I welcome the Minister for Housing, Local Government and Heritage, Deputy Darragh O'Brien, and his officials. We will resume where we finished off yesterday with amendment No. 55. This group comprises amendments Nos. 55, 593 to 595, inclusive, 597, 599, 600, 604, 605 and 723. We had discussed up to amendment No. 605 in detail. Members had contributed on amendment No. 605.
Planning and Development Bill 2023: Committee Stage (Resumed)
Debate resumed on amendment No. 55:
In page 41, between lines 22 and 23, to insert the following:
“(iii) the surrounding context of the structure.”
-(Deputy Eoin Ó Broin)
I had one final question on that.
The Deputy has one final question on amendment No. 605. I would then to speak to the amendment. I propose that Deputy O'Callaghan take the Chair when I do so. We will then revert to the Minister. Deputy O'Callaghan may go ahead.
In the context of amendment No. 605, I am interested in balanced regional development and making sure we get the right housing types in the right locations. Could this impact national objectives in that area? To give an example, I refer to a situation where the housing growth targets are aligned with areas where we want to see development taking place and where we want to see housing being provided. They may, for example, be significantly exceeded in commuter belt counties, but are not exceeded in Dublin or the core areas where we want to see more compact growth. Could the amendment the Minister is proposing have an impact such that there would be an imbalance in the context of development, too much housing in farther away places from which commuting times are longer and, as a consequence, not enough in areas where there is more compact growth and shorter commuting times that are more sustainable?
I genuinely do not see that. I discussed this at length yesterday. Obviously, the national planning framework guidelines are delivering and are being revised and reviewed right now. They will be updated and will look at where we want to target our growth. The housing supply targets in each development plan reflect demand. This is all plan-led, particularly in the context of county development plans in the first instance. I already mentioned the issue of headroom yesterday with regard to extant permissions and activated permissions.
At national level, the development framework is guided by the national planning framework. Since 2016, even though it is being reviewed now, we have seen additional development in the region. That is what we want to do. This simply deals with how the sole reason for a refusal would not be on the basis of the housing targets within an area. It is all zoned. It is all service land. It is identified in the county development plan and, in my view, it allows for a better length of time to future-proof a development plan so that an application is not refused on the sole basis that the potential of housing output may have been reached because of granted permissions. That is the important thing. As already stated, we discussed it at length yesterday. I do not see this leading to a lurch in greenfield development or anything like it. It will be guided by the national planning framework and will be targeting our cities and the regions. The guidelines are being reviewed right now.
The Minister continually used the term "sole reason", but the amendment does not say that. The wording the Minister is proposing is not that clear or confined. The amendment does not reflect what he said. Should is not be tightened up?
We can look at that. I did say yesterday that we had input and feedback in relation to this specific insertion of a new subsection into section 83. We will look to refine the wording between now and Report Stage. We have received feedback from members of the committee as well. We are going to work on that between now and Report Stage.
I ask Deputy O'Callaghan to take the Chair.
Deputy Cian O'Callaghan took the Chair.
I just want to speak briefly on amendment No. 605. I welcome the fact we will return to this amendment because it is quite significant for planning. It is slightly open ended in the way it is written at the minute. I would have concerns about that. When strategies were introduced into development plans, to me, it was a progressive step with regard to forward planning because we introduced evidence-based planning on zoning. We carried out infrastructure assessments on settlements. We identified settlements by their characteristics and potential to grow. It brought us away from that very grubby period in our history when zoning was done in corrupt manners, as we know from the Flood and Mahon tribunals. It brought us away from that to evidence.
We all know that planning is not an exact science. It is our best attempt to say this is how we should develop and grow. The introduction of strategies helped with that. It helped to be able to point out at development plan meetings that proposed zonings would not align with core strategy. It was one of those major improvements to the planning system. My concern about this is that we would exceed those population targets. I do not believe a population target should be a cliff edge. I believe that where we have set out population targets, they may have been set at a certain time and there may have been advances in infrastructure, services and so on that could allow a little headroom, expansion room or wiggle room in that target.
My concern is we always focus on pipes in the ground and roads to say that a development has services. We often miss the other services that make the number of houses into actual homes and communities, such as school places. My constituency has seen considerable housing growth, which is welcome, because want to see it. There have been significant improvements. The rate of delivery of housing is on an upward scale the whole time, which is welcome, but there is a lag in the provision of transport services, community services, health, education and so on. We cannot have a situation where the planning authority is making a decision that it can exceed the population target because we feel there is room in services to allow that growth. Essentially, the planners in the local authorities are then replicating the work the Planning Regulator would have done before that, because the zonings would go through the Planning Regulator.
We need to make sure we have something here that is consistently applicable because we want to bring certainty to planning decisions. That was one of the key measures when we were introducing this Bill. I am glad the Minister is going to revisit this because it is significant. It could be positive but it could also be very negative unless we are very careful in how we introduce scope to exceed population targets.
I certainly take the point on board. The evidence base the Deputy rightly speaks of is at development plan level too. I am going to work on the wording and want to confirm that to members again. All this would allow is flexibility at the local planning application assessment level. The development plan will have been done, it will be consistent with the national planning framework, NPF, and the OPR is still involved. We are talking about existing zoned land that is already agreed and identified for development. This is not on top of that. There could be efficiency, as I mentioned yesterday, within zoned land. Look at the new sustainable growth guidelines for compact growth we have issued, which will be better designed. This committee worked well on them. They can allow better use and higher quality developments. That could lead to those changes. It would also prevent people from sitting on extant permissions. We discussed this at length yesterday. We know many permissions have not been activated for various reasons. In a county plan, on zoned land, another application comes in. I want to guard against it being the sole reason for the refusal of a good application on already identified land.
People will know from their own areas and Dáil constituencies, including Deputy Matthews's county, Wicklow, where we have seen great progress on housing delivery, that there are permissions that will not be activated, but we will have this false ceiling. It is guided by the revised NPF, which will be here, and the county development plans are sacrosanct. This allows flexibility. I will work on the wording. I have taken on board what members have said. I can assure them of that. It can be discussed in advance of Report Stage too. We are dealing with a significant period where we have had pent-up, real demand from people. For ten years up to 2020, we had a significant undersupply of housing. This is not talking about zoning. This is identified land that is already zoned and agreed in the development plan. It would allow that flexibility. I am going to look at the wording and will work with members on that in advance of Report Stage.
I am glad to hear that. It is also important to consider that we had considerable overzoning in the past. Some of that still exists in many areas. I note from the Planning Regulator's response to Wicklow during the issues stage of the county development plan that it pointed out areas and settlements where there was zoning for a 100% increase. In that situation, we would have to ensure we are not going to have a 100% increase in population-----
Of course.
-----because that would be completely unsustainable. Although the land is zoned, there has to be some guard against that.
The Deputy mentioned the Planning Regulator, which is obviously central to our system in checking that the development plans are consistent with the national plans. We have had recommendations from the regulator where voted changes to the development plan have not been accepted. Those recommendations have been followed through in the main by the Minister of State responsible for planning, Deputy O'Donnell, who operates that. I operated that beforehand. That is a really good check and balance. It should be remembered that when we are talking about the regulator, it does not look at local extant permissions with regard to conversion rates. That is at planning authority level. The regulator does not have regard to that. The Deputy mentioned overzoning in some areas. I will not mention a couple of counties but we know a few counties where those lands have been returned and dezoned, and rightly so. From the regulator's perspective and local planner's perspective on the development plan, there were additional lands that might have come into a plan that were not accepted or were in the previous development plan and were taken out. That is absolutely the right thing to do.
Sure. I know where there is overzoning in a draft plan that the regulator will also recommend to the Minister to issue a direction, which often happens. We also have situations with strategic land banking, as it is called in my county. It is land that was zoned. Nobody wanted to dezone it, so this interim strategic land banking was applied. That needs to be considered as part of this amendment.
I assure the Deputy that I will work on the wording. I have taken on board the points members have raised on that.
I appreciate that.
Deputy Steven Matthews resumed the Chair.
I will follow up on some of the points raised there. Yesterday, the Minister was telling us that if the infrastructure is not in place, planning permission can be refused if this passes. Deputy Matthews was making the point that infrastructure is not just water and wastewater infrastructure. It is also about what is needed to support communities to thrive, including things like school places, amenities, community facilities, public transport connections, active travel and all those different wider parts of infrastructure. With this amendment, the Minister says there can be refusals due to lack of infrastructure. Does that include that wider infrastructure and community infrastructure?
Of course. I certainly get the point. Deputy O'Callaghan has done development plans too. I assume every person in here has sat through and voted on a development plan. When looking at development plans, you will see where school sites are identified and where there are objectives for school sites and community facilities. That is all part of the plan-making process. What we want to do as part of this Bill, which we will get to later on, is to have more clarity about that and to be more specific. That is one of the reasons we are looking to have a longer term for a development plan, but of course a planning authority will make a decision on an application and has a range of reasons a planning application might be refused.
That is their function as planners to make that decision. We have discussed what this element does. It is not a carte blanche to say, "Forget about everything else and you must grant this permission." This is what this discussion has gone into. That is not it at all. This would be something that might happen as the population grows. Right now we are reviewing the NPF and will set down our new targets. It does not impinge or put in on a decision that a planner can make in proper planning terms, which they do. To grant a permission or refuse a permission on the basis of deficient facilities or facilities are not there is a matter for the planning authority.
My second question is that given that overzoning took place, particularly in some of the counties that surround Dublin, is there a risk with this amendment that with that amount of zoned land - and Deputy Matthews outlined how a lot of it is still zones where there was overzoning - it runs the risk of housing being built out in the further to reach areas first where costs are lower and not getting the kind of housing delivery that is needed in Dublin, for example, as a result? While I use that example of Dublin, it could apply to other cities or urban centres.
First, I do not necessarily subscribe to, let us say the greater Dublin area, GDA, that we have a big overhang of overzoned land. To be fair to the Office of the Planning Regulator, OPR, it derisks overzoning. I have seen recommendations that have come up because I have to deal with them as Minister. Very specific and detailed is work done by the OPR. Once a draft development plan is passed, it is sent up to it. There have been recommendations for land to be dezoned and that has been followed through. I expect that still to happen. We are not in a situation where we have vast amounts of overzoning but in some counties as Deputy Matthews outlined, there can be a strategic bank of land. I do not agree with Deputy O'Callaghan that this would in any way drive a move towards more out of town, greenfield-type site development. The development plan in each county is what drives that. The planners themselves are the ones who make that decision when an application comes in on that basis. We will look to refine the wording in consultation with members on this but what we are looking at here is to allow, in real terms, that flexibility and that headroom that everyone has spoken about. In real terms, that it is not seen as an arbitrary ceiling that is there for all the reasons I have mentioned, which are all on the record.
Currently, most of the new housing supply, for example, to serve the GDA that is available to purchase is happening outside of Dublin.
I do not agree. We do not know what evidence backs that up. If the Deputy is saying outside of Dublin, is he referring to outside of the city? It is not the situation in Fingal and is certainly not the situation in south Dublin. I do not agree. We could have a debate on that or we could talk about the amendment.
I do not think that Deputy O'Callaghan's point is part of the discussion.
Fair enough but it is relevant to this, which is why I raised it.
Okay, the point is made then.
I have a point for the Minister to consider as he is deliberating on this between now and Report Stage. I am not necessarily looking for a response. I understand what he is trying to do. There are risks of overdevelopment from the approach he is taking. There are potentially better ways of addressing the problem, which is that gap between the granted permission and the activation of those permissions. Two suggestions are around use it or lose it planning permission, something the Minister has spoken about before, and also about no automatic assumption that from one development plan to another, land that has not been activated, for example over two development plan cycles, would automatically get rezoned. For example, in Adamstown or other areas of south Dublin land has been zoned over a number of development plans. In Clonburris, one would not want to dezone any of it and there are very legitimate reasons it was only activated recently. However, there are other circumstances where land is deliberately not being activated where there are sites close to it which either are not currently zoned because we have a sufficient quantity of zoned land, which I accept, or where planning permissions might fall foul of the rule the Minister is trying to avoid where the owners of those lands are more likely to activate more quickly. There are some risks in this and we will come back to those when we see the Minister's wording. There are other ways of addressing the same issue of unactivated land, whether it is zoned or with permission, that would not contain those potential risks of overdevelopment. While the Minister is right that there is a lot of development in Fingal and on my side of the M50, when we look at the Chartered Institute of Building's survey of commencements inside the canals of Dublin, outside of the M50 or in the county and in the commuter belt, there is a higher level of development in my constituency and the Minister's and in counties Kildare and Meath and far too little in the urban core ,which we all want to see in terms of compact growth. I am not inviting a response from the Minister, although he can respond if he wants, but this is worthy of consideration in his deliberations with the officials.
Certainly, it is appreciated. The residential zoned land tax, RZLT, is another activation measure and it is important that where land is zoned that it is used, and for the purposes that it is zoned for. I agree with the point and will conclude on this. There should be no assumption from one development plan to another that just because land is zoned in one, it should remain zoned in the next plan. When we are looking at the development plan cycle and length within this Bill that will help that matter.
Amendment No. 723 is in the name of Deputy McAuliffe. Does the Minister wish to address amendment No. 723 and then I can proceed to the vote on amendment No. 55?
Amendment No. 723 is a consequential amendment to amendment No. 595
It relates to section 135, consultations for extensions.
Where an application has been lodged with and validated by either a planning authority or the commission, the deciding authority must have regard to the policy or plans that were in effect on the date that the application was made. I intend bringing forward an amendment to this effect on Report Stage. Amendment No. 723 from Deputy McAuliffe is consequential to that amendment.
That is grand. It fulfils the requirement to have discussed it. I will put the question on amendment No. 55.
As Deputy McAuliffe is not here, he cannot ask questions about his amendment.
I have responded.
We will not be discussing it any further. It is just to fulfil the requirement.
We will not be able to discuss it when it comes to the point of voting.
The Deputy can ask the Minister about amendment No. 723.
I do not expect the Minister to be able to respond.
The Minister responds on all amendments.
Sure, yes.
The amendment can be discussed. It will be moved and voted on when we get to it.
It can be moved and voted on.
It can be discussed now by any member.
On amendment No. 723, I will raise the issue that there is a finding of the Aarhus Convention compliance committee against Ireland in extension of durations under section 42, given failure to provide for public participation. In terms of all of Chapter 5 and indeed Part 4, I have concerns around Aarhus Convention compliance.
Could I suggest that when we get to this-----
There we go. We are on Deputy McAuliffe's amendment.
Deputy McAuliffe's timing could not be worse. I ask the Deputy to please take his seat and discuss his amendment.
I apologise, Chairman.
Amendment No. 723 is in Deputy McAuliffe's name and we are currently discussing it. It is consequential on another amendment.
It is consequential to amendment No. 595. I have said we intend to bring forward an amendment to this effect on Report Stage so we can kick it back and forth. Deputy McAuliffe's amendment is consequential to that.
I have literally just finished my remarks with the FAI and I hope to bring less ire to the discussion here. Given that I do not have my notes in front of me, my recollection of it is that the amendment refers to statutory undertakers, utilities-----
No.
The amendment states: "after “applies” to insert “(and, with respect to an application to extend the duration of a permission under section 135, that applied)”.
The Minister's response was that it will be raised on Report Stage.
The substantive point is that section 83 states that when making its decision in relation to an application under this section, the planning authority or the commission shall be restricted to considering the proper planning and sustainable development of the area and it "shall have regard" to that.
I apologise for coming in unprepared. I am happy that it is going to be addressed on Report Stage. I ask the Minister to consider the amendment.
My concern is around lack of public participation and compliance with the Aarhus Convention.
That is a general point.
That can be discussed with regard to section 135 rather than amendment No. 723. It does not relate to Deputy McAuliffe's amendment.
We are looking for a comment on the amendment.
On that basis, I am happy to withdraw my amendment.
We will first deal with amendment No. 55, which has already been discussed.
Amendment put:
The Committee divided: Tá, 3; Níl, 6.
Tá
- O'Callaghan, Cian.
- Ó Broin, Eoin.
- Ó Snodaigh, Aengus.
Níl
- Duffy, Francis Noel.
- Higgins, Emer.
- Lahart, John.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Brien, Darragh.
Amendment declared lost.
I move amendment No. 56:
In page 41, between lines 28 and 29, to insert the following:
“(5) None of the exempted development provisions of this Act, any amending Acts or Regulations made thereunder, shall apply to sites, structures, objects, uses; that come within the meaning of ‘unauthorised development’ set out in this Act.”.
Amendment, by leave, withdrawn.
I move amendment No. 57:
In page 41, after line 40, to insert the following:
“(c) where an environmental impact assessment or appropriate assessment has not been required under any such enactment, but the activity may have a significant impact on the environment, public participation has been provided for prior to the authorisation or permitting of the activity.”.
Amendment put:
The Committee divided: Tá, 3; Níl, 6.
Tá
- O'Callaghan, Cian.
- Ó Broin, Eoin.
- Ó Snodaigh, Aengus.
Níl
- Duffy, Francis Noel.
- Higgins, Emer.
- Lahart, John.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Brien, Darragh.
Amendment declared lost.
Amendments Nos 58 and 59 not moved.
Amendments Nos 60, 137, 138, 140, 141, 147, 157, 158, 163, 165, 167, 175, 184, 185, 192 to 194, inclusive, 208, 209, 641, 642, 1115 to 1117, inclusive, 1134, 1138 and 1139 are related and will be discussed together.
I move amendment No. 60:
In page 42, between lines 4 and 5, to insert the following:
“(7) Where the Minister proposes to make regulations under this section that relate to developments in a Gaeltacht area, he or she shall, before making the regulations,consult with the Minister for the Gaeltacht, the board of Údarás na Gaeltachta, and Oifig an Choimisinéara Teanga in relation to the proposed regulations.”.
This is a group of more than 20 Sinn Féin amendments that aim to put the Gaeltacht communities at the heart of the planning process. Last week, it was reported in Tuairisc that the Department of the Gaeltacht met Bánú, we had that conversation, and it is happy with some of the proposals at least. That does not mean I am happy because I have not seen the proposals the Minister of State made. I indicated at the time that while the proposals were welcome, they did not address the intent of some of our amendments that we had discussed already.
Amendments Nos. 60, 163 and 185 aim to address the regulations and plans affecting developments in Gaeltacht areas and that they should be made after consulting relevant bodies. Some of this we discussed last week when we were suggesting that it should be stated that the Gaeltacht Minister, the board of Údarás na Gaeltachta and the language commissioner’s office. Last week the Minister of State said he would look at Údarás being included where consultation is engaged in and that Gaeltacht Ministers were a given in these circumstances because a Minister for housing is working as a collective. The final one is the language commissioner’s office. It might be worth finding out whether the position of language commissioner is appropriate at this stage or whether the language commissioner would have a role at a later stage. Then I would be happy to look at this amendment again.
Amendment No. 1134 also requires that any review conducted should be sent to Údarás na Gaeltachta as the primary body responsible. There is a whole load of other amendments here. Amendments Nos 138, 140 and 158 set out to ensure protection and promotion of the use of Irish in the Gaeltacht and beyond and that this be a central remit of the national planning framework and that it be an objective when identifying national strategic development objectives and requirements. Conradh na Gaelige, which submitted amendments along these lines, made the point that the Minister’s guidelines pursuant to section 28 of the existing Act are strong in relation to the Gaeltacht but they are not being enforced in development plans at present. There is a significant difference in policy between various local authorities in the context of housing and the Gaeltacht. That goes back to a point I made previously that the CEOs of the councils that have Gaeltacht areas in their bailiwicks have appealed for some clarity in this. Again, we have discussed the guidelines that have been long promised. I discussed this with the Minister of State yesterday and, again, he promised they would be out one way or another by the end of April. People will appreciate that, but it does not negate the fact that we need this insurance included in the legislation before us. That is the intention behind these three amendments.
Amendment No 174 would ensure that the national planning framework has with regard to the language plans in place in Gaeltacht language planning areas, Gaeltacht service towns and the líonra Gaelige as agreed under the Gaeltacht Act 2012.
Amendment No. 147 provides specific recognition for Gaeltacht settlement patterns. This is already discussed in respect of Amendment No. 30 in Deputy O’Callaghan's name. It is strange it was not grouped at that stage. We have had a long debate on this. We can go back over some of it. The key feature is that Gaeltacht settlements are the way. We had a discussion as to whether that can be recognised and how the houses are clustered and the different patters of growth. I will not rehearse that whole debate again today because otherwise the Chair will be giving out to me again.
I would never do that. Amendment No. 141 is also in this group, if the Deputy wants to mention that.
I am working my way through my note. I have amendments Nos. 1115 to 1117, inclusive, and Nos. 1138 and 1139. This would include board members of Údarás na Gaeltachta. It is particularly important as we are promised the imminent return of direct elections at some stage this year. We are told it will be the same time as the elections but we do not have the legislation yet to give effect to that by June. The amendments are to ensure that board members are included because they are directly elected. Their purpose is also to recognise the significant new role that the Údarás has as not only a development agency but also in terms of addressing housing. It is the key development agency in the Gaeltacht.
I suggest that the Deputy speak to Amendment Nos. 175 and 192 also.
I will try and capture them all. Amendment No. 175 would ensure that the national planning framework has regard to language plans.
Amendment No. 192 would ensure that the reference to the distinct amenities, character and vitality of rural areas is expanded to cover rural and Gaeltacht areas.
Amendment No. 193 is again from Conradh na Gaelige and refers to:
... protection of the linguistic and cultural heritage of Irish language and Gaeltacht communities including the promotion of Irish as the community language, specifically by supporting the implementation of language plans in Bailte Seirbhíse Gaeltachta outside of the Gaeltacht and in Líonraí Gaeilge.
Amendment No. 208 seeks to include a specific matter, namely, to have regard to the prevention, reduction, amelioration and mitigation of risks of socio-linguistic damage in Gaeltacht areas. It is about avoiding or impairing the decline of Irish-speaking areas in the Gaeltacht through planning and ensuring that there is a set plan. There are areas within the Gaeltacht that have eroded over a period because they did not have protections and where Irish is no longer the main language spoken. One of key elements is that we do not give up the ghost on those areas but have specific planning policy towards them on top of the language plans and other plans that are set out.
Amendment No. 209 goes further in this respect in seeking to include in the national planning statement an objective to restore Irish as a spoken language nationwide and a community language of the Gaeltacht.
Sin é. I can ask-----
The Cathaoirleach can come back to me again.
Amendments Nos. 641 and 642 are between Deputies Ó Snodaigh and O'Callaghan.
I will come back to them if needs be.
Amendments Nos. 641 and 642 relate to applications for permission for standard development. I am not clear why they are in this group. We might just deal with the ones relating to the national planning framework first and then move on to applications for permission for standard development, which is a separate topic.
Amendment No. 137 seeks that the national planning framework contains in its written statement policies and proposals supporting the implementation of language plans. I hope the Minister can support that.
Amendment No. 157 seeks to ensure that the national planning framework makes provision for the protection of the linguistic and cultural heritage of Irish language and Gaeltacht communities by supporting the implementation of language plans. There is nothing controversial there and nothing that is not, or has not been, Government policy. It would make the Bill consistent with the Gaeltacht Act 2012.
Amendment No. 167 is about the procedure for review of the national planning framework. That procedure allows for consultation with any department or body in Northern Ireland that has responsibility for regional development. The amendment seeks to include language planning in that. It makes eminent sense that there would be such consultation, not just with departments and bodies in the North that have responsibility for regional development but also with regard to language planning, given the work done on language planning on an all-Ireland basis. That makes sense.
I ask for the Minister's response to those amendments on the national planning framework. I will then move on to the ones relating to the national planning statement and standard development.
Is amendment No. 165 related to the same section insertions? Amendment No. 165 seeks to insert text between lines 3 and 4, and amendment No. 167 seeks to insert text between lines 4 and 5. It is exactly the same.
Is amendment No. 165 in this group?
Yes.
Again, amendment No. 165 is about the Department and State bodies with responsibility for the language planning process, and protection and promotion of the Irish Gaeltacht, being consulted. It references Roinn na Gaeltachta, Údarás na Gaeltachta and Foras na Gaeilge.
Bhíomar ag plé an tseachtain seo caite, ar feadh tréimhse fada an t-ábhar tábhachtach seo.
We debated this matter at length last week. I will reiterate a couple of commitments on this for the committee. I discussed these with Gaeltacht communities on Monday of this week, when I met them in Galway. I have given a commitment that priority area plans will be extended to Gaeltacht areas and islands. I know we are not discussing islands under this group, but some of our islands are obviously Gaeltachts as well and would come in under the development plan. That is a very important change because each ceantar Gaeltacht is different. We went through that at length last week so I will not rehash it. I gave specific examples. It also requires that there be community input. From talking to Bánú, for example, on Monday and to others, it is obvious that there are complexities within each Gaeltacht area. Deputy Ó Snodaigh mentioned some where the language has been under pressure and in decline, while it is stabilising in others. The reality is there are people living in the Gaeltacht who do not have Irish but whose families may, and whose children are being taught through Irish. In everything we do, we want to be able to support our language as a living language in the Gaeltacht and make sure we can reverse the trend in some areas by trying to assist.
Planning will not do all of that. One of the biggest issues in the Gaeltacht is water and wastewater treatment, and how we can ensure we roll out affordable housing. Again, I mentioned last week that we are looking at one scheme in particular in that regard. The priority area plans will be very important. I will include them in an amendment I will bring forward on Report Stage. There will also be an amendment relating to specific plans for our islands. If the definition of a settlement is taken, none of our islands would conform to that right now. That poses real difficulties. Even on the largest inhabited island, Inishmore, the village of Kilronan would not be currently judged as a settlement. That is why we need to have very specific plans for the islands that are in the legislation.
Cuirfidh mé síos na leasaithe faoin dá rud sin ar chéim na tuarascála. Táim cinnte go n-oibreoidh sé ar son daoine sa Ghaeltacht. Mar a dúirt mé cheana, do bhuail mé le bean óg agus daoine eile a bhí lán-sásta le mo thuairimí. Dúirt mé leo go mbeidh mé ag labhairt leis an gConradh agus le Banu nuair atá na leasaithe déanta agus mar dhréacht, roimh chéim na tuarascála. Beidh mé ag caint leatsa chomh maith a Theachta O’Snodaigh, toisc go mba mhaith liom go ligfidh na leasaithe sin do dhaoine sa Ghaeltacht dul chun cinn a dhéanamh ar chúrsaí pleanála freisin. I dtaca leis na treoirlínte, ach go háirithe na treoirlínte is tábhachtaí, the Gaeltacht planning guidelines, I intend to publish them in draft format for public consultation, so cuirimid os comhair an phobail mar thaispeántas iad timpeall nó roimh na Cásca, tá súil agam. Tá díomá orm nach bhfuil sé déanta go fóill, ach táim cinnte go mbeidh mé ábalta iad a chur os comhair an phobail timpeall na Cásca. Tiocfaidh mé go dtí an Choiste Gaeilge nuair atá an obair sin críochnaithe.
With all of that, and I very much take on board the sentiment that is included in the two amendments, we want to bring something forward that will actually work. What will work, and what I am very clear on, is specific special area plans for each Gaeltacht. It would mean, for argument's sake and using Contae na Gaillimhe as an example, that as part of its development plan process that each of the Gaeltacht areas within that county would have to have a plan for those areas. It is so we are not just trying to fit the unique nature of the Gaeltacht into an overall county development plan. For the first time, the Gaeltacht will be given a very specific focus that will mean the people themselves will have their input into that and it will form part of the development plan. That will go for all our Gaeltacht areas. We will then do the same for our islands.
I mentioned the week before last that I met representatives from Comhdháil Oileáin na hÉireann. They are very pleased with the proposals I suggested to them, which I will bring forward. It will be a big step forward in ensuring that people on our islands can live on our islands should they choose to do so, and should they conform to normal planning practice. Sin é an méid.
I thank the Minister for his response. He referred to the Gaeltacht communities, the priority area plans and having special plans for each Gaeltacht. That would be consistent with the amendments I am proposing and would complement the national planning framework, which would then be supportive of those priority area plans. That would fit in quite well.
Specifically on my amendment No. 167, in the context of the provision in the Bill for a procedure for the review of the national planning framework, there is provision there for consultation with any Department or body in Northern Ireland that has responsibility for regional development. My amendment seeks to include language planning there as well. Will the Minister accept that amendment? If not will the Minister explain why? The amendment proposes a couple of words around "language planning". Will the Minister explain why he would not include those? I believe they should be included.
I should have mentioned the other piece. I gave a commitment to members last week on the consultation. To be clear, we will be looking at Údarás na Gaeltachta and Oifig an Choimisinéara Teanga as well when we come back on that consultation.
On the language planning amendment, one would have to clearly define the concept of language planning. "Language planning" is the phrase used in the amendment. My concern is that the proposed amendment would introduce ambiguity into this important provision of the Bill. It is vitally important that a balanced approach to the planning system is maintained. The definition of a language plan and those types of matters should be dealt with in the special area plans for each Gaeltacht. Deputy Ó Snodaigh referred to circumstances in which Baile Chláir or Moycullen, for example, would have much more acute and different issues from Rosmuck or Ballyvourney. This is why we need to get into the weeds on this to see what works for one area versus another. Rather than including a definition around language planning, I believe it would be much better to put it forward as part of the amendments. To be very clear, while respecting what is in the amendments and the reasons they are put forward, I genuinely believe that what I bring forward will do what members want but in a much better way. It will be driven from the primary legislation, the Act, but in real terms. People in the Gaeltacht want to see real change and something that is going to work as opposed to just concepts.
I went through this in detail last week and have done so again now. I am very confident that, working together, we can make a significant and positive change here that will ensure the cónaitheoirí sa Ghaeltacht are fully involved in the development of their own development plans within their areas.
Deputies Ó Snodaigh and O'Callaghan are next. I would appreciate it if we could go straight to the amendments, rather than going over old arguments. That would be helpful.
The definition of "language plans" is to be found in the Irish language legislation. There is, therefore, a specific definition, so when we talk about "language plans", we are using a legal term rather than just a concept. This is worth looking at again. These are things to have regard to in the language plans. Some of the language plans might not be advanced enough to have any major effect on a national planning statement or a development plan. In other cases, they are very specific and have been worked out with experts in conjunction with the local authority, Údarás na Gaeltachta and Foras na Gaeilge, depending on their location.
Fáiltím roimh an gcinneadh atá glactha ag an Aire agus leis an gcomhrá atá ag tarlú anois idir an Roinn agus Banú, agus le meitheal tithíochta na Gaeltachta. Tréaslaím leo an obair a rinne siad chun an cheist seo a ardú agus tá súil agam go leanfaidh siad orthu go dtí go bhfuil tionchar – anuas ar an tionchar atá acu cheana féin - na leasaithe seo le feiceáil sa reachtaíocht. These amendments have managed to force the issue in some ways because it is now a live issue. A few years ago, there may not have been such a concern. This legislation is an opportunity to ensure this protection is provided.
As Deputy O' Callaghan said, we should consider these amendments around the national planning framework. I have to jump in and out as regards the other amendments because at this stage I do not know which ones we are focusing on. Are we focusing on all of them or on the group?
We are dealing only with the group.
The group is amendments Nos. 137 to 167, inclusive. I will not withdraw these amendments because we have not seen the change. While I accept the proposal for a priority area, that is at a lower level than the national plan in some ways.
It is the development plan-----
It should be at all levels. That is the problem.
If the Deputy wanted to be specific, he would be writing in specific changes in the primary legislation to deal with issues that are perhaps unique to one Gaeltacht area versus another.
No more so than this road and that road, or whatever else. The national planning framework does not have to be so specific as to which road or development will happen. This would be a guideline to influence planners, the local authority and the development plans at that level. If they take it into account that there is a need to address language planning, the statement would be set out there. We can include some issues in legislation related to the Gaeltacht because it is recognised by the existence of Údarás na Gaeltachta. That does not mean that in other development plans or in the national statement there will be any mention of future plans to expand, for example, in the case of naíonra and so on, because they do not have the same underlying protections as granted by Údarás na Gaeltachta. It is not just to do with Gaeltacht areas; it is to do with the Irish language as well. I will leave it at that but I will press the amendments.
I will comment on this group and then will move on to amendment No. 193. I have to respond to what the Minister said. As Deputy Ó Snodaigh correctly pointed out, the Minister said he cannot accept amendment No. 167 because language plans are not defined. As Deputy Ó Snodaigh pointed out-----
It was defined in the 2012 Act but not in the amendment. The Deputy made reference to the 2012 Act.
The Chair does not want me repeating myself but I have said at least ten times when talking about language planning that language plans come on a statutory basis from the Gaeltacht Act 2012. The language planning process includes Limistéir Pleanála Teanga, Bailte Seirbhíse Gaeltachta and Comhar Naíonraí na Gaeltachta Teo. The Chair does not want me repeating myself but I have made that point consistently throughout the discussions on these amendments. If the Minister felt that the wording needed to be tightened up, I would be more than happy to work with him on it.
The Minister is also saying that the priority area plans will deal with this and that we cannot get into the specifics of unique communities in the context of the national planning framework and the Irish language. I am not seeking in this amendment to get into the specifics of unique communities and the national planning framework. I want to ensure the national planning framework contains in its written statement policies and proposals supporting the implementation of language plans. That is what these amendments are seeking to do. They seek the protection of the linguistic and cultural heritage of Irish language and Gaeltacht communities. It is high-level national policy to go into the national planning framework and is completely appropriate. There are other high-level national plans and that does not stop issues being worked out, community by community, in other areas on the ground level where there are the development plans and priority area plans, on a unique basis, whether it is Gaeltacht or otherwise.
What we are trying to do is completely consistent with the approach in other areas.
I will make this final point. The Minister says he is going to do these things and I take that in good faith. However, the issue is that an election is coming up in about a year. There could be a different Minister in a year's time. In terms of this legislation and the national planning framework, what will guide that if there is a change of Minister, be it within the existing Government parties or if Opposition parties move into that office? In that scenario, we have no guarantees in this legislation that the national planning framework covers these things. All we have is a verbal commitment made in good faith by the existing Minister, who may have moved on to another brief or whatever by that time. We are discussing the legislation, not the Minister's good intentions. I accept the Minister is explaining how, through this legislation, there is a route to do the priority area plans. That is well and good but if it was in the national planning framework as well, that would be much more robust going into the future. That is what I am seeking to do with these amendments.
I will move on to my amendment No. 193. This relates to considerations for issuance of a national planning statement. This amendment would mean that in deciding to issue, and in formulating or amending a national planning statement, the Minister would have regard to the desirability of setting out policy and providing guidance regarding the protection of the linguistic and cultural heritage of the Irish language in Gaeltacht communities by supporting the implementation of language plans.
There is a range of issues in terms of consideration for issuance of national planning statements written into the Bill but this is missing and there is a very strong case to include it in the list. Given that the Minister is not opposing in substance the rationale behind this, it would make sense to accept this amendment.
I have two brief, high-level points. This is not the same discussion as we had on the previous days, particularly because the national planning framework has a completely different statutory status in the hierarchy of plans. Therefore, it would be impossible for somebody to have a view of these types of amendments with respect to development plans and to take a different view with respect to the national planning framework. They are not the same. The Minister is right in that they are dealing with the same issue but it is not the same discussion. Therefore, simply repeating the commitments he made the last time does not address the point fully, although I respect that he raised it.
The second point is that the national planning framework, as it currently stands, does have high-level SPPRs that relate to very specific geographical areas. If you take the rural housing section of it, for example, it does not cover the entire State. It covers very specific areas including both countryside areas not under pressure from urban areas and countryside areas under pressure. The whole point of a national planning framework is to set out at a high level, the strategic objectives and the special planning policy requirements, which are then applied, as appropriate, to the different areas.
For me, the strongest way to support, promote, protect and encourage the use of the Irish language in Gaeltachts and to have alignment between planning policy and the language plans is by putting it in the national planning framework, in the most appropriate manner possible. Statutorily, that plan sits above everything else. Everything else has to be consistent with that. Contrary to the Minister's view - he is entitled to have a different view to those of us on this side of the House - placing some level of commitment around planning and language promotion consistent with the language plans is absolutely appropriate in the national planning framework. That said, we can have a discussion about what is the most appropriate language to do so.
I understand the points that have been made. On page 85 of the NPF the whole section on the Gaeltacht and the Irish language deals with language plans and Gaeltacht areas, language planning areas, Gaeltacht service towns and Irish language networks. It is there and it is legislated for under the Gaeltacht Act 2012, which Deputy O'Callaghan did note last week, so I was not saying that he did not, just that it was within the definition of the amendment. It is there in the NPF. I do not believe that the amendments as set down will improve the situation in any way. I agree with Deputy Ó Snodaigh that they have not necessarily forced us, but they have allowed us to have a debate around what I believe would be the better way of doing this. I will not repeat the points I have already made. Ní féidir liom na leasuithe atá a ghlacadh ag an staid seo.
Does the Minister have a response on my amendment No. 193? I acknowledge that the Minister has responded on the general area but I would appreciate it if he responded on the specific amendment.
As I mentioned previously, the planning system in Ireland recognises the importance of the continued daily use of the Irish language, especially in Gaeltacht areas. We have gone through that with an interdepartmental group working on it. The Gaeltacht planning guidelines will be very important to make sure this is implemented also. As I said to Deputy Ó Snodaigh earlier on, we will have the draft to those plans published by Easter or before. There is significant planning policy support already in place and work is ongoing to further enhance this, specifically in relation to the Gaeltacht. We have mentioned that and debated it. Accordingly, I am of the view, that the Bill as currently drafted, strikes a suitable balance between recognising the need to promote and maintain the use of our language, with other equally legitimate planning considerations. For those reasons, I am unable to accept amendments Nos. 193, 194, 208 and 209.
Amendments Nos. 192 to 194, inclusive,208 and 209 relate to the national planning statements. I still believe that in this primary legislation - because that is what it is going to be - there needs to be clear statements at every level on what the role of planning is. It needs to be as much as it would for all of the other issues listed in that planning statement. I am still of the view that the amendments, as presented, should be inserted in the relevant parts of the Bill, unless there is something with the language which cuts across but that has not been said. It seems that the viewpoint is that these are superfluous and that the intent of these amendments would be captured in the priority areas or that they are already mentioned elsewhere in some other legislation. However, this will be the primary planning legislation. The role should be in the primary planning legislation, especially given that in some ways the Minister is starting from scratch and is presenting it as a bible, as I said before. It is presented as what planners will look at, what they will take and what they will tick-box, based on what they have to take into account. The Irish language and the Gaeltacht area, in particular, should form a very distinct and clear point of principle, in some ways, at the various levels. At this level, it is the statement itself.
My other two amendments, Nos. 641 and 642, address the planning application process. Thankfully, Conradh na Gaeilge has been good enough to provide us with a draft formula of words with which we have tried to ensure that the planning application process is fully accessible.
Acht na dTeangacha Oifigiúla, 2003 sets out that all State bodies should correspond in this way. That has not been the case. There are difficulties. Again, due to their frustration with the system, Gaeilgeoirí and Irish-language organisations are trying to repeat what might be said in other legislation so they do not end up having to go to court to get a reminder for those involved in the planning process that they must allow for the same access for Irish communications as they do for English communications. This is the intent of these amendments.
I call Deputy O'Callaghan, who is involved in these amendments as well and can add to this context.
I would like to come in briefly on amendments Nos. 641 and 642. Amendment No. 641 is to ensure an application for permission for a standard development can be made in either Irish or English. This is all it says and all it seeks to do. Amendment No. 642 seeks to ensure that when an application for permission for a standard development is made as Gaeilge, any return correspondence to an applicant would be in Irish as well. Section 92(2) of the Bill reads, "An application for permission for standard development shall be in such form, and be accompanied by such documentation, as may be prescribed." It would be possible to prescribe a provision in this context. Indeed, such provisions are contained in other legislation. If this was not an issue, though, I would not be bringing forward this amendment. It should be standard practice and set out in the legislation to ensure there is accessibility for and participation from the entire community, including the Irish language community. I refer to ensuring people in that community can fully access and participate in the planning system in the same way as anyone else, as is their right. This is the thinking and rationale behind these two amendments. I hope the Minister will accept them.
I thank Deputies O'Callaghan and Ó Snodaigh. What they have referred to concerning these amendments is provided for in the Official Languages Act 2003. In practice, though, I have a degree of sympathy with the suggestions the Deputies have made. I have discussed this aspect with groups. I refer to the different levels of service given in all State bodies to people who wish to conduct their business through Irish. It is not something specific to planning or anything like it. Our local authorities are improving in this regard. Each of our local authorities has an oifig na Gaeilge. My own one in Fingal enables people to interact and work in Gaeilge. There is no Gaeltacht area in Fingal but a lot of Irish is spoken in the area. We work very hard with the local authorities to ensure this happens.
Specifically concerning planning, if people submit an application in Irish, they should get an answer in Irish. This is provided for under the Official Languages Act 2003. I know, however, of instances where this does not happen. To be very frank, I have some sympathy for these proposals. I am just not in a position to accept them right now. The primary Act in this context is the Official Languages Act 2003 and this is where this type of provision should sit.
As I said, I have some sympathy for these amendments. It would mean in any legislative context, however, such as anything to do with education, agriculture and right the way through, putting in a provision for any business concerning any legislation under any Department. This is where the Official Languages Act 2003 is supposed to guide us. That is the primary Act that is supposed to guide us in how people should be able to operate in the Irish language and vindicate their rights as Irish speakers. It is a matter for that Act and not one for this Bill.
I say this even though, on the ground, I do have sympathy for this proposal. It is something we can return to, perhaps with guidelines. I genuinely do not believe, however, it is appropriate to put it into primary legislation. We would then be putting it into every Bill for anything we were to bring forward. Taking the Affordable Housing Act 2021, for argument's sake, would we have to put in a provision to allow people to make an application in Irish in that context? They should be able to, but we do not have such a provision in that legislation. We do not have it in any of the Bills we have enacted on the housing side of things. This aspect is catered for under the Official Languages Act 2003. That is where it should be. This is about vindicating the rights that are already there, and this is the piece of work we have to do.
Part of the reason for this proposal is the frustration of those who have tried to use Irish with the system. This came up in the Irish language committee when we were discussing planning in Gaeltacht areas. One of the questions we raised with the chief executive officers of the different councils that came before us was how many people in their planning sections had Irish. If I am in the city here, as an English speaker, I can seek a preplanning meeting. I can discuss things with officials in English and have all the applications in the same language. I am big enough and bold enough to understand, though, that it will be a long time before Dublin City Council will have people at the level required to have a full conversation of this type as Gaeilge.
Eight county councils, however, cover Gaeltacht areas, but I think only one council would have been able to have that level of engagement with an applicant in Irish. Part of the problem here is that the skill set is not in the councils. They have not sought to recruit in this regard. When they are recruiting, they are not looking to see if those they are recruiting have Irish at a functional level. I know there are problems in recruitment for local authorities. We are not denying this. People dealing with planning in the Gaeltacht areas, though, do have major problems, as indicated by all we said so far, and they need a leg up. This proposal is an attempt to ensure they will get this in the area of planning, at the very least.
It is not just an issue in the context of communications. That is the least of the problems. It is also the aspect of back-and-forth discussions sometimes and engagement with planners in Irish that is a problem. I refer to having to switch to English to find out what is the problem with a planning application or even with a proposal before it is possible to get to the stage of submitting a planning application. By the looks of it, the same will be true in the future unless we have the required protections in place. The Minister is quite correct in saying there are protections in the Official Languages Act 2003 and perhaps that is the correct place to have them. We do not want to end up in a situation, though, where most of the time of applicants for planning permission is spent dealing with An Coimisinéir Teanga or in the courts. The problem is that if a service is not provided, this is where these people will end up because the protections are not in place. These proposals are intended to encourage councils in these key areas, in particular, where there is engagement with the public to have people in place who have an Irish language skill set and a skill set concerning, in this case, planning, as well as an understanding of how to communicate this information in the language of the public.
Does the Minister have a response?
I think we have covered most of this. It is not only a context where it would be desirable that people would be able to communicate in Irish but one where the Official Languages Act 2003 is supposed to vindicate their rights. In a practical context, however, the Deputy has already referred to the expertise and detailed knowledge required, especially in detailed planning applications. This is about working towards being able to achieve this outcome. I ask the Deputy to believe I genuinely have some sympathy for this provision but this Bill is not the place for it. We would then have to do the same thing with every item of legislation as it happens. Incidentally, for the Deputy's next planning queries, the deputy planning officer in Dublin City Council is a native Irish speaker. There is, therefore, expertise in local authorities. It is good to see this, but is there enough of this expertise? I refer to an application being made in Irish for a house in an area. The rights already existing in this regard are in law. This is now about vindicating them on the ground. As I said, I think we have covered this well and I am not in a position to accept either of these two amendments.
I thank the Minister.
Amendment put:
The Committee divided: Tá, 4; Níl, 6.
Tá
- McGrath, Mattie.
- O'Callaghan, Cian.
- Ó Broin, Eoin.
- Ó Snodaigh, Aengus.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Brien, Darragh.
Amendment declared lost.
I move amendment No. 61:
In page 42, between lines 7 and 8, to insert the following:
“(8) Development in accordance with a notice under subsection (1) of section 59, or subsection (2) of section 60, of the Act of 2000 commenced on or after the repeal of that section by section 6 shall be exempted development for the purposes of this Act.”.
Amendment agreed to.
I move amendment No. 62:
In page 42, between lines 7 and 8, to insert the following:
“(8) Where the Minister proposes to make regulations under this section, any unauthorised development which had a significant impact on the environment as a result of the development or has a significant impact on the environment as a result of the ongoing operation of the development, shall not be exempted development for the purposes of this Act.”.
Amendment, by leave, withdrawn.
I move amendment No. 63:
In page 42, between lines 7 and 8, to insert the following:
“(8) Where the Minister proposes to make regulations under this section and considers that the proposed regulations are connected with or likely to relate to matters of interest to Prescribed Bodies, the Minister shall provide them with an effective opportunity to participate and comment on the proposed regulations, and take due account of the consultation input.”.
SECTION 10
Amendment put:
The Committee divided: Tá, 4; Níl, 6.
Tá
- McGrath, Mattie.
- O'Callaghan, Cian.
- Ó Broin, Eoin.
- Ó Snodaigh, Aengus.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Brien, Darragh.
Amendment declared lost.
Question put: "That section 9, as amended, stand part of the Bill".
Question put:
The Committee divided: Tá, 6; Níl, 4.
Tá
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Brien, Darragh.
Níl
- McGrath, Mattie.
- O'Callaghan, Cian.
- Ó Broin, Eoin.
- Ó Snodaigh, Aengus.
Question declared carried.
We will start with amendment No. 64 which is in my name, therefore I will need someone to take the Chair for this one please. We will deal with amendments Nos.64 to 83, inclusive, Nos. 88, 89, 91 to 96, inclusive, and Nos. 99 to 103, inclusive. These amendments are all related and will be taken together.
Deputy Francis Noel Duffy took the Chair.
I move amendment No. 64:
In page 42, to delete all words from and including “(1) In” in line 9, down to and including line 40, and in page 43, to delete lines 1 to 13.
We are dealing with amendment No.64 in section 10. Amendments Nos. 65 and 66 are physical alternatives to amendments Nos. 64; amendments Nos. 74 and 75 are physical alternatives to No. 73; amendment No. 83 is a physical alternative to 82; amendment No.100 is a physical alternative to No. 89; Nos.102 and 103 are physical alternatives to 101; and amendments Nos. 64 to 83, inclusive, Nos. 88, 89, 91 to 96, inclusive, and Nos. 99 to 103, inclusive, will be discussed together.
This amendment and a number of amendments that are grouped together in this deal with what are known in the current Act as section 5 declarations. They provide a service for people to seek a declaration from the planning authorities as to whether something is or is not development, and if it is development whether it is exempted or not. We had quite a lengthy discussion on this in the prelegislative scrutiny sessions and in various other sessions with other representative groups. I note during the PSL sessions that it was suggested that what it has turned out to be was never the intended purpose of section 5. However, whether it was intended or not, some very positive public participation has entered into the planning system by use of a section 5 declaration which has resulted in very positive outcomes. I know we always talk about unintended consequences. Sometimes those can be beneficial and can be good. What the current Bill seeks to do is to remove the service for somebody or the option for any person to seek a section 5 declaration and now seeks to restrict that to a landowner or an occupier of the land. It is a significant change and removes a large cohort of people from the original section 5 options that were available to them. My amendment to this section seeks to reintroduce that option for any person so that we do have that fully participative planning system rather than restrict access to it. I will be interested to hear the Minister's comments on this.
Deputy Steven Matthews resumed the Chair.
This has been an issue of quite significant discussion, both at PLS and subsequently. It is an issue on which I am still completely unclear as to why the changes that are in the Bill have been made. Probably one of the strongest contributions we heard on this, both during the prelegislative scrutiny and more recently, was from the Irish Planning Institute. It officially reiterated its concerns on this matter again yesterday. As the institute has such an important function in the planning system and the implementation of the Bill, in support of the argument I am going to make I want to put some of its official position on the public record because it is quite important. The Irish Planning Institute stated yesterday that the Bill, as drafted "is not the silver bullet for faster and more consistent decision- making – it will not speed up the delivery of housing, energy projects or infrastructure. Our members are the professional planners working in local government, for developers, in the private sector and for semi-states and agencies. They work for, and with, communities around the country."
Some of the criticisms the Irish Planning Institute has received from its members are that the Bill is "tone-deaf to the staffing shortage in the sector", and that it is a "missed opportunity" built around "too much administration and not enough implementation", and this speaks directly to the section we are dealing with now. The institute also says the Bill "scraps parts that are working while making other elements unnecessarily complicated" and that it will "lead to significant disruption to the operation of the planning system in its initial years if enacted in its current form, and will open up a wide range of potential new litigation, all with a negative impact for the efficient and effective operation of the planning system."
It went on to say, again specifically related to these amendments, that:
Unnecessary changes include amendments to the process of how a developer confirms compliance with conditions attached to planning permission, and allowing the public to seek declarations on whether a particular development needs planning permission. At their core, these seek to provide solutions to problems that do not exist. [...] Rather than streamlining planning, we risk further increasing the complexity of the system with hundreds of amendments being brought forward by Government compounding rather than addressing such concerns.
It concluded its remarks yesterday by saying:
Addressing all these issues will require further section-by-section consultation and review with practitioners so the implications in practice of the new measures can be considered and the bill amended accordingly throughout at report and committee stage. Without this, [and this is really crucial] the bill will not achieve its objectives and will lead to many years of amendments (usually belated) to try to iron out the difficulties we already see will arise in practice. Unless we are listened to, planners will be left holding the baby trying to implement unworkable legislation and all of society will be the losers.
Representatives from the Irish Planning Institute have been regular attendees of our committee over the years. It is a very cautious body and speaks in very considered tones. It reaches compromised positions between the plurality of members within their organisation. Obviously, it cannot speak for every individual planner but its opinion should be taken very seriously. That opinion piece in yesterday's Irish Independent by Gavin Lawlor, the current president of the Irish Planning Institute, is a withering critique of the Bill overall and of the process by which the Bill has been produced. The section with which we are now dealing is one of its areas of concern.
It is not the largest. I will come to those when we get to them.
I do not for the life of me understand why the changes to the existing provisions of section 5 of the Planning and Development Bill are being made in this section. I would be interested in the Minster's response and in his response to the Irish Planning Institute. What does he say to the official body that represents planners who will be making and deciding on applications when it tells the Minister clearly that this Bill will lead to litigation and delay and that the legislation is unworkable? They are serious criticisms that do not come from the Opposition, who the Minister could dismiss as being politically motivated, but from the professional body that represents professional planners whose members are saying that the legislation as it stands is not right and that it needs substantial additional work and amendment, including this section of the Bill.
I will interrupt. That is a newspaper article, I am sure the Irish Planning Institute is capable of engaging directly with the Minister so that we are not quoting reporters who are quoting as well. It is important that what we say here is accurate. It may be interesting in the newspaper and it may not be accurate. In any case, I am sure the Planning Institute has engaged and will engage. It has made submissions to the committee as well.
I do not want to have a row with the Cathaoirleach because he has chaired these sessions exceptionally well.
We will not be having any rows.
The article yesterday was not written by a journalist. The Irish Planning Institute, IPI, decided to write an opinion piece specifically focused on the work of this committee because it has significant concerns. It is materially relevant to our deliberations, including on this section, and it is right and proper its views would be read into the record.
Sorry, I did not realise it was an opinion piece by the IPI. I thought the Deputy was quoting an article
Okay
It was officially written on behalf on the institute and is not the personal opinions of an individual.
Okay. I withdraw that and I thank the Deputy for clarifying that.
For clarity, the article is signed by Gavin Lawlor, president of the Irish Planning Institute. It is specifically about this Bill and he specifically mentions the issues we are discussing now. He says:
Unnecessary changes include amendments to the process ...allowing the public to seek declarations on whether a particular development needs planning permission. At their core, these seek to provide solutions to problems that do not exist.
That came from the Irish Planning Institute yesterday on the specific provision we are discussing now. It is relevant.
Okay.
I am speaking on my amendments Nos. 66, 67, 69, 71, 91, 93, 94, 96, 101 and 103. The last ones are slightly different as they talk about a relevant declaration. Essentially, these amendments are well grouped. Almost all of them simply seek to keep the provisions in the Planning and Development Act 2000. The Government is proposing to take out a small number of words, but they are significant. They provide that any person may seek a declaration on whether a development is an exempted development.
This issue came up quite often during the prelegislative scrutiny. It got a lot of attention and focus and there were strong recommendations on it in our prelegislative scrutiny report that have not been taken on board. I will read a short quote from an opening statement during our prelegislative scrutiny of this Bill. It is the opening statement of Tom Flynn who is vice-chairperson of the Planning, Environmental and Local Government Bar Association. In relation to declarations under section 5 of the 2000 Act, which we are talking about under Head 10, he stated "the loss of such an inexpensive procedure which had the benefit of obtaining clarity could be considered a regressive step which is worthy of further consideration". Legal practitioners who work in this area are talking about how it could be regressive. The point has been well- made and it was made during our prelegislative scrutiny, that the provision in head 10 of this Bill on the section 5 declarations, which were open to anyone to use until this Bill, provided a way that members of the public could get a decision on whether something is an exempted development and significantly, as we were told by a number of sources during prelegislative scrutiny, the absence of it will simply lead to more conflict, more court cases and more expensive ways to get decisions as people will not have other options.
Throughout much of the discussion of this Bill, not so much so far on Committee Stage but in the public discourse, we have been consistently told that one aim of this Bill is to speed up the planning process and reduce delays and costs arising from delays, litigation and so forth. This measure will clearly create additional costs and court cases by removing an inexpensive and efficient way for people to get a declaration on whether a development is exempted development. In my experience it is not used very often, but when it is used, it can be used effectively and it can be a helpful measure for resolving conflicts about whether a development is an exempted development, which can flare up in local communities. From what I have seen of its use, the section 5 declaration has been a useful way of resolving those disputes and conflicts. The section 5 declarations do not always give people the answer they are looking for, but they can give clarity and finality which is useful. Removing that, so that only the landowner has access to it, is a highly regressive step.
Section 5 declarations, which will become section 10 under the new Bill, are an important safeguard. It is a mechanism for accountability. It means local authorities can be held to account through an appeal of their formal decision to An Bord Pleanála. Removing the public from this, removes that as a route to holding local authorities to account for their decisions on exempted developments. It allows a member of the public, if the local authority says a development is exempted and therefore it is not taking any enforcement action on it and there is nothing it can do, to get a section 5 declaration ensuring the local authority needs to formally make that decision. If members of the public are not happy with the decision they can appeal it to An Bord Pleanála and there is some finality in the process. Removing this eliminates a measure members of the public can use to ensure some level of accountability of local authorities regarding exempted development and potential lack of enforcement.
A good planning system needs good public confidence in what is and is not exempted development and the local authorities' processes around this. Removing this undermines the capacity of the public to get that clarity and will reduce the level of public confidence in the local authorities' roles in deciding what is exempted development. That is regressive.
I will read correspondence from someone who interacted with a local authority regarding exempted development and what that person says about the proposed change. I have that person's permission to read it. It is relevant to the points I am making.
I believe this change in relation to Declarations will undermine the rights and entitlements of ordinary people in Ireland in the context of planning and development, especially in relation to unauthorised development.
I myself have had cause to seek a Declaration about unauthorised development carried out by the owner of a property next to my home after the planning enforcement section of my local planning authority stated the development in question was exempted development.
My ability as "...any person" to obtain a Declaration enabled me to prove the development in question was not in fact exempted development, thereby requiring the planning enforcement section of my local planning authority to take appropriate action. Had relevant legislation at the time allowed "...only the owner or occupier of land or a person with their consent" to seek a Declaration then it would not have been possible for me to prove the development was not exempted development and to require the planning enforcement section to take action.
I regret that, based on my personal experience, I have little confidence in planning enforcement in Ireland
I was told by a planning enforcement officer...that the relevant authority does not like to take planning enforcement action because it does not want to have to pay associated legal fees; and, secondly, that when I complained to the Ombudsman about this case the Ombudsman found that the planning enforcement section had been responsible for maladministration.
I have certainly seen local authorities be reluctant to take planning enforcement action and I have seen people in local communities exercise section 5 declarations to ensure the planning enforcement section carries out its job and legal obligations. I have also been told about people in local authorities being very reluctant to take planning enforcement action and other actions that may lead to legal cases and costs. At least this route is one route. It is a difficult route for people to take as it is quite complex but there is a route for people to take if they feel the enforcement section of their planning authority is not taking enforcement action or has made the wrong decision about what is exempted development. Taking this out is highly regressive. I would like the Minister to put on record his rationale for this because the rationales we have been given to date do not stack up. I strongly urge the Minister to accept our amendments, to maintain the status quo and not to introduce these changes that leave rights relating to section 5 declarations solely with the landowners and property owners and lock out neighbours and other members of the public who are also affected by what is and is not exempted development.
I want to put this in context and answer some of the questions. Regarding the article, all I will say is that the IPI was part of the planning advisory forum. I have met with it and addressed conferences. Its input has been considered. Local authority planners have been involved so there has been wide consultation. They have presented to this committee as well during pre-legislative scrutiny. We are in the process of going through the Bill. As I said at the outset, we need to update our planning legislation. We need to do this because we need new planning legislation that underpins what the State needs. We need to refine it and ensure we bring about consistency, clarity and certainty of approach. I respect that people have views, but the process has not concluded. When the Bill passes, as I expect it will, there will be transitionary measures relating to its enactment. I will not go any further on a newspaper article or an opinion piece.
These sections re-enact with substantial modification section 5 of the 2000 Act. We know that the principal changes are that only the owner-occupier of a land or a person with his or her consent may apply for such a declaration, that a declaration given is not binding on persons who are not involved in the application and that the procedure may be used as a means of confirming whether any particular works are within the scope of the grant application. The idea that people would be locked out of anything is incorrect. We have received very strong legal advice from the Attorney General against retaining this section as it is. We are looking at the wording and will come back to see whether there can be refinements. I know An Cathaoirleach, the Deputy and others have been interested in that. Section 5 of the current Act has been heavily criticised in the courts and there is legal uncertainty around it. We are trying to address this uncertainty. That is the very clear view of the Attorney General. It is about needing to balance the rights of third-party involvement with the rights of the owner. The Attorney General's advice is that as it currently stands, it is not Aarhus-compliant. Regarding participation and access to information in particular for the owner, he or she does not have to have any role in the process, which is a deficiency. Taking on board what Deputy O'Callaghan said, we are looking at the language to try to balance third-party rights and the rights of the owner where the owner of a property does not have be consulted in any way, shape or form. From an Aarhus perspective, a consultation perspective and, most importantly, a participation perspective, this is deficient and has been heavily criticised in the courts. Changes need to be made.
I will go through some of the amendments put forward by the Deputy to give some of the rationale. Amendments Nos. 66 to 71, inclusive, 73, 79, 83, and 91 to 94, inclusive, relate to the question of who can request a section 10 declaration on development. This matter was discussed at length during pre-legislative scrutiny where it was one of the minority of issues that was not changed on foot of pre-legislative scrutiny recommendations on that matter. There are significant legal and policy imperatives for the changes in the parameter of a section 10 declaration as contained in the Bill. Currently, any person may make a request for an exempted development declaration under section 5 of the current Act. The Bill will provide that only the relevant person may request such a declaration. A relevant person is either the owner-occupier of the land or a person who has his or her consent. The original intention of section 5 of the 2000 Act was to function as a relatively simple mechanism regarding the question of whether a proposal is a development or an exempted development. A challenge has arisen over time because an increasing number of third parties seek section 5 declarations from planning authorities. I have already mentioned that a problem arises there because the owner-occupier of the land might be completely unaware that a section 5 declaration has been sought in respect of his or her land and he or she is the landowner and we must have regard and respect for that. The planning authority's consideration of the section 5 declaration is limited to the information put before it by the third party so no other information needs to be sought as it currently stands. Deputy O'Callaghan could seek one on behalf of anyone else and there would be no requirement for the landowner to be consulted in any way about that. Consideration of the declaration could involve incomplete information as well or just a viewpoint so there are weaknesses in the current operation of it, how it was constructed in 2000 and what it is doing now. Therefore, it needs to be changed.
Two significant challenges arise from the use of "any person" as requested in the proposed amendments from the Deputy. The wider use of the section by any person would enable a form of enforcement by proxy. The Deputy outlined one example of enforcement procedures that he read into the record. It is open to anyone to make a complaint to the enforcement section of a planning authority. This is done regularly. However, section 5 declarations are being used in a way that was not intended back in 2000 and the legal advice has been very strong in that regard.
I mentioned the legal effect of third-party action on the property rights of the owner. Having considered both amendments and the legal advice on the matter, I oppose the amendments and propose that the Bill retains the provision for the relevant person rather than "any person". Having said that, there have been detailed discussions with the Attorney General to see whether we can find a better way of balancing that. For example, does it involve an environmental group? Could we define what third parties could be? We are working through that.
I do not think anyone is arguing that its current operation and the status quo should be retained as is. I think Deputy O'Callaghan did; if he did not, I apologise. There are very serious issues with how it is currently constructed in the 2000 Act and changes need to be made. We have heavily engaged with the Office of the Attorney General to see if we can further define it and come back on Report Stage with that definition. I have committed to that. I have spoken to the Chair on this as well. There is no question of anyone wanting to close the door on public participation. We have probably the most transparent planning system across any of the EU countries and our nearest neighbour. Third-party observations are central to our planning system and that will be retained. We absolutely must have regard to and be compliant with Aarhus. Our advice is that the manner in which section 5 declarations are constructed under the current Act is not compliant. It has been heavily criticised in the courts. Changes need to be made. We are working through how we can further define that with the Attorney General. I intend to come back to the committee on that in advance of Report Stage.
I welcome a lot of what the Minister has said because it is in line with what I am going to say. The case I am making is that development, and what is exempted development, affects not just the landowner but can also affect neighbours and people in the community. Rather than fixing any problems with section 5, the Government's proposed wording, as it stands in the Bill, simply seeks to exclude third-party rights altogether. If the criticism is that there is a lack of public participation to ensure Aarhus compliance, the way we fix this is to ensure there is an element of public participation to ensure Aarhus compliance rather than simply abolishing third-party involvement in terms of section 5 declarations. The way to fix the issue of the landowner not being aware of a section 5 declaration, and thereby not being able to comment or make a submission on it, is to allow them to make a submission or comment so they can bring information into the process. The fix is not simply to abolish the ability of people to get a section 5 declaration. I welcome the Minister's assurance that this is being looked at and addressed. I think it is very important that it is.
Although anyone can make a complaint to a planning authority in terms of enforcement, I wish to reiterate what happens in practice by referring to one individual's specific circumstances. They went through this process, and indeed through the Ombudsman. They were vindicated in the end. Often, people do not go through a section 5 declaration process, on to the Ombudsman and so forth. When there is an issue with development taking place, people often go to the enforcement section of the council and say "That is not exempted development and this is why I think so", only for the council to around to say "No, it is exempted development; end of story". Without the section 5 declaration process, the person does not have the ability to get a formal decision to see whether the response he or she has been given by the council stands up. As I said, the option to lodge an appeal with An Bord Pleanála is always there and creates confidence in the system. To be fair to all involved, the process whereby the final decision is made by An Bord Pleanála can bring clarity to more complex situations in which it may not be absolutely clear what is or is not exempted development. The An Bord Pleanála process brings such clarity, and over time cases are established and knowledge is acquired. That side of the process works.
The Minister has indicated that he is looking at this. I urge him to fix the deficiencies rather than get rid of third-party involvement. In particular, the Minister has referenced environmental groups. I have referenced direct neighbours. It may not just be a direct neighbour who has a legitimate interest; it can be people in a community who are affected by what they consider is not exempted development, particularly in sensitive landscapes and so forth where things can have impacts on the wider community. I think that all of that needs to be provided for in this legislation. I urge the Minister to follow through on what he has indicated he is looking at because it is extremely important.
The Minister's response to the official public position of the IPI is unfortunate. When representatives of the IPI presented to the joint committee during pre-legislative scrutiny, they were extremely critical of the consultation process that the Minister outlined. In fact, one of the comments they made was that there was an enormous difference between what was discussed at the planning forum and the actual content of the Bill when it was published in draft form last year. They indicated that there was significant surprise with regard to certain sections, including this one, and that much of the Bill, in their view, was unclear and problematic.
In its submission to the joint committee on the issue we are discussing, the IPI said that this change is an entirely retrograde step which makes a fundamental change to the current planning system. It went on to say that the current section 5 provision is not, as erroneously suggested by the Department to the joint committee on 7 February 2023, "to allow owners or people with a relevant interest to ask the planning authority that question and to get an answer in a reasonably quick timeframe". Its point was that since the 1963 legislation, the section 5 provision has allowed any person to ask such a question, but the Bill now seeks to exclude the public from that system.
Here is the problem. The issue that the Minister raised around Aarhus compliance and the involvement of consultation cuts both ways. I have some sympathy with the point he made on that, but it applies equally to third parties, residents, community organisations and others when the owner or developer applies for a section 5 exempted development declaration currently. There is a very straightforward solution to this problem: regardless of who is making that request - the owner, the developer or indeed a third party - there is a requirement for a public notification and some participative process. If it is a third party requesting the declaration, the owner is notified through public notification as with the regular planning process and can engage in that by setting out a contrary view. In such circumstances, the decision that the planning authority makes is made in full cognisance of the information from the owner. Likewise, where an owner or developer lodges an application, there is a public notification and interested third parties can be notified.
Essentially, the Minister is saying that in order to address the concerns of the Attorney General and the courts with respect to third-party declaration requests and the lack of involvement of the owner-developer, third parties should simply be excluded. However, that still will not deal with the core issue raised by the Minister, which is that when the owner-developer puts in their request, third parties are not included in the same way. Therefore, it seems to me that there is a real problem in the way this has been framed in the legislation. I think our amendments provide the solution. They provide the solution by allowing any person, as originally intended in the 1963 legislation, to make the request and by simply making sure, regardless of who puts in the request, that there is public notification and some opportunity to consider and participate. Then - this is where I agree with the Minister - the planning authority can make a reasoned decision. Why is that important? In a funny sense, a section 5 declaration is kind of like a planning permission. Am I right? For example, once it is provided for and subject to appeal at the board, that is the end of the matter. I know it is not the same as a planning permission and is a different process, but it needs to be addressed.
Also on enforcement, it is one of the challenges, because when we raised this with the Minister's officials during the course of PLS and in the private briefings they were saying if somebody is concerned a development is unauthorised they should put in planning enforcement. My experience of planning enforcement, based on having quite a level of involvement in a local authority I believe is a good local authority, is incredibly problematic. It is slow. It is cumbersome. It is resource-intensive for the local authority and very often pragmatic calls are made by the local authority not to pursue matters to court in a way that can leave residents living with the most appalling planning breaches. I do not just mean somebody being unhappy with an extension next door. I am thinking of examples in the Dublin Mountains in the hinterland where we have dispersed rural communities and people engage in illegal commercial activity. There is completely unauthorised development affecting small groups of residents in very significant ways and planning enforcement could be ongoing for years because the developers are especially adept at being able to break the rules. Likewise, I can think of a significant number of planning enforcement cases where a rogue landlord puts a shed, which is inadequate accommodation, in their back garden or that of a rental property and rents it out at a very high price to people who are desperate. If planning enforcement is pursued and the landlord evicts that tenant, the landlord can give it a couple of months and put another tenant in. This cat-and-mouse game can go on for years. This, therefore, is a really valuable part of the Planning and Development Act. There is a much better way of addressing the issue the Minister is raising. He is throwing the baby out with the bath water and I see no reason he should not rethink this.
To return to the Irish Planning Institute, the test of consultation is whether the Minister makes any substantive changes. The Irish Planning Institute has made it very clear it believes substantive changes are needed to this Bill, including in this section. It is not good enough for any of us to say we have met with, listened to or considered. If the Bill as it stands - and this section is one of the litmus tests for me - does not accommodate the genuine professional opinions of the professional body that represents planners in the local authority, semi-State and private sectors then the consultation is kind of meaningless. I really believe this is one aspect the Minister needs to rethink. He needs to consider our amendments and reverse what I agree with the planning institute is a very retrograde step in the context of planning changes. Significant litigation could result from the exclusion of third parties from a process that has in the main worked very well, notwithstanding some of the legal challenges the Minister has mentioned, for which there is a much better solution than what is being proposed.
I thank Deputy Ó Broin. I do not think we need to make the process too complex. For instance, the site notice was referred to, but where does the applicant put the site notice? Does it go on somebody else's land? We have to tease out things like that and ensure it is not open-----
Or in a newspaper.
Public notice at the moment is site notice and newspaper notice, but you cannot go and put a site notice on somebody else's property. It is about making it as simple as possible. It is a fairly simple process at the moment even though it deals with complex issues, so let us not overcomplicate it.
The Minister may wish to respond.
I thank members for their comments and input. On the public consultation and the planning advisory forum, it worked very well and I reject any assertion it did not. PLS was extensive. This is a significant piece of legislation. The IPI or members within it are absolutely entitled to their views. I do not have to agree with them and I do not. I am somewhat surprised this is one of the biggest issues the institute has raised and I suggest it reflects the strong views of individual members within it when one looks at all the other areas of the Bill we are dealing with and the new measures they are bringing in that this is an area they have particularly focused on for criticism. It is fine. We will work through this and that is what this process is for.
There are a couple of things here. Something Deputy Ó Broin mentioned was it was like a planning application. We have got to be careful we are not creating another planning application process here. The Chair has already mentioned notification. Another aspect could be costs. Let us say Deputy Ó Broin is a third party, that he does not like me and he then decides to seek section 5 declaration. Right now I do not know and we are all agreed that piece needs to change. If I get to respond, to what level do I respond to? Do I have to submit plans? The proposed amendments refer to any person, so that could be anyone. Does the person have to show they are impacted? These are the type of things that need to be considered. Could it very simply be a neighbourhood dispute? How many times can I seek that declaration? The Deputy mentioned an instance there where someone builds a shed. It could be another complaint about something else in a few months' time, so all those things have got to be considered, as well as the landowner or property owner themselves. I think we all agree that too. We are genuinely engaging with the Attorney General's office right now to see what other parties there could be to this process. The number of section 5 applications is not tracked at a national level. I understand it is in the hundreds as opposed to the thousands in any given year, but no one disputes that this is an area that has received very significant criticism in the courts, so changes need to be made. We will look at that also but if it is an application process I am the owner. I may have done absolutely nothing wrong, but if we are to look at how they are involved what onus are we putting on them? Is it a question of them having to submit detailed plans. Let us say I have gone about my business, I have an exempted development and it is fine. Then Deputy O'Callaghan decides - I know he would not - to seek that on me for whatever reason. What onus is that putting on me then as the owner? They are the type of things we are teasing out, as well as who, to be honest. That is an issue.
I cannot ignore the very strong advice from the Attorney General on foot of experience with criticism of the process as it is now. That is another element the IPI did not mention. I will be working through this with the Attorney General to see how we can refine this further to get to where all of us want. However, we have to balance it so we ensure this is not just another type of reverse planning application either and that there is a whole new application process there. Deputy O'Callaghan has read into the record an instance where, unquestionably, the process worked but the enforcement process did not and then they were able to seek the declaration. I get that, but we have got to see how we can refine this further and I will work to do that and we are working to do that right now. However, there has to be a balance as well and we have to be clear on what onus we are putting on maybe a very unsuspecting property owner who may have done absolutely nothing wrong and then we are bringing him or her into a process. They are the type of considerations and we have time to consider that.
For example, there was a recent section 5 declaration request to my local authority from a commercial property owner in an industrial estate to determine if a change of use was exempted development. It is interesting because if the owner of the development is going to proceed with the change of use it is obviously going to be financially very significant for them with regard to what they do with the building. The level of documentation they submitted to the local authority was quite significant. It was not detailed plans and it was not like a planning application, but there was a significant amount of documentation. The local authority published that on its website. There was no public notice, so unless you are like me and you are somebody who goes looking at your local authority's planning website you would not have noticed. The local authority then took its decision and provided the section 5 declaration. That, therefore, is happening in some local authorities already. The same goes, for example, for somebody considering an extension or some other works.
It is in the interests of the property owner or potential developer that there be some kind of process. Otherwise they risk spending a significant amount of money, whether it is a homeowner with an extension, or a commercial operator, and finding they are not exempt. The kind of process that I have outlined is one that is protective of the property owner or developer. Good property owners and developers are already doing this. By way of regulation, we should have to set out what some of that looks like. That would be easily done. The example I have given of South Dublin County Council outlines that.
There is a conflation. The Attorney General gives advice on what is legally problematic. The Attorney General does not say that this is the only policy solution to that problem. It is up to the expertise in the Department and the people the Minister consults with to say, from a policy point of view, how to fix that legal problem. The Attorney General has identified a first-party rights issue, that one is not notified when the section 5 declaration goes in and that is a problem. There is no disagreement. I put it to the Minister that it is not up to the Attorney General in the first instance to come up with the best policy solution. A policy solution has then to be run through the Attorney General's office. The Irish Planning Institute, IPI, has offered a much better and more sensible way of doing this which fixes the legal problem that we all accept but without excluding third parties from engaging in a process which, since the 1963 legislation, they were always allowed to do.
I invite the Minister to respond to the fact that while his proposal deals with first-party rights, it does not deal with third-party rights in any meaningful way as is the case, for example, in the exempted development declaration application. In my constituency, third parties, people who were materially impacted, were not notified. In the case in question the property owner had done everything in accordance with the rules and with planning regulations and got the exempted development declaration. However, that might not always be the case. There might be third-party observations that could be materially relevant to the decision of the planning authority. I was told recently about a true case. I will not name the local authorities for fear of embarrassing one or the other. A section 5 declaration request went in simultaneously to two local authorities because the development in question straddled the border of two local authorities. One exempted the development and the other did not. What that highlights is that if there was a process by which third parties were able to be involved, it might provide information and that would help the planning authorities to make a more rounded and correct decision. It seems the Minister is fixing one problem in a bad way and creating another problem which we are bringing to his attention clearly now, and he is ignoring the advice of planning professionals.
On that topic, it is completely acceptable for the Minister or indeed for officials to disagree with the views of professional bodies. We all disagree with the views of professional bodies all the time. That is completely reasonable. I am not challenging that. However, when not just one professional body but a number of them come to this committee and raise legitimate concerns about the process by which this legislation was produced, including that forum, they should be listened to. Heed should be taken of the significant concern that was raised with this committee over that process and the big difference that many organisations articulated here, on the record, between what was discussed at the planning advisory forum - one individual talked about it as being high level theoretical - and the legislation itself. Consultation processes can always be improved. I fully believe that the consultation process that was followed was designed in good faith. There was a good deal of engagement with us. However, when many professional bodies, people who will have to work daily with this legislation, whether they be planners, lawyers or others, are telling us that it did not work, rather than saying that is not accepted, we should respond that there may be something in that. Maybe we should listen. If they are now saying that further consultation is required between now and the passage of the Bill, the Minister needs to listen to them. That is not to say that the Minister has to accept everything everybody says. We all disagree with expert and professional opinion and we are entitled to do that. I worry that, given the profundity of this Bill, that there is almost a dismissive attitude towards legitimate concerns that people have raised with process.
This is not either the only or the most important issue that the IPI raised with us. We will get on to planning policy statements and a range of other issues with some of the really profound changes in this Bill. We had robust exchanges with Minister of State, Deputy Kieran O'Donnell, yesterday. Hopefully, we will have some discussion with the Minister directly on those because that is one of the big innovations. Whether one agrees with it or not, it needs to be threshed out.
There are two questions. Does the Minister accept that while it is the role of the Attorney General to highlight legal problems, it is the policy process that comes up with those solutions? How would the Minister address the Aarhus Convention and public participation consequences of his proposal in section 10 for third parties who are going to be effectively completely excluded from the process?
Deputy O'Callaghan wanted to come in.
I have one comment, which is that there was a good deal of criticism of the consultation process through the planning forum. The criticism from the IPI, given that it is the key petitioner in the area and represents the public and the private sectors, needs to be listened to. Apart from the IPI, as a formal organisation, I have also heard from planners with a similar view and this sense that they are the petitioners in planning day-to-day but their voice has not been heard. That is regrettable.
I have one comment and a question. On the Minister's comments, what I have seen is that section 5 declarations are generally used in the grey areas around exempted development. Most exempted development is clear in terms of whether or not it conforms with the rules. It tends to be quite black and white. Section 5 tends to be used on the complex grey areas. That can be around areas that are highly controversial. It tends not to be about an extension that is clearly within the parameters allowed under exempted development. People are not going to go to the bother of looking for a section 5 declaration on that if it clearly conforms with what is and is not allowed on an exemption development. It tends to be those cases where it is genuinely difficult for people to know objectively and are looking for clarity. It is either the person who engaged in what they felt in good faith was exempted development, or the wider community. If the wider community raises issues with the planning authority, public representatives or community organisations and asks how come that happened as it did not have planning permission, 90% of the time they are will hear that is exempted development because of A, B and C and it meets with that. That is then the end of the issue. It tends to be on those much more complex grey areas where this kicks in. That needs to be borne in mind.
The information that comes in from public participation can be invaluable and that can come from complex areas. The planners who are making decisions do not always have the knowledge that is in the wider community. It can often be useful and the planners have the skills to be able to verify and consider it to see how relevant it is. On what the Minister was saying, is he making a commitment that he will bring forward new wording on this on Report Stage? If he is, will that new wording restore third-party rights? Is he committing to that now? Will he fix the other issues that he referenced in regard to public participation?
I thank Deputy O'Callaghan and call the Minister.
I thank Deputies O'Callaghan and Ó Broin for their contributions. The Attorney General advises policies with Government. We have to heed the Attorney General's advice. That is clear and that is how every Government should operate. The Attorney General and his team, and indeed the previous Attorney General, have been incredibly helpful in relation to getting this far with this legislation. I am not going to go down a rabbit hole with the IPI. I respect all groups and different opinions there as well. We respect professionals in that area. People will have different views on issues. Some planners would argue that the status quo should be maintained, that there are no issues and nothing is wrong.
We have got to go back and have a look at why we are actually bringing forward new planning legislation. Planning guides everything, including what any community or individual does in their lives. It is how our country is going to develop, what schools are going to be built, how it is going to be planned, how people are going to live, how communities will develop. It is crucially important and there has been a growing frustration among the general public about how planning matters have been handled over a long number of years, with delays in the planning system, and decisions being made in areas where they probably should not be. There have been mistakes in the past at policy level as well.
In practice, when you talk to normal people out there, it is very difficult for them to understand in many instances why things take so long, and why there are so many hoops for people to jump through. We need an efficient planning system that is effective and supports the development of our State. Sometimes those who are experts in that regard forget that, and they forget that really, the legislation and the system itself is there to support the development of the country and the communities within it, how they are going to develop, and how we are going to move forward as a country. Very few people argue that the status quo should just be maintained as it is with no changes required but there are some who do. There are some who do not like change at all, and that is fine but we are moving forward with this.
On the declaration specificially, I want to say this, Deputy O'Callaghan, and I have said it to the Chair as well - we are working right now to refine this from a third-party perspective. With the first party, right now, I think we all agree that the situation as it is cannot be maintained, where someone does not have a right even to submit their side of the situation. That needs to change, and we have been very clear on that. Deputy Ó Broin has highlighted issues with competing section 5 declarations from different local authorities. Sometimes that is done strategically. There have been issues with court hearings, be it developers or opponents to developments, and from that you will see section 5 declarations going in to different local authorities, maybe with different nuances to them, where they are transboundary as well and actually getting differently-composed applications where planning authorities come to different conclusions. That creates a problem.
What I am saying to Deputy O'Callaghan and to the Chair, Deputy Matthews, is that with regard to what third parties are and how we can define that to make sure that there is that interaction, we are working on that right now. We will work on that in advance of Report Stage. Members are perfectly entitled to move their amendments as well but I get the points that have been raised. I have received the feedback on that to see if we can balance it in a better way. I do not want to set up a parallel planning application process either. I do not think any of us wants to do that. It is sometimes seen that this could be the way in which this is being used. I am telling the Deputies now on Committee Stage that we are working on this and refining the wording, with a particular focus on how third parties would interact, and what third parties would interact. I have given an example, for argument's sake, of environmental groups. That is just by way of an example to give Deputies an idea. They have mentioned next-door neighbours and that type of thing is being looked through in conjunction with the Attorney General.
I have not heard anybody, in any of my engagements on this issue, saying that the status quo should remain. I am not saying those people do not exist but I have not come across them, and it is certainly not the argument of those of us on this side of the Chamber. I am not so sure what the Minister means by his reference to some experts forgetting, in his comments around efficiency and effectiveness. However, it was striking in the prelegislative scrutiny that there is a very broad range of people and it is not that they are experts only. It is that they work the system every single day. They are our local authority planners - who we had in - the Irish Planning Institute, developers, legal professionals who operate in the courts on either side of judicial reviews, either taking them or defending against them. Over and over again they told this committee that there very significant portions of this Bill - and this is one of them - that are going to make the system less efficient and effective.
I would say back to the Minister with regard to his comments around experts sometimes forgetting that I think it would be a serious mistake for any Minister to ignore a growing weight of opinion, and it is a growing weight of opinion. We have had it here from such a range of sectors with regard to the challenges of this Bill. I have been working in the Oireachtas for 12 years as an adviser and then as a TD for two terms. In the work I did, both as an adviser in two portfolios and then in this committee since 2016, I have never come across a Bill that has such united concern and criticism from a range of sectors that would often be on conflicting sides of the debate. Often with a piece of legislation, one sector is more in favour of it and another sector is more against because they feel it is imbalanced. The weight of concern around the extent to which this Bill will undermine the efficiency and effectiveness of the planning system is quite remarkable. Again, the Minister does not have to believe me. He just has to listen to a very wide range of people. That is not just with the earlier drafts of the Bill; it is also with this draft of the Bill. Likewise, there is probably more surprise than I have ever come across, across a wider range of organisations, on what they believe is the lack of due regard to the submissions they have made to the Department, and which they have shared with this committee with regard to the content of the Bill. Again, this section is one, and I want to put that on the record.
With respect to the transboundary ones, the one I was actually thinking of was not a strategic application. It was one public body that had a development that crossed the boundary of two local authorities. A single body asked both bodies if it was exempted or not, and they came up with different decisions. The Minister is absolutely right in that with any planning decision or unauthorised development decision, of course there is an element of subjective interpretation of the rules. I accept that. I acknowledge that not everybody is going to decide the same thing all of the time. However, it points to the fact that there is a need for some process.
I am going to ask the Minister the one question he has not answered. I know he said he is willing to look at it but I am looking for something more specific from him. He has defended his change on the basis that there is a current problem with first-party rights and them not being involved and consulted. What the Minister is proposing creates exactly the same problem, or continues the existing problem with respect to third-party rights. Therefore, for me it is not about whether your involve some groups such as environmental non-governmental organisations, ENGOs. Third-party rights are third-party rights under the Aarhus Convention and under EU and Irish law. People have a right to engage in the process, and also people engaging in the process could be really helpful because they could provide information that would allow a more informed decision by the planning authority. I would be really interested to hear - given that he was the one who said there were Aarhus compliance issues around the exclusion of first parties when it is a third-party application, or a third-party application for declaration - how does the Minister apply it to third parties in respect of what he has proposed here? It seems to me that this is just as big a problem, and I would have hoped that the Attorney General or Attorneys General would have made the same point to the Minister in their advice.
I have a short point.
A short point please because I am conscious of time here.
The Minister has referenced looking at the environmental groups. To give an example, you could have a very scenic area of natural beauty. You could have development that takes place in it. The people who carry out the development may view it as being exempted development but there are lots of people who that could have an impact on, and who might have an opinion on it. It is not just neighbours or the wider community. It is a scenic area of natural beauty. It could be people who visit the area regularly, such as walkers and so forth, who all have views and will be impacted by this development. They would all have an interest in potentially wanting to point out something that they feel is not exempted development and that is happening without planning permission. They may have recourse to a section 5 declaration, or a section 10 as it may be. In terms of any public participation, they may have valuable information that would be useful for the planning authority to have. I would be concerned about the Minister referencing environmental groups. I have given him an example there and I actually do have locations-----
No, I have given the Deputy an example of my thoughts around the third-party piece, not what he is saying.
I am sorry. I apologise. That is just the point I wanted to make - that it is fine as an example, but I hope when the Minister is looking at this he will look at restoring third party rights. There is a variety reasons as to why a wider group of people have an interest.
Will the Minister please address that? I know he has said he will look at this before Report Stage. Deputy Ó Broin asked a direct question on third party rights.
What we brought forward here in this draft of the Bill has been on foot of the Attorney General's advice. I take the point. We have an issue with Aarhus Convention compliance as it is currency currently constructed. I am trying to be constructive here in saying that we are looking at the third party piece. It is not just the case that we will look at it, we are looking at it to see how we can construct that in advance of Report Stage. I have taken on board a number of the points that have been made, not just not just here today but in advance of this Stage too. I do not want to create a parallel planning application process either. It is about striking a balance. This is about exemptions. If we do not get the balance right, exemptions would nearly cease to exist then because everything would be an application. We have got to strike the balance right. We are working on it now and I will come back to the committee with it on Report Stage.
Given that this was a significant element of the PLS process and that was eight months ago, was there any discussion with the Attorney General or any consideration of how to fix this in accordance with the issues that were raised during PLS and subsequently? That was eight months ago. What I am saying is that this is not a new issue.
There were discussions with the Attorney General post-PLS as well.
Was that specifically on the concerns raised by ourselves and the Irish Planning Institute and others?
Yes. Absolutely. In putting together this Bill and bringing it to Second Stage and this point we have had daily and weekly meetings with the Attorney General and his team.
Were there any-----
I am sorry. It is complex, and all sections within the Bill have been gone through in detail not just with the Attorney General's team but with him as well.
In those conversations, was there any consideration or discussion around the Aarhus Convention and the participation rights of third parties? Everything the Minister has said to date, which is completely reasonable, has been around the concern of the Attorney General on first party rights. Surely if we raised third party rights, as did others, eight months ago, and the Minister has had constant engagement with the Attorney General on this, surely the issue of third party, Aarhus and public participation rights came up in those discussions? They are not in any way reflected in the Bill itself.
I set out at the outset of Committee Stage that in everything that we have done, we have made sure that the Aarhus Convention is central to the Bill and that it is compliant with it. I will not go into the specific details of conversations on specific items that we have had with the Attorney General. I have explained where the advice came from. We have taken on board recommendations in many areas, even post-Second Stage. We took on recommendations from the PLS report. Contrary to what some other views may be on that, it has worked pretty well. We are working on this piece to try to refine and define the third party role that will be in this process.
I thank the Minister. On the basis of what he has committed to there I intend to withdraw amendment No. 64.
Other amendments in the group that relate to section 11 have not been dealt with yet. We have only dealt with the section 10 amendments. It is a bit confusing because it is called "Section 10 supplemental provision", but it is section 11.
They are relevant to-----
Is that from amendment No. 76 onwards?
No, it is amendments Nos. 99 to 103. They are relevant to section 11, which is a supplemental provision for section 10.
Yes, I see that. That is okay. We can discuss those groupings when we come to them, but for the moment it is my intention to withdraw amendment No. 64. We will adjourn as it is after 1 p.m. We will return at 2.05 p.m. We can proceed to take that grouping at that time. Is that agreed?
Yes, the second half of the grouping includes amendments Nos. 99 to 103. They are all in the same grouping.
We can go through that when we get back here.
Yes.
We can decide what way we are going to deal with the grouping when we come back. Is that agreed? Agreed.
Sitting suspended at 1.05 p.m. and resumed at 2.10 p.m.
We are on amendments Nos. 64 to 83, inclusive, 88, 89 and 91 to 96, inclusive. Also in the grouping are amendments to section 11, namely, Nos. 99 to 103, inclusive.
Although amendment No. 101 is in the grouping and we had a good discussion on the issues related to that grouping, I did not address the specifics in the amendment. It seeks to insert that a relevant declaration, which is a declaration under what we know as a section 5 process, shall be admissible in evidence in any proceedings brought by a person, other than an enforcement authority, relating to the act, operation or change in use in respect of which the relevant declaration was made. It would delete lines 28 and 30, which do not allow a relevant declaration to be admissible. If someone gets a section 5 declaration, or what will be a section 10 declaration on the enactment of this legislation, why will he or she not be able to admit it in evidence in proceedings? Why would that not be helpful? It is only a matter of its being admissible in evidence; it does not mean it would be the final determinant in the matter in any court case. Not being able to admit a declaration as evidence in proceedings seems to point to a very excessive and specific provision in the relevant section of the Bill. It is also quite an unusual provision. Could the Minister explain why he is taking this approach? In keeping with normal good practice, my amendment would correct this. I hope the Minister accepts it.
Before I speak to the amendments, I am keen to hear the Minister's explanation for section 11. Like Deputy O'Callaghan, I was taken aback when I read it. Intuitively, it jarred with me that such a prohibition would be in place. Obviously, there are some caveats if information is misleading or withheld, but there could be circumstances in which information is just not brought to light or is not available, particularly if we exclude the involvement of third parties who might have valuable information. How would it work in the case of the utility company that had a single piece of infrastructure but two different declarations with two local authorities? I am interested in hearing the rationale. Depending on how convincing the Minister is, I will come back in on my amendments.
I will try to deal with this. Deputy O'Callaghan has just spoken about his amendment. Several amendments, namely Nos. 99 to 103, inclusive, are related. They all relate to the inadmissibility of declarations. They cannot be accepted as they seek to deem the relevant declarations as "conclusive evidence", which cannot be pre-emptively done in the legislation as the facts of the case will have to be considered by the courts in each case to allow all sides proper due course.
The rationale for allowing a section 5 declaration to be taken into account in the exercise of discretion by a court in the context of determining a planning injunction, notwithstanding that it is not binding on the matters it addresses, is that this allows a developer to show a bona fide belief that an activity was either not development or exempt, and an opponent of a development to establish that the developer was aware of the fact that the activity was development and not exempt, both of which are matters that the court can take into account in the multifactorial process of exercising discretion and formulating an order. Similarly, the existence or otherwise of a declaration is properly taken into account in determining sentencing on foot of a prosecution, whether it be a mitigating factor or an aggravating factor.
Currently, all declaration requests are made directly to the relevant planning authority, with a right to refer the matter to the board, as we all know. This remains unchanged in the Bill, with the exemption of some declarations concerning works, etc., located wholly or partly in the outer maritime area. That is not particularly relevant.
I apologise as I did not understand any of that. It could be my fault. Regarding the restrictions and prohibitions included in section 11, I am looking for a plain-English explanation for what is being done. I do not understand.
I have explained it. The amendments seek to deem the relevant declaration as conclusive evidence. That cannot be-----
Why? What is the rationale for that?
There is legal advice from the Attorney General stating the declarations cannot be deemed to be conclusive evidence. That concerns first- and third-party roles. If legally binding, the court cannot consider the background. It has to take it at face value. There is very strong advice to the effect that the Deputies' amendments seek to deem the relevant declarations to be conclusive evidence.
My not understanding this could just be because I am not as familiar with this process. Is it that the current practice of the courts, whereby a section 5 declaration is treated as conclusive evidence, is a problem whose solution is to not allow it to be admissible at all? Is there not a better way of dealing with that, namely, to find a mechanism by which the declaration is not deemed conclusive? For example, in judicial review proceedings there is a decision by the planning authority and board but there are still mechanisms by which they can be challenged and evidence can be submitted. I am not arguing against the Minister's position but just trying to understand it. Does it not go too far in the other direction? While I agree with the Minister that it might not be correct to see evidence as definitive or as the last word on the matter, are there not some circumstances in which it might be materially relevant and therefore admissible – for example, when new information has come to light that was not available at the time and therefore was not withheld but that is materially relevant in the consideration of the matter?
It can be used as evidence. It can be entered into court proceedings, but you cannot look into the background. That would be a matter for the court.
However, section 11(2) states, "Subject to subsection (1), a relevant declaration shall not be admissible in evidence in any proceedings relating to the act, operation or change in use in respect of which the relevant declaration was made." In that case, it is not admissible.
I am advised that only the first party could use it.
So it is admissible in the case of a first party but not a third party.
It is related to what we were talking about regarding section 10.
Does that relate to section 5 declarations issued up to the enactment of this Bill, or does it mean that any declaration under what will be section 10 after the enactment of this Bill could be submitted as evidence by the first party but not by the third?
First, it is not binding evidence. The Deputy is asking whether a section 5 notice that has been served could be used-----
The opposite. My question is twofold. First, will the prohibition in subsection 11(2) apply to a court case after the enactment of this Bill, but with respect to a section 5 declaration issued under the legislation as it stands? Second, will it also apply to what will be a section 10 declaration once this Bill is enacted, whereby a third party will not be able to submit it as evidence although the first party who applied will be?
On the first question, a declaration only relates to a point in time.
Yes.
The exemption thresholds could change in the intervening period. I would have thought that we would need to review the law that was in place at the time the works were carried out. The interpretation of the legislation would then be a matter for the courts. The Deputy is asking how, if someone submitted it under the existing Act, it would be dealt with on the enactment of the legislation before us.
Does this provision apply retrospectively to existing section 5 declarations?
Let me just check that.
Sure.
I know they are transitionary measures. Is the Deputy asking what will happen if it is before the courts already and the legislation before us is enacted?
Yes, or in respect of a court case that is initiated quite shortly afterwards.
No, it does not have a retrospective effect. It is lodged in the courts under the existing legislation in the context of the position that obtains now.
Okay.
We are going to work on section 10, as we discussed already, with regard to third-party interactions. That just goes forward from the enactment of this legislation. When enacted, the legislation will apply to any new applications. Should such applications go forward to court, that will happen in the context of the provisions of this Bill. There is no retrospection in respect of this matter.
That would mean that any existing section 5 declaration could be presented as evidence in any ongoing or future court case.
This only applies to what would then be called a section 10 declaration.
Does this mean that if I am the first party and I got the section 10 declaration, I can submit it as evidence but that if Deputy O'Callaghan wanted to submit the same evidence to court as a third party he will not be allowed to do so? If that is the case, it would seem unusual.
Can I be left out of all these examples, please?
Does the Minister see the question I am asking?
I do. Prior to this, we had a discussion on section 10-----
Yes.
-----and how the third-party interaction will work in that context. We have committed to looking at that.
Sure.
Whatever change happens there would have to be reflected, one would have thought, in this section in the context of the operation of the declarations and how they would be treated vis-à-vis third parties.
Sure, and I accept and respect we are.
Is the Deputy referring to what the position would be if the Bill was passed as it is right now?
No. It is important to understand, notwithstanding the fact that some of this may change, the position in terms of what is there right now. If, on enactment of this legislation, I, as a developer or a landowner, submit a section 10 declaration request and get it and if that becomes subject to a legal challenge, I can submit it as evidence. It would not be conclusive evidence, but I can submit.
However, a third party who might have a copy of that would not be allowed to submit it.
I am genuinely interested in understanding why that would be the case. It is the same material, and potentially the same information, so surely both sides should have the right to submit it in evidence, particularly if it is not conclusive evidence, because, obviously, a court should be able to consider things in the round?
It would be capable of being submitted as evidence. This section relates to a relevant declaration and states that it "shall be conclusive evidence". Obviously, it is the first party in that instance. Should there be changes to what we have discussed already with regard to the third-party piece, we will have to look at that. The Deputy raises a fair point. Let us say that we resolve and agree the matters relating to section 10 and how the third party interacts in that regard. This will also relate to section 11 in the context of evidence and the third-party piece, we would have to look at that. Obviously, we have not made the change in section 10 yet.
Let me pose two scenarios, because I am only getting to grips with this section as we discuss it. Let us look at the first scenario in the context of what is here. I am a landowner or developer. I submit a section 10 declaration request and I get back a positive response that it is exempted development. I then proceed with the development but it is legally challenged. I then have the right to submit that section 10 declaration as conclusive evidence, and the final matter, in court. Let us imagine, however, circumstances where I put in my section 10 declaration request and it is deemed not conclusive. This is legally challenged and the third party who challenges it has a copy of my section 10 declaration that says-----
It is the same declaration.
Yes, but in this case when I put in my declaration request, the planning authority said it was not exempt. I have that. A third party may have, through whatever means, obtained a copy of that. They may be legally challenging my development, which is not exempted, but they would not be able to submit that as conclusive evidence. This seems a really bizarre imbalance of rights between first and third parties.
First, you would be able to submit that as evidence. It is a copy of the same declaration. So the Deputy is saying a third party would have the declaration - effectively the decision of the local authority, which would be published - and they would submit that to the court. They can do that but it would be up to the court to adjudicate.
Deputy Eoin Ó Broin: If that is the case explain to me section 11 (Deputy 2)
Section 11(2) states:
Subject to subsection (1), a relevant declaration shall not be admissible in evidence in any proceedings relating to the act, operation or change in use in respect of which the relevant declaration was made.
Again, it could just be that I do not understand the wording.
I will have to check that. There is relevance in what I said earlier insofar as how third parties will interact on section 10. As I said, I would expect that when we make changes there, they will have to flow into a change in this section.
I appreciate that.
The Deputy is asking me what would be the position if this was implemented exactly as is on a stand-alone basis. That is not going to be the case because we have already said that we are looking at the third parties and third-party interaction on these applications as well.
Does that extend to section 11?
I would absolutely think that it would have to because section 11 deals with the application obviously so it would have to.
In light of that, it seems that only the first party should have the right to submit evidence that is deemed conclusive in legislation. It also seems hard to understand how, under section 11(2), a relevant declaration under certain circumstances would not be admissible. I would have thought that ultimately it is a matter for a court to decide if something is admissible or not. We are being really prescriptive here. Those two things seem completely jarring.
If someone is relying on section 10, then why would they be in court. We will have to look at this on the basis of any changes that are made in section 10 and how that would interact with this section. I understand the point the Deputy is making. He is looking at that, as it is there, in isolation of any changes that would be made in respect of third parties.
No. Let us consider a situation where the types of changes to section 10 were made. Let us imagine the Minister had a road-to-Damascus conversion, got hit on the head with a heavy object and all of a sudden he agreed with us on this side of the House. Even if we got section 10 right, there would still be reservations about section 11 in the context of equity between first and third parties but also with regard to a decision, under the legislation, as to whether something is conclusive evidence or not. That would seem to constrain the decision-making authority of the Judiciary. I have a basic grasp of planning but I have a far weaker knowledge of how things operate in the courts. To prescribe whether evidence is conclusive or not or whether it can be submitted or not seems to be very far reaching. Does the Minster accept that?
I understand the point the Deputy is making. We will have to look at this in more detail but, as I understand it, as it is currently, a third party cannot use it to bring proceedings. If this were passed as is, there is the first party - the owner, effectively. We are saying we are looking at changes for the third party and how they would flow through into this. The Deputy's scenario is that they have a copy of the first party declaration and are submitting it. I am advised the third party could not use that to bring proceedings but I expect that if you were going to court, you would have more than just a copy of a section 10 declaration that is made already. The third party would have to submit other evidence.
Sure. I will make two observations. That is not what the legislation says. It says "shall not be admissible". It does not say it shall not be used to initiate. They are two different things. Also, it is not just about whether or not it can be initiated. Think about a real-life case. I have my exempted development declaration, have spent a large amount of money refurbishing my factory for some other purpose and am carrying on with my business. Somebody then challenges me legally and, whatever other information they challenge me with, I have conclusive evidence that the development is exempt, so it is game over in court. With the third party, it is not only that they are not allowed to have it admissible in evidence but it also concerns a circumstance where I went ahead with a development that was not exempt. The Minister could argue it is covered by subsection (1)(b) but I would like if I was the third party to have the right to submit that as evidence.
The start of section 11 reads, "A relevant declaration shall be conclusive evidence of the matters stated therein in relevant proceedings brought by an enforcement authority". That is the planning authority or another enforcement authority, such as the EPA. That is where this starts.
Where it starts is possibly a step before that, where I as a third party make a planing enforcement complaint as part of which I give the planning authority information. While maybe not legally, I am a party to the proceeding in real terms because I have initiated it.
You are not party to it.
I am not legally a party but I have initiated this in the local authority and planning enforcement is pursuing this on foot of my complaint and the information I have given it.
We probably should have gone back a few minutes. This section is looking at proceedings brought by an enforcement authority. You are not party to it as an individual. If you wanted to take a case and had a copy of that declaration, you would expect you would not be party to that case but would be taking a case with other evidence. This relates to an enforcement authority. We are talking about two slightly different things here.
Let us say I, as a third party, make a formal complaint to my planning authority and, as an individual, go to South Dublin County Council, fill out the relevant form and make a complaint. As part of that I submit some documentation, including a copy of the section 10 declaration. The planning authority then investigates and decides to take action. I have initiated that process because I made the complaint. The planning authority would not be permitted to submit in court the section 10 declaration that I, as the original complainant, gave it a copy of.
I would not think so. The enforcement authority would be taking the case. Let us say you have made your complaint and it has gone to the enforcement authority. It has assessed it and believes it needs to take action in the court. That would be part of the evidence submitted by the planning enforcement authority to the court.
Please correct me if I am wrong but does section 11(2) not prohibit that?
It states "subject to subsection (1)". That subsection states local authorities or MARA can use the section 5 declaration as admissible evidence but the person-----
It is my fault too because we jumped ahead of this. This relates to the enforcement authority. MARA or any enforcement agency taking a case will submit the evidence it has. I would expect that would also be the details submitted in the original complaint, if they are relevant to the case.
Does that then mean I have it correct? Section 11(2) basically means the first party cannot use their section 10 declaration if section 11(1)(a) and (1)(b) apply.
Perfect.
It took me a few times to read this. I was trying to figure out the difference between 11(1) and 11(2). It is hard to see on a quick read. It is down to one word, as I see it. Section 11(1) refers to "relevant proceedings", which is defined towards the end of section 11, whereas section 11(2) refers to "any proceedings". While that is a small word, it is a significant difference because "relevant proceedings", as defined at the end of section 11, means:
(a) proceedings for an offence under section 314 or 317, or
(b) proceedings under section 318.
Section 314 relates to an offence of unauthorised development, section 317 is about enforcement notices, and section 318 is about planning injunctions relating to unauthorised developments. The difference is that section 11(1) is basically saying a relevant declaration is conclusive evidence unless the person provided false information-----
-----or withheld information and so forth. Section 11(2) means that for any other proceedings, that is, that are not enforcement proceedings taken by a local authority or MARA, relating to anything in the Bill, a relevant declaration shall not be admissible in evidence.
By anyone else.
By anyone, surely. Section 11(1) applies to enforcement authorities and enforcement actions they take, while section 11(2) applies to proceedings by anybody else, that is, anything that is not enforcement proceedings taken by an enforcement authority. That is my read of it.
I imagine "any proceedings" includes-----
It is subject to section 11(1), so it is any proceedings except for relevant proceedings, as defined. Section 11(1) states that in relevant proceedings brought by an enforcement authority, a relevant declaration shall be conclusive evidence. It is all laid out there. I still have an issue with section 11(2). I do not believe the changes the Minister is looking at in section 10 address it. I do not understand why a relevant declaration shall not be admissible in evidence in any proceedings, apart from enforcement proceedings in section 11(1), relating to the Bill. Why would it not be admissible?
I take the Minister's point that if someone is taking proceedings and all they had was a section 10 declaration, maybe that would not be enough for proceedings to go ahead, but that is not what this says. It states "shall not be admissible" - full stop. Even though we may think something is relevant, and it may well be, this legally bars it from being admissible. That is a very strong, direct, specific provision. Will the Minister explain why it is there? I do not believe the changes he is considering for section 10 will address the concerns I have. Why is the Minister proposing this in the Bill?
I will have to look into this aspect in more detail. I want to get the Deputies a proper explanation of it. We dealt with the planning enforcement piece with the enforcement authority and are all clear on that.
However, this is referring to a declaration itself outside of that. For any other individual who is actually taking a case, the declaration itself could not be used solely as evidence.
It states that it "shall not be admissible". It cannot be admissible, not that it cannot be used solely as evidence.
I genuinely will have to check that. I think the Deputy is right. We started off incorrectly on section 11. What we were discussing in respect of the section 10 changes do not impact it. From the initial reading I thought they might, but they do not.
Sure.
I refer in particular to section 11(2). I will get a note on that. It is one of the famous notes to which Deputy Ó Broin referred yesterday. I want to get clarification on it because I do not want to lead the Deputy down the wrong path on it. We can get a note from the Office of the Attorney General. I will get that because I think it is important. As I want to understand that correctly myself too, I will do that.
Deputy Ó Broin wishes to come in.
We are to have 12 notes now because there were eight yesterday.
Nine. It was eight plus one. That is nine.
In the note the Minister is going to provide, can I put in a couple of additional questions in order that my queries are clear? I am beginning to understand that section a bit better. Section 11(1), provides that "A relevant declaration shall be conclusive evidence of the matters stated therein in relevant proceedings brought by an enforcement authority" or the Director of Public Prosecutions, DPP. One of the questions I have on that relates to why it i s only the enforcement authority and the DPP that are listed. Why would it not be conclusive evidence if it is brought by any other party? I am not making the case that it should or should not be, but I am interested to know that. That is one question.
Second, section 11(1)(a)(i) refers to "the person knowingly provided false or misleading information". Is the person the original applicant for the section 10 declaration? Is the person someone in the enforcement authority or the DPP? I am just asking.
It would be the person. It would be the original person who sought the declaration. We will clear that one up.
I ask that question because in the way this is worded, it sounds as though there is a live enforcement action and the planning authority or the DPP will take action against the developer. The developer in this case may have sought a section 10 declaration, as it will now be called, but gave false or misleading information. I do not understand why in that scenario there would need to be the carve-out in section 11(1)(a)(i). I am trying to understand that.
My third point is to emphasise Deputy O'Callaghan's point because this is what confused me. Section 11(2) refers to "any proceedings" and I would like the meaning of that. Deputy O'Callaghan makes the point that this does not refer just to enforcement proceedings. It does seem to include enforcement proceedings because it makes reference to section 11(1), but it reads as though it would apply to anything, including if a third party would take a case. If these points could be explained that would be very helpful. My sense is that there is a whole pile of problems in section 11, but we will obviously eagerly await the note.
On the second point that Deputy Ó Broin made, this is set aside in section 11(1)(a)(i), where the person knowingly provided false information. The relevant declaration would be conclusive evidence unless it was proved to be false, in which case it would not be deemed to be conclusive evidence. We will include that in the note. We will get a detailed note from the Office of the Attorney General on that.
Deputy O'Callaghan has indicated that he wishes to add to that.
I have a small question, which is really for the Chair in terms of the procedure around this. I appreciate that we are getting the note and that is necessary here. Yet, we will have no opportunity to ask questions after we get the note or to raise any issues. Is that the case or will there be an opportunity to do so?
We will be discussing whether we agree on section 11.
Can we come in at that point, before there is a vote on it?
Yes.
Okay, and will that happen today?
More than likely.
If it happens today, there is nothing we can do about that.
A number of notes are required on a couple of things. We will just have to either agree with the amendment or not and make the decision at the time. We can deal with it on Report Stage if the Deputy is not satisfied with the report and the possible changes.
To be helpful, we are going to see if we can get the note. There was a detailed note on this as part of the discussions. We will get that and bring it as soon as we can.
We might get it before a vote. I thank the Minister.
We may do.
It is possible.
There is a lot in section 10, so I do not know.
Amendment, by leave, withdrawn.
I will move on.
Deputy McAuliffe is not present so amendment No. 65 will fall.
Amendment No. 65 not moved.
I move amendment No. 66:
In page 42, to delete line 40, and in page 43, to delete lines 1 to 13.
Amendment put:
The Committee divided: Tá, 3; Níl, 6.
Tá
- 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.
I move amendment No. 67:
In page 43, between lines 13 and 14, to insert the following:
“(f) any other person.”.
Amendment put:
The Committee divided: Tá, 3; Níl, 6.
Tá
- 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.
I move amendment No. 68:
In page 43, between lines 13 and 14, to insert the following:
“(f) any other person has a material interest in establishing whether the development is exempt from planning permission.”.
Amendment put:
The Committee divided: Tá, 3; Níl, 6.
Tá
- 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.
I propose to withdraw my amendment No. 69 but the amendment is also in the names of Deputy O'Callaghan and others. How stands the amendment?
I move amendment No. 69:
In page 43, line 14, to delete “a relevant person” and substitute “any person”.
Amendment put:
The Committee divided: Tá, 2; Níl, 6.
Tá
- O'Callaghan, Cian.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- O'Brien, Darragh.
- O'Sullivan, Christopher.
Amendment declared lost.
I move amendment No. 70:
In page 43, line 15, to delete “a relevant act” and substitute “any act”.
I will withdraw the amendment because the Minister has indicated that he will return to this matter on Report Stage.
Amendment, by leave, withdrawn.
I propose to withdraw amendment No. 71 on the basis that the Minister will return to the matter to which it relates on Report Stage. However, the amendment is also in the names of Deputy O'Callaghan and others. How stands the amendment?
I move amendment No. 71:
In page 43, line 23, to delete “a relevant person” and substitute “any person”.
Amendment put:
The Committee divided: Tá, 2; Níl, 6.
Tá
- O'Callaghan, Cian.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- O'Brien, Darragh.
- O'Sullivan, Christopher.
Amendment declared lost.
As Deputy McAuliffe is not present, amendment No. 72 cannot be moved.
Amendment No. 72 not moved.
I move amendment No. 73:
In page 43, to delete lines 31 to 36 and substitute the following:
“(c) In relation to development (wholly outside the outer maritime area), granted or proposed under this Act or the Act of 2000, any person may, upon payment of the prescribed fee, make a request in writing to the planning authority within whose functional area the development is, or is proposed to be situated, for a declaration on any question relating to-”.
Amendment put:
The Committee divided: Tá, 2; Níl, 6.
Tá
- O'Callaghan, Cian.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Brien, Darragh.
Amendment declared lost.
I move amendment No. 74:
In page 43, to delete all words from and including “who” in line 31, down to and including “2000” in line 33.
Amendment, by leave, withdrawn.
I move amendment No. 75:
In page 43, line 33, after “development” to insert the following:
“carried out, being carried out or proposed to be carried out development in accordance with a permission granted under this Act of the Act of 2000”.
Amendment, by leave, withdrawn.
I move amendment No. 76:
In page 44, between lines 13 and 14, to insert the following:
“(4) On receipt of a request under subsection (2) a planning authority shall, in the manner prescribed in regulations under this section, notify the owner of the land, the occupier of the land, the public and such other persons as may be prescribed, inviting submissions in writing not later than 2 weeks from the date of the notice.”.
Amendment, by leave, withdrawn.
I move amendment No. 77:
In page 44, between lines 28 and 29, to insert the following:
“(iii) to any person who wrote to the planning authority in relation to the request,
and
(iv) to such other persons as may be prescribed.”.
Amendment, by leave, withdrawn.
I move amendment No. 78:
In page 44, between lines 28 and 29, to insert the following:
“(iii) notwithstanding subsection (8), shall include details of the declaration sought and the further information requested on the planning register.”.
Amendment put:
The Committee divided: Tá, 2; Níl, 6.
Tá
- O'Callaghan, Cian.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Brien, Darragh.
Amendment declared lost.
I move amendment No. 79:
In page 44, to delete lines 35 to 37 and substitute the following:
“(7) (a) Any person (in this subsection referred to as the “appellant”) may, not later than 4 weeks from the date of the publication of the declaration and on payment to the Commission of such fee as”.
Amendment put:
The Committee divided: Tá, 2; Níl, 6.
Tá
- O'Callaghan, Cian.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Brien, Darragh.
Amendment declared lost.
As it is 4.03 p.m. and we had agreed to break at 4 p.m., we will take a 30-minute break and return at 4.33 p.m.
Sitting suspended at 4.03 p.m. and resumed at 4.37 p.m.
We will resume on amendment No. 80. I welcome the Minister of State, Deputy O'Donnell, to the committee this afternoon.
I move amendment No. 80:
In page 45, lines 37 and 38, to delete “under subsection (2) shall be entered in the register” and substitute the following:
“under subsection (2), (13) or (14) shall be entered in the appropriate register of the Commission and the planning authority in which the matter for which the declaration sought is either wholly or partially in”.
Amendment put and declared lost.
I move amendment No. 81:
In page 46, line 9, to delete “any” and substitute “all”.
Amendment put and declared lost.
I move amendment No. 82:
In page 46, to delete lines 20 to 26 and substitute the following:
“(c) Where the planning authority or the Commission makes a decision it shall, as soon as possible and not later than 5 working days thereafter, cause the relevant documents to—
(i) be published on its internet website, and
(ii) be made available for inspection free of charge and purchase by members of the public at a reasonable cost during normal office hours at its offices during such period (which shall not be less than 8 weeks from the date of the making of the decision).”.
Amendment put and declared lost.
As there is nobody to move amendment No. 83, it falls.
Amendment No. 83 not moved.
Amendment No. 84 is grouped with amendment Nos. 86, 97, 590 to 592, inclusive, 606, 627, 673, 690, 696, 702, 716, 748, 766, 772, 778, 787, 814, 819, 822, 837, 844, 911, 974, 998 to 1001, inclusive, 1005, 1016, 1055, 1110, 1190 and 1192, and they may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 84:
In page 47, line 7, to delete “Habitats Directive)” and substitute “Habitats Directive),”.
These amendments are of a minor technical and drafting nature and do not change the content of the Bill, rather they seek to bring clarity to it by ensuring consistency in grammar and punctuation across the Bill. The sheer scale of the Bill has been widely remarked on by Deputies and stakeholders. Indeed, this is somewhat symbolic of the sheer breadth of ways that planning impacts on nearly every aspect of our daily lives. However, the compilation of the third largest Bill in the history of the State presents its logistical challenges. My Department, working closely with both the Office of Parliamentary Counsel and the Bills Office, has continued to comb through the Bill post publication to ensure the highest standards of clarity and drafting are achieved. These amendments relate to areas identified where punctuation requires repair, such as appropriate capitalisation and other minor amendments to punctuation, which do not affect the meaning or applications of the sections referred to.
I have read through all the amendments. They appear to be such changes as "and" or "it". I have nothing further to add.
That is fine.
Do members wish to respond on any of these amendments?
An "and" or an "it.
As someone who has spoken about grammar and syntax at the committee, I cannot complain about anyone else's punctuation.
They are genuinely technical.
Amendment agreed to.
I move amendment No. 85:
In page 47, between lines 8 and 9, to insert the following:
“(iii) whether or not the development or proposed development is likely to have
significant effect on the use of Irish within a Gaeltacht Language Planning
Area (including by virtue of its nature, size and location) and requires the
carrying out of a language impact assessment.”.
Amendment No. 85 was already discussed with amendment No. 8. Is it being pressed?
Yes.
Amendment put.
Amendment put:
The Committee divided: Tá, 3; Níl, 6.
Tá
- O'Callaghan, Cian.
- Ó Broin, Eoin.
- Ó Snodaigh, Aengus.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Brien, Darragh.
Amendment declared .
I move amendment No. 86:
In page 47, line 18, to delete “Habitats Directive)” and substitute “Habitats Directive),”.
Amendment agreed to.
I move amendment No. 87:
In page 47, between lines 19 and 20, to insert the following:
“(iii) whether or not the development or proposed development is likely to have
significant effect on the use of Irish within a Gaeltacht Language Planning
Area (including by virtue of its nature, size and location) and requires the
carrying out of a language impact assessment.”.
I am pressing the amendment.
Amendment put:
The Committee divided: Tá, 3; Níl, 6.
Tá
- O'Callaghan, Cian.
- Ó Broin, Eoin.
- Ó Snodaigh, Aengus.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Donnell, Kieran.
Amendment declared lost.
I move amendment No. 88:
In page 47, line 27, after “subsection (7)” to insert “or under subsection (14)”.
Amendment, by leave, withdrawn.
I move amendment No. 89:
In page 47, line 30, after “decision” to insert “or the request for a declaration”.
Amendment, by leave, withdrawn.
I move amendment No. 90:
In page 48, between lines 22 and 23, to insert the following:
“(v) the opinion of the Minister as to whether the development is likely to have an
impact on the use of Irish within a Gaeltacht Language Planning Area.”.
I press the amendment.
Amendment put:
The Committee divided: Tá, 3; Níl, 6.
Tá
- O'Callaghan, Cian.
- Ó Broin, Eoin.
- Ó Snodaigh, Aengus.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Donnell, Kieran.
Amendment declared lost.
I propose to withdraw amendment No. 91. However, the amendment is also in the names of Deputies O'Callaghan, Ó Broin and others. Is amendment No. 91 being pressed?
I move amendment No. 91:
In page 48, line 28, to delete “a relevant” and substitute “any”.
I press the amendment.
Amendment put:
The Committee divided: Tá, 3; Níl, 6.
Tá
- O'Callaghan, Cian.
- Ó Broin, Eoin.
- Ó Snodaigh, Aengus.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Donnell, Kieran.
Amendment declared lost.
I move amendment No. 92:
In page 48, line 29, to delete “a relevant” and substitute “any”.
Amendment, by leave, withdrawn.
I move amendment No. 93:
In page 48, line 36, to delete “a relevant” and substitute “any”.
I press the amendment.
Amendment put:
The Committee divided: Tá, 3; Níl, 6.
Tá
- O'Callaghan, Cian.
- Ó Broin, Eoin.
- Ó Snodaigh, Aengus.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Donnell, Kieran.
Amendment declared .
I move amendment No. 94:
In page 49, to delete lines 3 to 8 and substitute the following:
“(c) In relation to a development wholly or partly in the outer maritime area, granted
or proposed under this Act or the Act of 2000, any person may, upon the payment
of such fee as may be approved under section 348, make a request in writing to
the Commission for a declaration in respect of the development, on any question
relating to—”.
How stands the amendment?
I press the amendment.
Amendment put:
The Committee divided: Tá, 3; Níl, 6.
Tá
- O'Callaghan, Cian.
- Ó Broin, Eoin.
- Ó Snodaigh, Aengus.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Donnell, Kieran.
Amendment declared lost.
I move amendment No. 95:
In page 49, between lines 22 and 23, to insert the following:
“(iv) In subsection (4), “the Commission” were substituted for “the Planning
Authority”,”.
I thank the Chair. I will focus on a couple of projects that are local to the Chair, Deputy O'Dowd, and me by giving my own thoughts and asking for the witnesses' opinions on them. I will start with the Enterprise train service. The Chair, coming from Drogheda as he does, will be aware of this himself. I will make two points. First, I am aware of it because I am a regular train user myself. I use it to get here. I use it to get to work and have been using it for the last ten years. I actually introduced a Private Member's Bill this week that proposes to offer refunds when trains are delayed. The reason I am doing that is that the enterprise is regularly delayed, it is regularly late. There are people getting on in my town of Dundalk or the Cathaoirleach's town of Drogheda who are paying full whack for a ticket and have no seating. Just this morning for example, a good friend of mine, Tom Quigley, who gets the train all the time is waiting for a train that is late again for the third time this week. He is now going into work late again for the third time this week having to make excuses. That is not good enough for the type of transport that we want, particularly between Dublin and Belfast which in my view, is the economic engine for the island of Ireland. It is how we have a number of people in employment, it is how we have a huge number of educational opportunities and I know I am being parochial because I am in the middle of it, but it is an important part of this island. My question is with the €12.5 million funding that you are putting in and the work that you are doing with the Department of Transport both in the North and the South. Would you be confident that that money is going to be enough at this stage to be able to increase the capacity and the frequency so that we can see to it that there are no longer substantial delays or people standing on trains from Newry, Dundalk or Drogheda? I would be interested in that. It is an excellent project and when I see things like this I get excited about them, particularly when it is going to come through by Q1 of 2025, but I would love to know the data behind that and how you can be certain that that is going to resolve a lot of the issues, in the first instance.
Secondly, when I look at the Narrow Water Bridge and again Deputy O'Dowd would be very aware of this, I believe this is going to exist because of the work done by Shared Island and the commitment the Government have put towards it and because Louth County Council kept it alive for a number years when it had died a death in 2013. It is great to see now everybody from all political parties involved, it reminds me of that quote "Success has 1,000 father". That is happening with the Narrow Water Bridge, everyone is responsible for building it. It is important to have people from all political persuasions on both sides of the Border supporting it, but I think it is the Shared Island Unit that is responsible for building it because to be able to put that level of funding behind it which is probably the most significant amount of funding, is going to make it a success and is going to make it a reality. I do want to put on the record that it is because of the work that they have put into it.
My view is that I am more concerned with the rail line side of it, that that may not live up to expectations. I do not have any of those concerns with the Narrow Water Bridge because that has moved to such a point at this stage that it is going ahead and it is going to be really good. My question relates back to the train services and how can the witnesses be sure that that funding is enough and how will the organisation come up with that data where that funding comes along?
Amendment, by leave, withdrawn.
I move amendment No. 96:
In page 50, to delete lines 19 to 25 and substitute the following:
“(c) Where the Commission makes a decision it shall, as soon as possible and not later
than 5 working days thereafter, cause the relevant documents to—
(i) be published on its internet website, and
(ii) be made available for inspection free of charge and purchase by members of
the public at a reasonable cost during normal office hours at its offices
during such period (which shall not be less than 8 weeks from the date of the
making of the decision).”.
I will press the amendment.
Amendment put:
The Committee divided: Tá, 3; Níl, 6.
Tá
- O'Callaghan, Cian.
- Ó Broin, Eoin.
- Ó Snodaigh, Aengus.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Donnell, Kieran.
Amendment declared lost.
I move amendment No. 97:
In page 50, line 37, to delete “Habitats Directive)” and substitute “Habitats Directive),”.
Amendment agreed to.
I move amendment No. 98:
In page 50, between lines 39 and 40, to insert the following:
“(j) whether or not the development or proposed development is likely to have significant effect on the use of Irish within a Gaeltacht Language Planning Area (including by virtue of its nature, size and location) and requires the carrying out of a language impact assessment;”.
Amendment put:
The Committee divided: Tá, 3; Níl, 6.
Tá
- O'Callaghan, Cian.
- Ó Broin, Eoin.
- Ó Snodaigh, Aengus.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Donnell, Kieran.
Amendment declared lost.
Question put: "That section 10, as amended, stand part of the Bill"
The Committee divided: Tá, 6; Níl, 3.
Tá
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Donnell, Kieran.
Níl
- O'Callaghan, Cian.
- Ó Broin, Eoin.
- Ó Snodaigh, Aengus.
Question declared carried.
SECTION 11
I move amendment No. 99:
In page 51, lines 10 to 12, to delete from “brought” in line 10 down to and including
“declaration” in line 12.
Amendment, by leave, withdrawn.
I move amendment No. 100:
In page 51, line 11, after “Prosecutions” to insert “or any other person”.
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.
We will move now to amendment No. 101 in the name of Deputy O'Callaghan.
When we were discussing this earlier, the Minister who was present at the time did promise a note in this regard. He said the note was written, so that we might be able to get it today in advance of the vote. The Minister was not able to explain why section 11(2) is in the Bill or what the rationale is for it. Is that note available now and can we discuss it?
I will inquire with the officials. That note was to be made available to the committee. I will inquire from them exactly where it is at the moment.
Okay, but it is not available now so in terms of-----
The short answer to the Deputy's question is that I do not know, but I will find out for him.
Okay. In terms of taking this vote then, Chair, it is not a very satisfactory situation.
What was the Deputy's understanding?
There was no explanation from the Minister as to why section 11(2)-----
In terms of the note being provided, however-----
That it was written and we might be able to get it quickly because it is already written. I am just saying that it is not a very satisfactory situation because the Minister was unable to explain why section 11(2) is in the Bill. He provided no rationale for it and gave no explanation. We are now taking a vote on something without any rationale being given about it.
The Minister committed to coming back with a note to the Deputy.
He committed to making that note available, absolutely. I am just saying it is not satisfactory that we are taking a vote on something and no rationale has been provided for why section 11(2) is in the Bill. I will leave it at that.
Deputy O'Callaghan might just remind me what that note was in relation to.
It was going to provide some information as to why the Bill states that "a relevant declaration shall not be admissible in evidence in any proceedings relating to the act." The Minister was not able to explain that.
I am sorry, yes, I do remember. The note was more expansive than that and not just on that particular issue.
It was going to cover more than that, but it was going to cover-----
I thought it was covering other areas as well.
It was.
Yes, it was, but it was going to cover this as well.
It was covering areas in terms of-----
All of section 11.
In terms of certain third parties with regard to section 10. Am I correct in that as well?
It was more so section 11.
The note is currently being prepared and it will be provided to members in the morning. I understand that covers other areas in addition to what the Deputy is discussing. Am I correct, Chairman?
That is correct, yes.
The query is with regard to section 11 and nothing to do with section 10.
Would it be appropriate then to wait because we will have the note in the morning? It means that if there are any issues arising from it, we will be able to ask questions and discuss it.
Therefore, if the Deputy got the note, he might be willing to withdraw the amendment.
I absolutely might be willing to withdraw the amendment.
On that basis, if the note is going to available tomorrow, we are almost at the finish time anyway. If members wish, we can await that note and come back then.
On a technical note, can we defer or do we have to go on chronological order for the votes?
We are actually due to finish at 6.30 p.m. anyway.
I am saying that technically we could not move to another vote so to stop now is the correct thing to do.
We will reconvene-----
I would expect that it will be late in the morning rather than first thing in the morning.
That is fine. That is plenty of time.
That is fine because the select committee will reconvene on Tuesday. We will have plenty of time.
It will be tomorrow morning.
We will have that vote then. I thank the Minister of State for his attendance this afternoon. I particularly want to thank his officials for another very long week.
Sections 10 and 11 are related.
Sections 10 and 11 are related, that is correct. The select committee stands adjourned until Tuesday when we will recommence on section 11, amendment No. 101. I thank members.
Progress reported; Committee to sit again.
The select committee adjourned at 6.25 p.m. until 6.15 p.m. on Tuesday, 27 February 2024.