. 44, 45 and 129 in some detail, so I suggest we start with amendment No. 171, and that is Deputy Ó Broin.

Deputy Eoin Ó Broin

I will read the Minister of State one of the key recommendations of the executive summary of the Mahon tribunal report, which is directly relevant to this amendment. Recommendation 1.09 states:

As is clear from the above, at national level, both the NDP and the N[ational] S[patial] S[trategy, the forerunner to the national planning framework] play a key role in the planning system. However, neither has a statutory basis and the Minister for the Environment, Community and Local Government ... enjoys considerable discretion in determining their scope and content. The Tribunal recommends that both of those instruments be placed on a statutory footing. [That has happened and is to be welcomed.] The relevant statutes should specify the procedure for adopting and/or reviewing those instruments and make provision for public consultation when carrying out those procedures.

That is in the Bill in front of us. However, the crucial part of the Mahon tribunal recommendation, which the Government has refused to implement, is the following, "In addition, the Oireachtas should approve the adoption of both the N[ational] D[evelopment] P[lan] and N[ational] S[patial] S[trategy]", or what we now call the national planning framework.

We had many years of planning corruption. Government commissioned a tribunal that met for a very long period, and did extensive and enormously important work to investigate allegations of corruption and malpractice in our planning system. It produced a report of 3,000 pages with a key recommendation that the national planning framework be put on a statutory footing following consultation and a vote in the Oireachtas. We had a lengthy discussion yesterday on the Chair's amendment No. 129 where the Minister outlined why they were not accepting the amendment. We are not asking the Minister of State to repeat all of that. I want to know why this Government is not implementing that key recommendation of the Mahon tribunal report for the national planning framework to be approved by a vote of the Oireachtas. The purpose of my motion is to ensure there is both a debate and, crucially, a vote of the Houses of the Oireachtas before this plan becomes statutory.

Deputy Cian O'Callaghan

On amendment No. 171 on the national planning framework, subsequent to Deputy Ó Broin's comments, I would like to know why the Government, in terms of this planning Bill, is not accepting in full the recommendations of the Mahon tribunal. Why is it departing from them? Is it a Government decision to depart from the recommendations of the Mahon tribunal? Until this point it was my understanding that there was an acceptance of the recommendations of the Mahon tribunal. Why is this Government departing from that? Has that been decided at Cabinet, not to accept in full the recommendations of the Mahon tribunal in terms of this planning Bill? Has there been discussion about that? Is this a conscious decision or is it something the Government is not aware it is doing and simply does not know it is doing it, namely, not to accept the recommendations of the Mahon tribunal? What is the policy basis and rationale for the changes in the national planning framework compared with the 2000 Act? Why is the role of the Oireachtas being removed in the way it is? Why is the role of the Oireachtas joint committee also being taken away? Will the Minister of State explain those to us?

Minister of State at the Department of Housing, Local Government and Heritage (Deputy Kieran O'Donnell)

(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,

The Chair could not have said it better. It is quite straightforward. Under the current legislation, a full draft is presented to the Oireachtas. Here, there is a process whereby we believe the Oireachtas will come in earlier. We all want a national planning framework that is robust and everything. To ensure there is no ambiguity as to the competent authority on the environmental side, it should be the Government and the Minister. We are trying to ensure a process whereby the national planning framework goes through public consultation, the Oireachtas is heavily involved both in committees and in plenary sessions, there is active public engagement and the OPR is involved. We are putting forward a structure for developing the national planning framework in the best possible way but with the Government fundamentally being the setter of policy. We have nothing further to add. We have a view at this stage. If members wish to press a vote on their views, that is fine, but this is our final decision.

An Cathaoirleach

We will have to move on because the Minister of State has been quite clear. Amendments No. 176 and 180 are quite related in that they substitute "of the Oireachtas" for "of the Government".

Has this been discussed enough?

Deputy Eoin Ó Broin

Absolutely not. It is a separate proposition. I will make the following comment but I do not expect the Minister of State to respond. I just want to put on record that it is remarkable that the Government has not provided a reason for stating that it has made a decision not to allow Oireachtas votes, particularly in light of the fact that it is so important-----

Deputy Kieran O'Donnell

I believe I have.

Deputy Eoin Ó Broin

I have the floor, with the greatest of respect. What is happening is remarkable, particularly in view the fact that the Mahon tribunal report contained a key recommendation in this regard. However, people can make their own judgments on that matter. One suspects that the decision that there will not be a vote is political in nature as opposed to one having anything to do with planning or legislation.

I want to speak to these two amendments. There will be further amendments with respect to what are called national planning statements on which we will have a discussion later. By way of introduction-----

Deputy Kieran O'Donnell

To which amendments is the Deputy speaking?

Deputy Eoin Ó Broin

Amendments Nos. 176 and 180. They relate to section 23, which deals with the national planning statement. The first thing to put on the record is that the national planning statement is one of the very substantial innovations in this Bill. Whereas a great deal of what is in the Bill, as we have discussed, comprises carryovers or modest amendments to previous legislation, this is something completely new. When discussing this, it is important to understand that and also the strengths and risks involved. The latter are central to understanding the amendments.

If I understand the logic behind the national planning statements properly, there has been a long-standing desire on the part of central government and the Department, dating back many decades, to ensure that there is a standardised approach across our local authorities to key planning policy and decision-making. The Government would say that it is a question of consistency and in some cases I agree with that. However, in other cases, it is more about imposing central government's view on local government in respect of both the determination of plans and planning consents.

The former Minister, Deputy Kelly, introduced legislation in the dying days of the Fine Gael-Labour Party Government which gave the Minister extraordinary powers to introduce what were called section 28 mandatory ministerial guidelines. I have always loved that phrase. How can a guideline be mandatory? It is quite an Orwellian phrase but that is the one that was used. In many cases the guidelines that have been issued are very straightforward, uncontentious or are highly technical in nature and are not objectionable. However, on a number of occasions, mandatory ministerial guidelines were introduced, particularly on building heights and design standards for apartments, that were hugely controversial, very retrograde and did untold damage to our planning system. They led to enormous increases in litigation of residential developments, clogged up the courts and led to the legal costs to An Bord Pleanála mushrooming from €2 million or €3 million per year to €10 million in lost legal fees. We are still living with the consequences of some of that. In fact, far too often people misunderstand all of that quagmire in the High Court as something to do with strategic housing developments. While that was the context in which it happened, it was actually the controversial mandatory ministerial guidelines issued by former Minister Eoghan Murphy that were the central point of contention between local authorities and the Department, developers and An Bord Pleanála.

The courts took the view in most cases that the mandatory ministerial guidelines, particularly on design standards and building heights, were not legally secure so what the Government is trying to do in this Bill is reintroduce the same proposition but in a more legally robust manner. That is probably the best way to describe it. I want to be very clear that I am of the view that central government should absolutely have the right to set national policy, particularly in terms of how we ensure our local authorities map out their plan-led approach in their development plans. I am not against national planning policy statements, rules or legislation. My concern is the way in which this is being done because not unlike the national planning framework, these things have the force of law. These things are effectively another form of legislation. Just like we used mandatory ministerial guidelines in the 2016 Act, we are now using national planning statements, which include national policies and guidance. Of course, they are not policy statements. They have the force of law and we should call them what they are, which is legally binding planning requirements.

Amendment No. 176 is straightforward. It says that these should be approved by the Oireachtas. It would give far greater democratic legitimacy and would allow for far greater public, media and political scrutiny. It would also lead to far greater public acceptance once they become law in that manner. Given that what the Government is trying to do is avoid future litigation where An Bord Pleanála loses at the rate it lost under the previous set of mandatory ministerial guidelines, I also suggest that approval by the Oireachtas would be the most robust way to introduce national policy statements. I suspect the reason there will not be a vote of the Oireachtas - and I presume the Minister of State's response to this will be the same as his response to the last amendment - is that some of these are very contentious. For example, we know that in regard to rural planning guidelines, particularly with respect to how we permit one-off rural homes, that the regulations were completed some time ago. I suspect they have not been published for public consultation because there would be a furore among backbenchers from Fianna Fáil and Fine Gael, and possibly from my party in some quarters, about the content of those regulations. If, therefore, the Government wants to make changes, it thinks it will be easier to do if it does not give the Oireachtas, including its own Members, the right to vote on these things. That would be a very cowardly thing to do if that were the case, but I am sure the Minister of State has another view on that.

Amendment No. 180 relates to situations where the Minister is going to revoke or amend planning statements. Not only should there be a democratic process and a democratic vote of the Oireachtas when policy statements which are, in effect, forms of planning law, are enacted but if they are to be amended or revoked, I am fundamentally of the view that it is better for everybody if those decisions are made in a public, transparent and mandated way by the Oireachtas.

These sections in Chapter 3, particularly those relating to the national planning statements and the retrospective and expedited procedures for amending development plans, urban area plans and priority area plans on foot of new policy statements, are probably the most controversial aspects of the Bill. It is unfortunate, and maybe we were remiss in our own deliberations during pre-legislative scrutiny, that we did not shine enough light on this. There are so many dangers in this. The potential for conflict, litigation and enormous delay in much-needed in wind and solar energy efficiency projects, residential developments, and key water and wastewater infrastructure is just enormous. I suspect the overwhelming majority of planning experts, if asked their view on this, would probably say something not too far away from what I am saying.

I am making the case as to why, with specific reference to the approval of the policy statements and their amendment or revocation, it should be a decision of the Oireachtas. I am also appealing to the Minister of State not go down the road that is outlined in this Bill with respect to this matter because he will regret doing so.

I was a much less experienced Deputy in 2016 and 2017 when we dealt with the strategic housing development legislation that the Minister of State's party colleague the Minister, Deputy Coveney, introduced. I had far less understanding of the planning system and planning legislation at that stage but I could see, as could others in opposition, that the strategic housing development idea was a bad one. We warned that it would not work and would lead to delay, conflict and litigation. Unfortunately, we were right. The propositions that we put at that stage, as amendments, for statutory timelines at all stages of the process in the local authorities and An Bord Pleanála have subsequently come to pass and I welcomed that, with some minor concerns. If the Government had listened to us - and I was not the only one on this side of the House saying it - in 2016 and 2017 on SHDs, we would not have had the dramatic escalation in judicial reviews, delays and, in some cases, in very poor quality, residential apart-hotel and co-living developments. I am urging the Government to listen to us, to planning experts who have spoken about this and to eminent judges and legal figures who are saying that this is the ticking time bomb at the heart of this legislation.

It is far more controversial than anything else. They are saying that if we sign up to this, ignore their amendments, either in word or spirit, and they are proven to be right, they will come back to remind us of that at every available opportunity. It has the potential to do untold damage to our planning system and create untold delay to urgently needed infrastructure, renewable energy projects and residential development. That is the very opposite of what the Minister of State is saying the Bill will do.

Deputy Cian O'Callaghan

First, I wish to follow up on what I was saying on amendment No. 171 because I had not concluded on it. The Minister of State compared section 21(4) of this Bill with section 20C(8) of the amended 2000 Act to try to make the case that it meant earlier engagement. However, the relevant section to have compared section 21(4) with is section 20C(9). I will simply read it. Section 21(4) of this Bill states:

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.

Section 20C(9) of the amended 2000 Act states:

In preparing or revising the National Planning Framework, the Government shall have regard to any resolution or report of, or of any committee of, the Oireachtas that is made, during the period for consideration, as regards the proposed strategy or, as the case may be, the Framework as proposed to be revised.

What then happens is the role of the Oireachtas in section 20C(8) is simply taken out and there is not a vote of the Oireachtas. Therefore, it means less engagement with the Oireachtas, not earlier engagement with Oireachtas.

On amendments Nos. 176 and 180, amendment No. 176 amends the legislation so that the issuing of national planning statements would require the approval of the Oireachtas instead of Government. Amendment No. 180 requires that amending or revoking a national planning statement would require approval of the Oireachtas instead of Government. Looking at section 24 of the Bill and the long list of what these new national planning statements can cover, they are not limited to these, but it includes “preparation of regional spatial and economic strategies, development plans, urban area plans, priority area plans, coordinated area plans and development schemes”. That is just paragraph (a), and there are paragraphs (a) to (o). It is an extensive list, which is not exhaustive, of what national planning statements can be issued on. That is a significant and powerful instrument. For the Minister to be able to do this without proper Oireachtas oversight and approval is an incredible centralisation of power. A very significant part of the planning process is proposed under this, and to not have that Oireachtas oversight is a huge overreach. This is, in effect, the equivalent of secondary legislation but it is what would often be done in primary legislation. I can see a rationale for needing to do it in some of these areas. However, to have Oireachtas oversight and requiring Oireachtas approval would give it democratic legitimacy rather than it being effectively in the hands of one person. Given what we have been through in planning in this country and the concerns of the Mahon tribunal in respect of the extensive powers of the Minister, to remove and not have Oireachtas oversight is highly problematic.

Deputy Kieran O'Donnell

Returning to Deputy Ó Broin and amendments Nos. 176 and 180, it is not law; it is policy. The legislation puts the principles for setting national policy statements. We disagree. We believe the national policy statements would bring consistency. The one thing we are getting on the ground, and Deputy Ó Broin is getting it as well, no doubt, is inconsistency in decisions throughout the country. We need something to bring structure to that. The national planning statements will do that. They are approved by Government and, furthermore, they will be accompanied by guidance. For context, similar amendments are proposed to section 23 with regard to national planning statements, a key mechanism introduced to improve consistency within the tiers of planning.

(j) protection of structures, parts of structures, or specified features of structures, which are of special architectural, historical, archaeological, artistic, cultural, scientific, social or technical interest;

(k) preserving the character of architectural conservation areas;

These are important areas. I have no issue with that or with there being consistency in these. However, if this is just policy and does not have the weight of the law behind it, presumably these things can be flouted, ignored and disregarded. What is the legal basis or otherwise for the national planning statements? How robust are they?

On the issue of robustness, has the Minister of State received advice that not having Oireachtas approval for national planning statements makes them just as robust as they would be with Oireachtas approval? Has he sought advice on that? Is there advice on it? One might believe that with Oireachtas approval, they would have a stronger basis. Does the Minister of State have advice on that? If so, I ask him to share it with us.

Deputy Kieran O'Donnell

The legislation is the planning Bill. It sets down what is to be. There are two aspects under section 23(1). We must always go back to the core legislation. Section 23(1) states:

(1) The Minister may, at any time, with the approval of the Government, issue a statement ... which shall comprise two parts as follows:

(a) national policies and measures on planning matters to support proper planning and sustainable development (in this Act referred to as “National Planning Policies and Measures”);

(b) guidance as to the implementation of the policies and measures referred to in paragraph (a)

Deputy Ó Broin has said he is supportive of national planning statements. This is the legislation that brings about national planning statements. Policy is set by Government. We believe that having the statements approved by Cabinet makes them very strong. Ultimately, what we are looking at here is practical application and what will happen on the ground in local authorities with national planning statements. For example, let us consider something like flooding. The Minister will give the local authorities a national planning statement. They will then have to apply that on a local level within their local plans. They will determine the areas. They will look at the CFRAMs and so forth. That is just by way of example.

This arose from the issue of inconsistency. A planning application in one area of the country should not be assessed in a different way from one elsewhere. The guidance will provide that. It just makes it stronger and more robust. The Government takes the view that the national planning statements issued and signed off by Government bring about a very robust and consistent application in the interpretation of planning policy throughout the country. That is our view. The Deputies opposite may hold a different view.

Deputy Eoin Ó Broin

This is not a question of views; it is a question of what is in the Bill. Let me give another practical example. This is what is likely to happen if the Government proceeds down this deficient path. Let us consider, for example, the current section 28 ministerial guidelines on building heights. Let us imagine that the Minister, Deputy Darragh O'Brien, decides later this year, if this Bill passes, to transpose that transitional mechanism into a national planning policy statement. Let us use a real-life case. The section 28 guideline has been robustly defeated in the courts numerous times. It is not 100%; a recent court case took a slightly different view but, in general, the courts have struck it down.

The Minister takes that course of action which has an effect on the Poolbeg strategic development site, the highest density strategic development zone in the country with 200 units per hectare, and one I fully support. There is a strict height delineation to achieve those densities of between six and ten storeys throughout the scheme. All of a sudden, the developer on that site, who has already stated that they would like to increase the density further and increase the heights further, would put in a planning application. Dublin City Council unanimously and without any objection approved two of the highest density strategic development zone sites in the history of the State, and I commend the cross-party nature of that decision. All of a sudden, we have a conflict because central government is saying the local authority cannot have building heights in a unilateral sense in any particular development.

We know Dublin City Council's position on this. It is that a strategic development zone, because of the nature of the approval of that process, is a legal contract between the elected members, the landowners and the public. This is a real-life case because we had significant litigation on the Ronan Group's attempt to drive coach and four through the docklands strategic development zone on the same issue.

The Minister turns building heights, mandatory ministerial guidelines, into a national policy statement. He then seeks to force Dublin City Council to retrospectively amend its strategic development zone site. Dublin City Council management and elected members maintain the position they currently have, which is that they think the scheme is fine. The developer then puts in a planning application. That planning application substantially exceeds the densities and height requirements specified in the SDZ. Where does this all end up? We know where it all ends up. It ends up in court with significant delay.

I do not disagree with the need for consistency or the need for a Government to be able to set planning policy. It seems that the Government is wholly ignorant of the way in which the poor design of the section 28 mandatory ministerial guidelines results in impractical life on the ground with real developments. The Government is repeating that in the vain hope that this time around it will not make the same mistakes as it made with the section 28 ministerial guidelines.

I do not think the Minister of State understands the import of what he is proposing or the risks and dangers. I do not think he has listened to planning professionals, including the Irish Planning Institute, on this matter.

I appreciate that the Minister of State is being consistent with what he has previously said here, but when changes arise, that is going to happen because issues have arisen or been raised through the democratic process. Having the involvement, therefore, of the Oireachtas joint committee at that stage would be useful and beneficial in order to get its input and views. Not having that scrutiny will just weaken the process. The Minister of State and the Government may be of the view that the Oireachtas joint committee and its scrutiny have nothing to add in this process, but I take a very different view. I appreciate I am a member of the committee, but from what I have seen of the work of the other members of the committee in my time on it, in all the scrutiny in which the committee has been involved it has been beneficial and has only added to legislation or policy in any area. I cannot see, therefore, what is to be lost by having Oireachtas joint committee scrutiny here.

If the issue is very straightforward and uncontroversial, the involvement of the Oireachtas joint committee in scrutiny will be much more limited than it would be if it were a more complex area. A lot of planning issues can be contentious and difficult but at Oireachtas joint committee meetings there is often consensus and cross-party work, which is also a benefit for the process. I urge the Minister of State to look at this. Both the legislative process and the democratic process for this would benefit from scrutiny, but there are also a lot of benefits in practical terms.

An Cathaoirleach

I might ask Deputy Flaherty to take the Chair for a moment because I want to speak to amendment No. 189.

Deputy Joe Flaherty took the Chair.

Deputy Eoin Ó Broin

I have some similar amendments, although they appear to be in another grouping, so I will make a brief comment in support of Deputy O'Callaghan's amendment. As the Minister of State will be aware, we have a procedure whereby any changes to exempted development regulations come to this committee by way of a motion of the Oireachtas. There is sometimes a good discussion at the committee with useful recommendations for change, and when the committee has then dispensed with the matter, a motion goes back to the Oireachtas. That allows, first, for some engagement with elected members. It also allows for some public and media scrutiny, which is always a good thing when we are changing planning laws. If, as the Minister of State says, the intention of the use of policy statements is to achieve greater consistency, that obviously means it is going in some way to remove, diminish or limit the power of elected members of local authorities to take different views on issues on which central government wants there to be a consistent approach.

Deputy Kieran O'Donnell

Material consistency.

Deputy Eoin Ó Broin

Yes, absolutely. I am not criticising that, by the way. I think there is merit in it. That also means, however, that the statements are going to be controversial and, therefore, the additional value of coming to committee with these policy statements in some form, not unlike how we deal with exempted developments, although it may not be exactly the same, would be that some of those political controversies or information that might misinform their controversial nature can be adequately dealt with. It seems to be an eminently sensible way to proceed, not least given that some of these policy statements will originate with what are pre-existing controversial mandatory ministerial guidelines or mandatory ministerial guidelines the Government has not been willing to publish in draft form for public consultation because it knows they will be controversial.

We had a lengthy discussion about this in pre-legislative scrutiny and there were different views. The regulator was adamant, if I recall, that it was not necessary, while other professionals appearing before the committee felt there was some role. I appreciate that the Minister of State is not going to accept the amendment, but I think he will need to think about a more structured role for the Oireachtas, and particularly for the committee, given the committee is a much more constructive place than is necessarily the floor of the Chamber, which can be more adversarial. I think it would make the process more robust and transparent and would ultimately lead to better planning statements, which the Minister of State has accepted are statutory.

Deputy Steven Matthews

Amendments Nos. 189 and 190 are similar. Amendment No. 189 relates to section 23(6), under which the Minister shall, within ten days of publication of a national planning statement, give a copy to various bodies that have an interest in planning. The amendment proposes that the Minister will present a copy of the national planning statement to the appropriate Oireachtas committee within those ten days. In reading it again, I am of the view that ten days is probably too tight a timeframe for that. What needs to be recognised is that the national planning statement would have been published at that point. Therefore, presenting to an Oireachtas committee is not in any way to seek to delay or amend, and that is not the function of this. However, it would be helpful to the members of the committee to be able to go through in detail with the Minister what exactly is to be achieved by the national planning statement. It may be a simple and straightforward planning statement and the committee may feel there is no reason to scrutinise it, or it may be something much more complex and the committee may have a view on it. The committee has the advantage of being able to engage with other experts in the planning field. It is not that there would just be one committee session, or it would be up to the committee to decide to split a meeting and bring in experts in planning or law and also have the Minister present the national planning statement.

That would be beneficial to the whole process. It would be a good opportunity to iron out any possible inconsistencies or misinterpretations and to explore and explain any of those areas where national planning statements or ministerial guidelines have been misapplied in the past. Whereas my amendment suggests a period of ten days, I ask the Minister of State to consider the benefits of presenting an already published national planning statement to the committee. It is good for the democratic process that the Minister would come before the committee and outline the rationale behind and objectives of that statement. Of course, there is nothing to prevent an Oireachtas committee, on the publication of a national planning statement, from holding a meeting and inviting in experts to scrutinise it, and it is within the remit of the committee to do something like that. However, it would be helpful if the Minister would also come before the committee and it would not delay the process.

Deputy Steven Matthews resumed the Chair.

Deputy Kieran O'Donnell

... the Tribunal is concerned that recent changes in the planning system have resulted in an over-centralisation of power in the hands of the Minister for the Environment [now the Minister for housing] which is not subject to sufficient checks and balances.

The Minister of State was correct when he said that on foot of the issuance of a new national planning policy statement, as it is called, there will be a process by which city and county development plans, local area plans, if they still exist, priority area plans and urban area plans will be required to be retrospectively amended if they are believed not to be in accordance with the policy statement. Obviously, there is a role for the Planning Regulator. We will discuss those issues when we get to those sections and the relevant amendments. However, section 65 provides for what is called in the Bill, “Urgent direction requiring chief executive to vary development plan”.

Here is the real-world scenario we are talking about. The Government of the day, at the request of the Minister, makes a profound change to planning policy which has a statutory effect. There is then a requirement for local authorities to assess whether their development plans are in accordance with that, and they set out that procedure in writing to the Department and the regulator. They either then amend their plan or they do not amend their plan. If they do not amend their plan, the Planning Regulator steps in and seeks a ministerial direction. However, if there continues to be a stand-off between the local authority and the Government, what this allows for is an urgent direction from the Minister, with the approval of the Government, to instruct a chief executive to vary the plan. In many ways, that could be very material.

Here is the issue.

The development plan is democratically agreed by the elected members after a long consultation process. I am not arguing that there should not be a mechanism to force a material alteration of the development plan, but it should be imposed by a democratic decision of a higher legislative authority, that is, the Government. If the State is saying that it has changed a policy that has statutory effect and is insisting that the democratically agreed development plan has to change, then that decision should be taken by a higher democratic authority, namely, the Oireachtas. It is a straightforward principle that is very reasonable because it would provide greater democratic legitimacy and it would be stronger in court. While it is the same principle as the previous one, I am of the view that the stakes here are much higher. That is because, essentially, we are talking about a decision by the Government taken behind closed doors at Cabinet, with no meaningful scrutiny because of Cabinet confidentiality, overriding a democratic decision of a democratically elected body. If we are going down the road of overriding democratic decisions of democratically elected bodies, I would rather that decision was made by a larger and more powerful democratic body, namely, the Oireachtas. I can see no reason why this should be a decision of Government; it should be a decision of the Oireachtas.

Deputy Cian O'Callaghan

On amendment No. 526 and that very point, it is a significant power relating to the urgent direction requiring chief executive to vary development plan. There are reasons why this power may be needed. For it to be done by the Minister without Oireachtas involvement, however, would effectively involve the Minister overriding the democratic decision of local government. The European Commission local autonomy index looks at OECD countries. Of the 56 or 58 countries listed, Ireland is third from bottom. Only Malta and Belarus, which is not a democratic country, are worse than Ireland. We are incredibly bad when it comes to local authority autonomy and measures like this impact that further. There could be reasons for it, but I do not think that doing it without the input or approval of the Oireachtas is justifiable. This amendment would require a resolution to be passed by the Oireachtas. It would also require a debate. If the specific timing of the debate is an issue, that can always be changed. Requiring discussion by the Oireachtas of such a significant power or of such a major direction being issued makes absolute sense.

Deputy Kieran O'Donnell

We believe that policy decision should lie with the Government. Deputy Ó Broin referred to the Mahon tribunal. Under section 65, the Minister is required to consult with the Office of the Planning Regulator. The latter has a very precise role; it very much operates independently. It is there to ensure that plans all meet in line with the national planning framework, various national planning statements and all aspects of planning are catered for.

This is not a fanciful scenario I am speaking of because this is what used to happen. It does not happen now, thankfully, and has not done so for quite some time. What would happen, however, if two local authorities were in a stand-off over the location of an out-of-town shopping centre, for example? Heaven forbid such a thing were to happen. What would happen if the Minister of the day were to come under pressure from political colleagues from the local authority that wanted the out-of-town shopping centre, despite the fact it was contrary to good policy? What would happen if in the run-up to an election a Minister were to decide not to issue a direction? This has not happened in the dispute between Cork City Council and Cork County Council, and I very much welcome this. This could happen, though, under the way in which this legislation has been set out.

In the context of legislation, we must ensure that not only are proper procedures in place for when people abide by the rules but also to prevent people breaking the rules. This legislation is creating a situation where what I just described could happen in a different political context in respect of the dispute ongoing between Cork City Council and Cork County Council over the out-of-town shopping centre, which is in direct contravention of the Government's transport, climate and retail policies. I do not think there is an appreciation of the depth of what is being done here, the extent to which it is at variance from the report of the Mahon tribunal and why this matters. Again, the Mahon tribunal did not make the recommendation in this regard for no reason. If I am correct and if at some point in the future the scenario I described were to transpire - I am entirely happy to accept that I may not be correct and events will prove me wrong, and I would be happy enough if that were to happen - the Government will not be able to say it was not warned. It will not be possible for it to say it was told not to take this course of action because it is the wrong one.

This section applies where the Minister is satisfied that (a) an event or situation with significant national or strategic implications has occurred or is likely to occur, (b) it is necessary for the Government to take action as a matter of urgency for the purpose of dealing with the implications or likely implications of the event or situation concerned, and (c) the action to be taken includes the amendment of a development plan.

It only arises in very urgent, specific situations. In response to Deputy Gould, in the general course, the development plan is the reserved function of the councils, which is something I fully respect. This is for a particular situation. We live in a democratic country where people are elected and people then expect governments to be formed and make decisions. We see policy as being set down by Government. In this particular case, we have the Minister who has to get approval from the Cabinet. Before doing that, he has to consult, and the experts in this area are in the Office of the Planning Regulator, OPR. That is why it was set up. They have the expertise in the area. They are familiar with every development plan across the length and breadth of Ireland, whether that is a local area plan or a development plan, and they bring that expertise. It is something that I think is hugely important.

It is a difference on a point of principle. We believe the policy rests with Government. This is a particular set of circumstances. It is not an enforcement measure. It is a direction measure in a particular set of circumstances.

Deputy Cian O'Callaghan

Subsection (3) refers to a class of infrastructure or other development. Is this urgent direction that the Minister can issue in these circumstances both to potentially prevent a certain type of development from taking place and also to ensure a certain type of development does take place? Could the Minister issue a direction to vary a development plan to build a motorway because that has regional or strategic implications? How wide-ranging is this power? What are the limits on it? The limits are not very well defined. Could this be quite a sweeping power that the Minister could exercise without Oireachtas approval, overriding the local democratic process? He or she has to consult the OPR but that is all he has to do. He or she does not have to take on board the OPR's view on this. How far could he or she go in using this? Is it just to prevent things or to ensure some form of development happens?

Deputy Thomas Gould

I will follow up on the question that Deputy O'Callaghan has put to the Minister of State. Ten years ago, or maybe more, a new prison was built in The Glen in Cork, right next to the old prison. Cork City Council at the time brought out an excellent report about why this prison should have not been located there but because it was built under special legislation on prisons, it went completely against the community and the council's recommendation, and the prison was built. If we look at that example of how the planning system, local community and local authority were overridden, the Minister at the time was able to do that just with a prison. Is that going to be expanded so that a Minister could do that for anything? Deputy O'Callaghan made the point about a road and Deputy Ó Broin made the point about a shopping centre. I was in The Glen last weekend and that prison overshadows the whole of Cork city. It is right at the peak and it overshadows the people in The Glen. The only way they could have taken that to a judicial review was if they had €125,000 and that community could not put €125,000 together. Any chance they had of justice was lost because the local authority was not listened to, the people were not listened to and they did not have the deep pockets to fight Government. That was not right.

Deputy Kieran O'Donnell

Under section 65(3), we are looking at this in the positive, not in the negative. It is about things happening, not preventing things. I am not familiar with the circumstances of the situation in Cork so it would not be appropriate for me to comment. The prison is under State security. Deputy Gould made the point. I am not going to comment on something I am not familiar with. This particular measure is to make provision for, or in connection with, a class of infrastructure or other development of national or strategic importance specified in the urgent direction. It is for things to happen, not to stop things.

Deputy Cian O'Callaghan

I thank the Minister of State for the clarification. I will give a scenario. There could be a local authority where the members doing the development plan decide not to facilitate the construction of a significant roadway in their area. It is unlikely that the majority of elected members would do that. They would only do that in an extreme circumstances. I will just use it as an example. This allows the Minister to decide that it is of regional importance and, therefore, despite the wishes of the democratically elected majority in that area, this project will go ahead. Further, giving the Minister that power does not require any democratic oversight from the Oireachtas. He or she can just go ahead and do that, which is a significant overturn of a majority of councillors. As I said, it is unlikely that a majority of councillors in a local authority area would come to a view like that. There would be very specific circumstances if they did. This really gives the Minister huge power. Our amendment requiring Oireachtas approval is completely appropriate, given the level of power that this confers on the Minister. It is fine to consult with the OPR but all it states is "consult with". This does not give the OPR the opportunity to stop it or anything like that. It is just a consultation.

Deputy Eoin Ó Broin

I will give an example because the Minister of State is right that we should always think of real life cases. Let us take the Galway ring road and hypothesise for a second. Let us imagine that between now and the local elections, the majority of people in the city of Galway are convinced of the merits of the idea that the ring road is not compatible with climate action. A majority of councillors elected to the council then seek a material alteration to their development plan and remove the ring road. This allows the Minister, with the approval of the Government, to say he is sorry and in this particular case, the ring road, based on their consultations with the business community and others, is of regional strategic importance. That is exactly what this power is for. I do not suspect that there will be a greenway in Galway but it is not beyond the realms of possibility.

This is about circumstances where central government is not happy with infrastructural provisions in development plans. It can essentially instruct the inclusion of those infrastructural plans into the development plan. Let us take the next step forward to offshore and onshore wind. Those are going to have a push and pull on these areas. To echo Deputy O'Callaghan's point, I am not saying that central government should not necessarily have that power, but where that power is to be exercised, in those exceptional circumstances, maximum transparency, accountability and democratic consent, that is, a vote of the Oireachtas, should be key.

Deputy Kieran O'Donnell

The import of section 65 is that it states:

(a) an event or situation with significant national, regional or strategic implications has occurred or is likely to occur,

The issue is that this is not clearly, closely or tightly defined. It could be open to different interpretation. The absence of Oireachtas approval makes it much wider again. Oireachtas approval would be a form of safeguard on that. If, in the view of many, a Minister was being unreasonable on an issue, the Oireachtas oversight would give a chance for this to be aired. There is no Oireachtas oversight on this.

An Cathaoirleach

I thank Deputy O'Callaghan. The Deputy has made it very clear that Oireachtas oversight would improve this provision. The Minister of State has made very clear his position on it. I believe we have exhausted all discussion on this. We will move on to discuss amendment No. 1042. I am unsure as to why amendment No. 1042 is in this grouping for discussion but we will take it, as the Bills Office generally does not let us down, and will stick to the grouping.

Deputy Eoin Ó Broin

Deputy Cian O'Callaghan

This is an important part of the planning process and public participation. The fees and how they are structured, and changes made to them, can be a barrier to people's ability to participate. Having scrutiny by the Oireachtas based on recommendations from the Oireachtas joint committee is a very good way to go about this and is a very good way to hear from people. There are a couple of issues around fees, one of which came up during the pre-legislative scrutiny and that is the need for a sufficient income stream around the planning process for local authorities and planners. There are also the issues around not having a barrier to public participation.

Amendment put:

The Committee divided: Tá, 3; Níl, 5.

Tá

O'Callaghan, Cian.
Ó Broin, Eoin.
Ó Snodaigh, Aengus.

Níl

Duffy, Francis Noel.
Flaherty, Joe.
Higgins, Emer.
Matthews, Steven.
O'Donnell, Kieran.

Amendment declared lost.

Deputy Eoin Ó Broin

I move amendment No. 45:

In page 39, between lines 5 and 6, to insert the following:

“7. The Minister shall, within eight months of the passing of this Act lay before the Oireachtas and relevant Committee a draft schedule of amendment legislation that the Minister intends to bring forward including in relation to:

(a) the reform of Compulsory Purchase Order powers;

(b) the Land Value Sharing Tax;

(d) legislation relevant to the Act that addresses the States Paris Climate Agreement commitments to reduce embodied carbon in the built environment.”.

Amendment put:

The Committee divided: Tá, 3; Níl, 5.

Tá

O'Callaghan, Cian.
Ó Broin, Eoin.
Ó Snodaigh, Aengus.

Níl

Duffy, Francis Noel.
Flaherty, Joe.
Higgins, Emer.
Matthews, Steven.
O'Donnell, Kieran.

Amendment declared lost.

Chairman

I thank the Minister of State, Deputy O'Donnell, and his official for their attendance this morning.

Sitting suspended at 1.04 p.m. and resumed at 2 p.m.

An Cathaoirleach

I welcome the Minister of State, Deputy Noonan. We will continue the Committee Stage of the Planning and Development Bill 2023. We will resume on amendment No. 46, which is in my name. I will vacate the Chair to move my amendment and ask Deputy O'Callaghan to take the Chair momentarily.

Deputy Cian O'Callaghan took the Chair.

Deputy Steven Matthews

I move amendment No. 46:

In page 39, line 17, after “goods” to insert “or services”.

My amendment seeks to add the words “or services” to section 7(b)(i) which reads “placing or keeping of vans, tents or other objects (whether or not moveable and whether or not collapsible) for the purpose of caravanning, camping, habitation or selling goods". I suggest the addition of the words “or services” to the section.

Minister of State at the Department of Housing, Local Government and Heritage (Deputy Malcolm Noonan)

Amendment No. 46 amends section 7 to clarify that a change in use of land or maritime site includes the addition of a use for the selling of services. The provision, as currently worded, only refers to the selling of goods. It is appropriate that the provision is amended to clarify that using land or a maritime site for the selling of services is also a change of use. On that basis I am happy to accept amendment No. 46.

An Cathaoirleach Gníomhach (Deputy Cian O'Callaghan)

If only every amendment could be as quick and successful.

Amendment agreed to.

Deputy Steven Matthews resumed the Chair.

Question proposed: "That section 7, as amended, stand part of the Bill."

Deputy Eoin Ó Broin

Is the text of this essentially a transposition from the existing Act or is there anything in this which is new or different? It is just to put it on the record if there is.

Deputy Malcolm Noonan

The text is the same.

Question put and agreed to.

SECTION 8

Deputy Cian O'Callaghan

I move amendment No. 47:

In page 40, to delete line 17.

My amendment concerns rent pressure zones and short-term lets. Head 8 is about short-term lettings. When we discussed some issues related to this earlier in our meetings, the Minister of State, Deputy O'Donnell, told us that the measures aimed at regulating short-term lets would help address the problem of overconcentration of holiday homes as a result of unregulated short-term lettings in Gaeltacht communities. However, he is clearly not aware of the deficiencies in this Bill which exclude several rural communities, including some Gaeltacht areas, from any protection against unregulated short-term lets. Income from unregulated short-term lets is one of the drivers of a proliferation of holiday homes in some areas. To be clear, I am not making the case that there should be a blanket ban or a complete ban on short-term lets in any area. I am making the case for some balance and regulation. I think that is conceded by the Government because it is going to regulate short-term lets but, as per the Bill, it is only going to be in rent pressure zones, which is what my amendment seeks to address.

An analysis was done of these local electoral areas that found that 62 had no chance of ever becoming a rent pressure zone. That is for technical reasons around the rent pressure zone legislation. It is not because there are not very high rent increases in these areas. It is the way the rent pressure zone regulations are written and what qualifies and does not qualify to become a rent pressure zone. It is not just about high rent increases. There is more to it than that to qualify as a rent pressure zone. For example, 44 of them do not have enough data collected to ever be considered eligible to be a rent pressure zone or not. Regardless of what happens to rents in those areas, they will never even be considered to be a rent pressure zone because they are smaller areas with a smaller amount of data collection and data points.

In previous meetings I drew attention to comments made by Adhna Ní Bhraonáin in An Spidéal, which is not a rent pressure zone. She is a physiotherapist who works in the local medical centre but she has been unable to find somewhere to live. She lives out of a van and is unable to prepare meals or take a shower. She has talked about how frustrating it is to see hundreds of homes in her local community available as short-term lets but nothing being available for her as someone who has come back to her community with physiotherapist skills, which are very much needed in the community. This is a highly qualified person doing this professional work while living out of a van. It is completely and utterly unacceptable. Remember that this Bill, if my amendment is not accepted, will keep the status quo and there will not be regulation of short-term lets in areas like that which are not rent pressure zones.

There are no rent pressure zones in County Donegal, for example. Kamile Satinskaite has recently talked about this, how she moved to Letterkenny in 2018, and when she first arrived in Donegal, she lived in a four-bedroom house where she and three housemates paid €400 each per month in rent or €1,600 for the house together. Now she is paying €700 a month to live in a converted garage with one bedroom, a joint livingroom-cum-kitchen and a bathroom.

She says she would leave the country were it not for her entire family being based here. She said, "We couldn't get anywhere. There's loads of vacant houses in our area but they're all holiday homes and most of them weren't willing to rent because they have them on Airbnb and they were making more money that way". She also said, "You were driving past vacant houses every single day and houses that might only be used a couple of weeks of the year and knowing you couldn't rent any of them was really frustrating". Threshold spoke about the need for parts of Donegal to become rent pressure zones to address this. Most of the areas that are not rent pressure zones never will be.

Analysis by The Irish Examiner a number of months ago compared rental properties available on Daft.ie with Airbnb rentals. It found that in Donegal, where there are no rent pressure zones - legislation proposes to do nothing about the situation there - the number of rental properties available on Daft.ie was 31 while the number of Airbnb rentals was 1,796, so there is clearly a massive problem in the context of a lack of balance and regulation because these are required urgently. If you look at the number of towns outside rent pressure zones, such as, for example, Bencorr in Galway, you can see that 39% of all homes are holiday homes. In Roundstone, 48% of all homes are holiday homes. In Dooega in Mayo, 43% of all homes are holiday homes. In Ballinskelligs in Kerry, 55% of homes are holiday homes. In Greenore in Donegal, 57% of homes are holiday homes. In Rosguill in Donegal, 58% of homes are holiday homes. In Caherdaniel in Kerry, 58% of homes are holiday homes. In Derrynane, 65% of homes are holiday homes.

All the housing stock in these places consists of holiday homes. Some of that is driven by unregulated short-term lets, which provide an income stream that makes owning a holiday home a more viable proposition for someone from another part of the country because there is an income stream for him or her, whereas previously a person would have had to bear most of the cost of purchasing a holiday home in one of these areas themselves or it would have been more complicated in terms of renting it out. Again, I stress that I am not advocating that we do not have holiday homes or short-term lets. I am simply strongly making the case for the need for regulation and balance. The idea in this Bill that regulation of short-term lets is only to happen in rent pressure zones and areas like the entire county of Donegal and other rural communities are to be excluded when the lack of regulation is causing undue hardship and problems is indefensible so I urge the Minister to accept my amendment so that the regulation of short-term lets happens across the board.

Deputy Eoin Ó Broin

It is a separate matter but it concerns this section so maybe it is best to deal with Deputy O'Callaghan's amendment first and I will come in on the second-----

An Cathaoirleach

We will deal with Deputy O'Callaghan's amendment first, and will then get clarification on the section.

Deputy Malcolm Noonan

I will address amendment No. 47, which was tabled by Deputy O'Callaghan. The Deputy proposes to amend section 8 with regard to short-term lettings by deleting subsection (4)(a), which provides that the section does not apply to lettings, including short-term lettings, outside rent pressure zones. On 7 December 2022, the Government approved the priority drafting of the registration of short-term tourist letting Bill and publication of the general scheme of the Bill, which provides for the registration of short-term tourist lettings with Fáilte Ireland in line with the commitment under Housing for All. My Department is developing planning guidelines for short-term letting sector to supplement the introduction of the registration of short-term tourist letting Bill being progressed by the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media and the associated establishment of the new short-term letting register to be operated by Fáilte Ireland. This guidance will provide clarity and certainty about the planning permission requirements in respect of short-term letting properties.

As I clarified in my response to the amendment, the Government is responding by means of planning guidelines for the short-term letting sector. This response does not exclude properties outside rent pressure zones. What is proposed will apply properties in rural areas that are inside and outside rent pressure zones. There is also the registration of short-term tourism lettings by the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media. The Government is moving to regularise the sector by means of registration with Fáilte Ireland and the planning guidelines.

Again, as the Deputy said, it is recognised that the lettings do contribute to rural economies but I believe he is referring to an over-proliferation of them in areas outside rent pressure zones. Through its initiatives, the Government is acting to ensure they are brought into a regularised process.

Deputy Cian O'Callaghan

Can the Minister of State explain the inconsistency? Why is the Government, through other measures, considering the regulation of short-term letting outside rent pressure zones but not doing so in the Bill? There is an absolute inconsistency. The regulations that this Bill allows for treat areas within and outside rent pressure zones differently in terms of short-term lettings. What is the rationale for that, especially given that the Government, outside this Bill, concedes the point that short-term lettings need to be regulated?

Deputy Malcolm Noonan

The development of the short-term letting register brings properties both outside and inside rent pressure zones into the system.

Deputy Cian O'Callaghan

Yes, but section 8 does not include short-term lettings outside rent pressure zones for regulation. What is the rationale for this? Why is the Government taking a different approach in section 8 than it is elsewhere? Is it an oversight or is it deliberate? If it is deliberate, why?

Deputy Malcolm Noonan

It is not considered necessary for areas outside the rent pressure zones. That is our view on it.

Deputy Cian O'Callaghan

That is the rationale. I have put forward plenty of data on why it is absolutely necessary. I will certainly press this amendment. There has been no case put forward for the differentiation in approach under the Bill regarding the regulation of short-term lettings outside rent pressure zones. It is deeply unfair to communities affected by the lack of regulation that this section of the Bill would not apply to them or offer them any protection. They can legitimately ask why the Bill, in terms of regulations on short-term lettings, covers people in rent pressure zones in cities and urban areas, including many towns, but excludes them.

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.

Question proposed: "That section 8 stand part of the Bill."

Deputy Eoin Ó Broin

Now we are getting into the substance of the Bill there are a variety of sections I have technical questions about. I may choose to table amendments on these sections on Report Stage depending on the answers.

What struck me as interesting about this section on short-term letting is there is no change in this from the legislation as passed by former Minister, Eoghan Murphy, and supported by all the Opposition back in 2019. The background to this is there was a growing concern from 2016 about short-term lettings that coincided with Frank McDonald's landmark challenge to An Bord Pleanála that confirmed turning a residential building into a short-term let was a material change of use and required change of use planning permission. The committee conducted extensive hearings at that time. There was a very good, cross-party, collegiate approach and we produced a very good report, which we gave to the then Minister. He accepted the broad parameters of it that within rent pressure zones there should a specific provision to ensure enforcement of the change of use planning requirements. The legislation was drafted. Though we thought it needed to go further, it was pretty unanimously supported by the Oireachtas at the time.

The problem was once the local authorities started to try to enforce the provision that is repeated in this section, it proved to be unenforceable. One of the problems was that while a change of use was required, proving in a court of law as part of planning enforcement that the building had been occupied for the set number of nights prescribed in the definition of "short-term letting" became very difficult because of course documentary evidence could not be got from inside the property. Consequently, the level of enforcement action by the local authorities was very poor. A number of local authorities, among them Dublin City Council, to be fair to it, and Cork City Council, made quite an effort at the start. They wrote to a lot of short-term letting hosts. Dublin City Council initiated some legal action and I think Cork City Council did also. However, the legislation here and the regulations based on them proved simply unenforceable.

I support this provision. I played a small part, along with the committee, in ensuring it became law. This is apart from the register and the work of the Minister, Deputy Catherine Martin, and her Department because that is a separate matter. I do not understand why the Government would take a provision introduced into legislation in 2019 that has proven just not to work and put it into this Bill. Notwithstanding what may or may not happen with the Minister, Deputy Martin's work, because there is still ongoing engagement with the Commission, why was this not reviewed in light of the real-life challenges the Dublin and Cork city councils had in enforcement through the planning system to see if it could be changed? It makes no sense to take a provision that does not work and insert it in a Bill that is meant to be about fixing, streamlining and improving the planning system.

Deputy Malcolm Noonan

It is not something I am fully aware of, but we still consider it correct to keep it as it is. As the Deputy said, it is still an important provision in the Bill. The short-term tourist letting Bill is on its way as well and that will complement it. We can look it up in terms of the regulations if that is of any use with this. The Deputy makes valuable points about its enforcement. Even if it was good legislation, if it cannot be enforced, that defeats the purpose of its intent. We can look up the wording of the regulations and, as I said, the short-term tourist letting Bill is on its way as well. I do not know whether that offers any assurances to the Deputy on the questions he has raised.

Deputy Eoin Ó Broin

It does not, though we are looking forward to that legislation and my colleague, Deputy Munster, will be leading on it for us. It is disappointing the Commission has overreached its remit, but that is a matter for another committee on another day. My question is a more basic one. We know this does not work. The very specific enforcement provisions set out in subsections (3) and (4) do not work and are unworkable, so why leave them in? For example, one of the issues we had when the legislation was being discussed was whether it would be better to have administrative spot fines similar to those for road traffic offences rather than a court procedure where it is almost impossible to prove. If somebody wanted to challenge that, it would be on the short-term let host to take the matter to court. Likewise, why not include, as we argued at the time, a specific provision that under planning law it would not only be an offence to be short-term let that does not have the required planning permission, but it would also be an offence under planning law for the advertisement of that short-term letting. That would capture platforms. An administrative daily fine, again not unlike a parking fine, would have been the way.

This will not be the first time the Minister of State hears me make this argument and it will come in a couple of other sections. Why leave in legislation that is inoperable in this Bill? I imagine one of the things Government is thinking is that the Minister, Deputy Martin's, legislation will capture this because the enforcement will not be on whether a person has planning permission but on whether he or she is on the Fáilte Ireland register, and people can only get on the register if they prove they have planning permission compliance. However, I still do not understand why we have legislation that absolutely, unequivocally does not work. Why are we leaving it in our legislative code when this is meant to be legislation that cleans up and sorts out the inadequacies and inefficiencies of previous planning Acts? I am not going to press the matter further but I am interested in the Minister of State's response. I may table Report Stage amendments but it seems bizarre we would leave something in when it does not work, cannot work, will not and is not going to be used.

I am not talking about the overall provision. I am talking specifically about subsections (3) and (4).

Deputy Malcolm Noonan

In his opening comments, the Deputy stated that it was good legislation when it was introduced by the then Minister, Eoghan Murphy, and it was supported by the Opposition at the time. I gave a commitment that we would look at the wording in the regulations if that is of any help.

The advertising element is not a matter for the planning Bill. As I said, the short-term tourist letting Bill will be complementary to that. It is important to see how that proceeds.

Deputy Eoin Ó Broin

Just to be clear, we supported the legislation because it was attempting to do what the committee wanted it to do. My point now, however, is that this portion of the section does not work and therefore is not good. The intention behind it is absolutely correct. All I ask is that section 8(3) and (4) are looked at between now and the final passage of the Bill. I am not asking the Minister of State to give any commitments or to ask his officials to produce a report, but it makes no sense to have something in the Bill that does not work.

Deputy Malcolm Noonan

We can do that, yes.

Question put and agreed to.

SECTION 9

An Cathaoirleach

Amendments Nos. 48 to 52, inclusive, 54, 56 to 59, inclusive, and 62 and 63 are related and may be discussed together.

Deputy Paul McAuliffe

I move amendment No. 48:

In page 40, to delete all words from and including “(1) Subject” in line 20, down to and including line 37, and substitute the following:

“(1) The following shall be exempted developments for the purposes of this Act—

(a) development consisting of the use of any land for the purpose of agriculture and development consisting of the use for that purpose of any building occupied together with land so used;

(b) development by the council of a county in its functional area, exclusive of any borough or urban district;

(d) development by the council of an urban district in that district;

(e) development consisting of the carrying out by the corporation of a county or other borough or the council of a county or an urban district of any works required for the construction of a new road or the maintenance or improvement of a road;

(f) development carried out on behalf of, or jointly or in partnership with, a local authority that is a planning authority, pursuant to a contract entered into by the local authority concerned, whether in its capacity as a planning authority or in any other capacity;

(g) development consisting of the carrying out by any local authority or statutory undertaker of any works for the purpose of inspecting, repairing, renewing, altering or removing any sewers, mains, pipes, cables, overhead wires, or other apparatus, including the excavation of any street or other land for that purpose;

(h) development consisting of the carrying out of works for the maintenance, improvement or other alteration of any structure, being works which affect only the interior of the structure or which do not materially affect the external appearance of the structure so as to render the appearance inconsistent with the character of the structure or of neighbouring structures;

(i) development consisting of the thinning, felling and replanting of trees, forests and woodlands, the construction, maintenance and improvement of non-public roads serving forests and woodlands and works ancillary to that development, not including the replacement of broadleaf high forest by conifer species;

(j) development consisting of the use of any structure or other land within the curtilage of a house for any purpose incidental to the enjoyment of the house as such;

(k) development consisting of the use of land for the purposes of a casual trading area (within the meaning of the Casual Trading Act, 1995);

(l) development consisting of the carrying out of any of the works referred to in the Land Reclamation Act, 1949, not being works comprised in the fencing or enclosure of land which has been open to or used by the public within the ten years preceding the date on which the works are commenced.”

The substance of the amendment draws on the feedback received on the proposal to remove exempted development from primary legislation. It appears the Minister intends to deal with exempted development by way of secondary legislation going forward. There is a concern, particularly among the utility providers, that this is one of the elements of the planning system that works very well at local authority level. The utility providers believe it allows them to do significant works, carry out important infrastructural improvements and so on. Will the Minister of State tease out the rationale behind the decision to remove exempted development from primary legislation? I also ask for some clarity on when we might see the secondary legislation. Even if this area is not included in primary legislation, if we could see what the secondary legislation is likely to be, it might allay some of the concerns. It is proposed to remove all of this enabling legislation but people have not been shown what the replacement will be. That is of some concern.

Deputy Malcolm Noonan

The following amendments relate to section 9 of the Bill regarding exempted development. I will be moving amendment No. 50, which is a minor amendment to a reference in section 9. Currently, the Bill refers to making exemptions for development that would, but for the repeal of subsection (1) of section 4 of the Act of 2000, be exempted development within the meaning of that Act. Limiting this provision to subsection (1) was incorrect as development was exempted throughout section 4 of the Act of 2000. This amendment corrects that error.

I will now address amendments Nos. 48, 58 and 59 tabled by Deputy McAuliffe; amendment No. 49 tabled by Deputy Flaherty; amendment No. 51 tabled by Deputies Ó Broin, Gould and Ó Snodaigh; amendments Nos. 52, 56 and 62 tabled by Deputy Matthews; and amendments Nos. 54, 57 and 63 tabled by Deputies O’Callaghan, Ó Broin, Gould and Ó Snodaigh.

Amendment No. 48 seeks to provide a list of matters that are exempted for the purpose of the Act. Amendment No. 51 seeks to provide that the use of Irish in the community shall be a consideration in providing exemptions for Gaeltacht areas. The exemptions will be set out in regulations and therefore I oppose amendment No. 48. As further exemptions are development-specific and rarely location-specific, I do not see the need for amendment No. 51.

Amendment No. 52 seeks to amend general matters which exempted development regulations can provide for under section 9(2), such as providing for development, change in use and subjecting exemptions to conditions by adding specific policy matters into the provision. It seeks to provide that exemptions may provide for the change in use of any building under ten storeys to residential use, escape windows and doors, and for the subdivision of a dwelling. It is not appropriate to include these matters outlining specific types of exemptions which may be provided as it would call into question whether exemptions could be made for any other type of development not listed. Furthermore, the policy behind these proposals has not yet been teased out. Exemptions from the requirement to obtain planning permission in respect of specific forms of development are provided for when they are considered to be consistent with proper planning and sustainable development. Exemptions relate to types of development which would normally be granted planning permission and can be appropriately limited by way of conditions to the exemptions. I am satisfied that the regulation-making powers are sufficient and therefore I cannot accept amendment No. 52.

Amendment No. 54 seeks to amend section 9(3), which provides that the development shall not be exempted where an EIA or AA is required. The proposed amendment seeks to include that development is not exempt where “the activity may have a significant impact on the environment”. This is unnecessary as such developments would require either an EIA or if they were not a type of development subject to EIA, would be captured by the fact that the Minister, under section 9(1), may only make regulations where he or she is of the opinion that, by reason of the size, nature or limited effect on its surroundings of development, the carrying out of such development would not offend against principles of proper planning and sustainable development or maritime spatial planning. These limitations are adequate and clear and therefore I cannot accept amendment No. 54.

Amendments Nos. 56 and 62 seek to add new subsections to section 9, which, if I understand them correctly, provide that exemptions do not apply to unauthorised development and, in making exempted development regulations, any unauthorised development which has had a significant impact on the environment shall not be exempted. These provisions are unnecessary. Any exempted development regulations brought in would be forward-looking. Exemptions are not retrospective. If unauthorised development is carried out and such development becomes a type of exempted development after it is carried out, it does not make past development authorised. The test as to whether a development carried out is authorised is based on the law that is in place at the time the works were carried out. I therefore cannot accept amendment No. 56 or 62 as it would bring the principle of exemptions not having retrospective effect into question.

Amendment No. 57 seeks to add a new paragraph into section 9(5), which currently allows the Minister to exempt EIA- or AA-type development if it is subject to authorisation under another enactment and an EIA or AA is required as part of that authorisation. The amendment seeks to provide that in cases where development is authorised under another enactment and EIA or AA is not required under it but the activity may have a significant impact on the environment, it may be exempted only if public participation has been provided for prior to the authorisation or permitting of the activity. This provision is not appropriate as the authorisation under other enactments would not necessarily be within my control. Examples of developments currently exempt under this provision include works in a drainage scheme and works subject to forestry licences. I cannot say whether it is necessary for public participation to take place in authorisations under other enactments. To include such a provision would mean that these sorts of developments cannot be exempted if public consultation does not take place. I therefore cannot accept amendment No. 57.

Amendments Nos. 58 and 59 seek to amend section 9(6), which provided that the Minister may consult a State authority where proposed exempted development regulations would likely affect the performance of their functions. This amendment seeks to include a reference to "statutory undertakers". The intent of the proposed amendments with regard to ensuring that statutory undertakers are consulted is understood. I ask the Deputy to withdraw this amendment at this time to allow me to consider further and for my officials to consult the Office of the Attorney General.

If appropriate, I will then bring an amendment forward on Report Stage to deal with this matter. On that basis, I must reject amendments Nos. 58 and 59.

Amendment No. 49 seeks to amend section 9(1) by adding a similar reference to consultation with statutory undertakers; however, it would be unnecessary if an amendment is made to section 9(6). Therefore, I cannot accept amendment No. 49.

Amendment No. 63 proposes to add a new subsection to section 9 to provide that, where the Minister is making exempted development regulations that relate to matters of interest to prescribed bodies, he shall consult with them, give them an opportunity to comment on the proposed regulations and have regard to their input. The Bill already provides for consultation with state authorities and amendments Nos. 58 and 59, which I have indicated I wish to consider further, would provide for consultation with statutory undertakers. In that regard, I cannot accept amendment No. 63.

Deputy Paul McAuliffe

I appreciate the Minister of State is addressing the group but will he address specifically the idea that exempted developments will no longer be transparently available in the sense of being in primary legislation? We have not yet seen the exempted developments that might come by way of secondary legislation. I suggest we amend the Act to reinstate the powers in primary legislation. I think the Minister of State will try to persuade me it is more appropriate to do it in secondary legislation and I am open to that argument but there is significant concern that there is no transparency about what will be in those regulations. If the Minister of State gave a commitment to provide details of that secondary legislation, utility providers like Irish Water, which approached me on this matter, could look at it and say it does not interfere with how they carry out their work and they will be able to continue to do that. I ask the Minister of State to either include the amendment in the primary legislation or to give transparency on what the regulations will be as regards secondary legislation on exempted developments.

Deputy Eoin Ó Broin

Deputy Eoin Ó Broin

To be brief, section 9(3) states: "Development shall not be exempted development for the purposes of this Act if an environmental impact assessment or an appropriate assessment of the development is required." That makes complete sense but I want to broaden that to include the following phrase, "or where the activity may have a significant impact on the environment”.

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

Give me a second.

Deputy Eoin Ó Broin

Yes, of course, do not rush. It is amendment No. 54.

Deputy Darragh O'Brien

It is grouping 12. On which amendment is the Deputy speaking?

Deputy Eoin Ó Broin

It is amendment No. 54. We are dealing with exempted developments. One of the categories that should not be deemed exempt is where the development requires an environmental impact assessment, EIA, or an appropriate assessment, AA. I support that. I am looking to broaden it to include an additional category where the activity may have a significant impact on the environment. My argument here is that while EIA and AA are important, and anything that requires either of those should not be considered exempt, there should be a greater latitude for planning authorities to make an assessment to see if something could have a significant impact on the environment. On that basis, they would be able to deem it non-exempt. By way of regulations, the Minister could then set out exactly the criteria against which such decisions could be made. However, it is worth considering in terms of ensuring that exempted developments do not have a significant impact on the environment.

Deputy Cian O'Callaghan

On amendment No. 54, the issue here is that the current wording in terms of EIA or appropriate assessment is fine but it does not cover all environmental issues. The amendment's wording would add "or where the activity may have a significant impact on the environment”. This would ensure compliance with the Aarhus Convention, Articles 6(1) and 6(1)b. With exempted development, the development is exempt from the planning process and exempt then from public participation as it does not go through the planning process. As we know, under the Aarhus Convention, anything that has an environmental impact needs public participation. Environmental matters that have a significant impact on the environment are not covered by EIA or appropriate assessment. If the Minister does not accept our amendment, there will not be public participation for such environmental matters or impacts. Therefore, we would not be compliant with the Aarhus Convention. If the Minister is not accepting our amendment, will he let us know how he thinks not accepting it is compliant with the Aarhus Convention in terms of significant environmental impacts and public participation?

Deputy Darragh O'Brien

I thank the Deputies for the amendment. Throughout the Bill everything has been checked to ensure Aarhus Convention compliance. That is a general point. The idea that it is not is incorrect. In regard to the proposed amendment No. 54, there is a definition here that states a development is not exempt where the activity may have a significant impact on the environment. What is "significant"? On page 41, it states: "Development shall not be exempted development for the purposes of this Act if an environmental impact assessment or an appropriate assessment of the development is required". It is very clear. Therefore, the amendment is unnecessary as such developments would either require an EIA, or, if they were not a type of development subject to an EIA, they would be captured by the fact that the Minister under section 9(1)(a) may only make regulations where "he or she is of the opinion that, by reason of the size, nature or limited effect on its surroundings, of development belonging to that class, the carrying out of such development would not offend against principles of proper planning and sustainable development or maritime spatial planning."

At the risk of repeating myself, I will not be accepting the amendment.

Deputy Eoin Ó Broin

Deputy Darragh O'Brien

As we discussed last week, the advantage with regulations is that we can see how things are working and they can be changed. Even if I were to accept the amendment, which I will not, it would not put the onus on the Minister. It is effectively a statement. Any Minister could decide not to consult, although I do not see that happening.

I will take on board the points raised and see whether further adjustments in language and so on can be made by way of regulation.

An Cathaoirleach

I thank the Minister. May I ask someone to swap into the Chair while I speak to my three amendments?

Deputy Cian O'Callaghan took the Chair.

Deputy Steven Matthews

Amendment No. 52 is to page 41. When we draft a Private Members’ Bill, most of us now realise that it is not likely to proceed right the way to the end and we are always looking for an opportunity to hook something from a Private Member’s Bill onto a Government Bill as it goes through the House. I have a Private Members’ Bill that has passed Second Stage and our committee is in the process of scrutinising it. This amendment seeks to introduce three other types of exempted development and relates to what was originally in section 4. While the section originally listed exempted developments, that is now to be done in regulation. These three exempted development categories are taken directly from the Private Members’ Bill that I drafted. It actually originated as a Fianna Fáil Private Members’ Bill that Sinn Féin sought to reintroduce and it has a great deal of support. It has to do with bringing buildings back into residential use, which is something which the Minister is committed to doing. That is why I sought to introduce these three categories of exempted development. I can see now that they are probably not appropriate to the Bill as set out, given that the exemptions will be set out in regulations, but when those regulations are being considered, I would like the Minister to consider these.

The Minister addressed the subject matter of amendment No. 56, which relates to exempted developments and unauthorised structures or buildings. I will set out the scenario I envisage. Where there is an unauthorised structure or building and someone attempts to carry out work on it while claiming it to be an exempted development – under section 4, someone is allowed to perform maintenance, minor maintenance, upgrades, etc. – it would not be considered exempted because it was an unauthorised structure of building.

There should not be the ability to claim exempted works or developments on a structure that is unauthorised. How can that be addressed in the Bill?

Deputy Darragh O'Brien

Deputy Steven Matthews

That would be helpful.

When I was drafting amendment No. 62, an alarm bell rang in my head regarding what a significant impact on the environment is and how that would be measured. I think the Minister also raised that point in response to Deputy O'Callaghan. We cannot have cases where we are aware of ongoing impacts to the environment but where the development does not meet the threshold for environmental impact assessment or any threshold at all. I do not know what the wording should be. I am going to withdraw the amendment because the wording is not enforceable as it is - I am being honest about that – but I am concerned there could be an unauthorised development that is continually impacting, to some extent, on the environment. It might not be a tourist site or a natural heritage area, but still the development could claim an exemption. I do not know how we can address it where there is ongoing environmental damage, but I do not think the wording in the amendment is enforceable, so I will withdraw it.

Deputy Steven Matthews resumed the Chair.

Amendment, by leave, withdrawn.

Amendment No. 49 not moved.

Deputy Darragh O'Brien

I move amendment No. 50:

In page 40, line 23, to delete “subsection (1) of”.

Amendment agreed to.

Deputy Eoin Ó Broin

I move amendment No. 51:

In page 40, line 29, after “planning,” to insert “and the use of Irish within the community, in the case of a development in a Gaeltacht area,”

Amendment put:

The Committee divided: Tá, 4; Níl, 6.

Tá

Gould, Thomas.
McGrath, Mattie.
O'Callaghan, Cian.
Ó Broin, Eoin.

Níl

Duffy, Francis Noel.
Flaherty, Joe.
Higgins, Emer.
Matthews, Steven.
McAuliffe, Paul.
O'Brien, Darragh.

Amendment declared lost.

Deputy Steven Matthews

I move amendment No. 52:

In page 41, between lines 9 and 10, to insert the following:

“(f) development consisting of the change of use or partial change of use of any existing building where the height of the top storey is no more than 10 metres above ground level from

any use other than residential to residential use and the works ancillary to any change of use, subjects to conditions as specified in the regulations,

(g) development consisting of the carrying out of works for the maintenance, improvement or other alteration and provision of escape windows and doors of any structure for the

purposes of residential use of any older structure, subject to conditions as specified in the regulations,

(h) development consisting of the sub-division of any existing dwelling to provide two or more new dwellings, subject to conditions as specified in the regulations,”.

Amendment, by leave, withdrawn.

Deputy Eoin Ó Broin

I move amendment No. 53:

In page 41, line 12, after “or” to insert “a language impact assessment or”.

Amendment put:

The Committee divided: Tá, 4; Níl, 6.

Tá

Gould, Thomas.
McGrath, Mattie.
O'Callaghan, Cian.
Ó Broin, Eoin.

Níl

Duffy, Francis Noel.
Flaherty, Joe.
Higgins, Emer.
Matthews, Steven.
McAuliffe, Paul.
O'Brien, Darragh.

Amendment declared lost.

Deputy Cian O'Callaghan

I move amendment No. 54:

In page 41, line 13, after “required” to insert the following:

“or where the activity may have a significant impact on the environment”.

Amendment put:

The Committee divided: Tá, 4; Níl, 6.

Tá

Gould, Thomas.
McGrath, Mattie.
O'Callaghan, Cian.
Ó Broin, Eoin.

Níl

Duffy, Francis Noel.
Flaherty, Joe.
Higgins, Emer.
Matthews, Steven.
McAuliffe, Paul.
O'Brien, Darragh.

Amendment declared lost.

An Cathaoirleach

Amendments Nos. 55, 593 to 595, inclusive, 597, 599, 600, 604, 605 and 723 are related and will be discussed together.

Deputy Eoin Ó Broin

I move amendment No. 55:

In page 41, between lines 22 and 23, to insert the following:

“(iii) the surrounding context of the structure.”

Will the Chair give me a moment please? It might be worth reminding committee members what the time arrangements are, given our discussion.

An Cathaoirleach

We will come to that. I will give the Deputy a moment. Before we proceed we should invite the officials back into the committee room first. While committee members are present, our meeting schedule as agreed today was from 2 p.m. to 4 p.m. and from 6 p.m. to 8 p.m. There was a two-hour break in between. I propose we take a one-hour break and meet from 5 p.m. until 7 p.m. if members are in agreement.

Deputy Cian O'Callaghan

There is an issue of notice here. I have made specific arrangements from 4 p.m. to 6 p.m. because we discussed this yesterday and agreed the times yesterday. We had some flexibility around next week and all of the rest but I specifically made arrangements for between 4 p.m. and 6 p.m. today based on what was agreed yesterday. I would not have made them if I had understood there was to be flexibility or anything else.

An Cathaoirleach

Again, it is just about that flexibility of meeting times. If it is not agreed, it is not agreed and we will stick to the original arrangement.

This amendment relates to exempted developments. The relevant section I am looking to amend states:

Development (other than development that is exempted development by virtue of subsection (1) or (2) of section 146) shall not be exempted development for the purposes of this Act if—

(a) in the case of a protected structure or a proposed protected structure, it materially affects or would materially affect the character of—

(i) the structure, or

(ii) any element of the structure that contributes to its special architectural, historical, archaeological, artistic, cultural, scientific, social or technical interest,

I want to include a further subparagraph that would state, "(iii) the surrounding context of the structure.". The best way of explaining this is with respect to Moore Street and the fact it is not just the building or attachment to the building but also the surrounding structure and streetscape, particularly where it is of enormous historic importance. I hope the Minister will be able to accept the amendment as presented or the spirit of it and come back on Report Stage with improved wording.

Deputy Darragh O'Brien

I understand the point Deputy Ó Broin is making. He mentioned Moore Street as an example. I know it well. Deputy Ó Broin is seeking to add text similar to that in section 9. While the setting would generally be taken into account it should not be a restriction. For example, a development could be in the grounds of a protected structure and we have seen many of these in many of our cities. The merits of balancing the appropriateness of the scale and format of development while maintaining the protected nature of the structure is something that will have to be taken into account on a case-by-case basis. In urban areas in particular, there is a need to recognise that the surrounding context may evolve and change to meet present and future sustainable development needs.

To look at Moore Street, for argument's sake, it has evolved since the Rising when the buildings were used in the break-out from the GPO. They have had lots of other uses as part of a living city. To take Moore Street as an example again, would adding the surrounding context of the structure bring it all the way up to Parnell Square and the Garden of Remembrance? What is the context? Where does the context stop? There are all of these various issues. I understand the point the Deputy Ó Broin is making but having said that we are not in a position to accept the amendment.

Deputy Eoin Ó Broin

It is important to remember that it is not carte blanche. It is only where the character of the surrounding context and structure would be materially affected. It is quite limited. In the case of Moore Street we know what we are talking about because generally speaking it is the alleyways. The alleyways are of particular historical significance as they are how the volunteers made their way from the GPO. It is a very important part of the debate that the Moore Street preservation group has been making in its submissions to Dublin City Council. It is something on which the Minister's party colleague Senator Fitzpatrick has been enormously supportive, along with my colleague Deputy Ó Snodaigh and others.

I urge the Minister to rethink this. There is a real value in the historical context and the immediate context of a structure that is not captured in section 4(a)(i) or (ii). There is a need for a third element. As I have said, if there is a better form of wording I am more than happy to defer to the officials. It is not captured in the wording that is there. Moore Street is just one of number of examples. The Hill of Tara is another where very clearly there is a requirement for some consideration of wider context other than the physical infrastructure itself. I urge the Minister to reconsider.

Deputy Darragh O'Brien

I understand the point well, and I understand Moore Street as an example. I assume we are not using Moore Street as a mechanism to change the Bill. It and the battlefield site are very important. I know the area well and I know the history of it very well also, as I am sure all Deputies here do. With regard to the definition, while we could say it is the alleyways in this example for many it could be more than this. For many, it would include the exit from the GPO all the way down to the bottom of Henry Street and down to the alleyways and Moore Lane, O'Rahilly Parade and all of these various places.

If we look at the section in the Bill, which Deputy Ó Broin obviously has because he has tabled the amendment, subparagraph (ii) refers to "any element of the structure that contributes to its special architectural, historical, archaeological, artistic, cultural, scientific, social or technical interest" We have a national monument at Moore Street and there is further work to be done. Cities and areas evolve. They cannot just be sterilised. In an historical context we are protecting the national monuments and there will be further work. The north O'Connell Street and Moore Street area requires development for the regeneration of that part of the city.

I understand what Deputy Ó Broin is saying but it would be very difficult. Who would define the context? It is not a criticism of the amendment; it is just from knowing it and from working on two of the Moore Street reports it is about balancing the historical nature of the buildings in that part of our city with the future development of the city. Every city develops. We do not sterilise historical places necessarily either.

Deputy Eoin Ó Broin

Nobody is proposing sterilising anything. In fact, a proper historical monument taking into account the context of the building would be an enormous boon to the area in terms of amenities and facilities for local communities, as well as tourism for those of us who live elsewhere in the State or the city. A state-of-the-art historic monument on the Moore Street site, by way of example, would be a driver of economic regeneration. The private sector has had decades to regenerate that part of the city, as the Minister knows, and has failed singularly to do so.

Often when the Minister rejects an amendment, he suggests that the amendment should delineate the conditions upon which decisions would then be made by competent authorities. This is what regulations are for and what professional planning authorities are for. In fact in almost all of the categories here additional regulation would be required. There would also be a requirement on behalf of the planning authorities to make their reasoned assessments in accordance with the law and regulations. All the amendment would do is add a requirement regarding the surrounding context of the structure. By his own admission, the Minister is not allowed think beyond the structure. This section of the Bill only contemplates the physical building itself. This process would then determine exactly where those boundaries are. In the case of Moore Street, I do not think anybody is arguing that it includes the entrance to the GPO. There is a sense when speaking to people of what that immediate context of the building is. Regulations and good decision-making by planning authorities and planning officials would dealing with the detail of this. I will press the amendment.

Deputy Cian O'Callaghan

My reading of the amendment is that it is not arguing against development or suggesting that an area should be sterile or anything of the sort. It is just that development in these more sensitive areas would have to go through the planning process as is standard and would not be exempted development. There is a legitimate case for this. When dealing with the archaeological heritage Bill we discussed the importance of landscapes and context in terms of structures that have a heritage value. There is a strong case to be made. The thing about exempted development is that we want to be able to have confidence in it. We want to know it is not being used in areas that are a bit more sensitive, and that those areas which are a bit more sensitive go through the planning process so that everything can be considered with regard to how the development impacts or not. This is not a case for stopping development or leaving an area sterile. It is the case that certain areas require the full rigors of the planning process for all types of development and they should not be exempted.

Deputy Paul McAuliffe

It is always difficult speaking about a general provision in legislation and then starting to discuss a specific site. We are not discussing a specific proposal for Moore Street, though I accept that is a possible application of it. The term "surrounding context of the structure" is very broad. My concern is it probably does not give a defined enough application of what Deputy Ó Broin proposes.

An Cathaoirleach

Does the Minister wish to respond?

Deputy Darragh O'Brien

I have said what needs to be said from our perspective. I understand the objective. It may be unhelpful to use a specific site as an example. In Moore Street, there have been many changes since the Rising, many of which people would not have welcomed. What can be retained now that was relevant in 1916, or prior to that with the original buildings, which are of architectural merit as well? There are many mechanisms for a State in relation to historic sites of significance like the designation of national monuments. I have explained, and Deputy McAuliffe has said it as well, the question of how would we define the context and how far the context goes. Is that in this instance a battlefield plan? Can that be contested in itself? Did anything happen on other laneways? There are all these different things. It could lead to a constraint on securing protected structures and on what they could be used for now. I do not want to labour the point but I will not be accepting the amendment.

Yes.

Deputy Cian O'Callaghan took the Chair.

Deputy Steven Matthews

My amendment No. 594 refers to section 83, the heading of which is "Matters to which planning authority and Commission shall have regard". It lists out a number of items which it should have regard to in its decision-making but, at subsection (1)(a)(x), it says, "the Climate Action and Low Carbon Development Act 2015 and the duties and obligations imposed by that Act,". The Minister will be aware section 15 of that Act is required to be consistent with it. My concern is that when one states that a planning authority or the Commission shall only have regard to something that we know that all sectors and agencies shall be consistent with, it weakens the language of the climate Act. We should amend this or, if the Minister wishes, return to this in a manner in which it states quite clearly the planning authority and Commission, etc., shall be consistent with the objectives of the climate Act.

Deputy Darragh O'Brien

While the Bill, as initiated, makes reference to the climate action plan and other environmental considerations, I see the merit of examining the intent of this amendment, particularly to ensure the language in the Bill reflects fully the Department's commitment to the Government's climate objectives. Obviously, we must maintain the capacity of the planning system to effectively and appropriately evaluate a wide range of legitimate considerations which need to be balanced.

Deputy Darragh O'Brien

Amendment No. 593 is not moved because Deputy McAuliffe was not here. Does that fall? Apologies, it is just being discussed.

An Cathaoirleach

It can be discussed. When we get to amendment No. 593, the Deputy may wish to move it. I will mark it off as discussed. Amendments Nos. 595 and 597 have been discussed.

Deputy Eoin Ó Broin

Amendments Nos. 599 and 600 are next.

An Cathaoirleach

We still have to deal with amendments Nos. 599 and 600, in the names of Deputy Ó Broin and his colleagues. The Minister may read his note on them and then we can revert to the Deputies. He may also refer to amendments Nos. 604, 605 and 723, if he wishes.

Deputy Darragh O'Brien

I will start with amendments Nos. 599 and 600, tabled by Deputies Ó Broin, Gould and Ó Snodaigh, if that is acceptable. The amendments propose that in addition to having regard to the protected status of a protected structure or the fact that it is proposed to add a structure to the record of protected structures for proposed development that relates to a protected structure or a proposed protected structure, the authorities should also have regard to these issues for proposed development that relates to a protected structure or proposed development or its integrity in the surrounding context.

Amendment No. 55 seeks to add similar text to section 9. The purpose of these provisions, as set out in the Bill, is to maintain the protected status of the building. While its setting would be generally taken into account, it should be not a restriction. For example, a development could be within the grounds of a protected structure. We discussed some of these issues just before the break. The merits of balancing the appropriateness of the scale and format of development while maintaining the protected nature of the structure would have to be taken on a case-by-case basis. Particularly in urban areas, there is the need to recognise that the surrounding context may evolve, as we discussed before the break, and change to meet present and future sustainable development needs. For these reasons, I cannot accept amendments Nos. 55, 599 and 600.

Deputy Aengus Ó Snodaigh

The amendments relate to what the planning authority or commission, as the case may be, shall have regard to when performing its functions. The two amendments are very simple. Amendment No. 599 seeks to insert, after "protected structure", the words "or its integrity within the surrounding context". This is important when considering protected structures because they do not sit by themselves. We have all seen the photograph of skyscrapers with a tiny church at the bottom. It is very quirky. It is in either London or New York. The tiny church is totally dominated by two buildings, one on each side, so its context is totally lost, although it might be quaint in itself. It is still very valuable historically, obviously. The same can be said of structures here. Thankfully, not all of them have been destroyed.

I remember campaigning many moons ago to save Frescati House, Blackrock. Next to it was a supermarket or shopping mall that bore absolutely no relation to it. The house was retained in the end but, because nobody took any heed of it, it collapsed and is now gone. Frescati House was the holiday home of the FitzGeralds, including Lord Edward FitzGerald and maybe even the later Earl of Kildare. It was the summer home to which they moved from Leinster House. It does not exist anymore. There is a nice, big, enlarged shopping mall there. The context for what was there, which was a protected structure, was lost once the mall was built and once no one took heed of the structure. Nobody here would dare – or maybe someone would – to suggest that we should build a new town or village in the Boyne Valley, for example, because we respect the context of the surrounding area and its integrity.

There are proposals on protected structures that I have argued about with the Minister many times in the Dáil. I argued that Moore Street should be protected. It is not the only area where the context is lost once you start surrounding a building with new buildings. Unless the relevant building has something over and above the other architectural, archaeological or historical features, you have lost it. One of the things you do at any of the major sites in Ireland is step back and marvel, seeing it in context. I am not saying we should limit development but we have to allow the protected structures to be seen. Usually, the rule when contemplating building works is that you do not interfere with the protected building itself. Thus far, it has been a case of not letting the foundations undermine the foundations of the protected structure and ensuring no direct interference. The concept is to try to capture the context-----

An Cathaoirleach

I have to interrupt the Deputy because a vote was called in the Dáil four minutes ago. We have four minutes to get to the Chamber.

Deputy Cian O'Callaghan

It is the voting block.

An Cathaoirleach

Deputy Darragh O'Brien

I understand what Deputy Ó Broin has said but we have gone through and discussed some 380 amendments by my estimation. I have just been informed that of all of those amendments, there are, I believe, eight notes that I or the Ministers of State have said they will provide. That has happened in eight cases out of 380 amendments. The charge made that questions have not been answered is incorrect and needs to be corrected. It has arisen in respect of eight of the 380 amendments. If members want more detail, which they are entitled to as elected members of the select committee, I want to be able to provide it but we need to remember this has arisen in respect of only eight of the 380 amendments.

Deputy Eoin Ó Broin

Deputy Cian O'Callaghan

On the Deputy's first question, we will look to clarify the language. It is an important intervention. We have had a case where a planning authority refused permission on zoned land that has been provided for housing on the basis of population targets of a previous NPF - the 2016 targets. The NPF is being revised, and the population has grown. While I do not want that to be a barrier, we want the planning authority to be able to have that effective headroom for land that has already been identified and zoned. I have given a couple of instances where this would be the case. It is to support the plan-led approach. We have all come across cases where a certain number of permissions were granted to deliver X thousand dwellings and the conversion rate of that can be much lower than the permissions granted. If another application comes in for zoned serviced land, it could potentially be refused because of permissions granted even though they are not activated. It could be deemed that that population target has been met already. I do not want to see that happen. It would stunt growth.

Planning and Development Bill 2023: Committee Stage (Resumed)

Select Committee on Housing, Local Government and Heritage díospóireacht -
Wednesday, 21 Feb 2024