Amendments Nos. 674 to 677, inclusive, are related and will be discussed together. If amendment No. 674 is to be agreed, then amendments Nos. 675 to 677, inclusive, which are in the names of Deputies Ó Broin and O'Callaghan, cannot be moved.
Planning and Development Bill 2023: Committee Stage (Resumed)
SECTION 99
I move amendment No. 674:
In page 222, to delete lines 37 to 40, and in page 223, to delete lines 1 to 11 and substitute the following:
"(b) in the case of a decision of a planning authority that relates to a development in respect of which a screening determination for an appropriate assessment or an environmental impact assessment was required under Part 6, or an appropriate assessment or an environmental impact assessment was required to be submitted to the planning authority in accordance with Part 6, or a decision which relates to the environment, non-governmental organizations promoting environmental protection—
(i) whose constitution includes objects which relate to and prioritise environmental protection,
(ii) that can substantiate reasonably that it pursues such objects, and
(iii) that is not-for-profit.".
We have been flexible with votes, but there is a value, particularly in respect of amendments of some significance, to have recorded votes. We are endeavouring to have a full attendance to assist that, but the official voting record is important. We have demonstrated in the past two weeks a willingness to work with the Cathaoirleach so we get through this in a timely manner.
I will speak to the three amendments together. The Cathaoirleach is right that in the unlikely event of the Minister supporting amendment No. 674, amendments Nos. 675 to 677, inclusive, fall. Given that the Government side is down one voting member, the margins are a little tighter for the purposes of the votes until the new Minister of State, Deputy Higgins, is replaced. I congratulate her on what appears to be her official appointment. She is a constituency colleague from Dublin Mid-West and I have worked with her on issues for a very long time.
Section 99 relates to persons who are eligible to appeal the decision of a planning authority. This cluster of amendments relates to section 99(2)(b)(i) to (v). For clarity, this is where "a decision of a planning authority ... relates to a development in respect of which an appropriate assessment or an environmental impact assessment was required to be submitted to the planning authority in accordance with Part 6". It specifically relates to cases where there are serious environmental considerations, whether from very large, formalised environmental non-governmental organisations, more localised community-based groups, campaign groups that have environmental concerns or individuals. My strong view is that section 99(2), particularly section 99(2)(b)(i) to (v), is far too restrictive. Amendment No. 674 seeks to have a much fairer set of definitions that are more compliant with the environmental impact assessment, EIA, directive and the Aarhus Convention to ensure that organisations whose constitution includes objects which relate to and prioritise environmental protection would be deemed eligible. The amendment also refers to NGOs that can substantiate reasonably that they pursue such objects and are not for profit.
Amendments Nos. 675 and 677, in the event that amendment No. 674 is not accepted, seek to remove the most egregious or restrictive elements of the Government's wording, particularly that the organisation had to be formed not less than a year before the beginning of the appeal. This is obviously particularly relevant where there might be some very strong localised environmental concerns and groups might only have formed during the course of the planning application process. The addition of a reference to "10 members" also seems completely arbitrary. I see no reason why it should be ten, five, 20, etc. The issue is whether they can be established as having a bona fide concern and on that basis, they should be able to appeal. I am interested in hearing the Minister's reply to each of my three amendments in this grouping. He might be willing to explain why one year is the threshold under section 99(2)(b)(iii) and why there is a reference to ten members under section 99(2)(b)(iv).
Something I have not covered in my amendments-----
Is the Deputy referring to the reference to ten members?
I am. Section 99(2)(b)(v) refers to "a resolution" but does not state of what kind or how many members of the organisation have to be present. Is it just a resolution generally or is there going to be something more specific by way regulation or otherwise?
I will come in on amendment No. 676, which is a part of this grouping. These amendments cover a similar issue. What is the Minister's justification and rationale for the changes proposed that restrict participation? Has he had advice on these specific measures in the Bill and whether they are compliant with the Aarhus Convention when they restrict participation? I know he has general advice in respect to the Bill's compliance with the Aarhus Convention but does he have advice in respect of these specific measures and if he has, will he share it with us?
I congratulate the Minister of State, Deputy Higgins, on her appointment. She was a valuable member of this committee and I wish her well in her new role. I take it that a replacement member will be appointed to the committee without delay. In fairness, the Minister of State played an active role in the committee and I wish her my best.
I thank the Deputies for the amendments. Going right the way back to the introduction of this Bill, one of the key points was about transparency. This section is about transparency and clarity as to who can bring forward further observations and how they can do so. I will answer the Deputies' questions directly but let us first look at section 99(1)(a) and (b). It is important to note that while the Deputies opposite might talk about there being restrictions, underpinning all of this is the fact that any applicant for a permission can appeal and any person, other than a prescribed body, is eligible to appeal. We are not restricting third-party rights in any way, shape or form. That is the first point.
My second point relates to the prescribed bodies themselves. It is only fair, proper and right that organisations such as these are properly constituted. A time period is set so that an organisation is not set up specifically for the purpose of lodging an observation as a prescribed body. It is only right and proper to include the reference to NGO groups and other prescribed bodies, which play an important role in our planning process and which I welcome. Those which are established would very much welcome the clarity around how they are formed and that is detailed well. An organisation must be formed and registered "not later than one year before the bringing of the appeal". The EU requires such organisations to be in existence for 24 months but we are saying 12 months in that regard. I am not sure if members are aware of that.
There is absolutely no issue. We have engaged with genuine environmental NGOs. This would pose them no difficulties. What we are talking about here is trying to set the parameters for new NGOs that would come into play. They would have to be in existence, properly constituted and have a minimum number of members. The resolution that would be passed, to answer Deputy Ó Broin, would be in accordance with the constitution of that body. I am not setting a minimum threshold. It is whatever a body's quorum would be set at under its own articles and memorandum. It has to be clear about what the resolution is, that the resolution is passed, and that the body is properly established. The one-year period is very reasonable. The EU requires an existence of 24 months, so we have not gone that far.
Environmental NGOs rightly enjoy a special privilege in the planning system and we are protecting that. We are making sure of this with those that are exercising their duties properly and have clearly stated why they are in existence, which is clearly addressed in the Bill, which covers verifiable parameters relating to the establishment of and operation of a company with the objective relating to the promotion of environmental protection and its relevance. It is important that this is there and the NGO is established for that reason. We have struck a reasonable balance. We are protecting existing environmental NGOs, which do a really good job, and I welcome their interaction with the planning process. They are central to this legislation. We have to look at other bodies that may be set up on an arbitrary basis. It could be to lodge observations against community groups for community infrastructure. We are not just talking about housing developments or anything like that. It is fair and proper that it be set out clearly that if a body is to become one that can make observations such as this, it is clear how it is established, how long it is established, what the minimum number of members is and that a proper resolution will be passed.
I could speak more on this today but I will not, and will instead conclude on this. We have seen bodies and groups that have been set for the sole purpose of delaying or obstructing developments. I mean that in the broader sense, whether that is community development or infrastructural development. We only have to look at recent television coverage in that regard. I have seen it in my constituency. I will not mention the specific case either. People have been able to obstruct good developments when they have not had skin in the game. This details clearly how one would establish a group. We would welcome that. For those reasons, while I know this will not come as a big surprise to Deputy Ó Broin, I appreciate the amendments being tabled because it allows us to discuss them, but I will not be accepting them as tabled. It flows from what the Chair said about the timeframe of 12 months versus six months. The 12-month period is appropriate, particularly when compared with EU requirements. This is fully compliant with the Aarhus Convention too.
I will call Deputy Ó Broin. I want to get a clarification on something too.
Like the Minister, the concern we have is to ensure that organisations or campaign groups that have a genuine and sincere interest in environmental matters are facilitated. We look forward to his amendments to deal with those who are hiding under the banner of alleged environmental NGOs when they are not that. Exactly as the Minister said, they seek to extort money by way of delaying, which is something that none of us want to see.
One issue in my amendment No. 674 that I did not raise was that there is also an addition into the body of subsection (b), where in addition to considering applications that involve appropriate assessments and environmental impact assessments, I am also including screening determination to ensure where there may be a concern about an inadequate screening determination, this can be included too. My understanding is that some European Court of Justice case law would require-----
Is that amendment No. 674?
In the text of my amendment, in the new subsection (b), we are inserting "screening determination". This is to ensure that both the determinations on screening and, separately, appropriate assessments and environmental impact assessments, would be covered by this provision. There are two issue. The first is to ensure no group that has a legitimate interest in the environmental consequences of a development, which, by the way, may not be objecting to something but might simply want adequate environmental protection provisions in the granting of the permission, can do so. I hear what the Minister is saying about 24 months versus 12. There could be cases where a group emerges within that year period. I know the Minister will not accept the amendment but I would like him to consider it with his officials to make sure that nobody who should be facilitated would be excluded.
What is the rationale for ten people? It seems like an arbitrary number. Why ten rather than five, 20 or 50? If there is a rationale for that, I would be interested to hear it.
I would like to add to the comments that have been made about the former committee member, Deputy Emer Higgins, who is now a Minister of State. She certainly made a good contribution to this committee.
I believe amendment No. 674 strengthens this section. It moves away from arbitrary criteria like one year or ten members to much more important criteria. For example, it includes that the organisation would be not for profit. If we are concerned about bogus entities pretending to be environmental NGOs having other aims or goals, which we have seen evidence of, with people trying to profiteer and exploit the planning system, having it be not for profit is an important criterion and would exclude those bogus for-profit actors who have been abusing the planning system. That is stronger wording than what the Minister is proposing here.
The suggestion in the amendment is not just that the "constitution includes objects that relate to the promotion of environmental protection of relevance to the appeal", and not just the wording "that has pursued those objects for a period of not less than one year", but more importantly includes, "that can substantiate reasonably that it pursues such objects". There could be an excellent environmental NGO with eight people with much expertise. It could have much greater expertise than an environmental NGO that might have 100 or 200 members. To arbitrarily exclude eight people who are experts who are working together under this wording seems to be very blunt. It seems to be a focus on the legitimacy of an organisation based purely on quantity of membership rather than the quality of it. I get that we cannot assess the quality of legislative provisions, but we are kidding ourselves if we think that somehow an organisation of ten has a substantive difference from one of nine or eight. If ten people are working together, who qualify for this and have huge environmental expertise and experience over decades, then as happens in organisations, there could be a row or disagreement, one or two of them could leave, and all of a sudden under this legislation, they are gone. I know they could replace themselves.
There is a division to go to. I have a final point before we go to that.
We have about four minutes to get there. If the Deputy wants to finish his point, I can bring the Minister back in.
I will finish my point if we have the time. I would be particularly concerned about subsection (b)(v), which states, "that has passed a resolution, in accordance with the constitution of the company, before the bringing of the appeal authorising the company to bring the appeal." It is very reasonable. The issue with it is timing. There can be very short windows to do this.
I will come back on that.
That is where I have concerns on that.
I want to get clarity that a group of two, three or four that has put in a submission on the planning application, is not prevented from that. This is coming to the event after the planning application is made.
Exactly. This allows a group to insert itself into the process. If it made the original observation, it is absolutely no problem.
I will suspend the meeting so that we can go to the Dáil Chamber for a vote. We will return five minutes after the vote is completed.
Sitting suspended at 2.20 p.m. and resumed at 2.49 p.m.
Welcome back everybody. Minister, you were going to respond, I think, to points raised by Deputies O'Callaghan and Ó Broin on amendment No. 674 and the related grouping.
I thank members for their follow-up remarks. It is important to restate that section 99(1) refers to "any person", so if, say, a group were not established, an individual could make the original observation as an interested party. That is protected all the way through the legislation. Under subsection (2), prescribed bodies can insert themselves into the process, and rightly so. We want that to happen where appropriate. I have already stated my clear view and that of the Government, which I believe the whole committee shares, of the important role environmental NGOs and prescribed bodies play within the planning process. Deputy O'Callaghan made the point that, if anything, amendment No. 674 would strengthen these provisions.
I am of a contrary view that it would actually weaken the eligibility criteria. That is not what we want. I am not just harking back to the "RTÉ Investigates" programmes and those types of issues that we all want dealt with and we never want to see again. That should not be a situation. I am talking in real terms whereby you have to set a threshold. If we talk about what the Deputy terms an arbitrary figure of ten, I can look at other EU countries and get this information and set a much higher bar in relation to the number of members that will be there. One must pick a figure. Is it one? Therefore someone could just set up an organisation on his or her own and be effectively one person but in an organisation. If an entity is already a prescribed body at the time of the passing of this legislation - I know the Deputy knows this, I just state it for the record - and if, for argument's sake, it only had eight members, it is already prescribed. This is how new bodies will be able to establish themselves. It is right and proper by way of transparency that resolutions are passed and that we know who are the people who constitute a particular body. There is nothing to be feared from that and from a transparency perspective, that is only right and proper.
It has been a good discussion. I genuinely believe we struck a really good balance here to ensure that where groups want to establish themselves, they know and it is clearly stated that the constitution includes objects that relate to the promotion of environmental protection. It is clearly set out in section 99(2)(b)(ii) and (iii) on page 223 and right the way through.
As for the other point on screening, I am going to check that. I do not want to give an answer now that is incorrect. I understand where the Deputy is coming from in relation to that specific line in amendment No. 674 under paragraph (b), which refers to "a screening determination for an appropriate assessment". I will check that and I will engage with the Deputy prior to Report Stage. If we need to bring an amendment back on that piece we will, but let me get clarity on that.
In that regard, I have dealt with my position on it as to where we are on the Government position.
Of course it sounds absolutely reasonable in terms of transparency to have a resolution passed. The practical effect of that is what concerns me. In a planning appeal, you have a limited window to get the appeal in. An environmental NGO could be dealing with a complex technical appeal involving a huge amount of work and a lot of expertise may need to be sought. In terms of complying with the constitution of a company and bringing a resolution and the notice periods that have to be issued - for some companies that might be 21 days or whatever - it is the practicalities of getting a quality submission together and complying with Part V. I would not want us to be drafting legislation in the way that knocks out what could be useful contributions, as the Minister has acknowledged, to the planning process. That is the concern, to bring practicalities and timelines.
While I know subparagraphs (iii) and (iv) in section 99 are not intended to deal with the kind of vexatious, extortionate misuse of the planning process that other amendments will deal with, in the cases that were in RTÉ's "Prime Time" programme, there would be nothing to stop people who want to use the planning process and the cover of bogus environmental NGOs from just setting up an organisation and having family members to make up the ten. That does not give any protection. I still want to put on record that I am concerned there may be circumstances where it could lead to exclusion. I know the Minister is not supporting it but I would ask him to reconsider that, at least in some discussions with his officials, before Report Stage.
Does the Minister not think the not-for-profit wording would be useful here as an addition?
I do not. I believe it is well covered already. I have already said that prior to Report Stage I will look at the screening piece just to make sure we require that or not. There are active environmental NGOs out there right now that carry out an important role and have a really important position within our planning system. I put it to the Deputy that they too would want that clarity and transparency that we are providing here. Again, Deputy O'Callaghan mentioned - I will conclude my remarks with this point - the requirement for detailed submissions to be made. Absolutely, but if someone was to put in an observation on environmental grounds, that would be the case for an individual anyway. An individual would have to do that work at the first stage. Groups will now know, on passing of this legislation, if there are environmental groups in Fingal, Rossaveal or wherever, they will now clearly know what the rules and criteria are for them to be established. That is a really good thing. It can remove nefarious players where they might be. It sets a bar that is appropriate. As I said, in conclusion, I am going to assess the screening determination for appropriate assessment piece. I will revert back to the committee but my position remains the same on the amendments.
Amendment put:
The Committee divided: Tá, 4; Níl, 5.
Tá
- Gould, Thomas.
- O'Callaghan, Cian.
- O'Donoghue, Richard.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Brien, Darragh.
Amendment declared lost.
I move amendment No. 675:
In page 223, line 5, to delete “one year” and substitute “six months”.
Amendment put:
The Committee divided: Tá, 4; Níl, 5.
Tá
- Gould, Thomas.
- O'Callaghan, Cian.
- O'Donoghue, Richard.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Brien, Darragh.
Amendment declared lost.
I move amendment No. 676:
In page 223, to delete lines 7 to 11.
Amendment put and declared lost.
I move amendment No. 677:
In page 223, to delete lines 7 and 8.
Amendment put:
The Committee divided: Tá, 4; Níl, 5.
Tá
- Gould, Thomas.
- O'Callaghan, Cian.
- O'Donoghue, Richard.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Brien, Darragh.
Amendment declared lost.
Question proposed: "That section 99 stand part of the Bill."
Have paragraphs (a), (b) and (c) of section 99(5) been transposed from the existing Act? Is there anything substantively new in section 99(5)(a), (b) and (c)? If that is the case, I ask the Minister to explain it, please.
I have been told the answer is "No". That section is on page 224.
At the very top of page 224.
That is exactly as is, yes.
Perfect.
Question put:
The Committee divided: Tá, 5; Níl, 4.
Tá
- Duffy, Francis Noel.
- Flaherty, Joe.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Brien, Darragh.
Níl
- Gould, Thomas.
- O'Callaghan, Cian.
- O'Donoghue, Richard.
- Ó Broin, Eoin.
Question declared carried.
SECTION 100
Deputy Eoin Ó Broin: I move amendment No. 678:
In page 225, line 17, to delete “retention” and substitute “retention permission”.
Is amendment No. 678 agreed?
Give us 30 seconds to pull it up.
It is to change "retention" to "retention permission".
Just 30 seconds, Chair, please. Apologies.
Amendment agreed to.
I move amendment No. 679:
In page 225, line 21, after “concerned” to insert the following: “(either individually or in combination with any plan or other project within the meaning of the Habitats Directive)”.
Amendment agreed to.
I move amendment No. 680:
In page 225, lines 22 and 23, to delete “(either individually or in combination with other plans or projects within the meaning of the Habitats Directive)”.
Amendment agreed to.
Amendment No. 681 is in my name. I withdraw it but may reintroduce it on Report Stage.
Amendment No. 681 not moved.
Section 100, as amended, agreed to.
Section 101 agreed to.
SECTION 102
Question proposed: "That section 102 stand part of the Bill."
I propose that this section be opposed. I have two questions. In the revisions for plans for development on appeal, is there anything new? Will the Minister explain what may be new in this section?
It is broadly a transposition. I will check the 2000 Act.
I thank the Minister.
The purpose is the same as section 37 of the Planning and Development Act 2000. It is pretty much a transposition. It is shorter because that has been split across the Bill. Does the Deputy have the existing Act?
I do.
It is on page 157.
There is nothing substantively or materially different in the wording or that would allow the planning authority to make revisions that would not have otherwise been permitted under the existing Act?
That is fine.
Question put and agreed to.
SECTION 103
Question proposed: “That section 103 stand part of the Bill”.
I have exactly the same question. Is there anything substantively different to explain?
It is pretty much the same. Is the Deputy referring to section 103?
Yes.
It is sections 128 and 129 in the existing Act. I will double-check. There are no substantive or substantial differences.
Again, in this section, no revisions would be permissible under this that would not otherwise be permissible under the existing rules. It is exactly the same.
No. It is exactly the same.
Perfect. I thank the Chair.
Question put and agreed to.
Section 104 agreed to.
SECTION 105
Question proposed: “That section 105 stand part of the Bill.”
I have one quick question. This obviously relates to the matter about which the Minister spoke earlier in respect of Report Stage amendments. Is he in a position to give us any update with respect to Report Stage amendments on vexatious appeals?
They are being worked through right now. I intend to discuss them with the committee in advance of Report Stage.
With a briefing.
We will. It is an important part. We will send a note through but when we have the draft amendments it is important all members see it. It is a matter of concern across all parties and independents. We will do it.
Question put and agreed to.
SECTION 106
Deputy Eoin Ó Broin: I move amendment No. 682:
In page 230, to delete lines 15 to 21.
Amendment put:
The Committee divided: Tá, 4; Níl, 5.
Tá
- Gould, Thomas.
- O'Callaghan, Cian.
- O'Donoghue, Richard.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Brien, Darragh.
Amendment declared lost.
Section 106 agreed to.
SECTION 107
I move amendment No. 683:
In page 230, between lines 36 and 37, to insert the following:
“(3) (a) Where an appeal under this Chapter relates to development, or proposed development situated or proposed to be situated wholly or partly in a Limistéar Pleanála Teanga Gaeltachta or a Baile Seirbhíse Gaeltachta within the Gaeltacht materially contravenes any relevant language plan agreed pursuant to Acht na Gaeltachta 2012, the Commission shall, subject to subsections (4) and (5) refuse permission for the development or proposed development under section 106.
(b) Where an appeal under this Chapter relates to development, or proposed development situated or proposed to be situated wholly or partly in a Baile Seirbhíse Gaeltachta outside the Gaeltacht or a Líonra Gaeilge materially contravenes any relevant language plan agreed pursuant to Acht na Gaeltachta 2012, the Commission shall, subject to subsections (4) and (5) refuse permission for the development or proposed development under section 106.”.
Amendment put:
The Committee divided: Tá, 4; Níl, 5.
Tá
- Gould, Thomas.
- O'Callaghan, Cian.
- O'Donoghue, Richard.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Brien, Darragh.
Amendment declared lost.
I move amendment No. 684:
In page 230, line 40, to delete “having regard to the policy of the Government” and substitute “to the State”.
Amendment put:
The Committee divided: Tá, 4; Níl, 5.
Tá
- Gould, Thomas.
- O'Callaghan, Cian.
- O'Donoghue, Richard.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Brien, Darragh.
Amendment declared lost.
I move amendment No. 685:
In page 231, to delete lines 1 to 3.
Amendment put:
The Committee divided: Tá, 4; Níl, 5.
Tá
- Gould, Thomas.
- O'Callaghan, Cian.
- O'Donoghue, Richard.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Brien, Darragh.
Amendment declared lost.
I move amendment No. 686:
In page 231, to delete lines 4 to 8.
Amendment put:
The Committee divided: Tá, 4; Níl, 5.
Tá
- Gould, Thomas.
- O'Callaghan, Cian.
- O'Donoghue, Richard.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Brien, Darragh.
Amendment declared lost.
Section 107 agreed to.
SECTION 108
I move amendment No. 687:
In page 233, to delete lines 1 to 8 and substitute the following:
"(b) comply (if it has not already done so) with—
(i) subsection (13) of section 199, where the Minister issued a notice under subsection (10) or (11) of that section in relation to the development or
proposed development to which the decision applies, or
(ii) paragraph (b) of subsection (8), and subsection (16), of section 200, where the Minister issued a notice under subsection (12), (13), (14) or (15) of that section in relation to the development or proposed development to which the decision applies, and".
Amendment agreed to.
Section 108, as amended, agreed to.
SECTION 109
I move amendment No. 688:
In page 234, line 7, to delete "environmental impact report" and substitute "environmental impact assessment report".
Amendment agreed to.
Section 109, as amended, agreed to.
SECTION 110
I move amendment No. 689:
In page 234, line 25, after "weeks" to insert ", or such longer period as may be agreed to by the applicant,".
Amendment agreed to.
I move amendment No. 690:
In page 236, line 25, to delete "section," and substitute "section".
Amendment agreed to.
Amendments Nos. 691, 703, 704, 713, 714, 719, 732, 737, 744, 745, 762, 764, 767, 768, 770, 786 and 1185 to 1187, inclusive, are related and may be discussed together.
I move amendment No. 691:
In page 237, between lines 34 and 35, to insert the following:
"(7) Where the Minister considers it necessary or expedient that decisions under this section, in relation to applications of a particular class or classes be determined as expeditiously as is consistent with objectives of maritime spatial planning and principles of proper planning and sustainable development, by reason of their being of special strategic, economic or social importance to the State, he or she may give a direction to the Commission to give priority to the making of such decisions, and the Commission shall comply with any such direction.".
I am interested to hear the Minister's view on this proposal.
Amendment No. 691 provides the Minister with a power to direct that strategically important appeals are dealt with expeditiously by the commission. This power mirrors an existing provision for direct applications to the commission under section 124(8) of the Bill. However, the wording needs to be reviewed to refer to appeals in this case rather than applications. I will review this provision alongside the existing provisions that generally apply to the commission under section 328(7) of the Bill. I will consider whether an amendment should be brought forward on Report Stage. We are assessing this matter to see whether we need to make a further amendment. I do not intend to accept Deputy McAuliffe's amendment as I want to take some time to look at this issue.
Based on the Minister's response, I am happy to withdraw the amendment. Does the Cathaoirleach wish me to address the other amendments in the grouping?
I propose that Deputy McAuliffe take the Chair to allow me to address my amendments in the group. After that, we will deal with the amendment he has at the end of the grouping. Is that agreed? Agreed.
Deputy Paul McAuliffe took the Chair.
In my amendments Nos. 713, 714 and 719, I am proposing that the words "in detail" be inserted in the relevant provisions. I have often seen situations where a decision is made but is not outlined in any detail. This is in reference to decisions made by the board. It would be helpful to the process if decisions were required to be given in detail. Subsection (2)(a)(i) of section 123 provides that the commission shall "state the main reasons for the decision and the main considerations on which the decision is based". I am proposing to insert "in detail" after "state". Is the Minister satisfied that under the existing provision, the main considerations would require detail to be applied in setting out a decision? Section 123(2)(b) provides that where a recommendation in the inspector's report is not followed, the notice of a decision "shall state the main reasons for not following the recommendation in the report". Again, it would be helpful if the decision-maker were prompted to state the main reasons for that decision in detail.
Deputy Francis Noel Duffy took the Chair.
We have looked at this issue. My clear view is that it is well provided for already. In section 123, subsections (2)(a)(i) to (2)(a)(iv), inclusive, detail the requirements regarding decisions. The requirement to "state the main reasons for the decision and the main considerations on which the decision is based" means the need for detail is well covered. I do not intend in any way to be difficult by pointing out that inserting the phrase "in detail" raises the question of how that requirement is defined. I contend strongly that the provisions as to how a decision must be arrived at and the reasons for that decision are well covered in both subsections (2)(a) and (2)(b), the latter dealing with decisions that do not follow a recommendation. I understand the point the Deputy is making but it could be argued that including "in detail" raises the question of who would decide what the detail will be. Certainly, in anything I have seen heretofore from the board, bearing in mind the commission will take over that role, the decisions and the reasons for those decisions are stated very clearly and in detail.
The inspector's reports and all the various assessments that need to be made would comprise the details required to make a decision but also the rationale for making it. We have examined this. I am genuinely lost as to how the addition of "in detail" would add to what we have, but I am open to comments.
Let me try to explain what I am trying to do. The content of the inspector's report and the decision of the board do not always align with each other. In other words, the board can make a decision that is not the recommendation of the inspector. One generally does not see in the board's decision the detail one sees in the inspector's report, so it would be very helpful if people had, when looking at the decision of the board and given access to the inspector's report, a little more detail on why the board members decided not to go with the recommendation in the inspector's report. I am just trying to ensure that the board will provide adequate detail if its decision does not align with the inspector's recommendations.
I understand that, particularly where the board, or an coimisiún, as it will be, decides not to go with the inspector's recommendation, as it is entitled to do. Section 123(2)(b) states "under paragraph (a) shall state the main reasons for not following the recommendation in the report". If there were a way of defining "in detail", it might work, but I honestly do not see one. I take the Deputy's point that if the board or commission goes against the view in an inspector's report, it should state its rationale for doing so, and I also take his point on where an explanation for a refusal might not be as detailed as required. On the point on the phrase "in detail", the matter is well covered. There might be some potential for confusion or challenge if we allow one to ask whether the explanation is detailed enough. Who decides on the threshold of detail? I expect, particularly in the scenario the Deputy painted, namely where the commission does not go along with the recommendations in the inspector's report, that it would have to state the main reasons for not doing so. I am just thinking this through with the Deputy. Main reasons are very clear but to imply "main reasons and other reasons" would not really be. However, if the Deputy comes up with something else in advance of Report Stage-----
I might have a think about that. I take the Minister's point.
I get the point the Deputy is making, particularly in the instance in question. It is generally well covered in section 123(2)(a). Maybe there is something that the Deputy wants to think about and engage on regarding section 123(2)(b).
Amendment No. 737, concerning material alteration, also suggests the inclusion of "in detail". The Minister has covered amendments Nos. 713, 714, 719 and 737.
Yes, that is right. I also covered amendment No. 770.
That is fine.
I covered amendments Nos. 713, 719, 737 and 770.
I thank the Minister.
Does the Deputy want to deal with amendments Nos. 762 and 764?
The Minister spoke to several amendments. He probably has the logical grouping indicating the way to proceed with them.
I have not spoken about amendment No. 762. It amends section 144 by adding the Minister for the Environment, Climate and Communications to the list of Ministers. Does the Deputy want to speak about it?
Yes. Amendment No. 762 relates to section 144 on the revocation or modification of permission by a Minister. Amendments Nos. 762 and 763, both of which are in the grouping, relate to section 144. Amendment No. 762 is to insert "Minister for Environment, Climate and Communications", who could be requested to revoke or modify a permission. Through amendment No. 763, I would add to the list in section 144(1)(a) the phrase "climate and the environment". The Minister would be consulted by the Minister for Defence on the security of the State and the Minister for Health on health issues, including public health. It is about giving the Minister the ability to effect emergency measures. There is no doubt that the climate and environmental issues comprise an emergency, so I wonder what the Minister's thoughts are on adding "Minister for Environment, Climate and Communications". Communications is part of it also.
As the Deputy has outlined, this relates to the security and defence of the State, our relations with other states, and public health, as can be seen on the top of page 285, in paragraphs (i), (ii) and (iii). The circumstances for revocation or modification must be very clearly defined. First, it is with the approval of the Government. A request from the Department of Justice would concern State security, a request from the Department of Foreign Affairs or the Department of Defence would relate to the State's relations with other states, and a request from the Minister for Health would relate to public health. I fully agree with the Deputy that the climate is an emergency, but it is ongoing. The legislation relates to specific matters that might actually affect public health or the security of the State. Unquestionably, the climate crisis is an ongoing challenge that the State has to grapple with, but I envisage more specific measures in respect of which a Minister would have to submit to the Government a proposal for its agreement on revoking or modifying in the public interest. The climate crisis is ongoing and an issue we all need to grapple with, as we all agree, but the issues envisaged are more like emerging issues, such as another pandemic. I take the point on communications because cybersecurity is now a big area concerning the State. The State's relations with other states are very much driven by communications. I refer, for argument's sake, to a threat to undersea cables or the IT infrastructure within the State itself.
That is probably more relevant to the Minister for Defence, though, in that it involves protecting the State rather than itemising an asset. The Minister might consider my amendments.
I will, particularly given what the Deputy said about communications. Cybersecurity fits under the Department of Defence but communications feeds into that. I think we are covered but I will examine it.
I intend to withdraw the amendments but the Minister might consider the communications aspect. That is amendments Nos. 762 and 763 covered.
Amendments Nos. 762 and 764 have been covered. Amendment No. 767 is next.
To be helpful, I think amendment No. 764 is the next one that has not been dealt with. I have the list here. Amendment No. 764 is next, and then amendments Nos. 767 and 768. Amendment No. 764 seeks to insert "safety, and infrastructure" after "facilities".
Amendment No. 764 relates to section 147(2)(c) and concerns local authority development. Subparagraph (ii) refers to "traffic calming measures to enhance public bus services or improve facilities for cyclists under section 38" of what I assume is the Roads Act. I am looking for clarification here. Would safety and infrastructure be covered by "facilities"? I can see how infrastructure would, but would "facilities for cyclists" cover safety?
Will the Deputy give me an example?
Let us say we put in things to segregate a cycle lane. I do not know what the names of those things are. Would that be classed as a facility? A facility for cyclists is like a shelter or something the cyclist uses. Would those kinds of things be covered under a safety measure?
Separation like that for a cycleway would come in under the road safety audit. It would come under the Road Traffic Act and the design of the scheme would be published by a local authority. It would fall under what the Deputy is saying.
I can see how infrastructure-----
The facility may be a bike shed, although I do not think it would be.
Is the Minister satisfied "improved facilities" would cover safety measures for cyclists?
Absolutely.
The Minister is satisfied. I proposed to insert that wording because I thought the word "facilities" might be too vague and might not cover safety. If the Minister is satisfied that it is covered, I am happy enough.
Amendment No. 767 refers to section 153 and relates to what we would know as a Part 8 decision by a local authority. We have already discussed sections 103 and 107. I think section 103 provides that one cannot submit to the board something that was substantially different from what was there before.
Yes. That would be a new application.
Section 107 then refers to modifications, so there is an allowance for modifications to be made in a planning decision. As far as I can remember, in a Part 8 decision the wording is that the members can accept, amend or reject the application under the old section 179.
I understand where the Deputy is coming from. He may want to introduce the amendment and then we can hear from Deputy Boyd Barrett and I will respond.
I am trying to seek clarity on the extent of a modification that members of a local authority can make to a Part 8 application. It does not seem to be covered in it as well. I have seen Part 8 applications being passed where modifications were agreed in the council chamber that I thought were quite substantial and changed the development. I remember one about a wall being built. It was kind of a separation and did not really fit with my view of permeability and proper planning. To what extent can the members of the local authority submit modifications to a Part 8 application on the day? The decision is generally made on the day and I am wondering whether we should set the same bar as regards the level of modifications that can be made by the members as is set in the section about modifications to a plan.
My amendment No. 768 is very similar in its rationale to Deputy Matthews's one. This is a very real issue. Let us say a Part 8 application is put forward that goes out to public consultation. Members of the public make their submissions and on the basis of those, very substantial changes, or what might be deemed substantial or material changes, are made. That can be then agreed and the development can go ahead, even though members of the public have made their submissions based on a completely different thing, namely, the original application. As such, the public has no say over the amended Part 8 application. That is very unfair. To give one recent example from my area, residents of a whole row of cottages have lost the right to park outside their homes because of a Part 8 application that was amended. Now they have no parking outside their houses and they are raging. That is an example because it is a substantial change by any definition, whatever one might think about the rights and wrongs of it, and it was a very divisive issue at the time. The point is that if members of the public, in good faith, make public submissions on one proposal and then the thing that is agreed - especially if it is going to impact fairly substantially on them, the environment or whatever - is completely different from the thing they made submissions on, that is really not fair.
There is no appeals process to a Part 8 application either. There is no appeal to the board on a Part 8 application.
Absolutely. Deputy Matthews's amendment is saying the modifications should not be substantial and I am saying if it is substantial, or "material", as we are calling it, then it should require new public notice and go out for public consultation again because it is deemed to be substantial. Tweaks are one thing, but a dramatic or substantial change is something quite different and it is only fair and right that people have the opportunity to make further submissions if the change is material.
I thank both Deputies for the amendments. I can see some merit but we would have to balance this. If we recall our discussion a number of weeks ago on the role of councillors and decisions that are made, a design could go out in draft form, as it does, and if public submissions are then received, the Part 8 can, and in many instances is, amended on the basis of those public submissions. The people who decide on the Part 8 application are the members elected by the public. I see some merit in the arguments around a substantial change to an application. I could give the committee loads of examples from my area, as I am sure could Deputy O'Callaghan, who is also in the Fingal County Council area, and Deputy Ó Broin, who is in the South Dublin County Council area, of where a Part 8 proposal goes forward and submissions are received. The submissions are obviously a part of the proposal that comes forward and then the councillors debate and discuss with the executive what potential changes will be made. I will look at this. I give that commitment. I will see if there is a way of balancing this.
For every Part 8 where there is a change - I again ask what is "substantial" - that the public want, based on submissions, and the councillors say to the management team that they want to change A, B and C, for example, to move that ramp to here, move the green space, change the permeability between areas or whatever else, it would then have to go back out for a further public display. While I see the merit with substantial changes where something is completely different from what was put forward, in many instances that is driven because of the public consultation process, which is a good thing.
We talked about the role of councillors. I get the rationale behind what the Deputies are saying because we do not want something that is completely and utterly different to what was proposed. This is a role whereby the local authority members bring forward the views of the public, as well as their own views as people who were elected. They are the ones who are elected to make these decisions. By bringing in something like this, which I will look at, it would be saying that councillors who are elected by the people have made those changes but we are not accepting them and they have to go out for further consultation. Does that diminish the role of councillors in making those decisions on behalf of their constituents or the public consultation process? I do have sympathy for this element of it though, in cases where there would be some very significant changes to it. The Deputies can look at what we discussed with regard to other applications where additional information comes in and it is a big change to the original application and how to balance that. We could have a look at how we would balance this but a lot of the substantial changes would come out of the public consultation process. I have seen that myself on a regular basis and it works.
What I do not want to do is to bring something in that is going to add another round of the Part 8 process. Perhaps there is a threshold that we can look at in regard to what would be a substantial change. We must balance it with the role of the councillor in advocating for views brought forward by communities or individuals. Any of those changes would be reflected as well in the chief executive's report. When the public submissions come in, they are collated, they are all available for everyone to see and then they are summarised as part of a Part 8 process that goes before a local authority. The chief executive's report would then say he or she is changing A, B and C of this Part 8 and would give their rationale. I understand where the Deputies are coming from but I think we will have to work on it further because the last thing I want to do is to say that basically councillors only get to make a provisional decision. We need to be wary of that.
I accept it is a slightly tricky area. I cannot remember every single detail of the case to which I refer so I will not go through it specifically but, roughly speaking, let us say there is a proposal on a road configuration that is going to make a two-way system into a one-way system and perhaps add a cycle path and there is a public consultation on that but the proposal never mentions the possibility at all of eliminating parking for a whole row of houses. That is not in the proposal, which is for a road configuration to turn a two-way system into a one-way system and to have a cycle path. If there is a public consultation the amendment, in an attempt to balance between various competing views among the public on how to do this, results in a proposal to resolve the dilemma whereby people will lose their parking, although it was never in the original proposal, and there is nothing they can do about it. The people impacted by this development have never had a chance to give their opinion on what is being done. They have never had any opportunity, so it is not as if they are looking for a second bite of the cherry, they are looking for a first bite of the cherry because there is now a development that is going to be done, which will impact on them but on which they have never had any say at all, such is the substantial degree of the change from the original proposal.
I take the Minister's point on how we strike the threshold, but it cannot be right that one could have a substantial development taking place that impacts on people or the environment and they have had no right whatsoever to have any say on it at all. I appreciate that the Minister has heard the point but I honestly think it has to be addressed.
Does anyone else wish to comment before I respond further?
I want to clarify a point with the Minister about the decision-making powers. We have to trust councillors who are elected by a democratic process. They have a role all the way through the planning system, from the development plans and Part 8s. What I am seeking to do is to introduce something similar to what is in section 103(3)(b). The word "substantially" is used there. If it is possible to define "substantially" in that section, which I think has been agreed, then we should be able to apply the same logic in the interests of proper planning and sustainable development. Often pressure can come on councillors to make a decision that may not be in the best interests of proper planning but it may be a very hot topic in the area. We have got to weigh up the balance and the pressure that councillors can be under by providing some sort of limit to substantially changing the proposals before them. There must be some limit to the modifications that can be agreed.
I would urge some caution here. First, in the case that Deputy Boyd Barrett talks about, if it was such a dramatic change to the original Part 8, councillors have the right to vote it down and to force it back out. I do not know the details of the case in question, but that is a procedure that is there.
I would also caution Deputy Matthews because my experience in South Dublin County Council where we have done lots of Part 8s, both when I was on the council and subsequently, in any of the Part 8s I have ever dealt with – I cannot speak for the other local authorities - managers and county architects are very reluctant to make very significant changes. If I think of any of our residential Part 8s, there was the map of the Part 8 and it was clearly delineated in the public documentation, and one could never make a proposal that would go outside that red line. Permeability is probably the one case, where in certain instances, to get a certain level of public buy-in there are restrictions on it. Sometimes that can make the difference between getting a Part 8 through and getting the homes built or not. That also depends on the configuration of the councillors, the strength of the residents' groups, etc.
It is something that is worth looking at because it needs to be explored but having been in a local authority, in those decades I can only think of one Part 8 that was ever refused. From memory, it was in Firhouse and not on our side of the constituency. That is testament to the fact that the Part 8 process works very well. If something is not broken, we do not need to fix it. I just offer that by way of observation. The one big difference with a Part 8 is that there is a level of democratic accountability, and visibility and transparency.
The Minister can correct me if I am wrong but I think in the last decade to decade and a half in the four Dublin local authorities the number of Part 8s for residential developments that have been refused is tiny. The Firhouse one might be the only one.
It is only a handful.
For me, that shows the process works very well. I am not arguing for or against the amendments, I am just urging caution so that we do not cause a problem with something that in my view is working pretty well.
I think the amendment would add strength to what I am saying, and perhaps to what Deputy Matthews is saying as well. I agree generally that Part 8s are fine. I see no substantial difficulty in having this safeguard against the occasional one that makes a substantial change where people could then be presented with a development on which they never had an opportunity to comment. The Minister acknowledged that. I think it is reasonable to just set a threshold.
The Cathaoirleach, Deputy Matthews, said the word "substantially" but how precisely does one interpret what is substantial? I am trying to think of another example and maybe there are not that many. In the submissions, people are for or against something. Maybe the amendment might be a little bit of a tweak here or there and it is agreed or not agreed. If the amendment is really something that was not at all envisaged at the outset, if it was not in the minds of even the people who proposed it and if it was never considered but it ends up as an amendment and something that nobody could possibly have envisaged or was likely to have envisaged. It ends up as the thing that you then get, and people have never had a chance to comment on it. That is different. That does not happen often but it can happen and has happened. In that context, it would be reasonable to say there is a threshold after which there should be a public notice issued with an opportunity for people to make further observations.
I think it has been a decent discussion.
In terms of the example given by Deputy Boyd Barrett, I have had a similar example in my constituency, although not around housing development but public consultation around restricting parking outside a school. Of course most people would agree that such restrictions were very sensible measures to make things safer for the school children but what was not in the public consultation was removing parking spaces outside a nearby community centre. The area has very limited parking so the measure meant that about five parking spaces outside the community centre, which older people and people with disabilities could use, were taken out. None of this was in the public consultation that went on display, so there was no comment from anyone saying those parking spaces were really important and to please leave them alone. There was never any indication that the parking spaces would ever be taken away.
Looking at the area, no one would have imagined that these parking spaces would ever be taken away. The parking spaces have now been taken away and no one was able to say, "The parking spaces are really important as they are the only way I can access the community centre". There could be rights and wrongs to this but there was no input whatsoever in the planning process.
If looking at this in terms of housing development, one could get substantial alternations, which could come out of the Part 8 process. They could be very positive, uncontroversial and with which no one would disagree. For example, and again in my constituency, there is infill housing. One of the things that came out of the public consultation was that we really needed a playground and everybody agreed and the council said, "Let us put in a playground". One would not want something non-controversial and material with which everyone agrees necessarily holding things up or taking things out.
If that issue arises, it seems the process is not transparent.
I take on board the views there. Let us use the example of the housing development, given by Deputy O'Callaghan, where because of public consultation and the councillors' interaction, a playground is added. If we made this amendment, and I do not want to be dumbing down on it, that would mean even what is deemed a positive change goes back out to another Part 8. We are going back again asking, potentially, a different question but back to the same members. This is an important role that our councillors have. They represent their people and their communities, and their reserved function is to make those decisions and balance up the considerations.
The Deputy has talked about parking outside schools. I have seen ridiculous campaigns started up by members of communities to try to retain parking and traffic outside schools. I have a couple of examples, and Deputy O'Callaghan will know one himself, whereby the councillors have held firm and done the right thing but that is all transparent. It is transparent on the basis that their meetings are held in public. For most Part 8s there will be a pre-preparation stage as well whereby the communities in the area, through their councillors, will be aware that a Part 8 is coming forward and the pre-draft plans, for argument's sake, in that informal way, are shared with stakeholders to try to garner buy-in and support.
Deputy Ó Broin made a very good point with which I agree. I think we are looking to change a process here and looking to fix something that is not actually broken. Let us go back to section 103, and the section we are looking at. We are looking at a planning application, which is all around additional information, and if there is additional information, then the planner decides and that is okay. The only people who would have known about something like that are the applicant and the planner. Let us remember that this is a public process, so there is Part 8 and there are drafts, designs and all of those various things. The substantial change in that is to ensure the planner, the official and planning team are saying, "Hold on a second, we need to go back and advise". This process is one that I think our councillors and local authorities discharge very well.
Having said that, I would be worried we would get caught up in a loop and with the best will in the world you might be saying to councillors, "That is a change and we are going to go back out and talk." That would result in an elongated pattern of more and more public consultation and more and more going back to the council. I do not want to bring in something that is going to elongate that process. Also, from a local democracy perspective, councillors are elected to make decisions, balance the rights and wrongs and take the views of the people, communities and stakeholders in the area on board, and then come with a balanced decision.
I will conclude by saying that any changes, let us say, that were proposed post-public consultation would have to be included in the chief executive's report. That is where I am at with it at the moment.
I agree with most of the contributions. Generally, Part 8 is a good process. It is a very democratic process. I am not talking about where the chief executive's report comes forward and contains something that may not have been in the public consultation. Something may have occurred in the process. In that situation, the councillors are free to reject that part of the chief executive's report. I am talking about where a proposal is made, at the time of the voting on it, by resolution. It may have been the first time that this has surfaced. Therefore, one must have some guidelines on how extensive a modification, by resolution on the day, can be made because the chief executive's report will be assessed by the planners in terms of whether the modification complies with planning and the development plan. On the day of the vote, by resolution, a modification can be made yet there has not been time to have it assessed. I seek to retain that ability for councillors but apply the same provision because it cannot be a significant and substantial modification on the day, and that does exist and happen in my experience.
The Minister has expressed his concern about this getting caught in a loop where it just never ends.
Not that it never ends, just that it lengthens the process and diminishes-----
According to the Minister, it is fair enough to try to act to prevent things unnecessarily being lengthened. We have already said that, by and large, that does not happen and the process works. The Minister should accept that there may be circumstances in which a development could take place based on an amendment, which members of the public have never seen, that is substantial and that could not have been envisaged. The Minister cannot deprive people of their rights to participate and be consulted on something that is going to impact on their environment and on them. The Minister cannot deprive them of that right. This in a very small number of circumstances. There is no question of this being allowed to go on forever and ever, as long as the correct threshold is created. However, he has to accept, and I hope he does notwithstanding certain concerns about the consequences of doing it wrong, that it just would not be fair if people never had a right to comment and that something which people could not have possibly envisaged is developed.
Does the Minister know what I mean? Surely he accepts that.
I will certainly reflect on the discussions we have had. The Deputy will see where the downsides are. In the main, they are with the process. I would again guard against legislating for exceptions and exceptional circumstances in a way that could have other consequences. As Deputy Ó Broin said, this relates to a small minority of cases. I would say a tiny number of Part 8 housing projects in the four Dublin local authorities have been rejected in the past ten or 15 years. Why have they not been rejected? It is because of that consultation process. Local elected members are involved and we deal with communities. That is a good thing. No one is trying to rush the process. Trust me on that.
I have actually never heard of it happening in respect of housing. It is less likely to be about housing.
I have seen ones that were going to be brought forward and, on the basis of advance consultation, modifications were made to designs and things like that. It is extremely rare. I have been involved in elected politics since 2004 and, in my experience, I have certainly never seen a draft Part 8 proposal being brought in by officials without anyone having had sight of it. I take the point. The Deputy has used the term "by resolution". That means by a vote of the council's elected members. If there was a major change to something, or a material change, we would have to take a look at what we would do in that instance. However, I am loath to diminish the role of the councillors in any way. I know that is not what either member wants to do. I am not using that as a defence for my position in not accepting these amendments. I will reflect on what has been said. It is different from section 103. I am not going to guarantee anything. I will be dead straight with the Deputy on that. We have to balance this. I believe the Part 8 process works very well. The public consultation piece and councillor involvement work very well. We have to be really careful even with definitions in the Bill. With Part 8 proposals, councillors decide, changes are made and they are put back out on public display. We need to think about it and I will do so. I assure the Deputy of that. However, I will not give any guarantee on it either. I will reflect on the discussion and debate we have had here.
Does Deputy Matthews want to go first?
I appreciate the Minister's consideration and, on that basis, I will wait to see what he does. However, he has to do something to try to accommodate this. No one wants to fix what is not broken. Nobody wants to elongate a process. Just to be clear, that is not the logic of what we are saying. We are trying to make sure there is transparency, to use the Chair's word, and that the public have fair sight of developments that could impact on them. If they have not had that opportunity, they should have it. It is probably rare that would happen. I cannot think of many Part 8 projects the public would not have seen. The Minister used housing developments as an example. There could be a proposal to build social housing that was then amended to build a hotel. That is hardly likely to happen. It is the sort of cases that Deputy Cian O'Callaghan and I have raised-----
I genuinely will reflect on the discussion. I will not give a guarantee that I will make any changes but I understand the points being made. We have to balance any provision with trusting our local elected members and respecting their reserved functions and interactions with their electorates. I will genuinely reflect on the contributions made on these two amendments.
I will briefly speak to the last amendment, No. 786, which relates to phasing plans. It is an amendment to section 165. What is specified in the phasing plan is the sequencing of the proposed development. Does that include the provision of amenity or recreational aspects of a development?
It does. It covers the phasing of all aspects contained within the application.
That phasing works well in some cases but I have seen cases where developers have tried to renegotiate that phasing, saying that we were going to put in a park or playground in phase 1 but now have to wait until phase 3 is finished. I know that is agreed with the planning authority and that the authority has to agree in writing. That is covered in section 165(4), is it not? However, I believe there needs to be some tightening up as regards allowing aspects that are of benefit to the community to be pushed right down the phasing scale. I ask the Minister to consider that. That is why I submitted the amendment.
I will respond directly to the Deputy because I can see merit in the intent of the proposed amendment. I just want to consider the ramification of such an addition, particularly as a decision to grant can only include conditions that it is within the applicant's control to achieve and comply with. I can see the merit in what the Deputy is saying. On foot of the last two amendments, which I said I would reflect on, I see where the Deputy is coming from with this one as regards sequencing and whether there is anything we can do to further strengthen provisions on phasing. I will look at that in advance of Report Stage and come back with-----
I accept that, in some situations, the viability of the development can also be impacted.
That would be the concern.
It may be the case that we can either push back elements or get no development whatsoever. I just want to ensure the common good is well represented.
This obviously relates to applications for permission. We have seen instances in which people have come back and said they cannot do a certain thing now. People would have been very clear on the phasing of certain elements only for that not to come to pass. I absolutely take the Deputy's point and will certainly look at that.
I will just ask a quick question on this. With regard to this amendment on section 165 on phasing plans, is the way the planning authority does this with the developer effectively entirely at the discretion of that authority or has guidance been issued on it at any stage?
It would be a condition of a planning permission. It would be the planning authority.
Absolutely, I understand that. My question is on whether everything that is applicable to this is set out on page 303 of the new Bill or if there have also been circulars from the Department or the Minister on issues relating to phasing.
There is guidance in the sustainable development growth guidelines, which we have referred to many times here. I have the residential guidelines here. The guidance will become national planning statements once this legislation passes.
Do they relate to how phasing is used or not used? That is what I am asking.
The guidance relates broadly to how developments will be delivered. If the Deputy is asking whether any part of the Bill other than section 165 deals with phasing, the answer is "No". The phasing of plans is covered within this section. He is not missing anything but we do have guidance. For argument's sake, if we were looking to update these, they would have to comply with the issued guidelines.
Deputy Steven Matthews resumed the Chair.
I have a very brief comment. I am of the view that phasing, which could be used to achieve good outcomes, is being underutilised. I appreciate that there are probably issues around that.
I agree with the Deputy. That is why we have included it in the Bill. That is why it is there as a separate section regarding phasing. It delineates the matter. Phasing was not covered in the 2000 Act.
This is new.
This is a new provision to recognise the fact that phasing and delivery in compliance with that phasing are important. It was not in the 2000 Act.
All applications for ten or more houses will include a phasing plan.
That is it. It is detailed there as well, under section 165(1), where the Deputy will see reference to "not fewer than 10 housing units".
I thank Deputy O'Callaghan. Deputy Ó Broin, too, wants to contribute on this one.
I presume this arises in part out of the use of phasing in strategic development zones. In the Clonburris strategic development zone the phasing agreement at the end, which, in my understanding, is legally binding, is a really positive addition. It also goes to reassure residents, particularly where there is a development with thousands of homes, that where there is clear provision of land for amenity, parks, roads, crèches and retail, that is adhered to. That is the second time I have been in agremeent with the Minister. I hope he does not fall over. It is so rare in our exchanges.
Phasing is such a valuable tool. Obviously, we had very significant problems with the phasing agreements in the Adamstown SDZ. That was in part because of the economic crash. The Clonburris phasing, however, is a positive. What the Minister is saying is this is an attempt to apply some of that positivity to other developments. That has to be welcomed.
Absolutely.
I promise my next comment will be critical of the Minister, just to get back to the norm.
I will give the Deputy that opportunity now. We will now discuss amendment No. 732, which is in his name.
By way of explanation, this amendment relates to a number of sections. I want to make a general comment on the sections first and will then speak specifically to the amendment. It relates to a request for an alteration or extension of a permission. In particular, it relates to sections 134 and 135. My amendment is specifically to section 136 but it also pertains to section 137.
This was brought to our attention by the Irish Planning Institute in some of its correspondence to the committee following the publication of the Bill in full. This correspondence was given to all committee members and circulated in committee correspondence. Its description of this cluster of sections was that they were new provisions introduced to streamline alterations to permission which are non-material. It stated that there is no discretion to refuse and no right to appeal. It seemed to indicate that is positive, although I would not mind the Minister confirming whether, in fact, its interpretation that there is no discretion to refuse or right to appeal is correct.
It went on to state that there is a need for clarity in terms of what constitutes a non-material application. It stated in its correspondence to the committee that a non-material alteration is not defined and leaves room for inconsistent assessments across different jurisdictions. Obviously, consistency across planning authorities is one of the key objectives of the Bill. The IPI states that without a clear definition, the risk of dispute is much higher.
It has suggested - this speaks specifically to my amendment - a remedy could be to follow and build on the criteria set out in section 170A of the Planning and Development Act 2000, as amended, whereby a change that is consistent with a stated suite of criteria would qualify it as non-material. It pointed out that these changes were not flagged in previous submissions.
One way of fixing or improving the non-material alterations is to provide that, between the publication of the decision on non-material alterations and its enforcement, there would be a period of consultation. This is what my amendment seeks to do. I am less concerned about the specificity of the amendment. Given that this is quite a new area, there is a need for clarification, such as the Minister usefully provided on other areas of the Bill, in order that we are completely clear on what is new and, in particular, on how the definition of non-material can be clarified to ensure consistency of decision-making.
As the Deputy rightly said, this relates to non-material alterations. We could endeavour to set out what non-material looks like. It could be a change to the colour of a building, for argument's sake, or whatever, but it is not material to the application itself. We can work on the definition or examples of what that would look like and then do that by way of guidance. I am not of a mind to reopen a consultation process in the case of non-material changes. If we were able to define that better and in more detail, which I will look at, that may removey the need or desire to reopen up the consultation for submission.
What "material alteration" means is detailed on page 264 of the Bill. If it not one of them, it is non-material. It might be useful, and would probably be best delivered by way of guidance, to state what "non-material" looks like. The Bill provides on page 264 that "material alteration" means "an alteration or extension of the duration ... requested under section 135", and it details it there.
It might be helpful. I take the point. Obviously, non-material relates to things that are not there, but it is to give some examples of non-material. If we do that and that provides clarification, it would remove a desire that some may have to open up another public consultation or submission phase. I would not be in agreement with the reopening of consultation, but I take the point about providing clarity on it.
I have two subsequent questions. When the Irish Planning Institute, in its correspondence to us, suggested there is no discretion to refuse and no right to appeal, is that a correct interpretation of these provisions?
On a non-material change?
Yes.
It is correct because it is non-material. It is changing the colour of a building, for example. That might be a bad example, but it would be something like that.
This relates to extensions as well as alterations, if I am correct. There is a fairly significant Celtic-tiger era development in my constituency. The developer fell into financial difficulty after having completed only one third of the development and then got stuck in terms of inability to complete the development. The developer went into receivership and a receiver took over. The receiver was looking to seek extensions of permission. That is reasonable and I am not objecting to it. However, portions of the estate that had been built but not completed were causing considerable difficulties for residents at the time. I appreciate this is a different process but it gives me an opportunity to raise this issue. The Minister may have experience of it himself. When the application for the extension of the permission came in, there were concerns locally around whether the residents could raise the non-completion of the portion of their estate. Of course, they could not do so and it was essentially a rubber-stamping exercise. The Minister has provided a definition of non-material but, in the context of extensions, is there a way to provide for a set of criteria under this section to determine whether it is merely a pro forma approval of the extension or whether issues of importance that would not fit the definition of "material", which relates to the large environmental criteria, could be considered by the planning authority?
The extension here is to the period of time for the decision itself, as opposed to the situation in the example. I know what the Deputy means. We are talking about something different, namely, extending the permission itself.
Will the Minister explain that difference in order that I am clear on it?
Section 133(2) states, "the following matters shall not, for the purposes of that paragraph, be determined to constitute an alteration of the terms or extension of the duration of a permission that is otherwise material", and we have outlined them there, from (a) to (d).
Sure.
Taking the Deputy's example of an extension to a planning permission for a ghost estate or half-finished estate, the planning authority has no ability to say that this is incomplete and use that as a reason not to grant the extension. Section 135(5) provides, "Before making a determination under subsection (4), the deciding authority may invite submissions on the alteration or extension to be made to it in writing by such person or class of person, including the public, as the deciding authority considers appropriate, and the deciding authority shall have regard to such submissions in making the determination."
We see in this instance that where it needs to be used, it can be used and with a request for alteration or extension of permission, one would actually go back out and seek submissions. The example the Deputy used would be relevant in that space.
Is that section 135(5) a new provision or an existing provision from the Act?
It is a new provision.
Would this then allow for all of those specific issues that concern the eventual taking in charge of the estate, for example, the finishing of the roads or the finishing of the car parking as outlined in the original planning permission, or completing some open green spaces? Let us consider, for example, a housing estate with three or four phases to it and phases 1 and 2 homes are complected with people living there but some of the amenity space around it is not complete. If the developer or receiver looks to extend the duration of permission for phases 3 and 4, is the Minister saying the local authority says "may invite" submissions and it is discretionary? If the local authority has the option to invite submissions, affected residents may say, "Hang on a second, surely a condition of the extension should be that if the developer is granted an extension the developer would need to complete the outstanding elements of phases A and B". Would that be possible under this provision? Obviously it is not obligatory but is it possible?
Would it be possible for a condition and a permission to be-----
Yes.
It would be, yes. Thankfully, we have fewer ghosts estates but one of the issues we consider here is the taking in charge process where a developer has not done it all; it is not an incomplete estate but perhaps the open space is not done to standard and things like that. We all come across that. It is a real issue and I am sure everyone can give five or six examples of estates that have been built for a long number of years where those elements have not been adhered to. To condition it would provide an opportunity to do that. Maybe we need to strengthen it, now that the Deputy has said it. There may be an opportunity to strengthen that somewhat further.
It is not even to strengthen it; it is more to be clear about what is available. At the moment I am thinking of 20 to 30 historical housing estates that are not taken in charge. Clearly a lot of those are finished but some of them are not finished in the sense that subsequent phases are with receivers. Obviously receivers are trying to ensure they get a return for their creditors.
Supplementary to that, this provision would allow the local authorities to invite submissions. Impacted parties could say, "Hang on a second, either the local authority should not extend the permission duration until A, B and C is done, or A, B and C could be part of the condition." Could this also be combined with the phasing element we have just discussed? For example, if a planning authority under this section and the phasing section we have just discussed makes a determination to extend the duration as the developer or receiver is then building out the subsequent phases of the development, could there be a phasing requirement to complete the unfinished amenity areas or public areas of the existing estate? Essentially I am saying that maybe power is now available to a local authority that would not have been previously.
Section 137 provides for material alteration of a permission. If we take that and the phasing piece, I do not see any reason one would not be able to do that. Section 137(1) states:
(a) make the alteration, or grant the extension, subject to such conditions (if any) as may be imposed under section 84,
(b) make the alteration or grant the extension, subject to such modifications to the terms of the alteration or to the duration of the extension, as the case may be, as the deciding authority considers appropriate, and such conditions (if any) as maybe imposed under section 84, or
(c) refuse to make the alteration or grant the extension.
If we go back to our discussion earlier about phasing in section 165, the Deputy is asking whether that section could be used. It would have to be more than ten houses but it could be used, yes.
Sure. Absolutely. I ask that the Minister would consider one issue in his deliberations. He pointed to section 137(1)(a) and the provision "subject to such conditions (if any) as may be imposed under section 84". That would give the ability to attach additional conditions in a material alteration.
That does not apply to non-material or to extensions to duration. Am I correct?
A duration extension would automatically be a material change.
Is that duration in all circumstances?
That would mean conditions are applicable-----
-----if such a thing is deemed necessary. I must ask, so I am clear. Let us go back to the Bill's definition of "material" which is on page 264. Section 133(1) states that a material change is one that requires "an appropriate assessment, "an environmental impact assessment, or a Natura impact statement" in respect of the alteration or extension. Is it section 133(1)(d) that does that when it states, "subject to subsection (2), that the deciding authority determines under subsection(4) of section 135 constitutes an alteration of the terms or extension of the duration of the permission that is otherwise material;"?
So the Minister is saying that subsection (d)-----
In any change the extension is material since the extension of the permission is material.
Just to be clear, is that subsection (d) saying that any request for an extension of duration would be seen as material-----
-----full stop?
Absolutely.
Okay. That is just for clarity.
I thank Deputy Ó Broin. That is amendment No. 732. I believe the remaining amendments in the group are ministerial amendments, which are amendments Nos. 703 and 704.
Yes, they are ministerial amendments.
Amendments Nos. 703 and 704 are in that grouping for discussion. There are also amendments Nos. 744, 745 and 786. I do not know if there is a logical order in which to discuss these.
Amendments Nos. 703 and 744 relate to sections 120 and 139 regarding the procedural powers of the commission in respect of direct applications made to it and material alteration requests. Currently there is an ambiguity in the text as it provides that the commission may within such a period as may be prescribed request further submissions on an application or material alteration request within such periods as it may specify. The reference to periods being prescribed and periods being specified by the commission could lead to confusion. It is more appropriate that such periods for responding to requests for further submissions are prescribed in regulation and therefore these two amendments propose substituting "it may specify" for "may be prescribed" in these sections.
For the purposes of clarification, given that lots of other timelines are set out in the legislation, why by regulation here and for what type of timelines? This is just out of interest more than anything else.
The Deputy will be aware that the commission itself is part of this legislation and will be operating to strict statutory timelines for the first time. The statutory timeframes the commission must adhere to in decision-making are also elsewhere within the legislation.
Apologies. I thought the Minister said in his previous comment that the change to "may be prescribed" would be by way of regulation. Is the Minister saying it is by regulation or by other sections of this Bill by way of primary legislation or both?
By regulation. We will prescribe them because they will be mandatory.
So my question is still the same. For example, some of the statutory timelines, whether they apply to the commission or elsewhere, are actually set out in the legislation. I am trying to understand-----
Just let me have a look at that part here.
Yes. I am not arguing against it; my query is just for clarity.
I get that.
I should say that I am not arguing against it yet.
We will need a range of timelines for the different types of material alteration requests. It could be quite extensive in that regard, hence they would be detailed in regulation.
Yes.
That is the-----
Whereas with standard applications the timeline will be set out in statute, for material alterations they could be different times.
Exactly.
I presume there would be consultation with the board with respect to those timelines.
I believe the timelines are one of the important bits of this process. Will there be any public consultation before the Minister decides those timelines or will that be negotiated with the commission and then published?
We will discuss it with the commission. We had a discussion earlier and a few weeks ago as well. It was slightly different and in relation to resources for what is possible. We will discuss that with the commission.
Then we will agree and publish them.
Thanks Minister. Amendments Nos. 704 and 745 are related as well.
Yes. Amendment No. 704 proposes to insert a reference to “industrial emissions licences” in section 120(3)(d). Similarly, amendment No. 745 makes the same amendment to section 139 relating to procedural powers of the commission when considering a material alteration request. Both amendments relate to omissions in Part 4 relating to procedural powers of the commission when considering direct planning applications. Currently section 120(3)(d) provides that where an application relates to proposed development which comprises or is for the purposes of an activity for which an integrated pollution control licence, an abstraction licence or a waste licence is required, the commission may request the EPA to make submissions on the proposed development. Similarly, the commission should be empowered to request a submission from the EPA in respect of an application for which an industrial emissions licence is required. As I said, amendment No. 704 proposes to insert a reference to “industrial emissions licences” in section 120(3)(d). Similarly, amendment No. 745 makes the same amendment to section 139 relating to procedural powers of the commission when considering a material alteration request.
The opening line of subsection (3) states the commission "may" request. Is there a reason it is not "shall", given the nature of it? Are there circumstances where there would not be a need?
There may be. There may be circumstances-----
There may not be a need.
There may be circumstances where there would be no need for this provision. The use of "may" is just to give flexibility around it, that is all.
I thank Minister. The last one in the group is amendment No. 1186.
Amendment No. 1186 seeks to amend Schedule 1, which lists the types of development that are to be known as "strategic infrastructure development". Paragraph 3(d) currently lists groundwater abstractions of a certain scale and this amendment seeks to include surface water abstractions also. This will facilitate Uisce Éireann projects for surface water abstractions where the annual volume exceed 2 million m3 being capable of being made as a direct application to the commission.
This might be a very unfair question but for those of us who do not think in hundreds of thousands of tonnes, what kind of scale of surface water, lake or weir would this involve?
It would be akin to a reservoir. It could be water abstraction from rivers but it would be something like a reservoir.
It is very large. Is that what the Minister is saying?
Yes, it is very large.
What exactly does the amendment do?
It brings that under Schedule 1 so it would be a strategic infrastructure development, effectively. It puts something of this size or magnitude into Schedule 1. A body can then make that application to the commission under the strategic infrastructure development provisions.
Amendment No. 1186 replaces groundwater abstraction with surface water-----
No, it includes, not replaces. If the Deputy turns to page 692-----
It includes surface water abstraction.
The amendment replaces "groundwater abstraction" with "groundwater or surface water abstraction".
Just to be clear, groundwater would be aquifers whereas surface water would be things like a reservoir or a weir. Is that the difference?
I presume it would include the Parteen Weir, for example.
It is for the work that Uisce Éireann will continue to undertake. It could relate to a weir or a new reservoir that is required in an area, for example. It allows such work to be included under strategic infrastructure development, which allows the applicant to -----
The applicant can proceed directly to the commission rather than go through a local authority.
Exactly, and the proper expertise would be there because it could be of national importance.
All the amendments in that group have been discussed. Deputy McAuliffe withdrew amendment No. 691.
Amendment, by leave, withdrawn.
Question proposed: "That section 110, as amended, stand part of the Bill".
Are you sure we should not be dealing with section 109? Deputy McAuliffe's amendment was to section 109. We have not concluded that section. Am I wrong about that?
No, we have agreed section 109. We are now dealing with section 110, according to my notes.
I have a couple of questions on section 110. With respect to subsections (3)(a), (3)(b) and (3)(c), I am unclear as to how these interact. I do not understand why, for example, in subsection (3)(a)(ii)(II) there is a four week period but in the subsequent 3(b) subsection there is a six week period. I am just trying to understand the interactions of these three subsections of the section.
The Deputy referred to subsection (3)(a)(ii)(II). What is the other one to which he referred?
Basically, my question is about the four weeks and the six weeks.
It is a two-stage process, so four weeks is the first stage. Let us say an application is still live and has not been determined. The four weeks refers to the first period. If it is still not determined after four weeks, then the second period is six weeks and, therefore, between the two, there is a maximum of ten weeks. Where the commission fails to determine it within the first four weeks, there is a second six-week period and then that is it.
This is what I am trying to understand. There is a phrase here that comes up in a number of subsequent sections. Section 110(3)(a)(i) provides that the commission shall "determine the appeal notwithstanding that the period has expired". Is that-----
That is the statutory period.
I understand that but am just trying to put this into plain English. If the statutory period has expired, section 110(3)(a)(i) allows the commission to make a decision outside of that statutory period. Is that it?
The commission is empowered to do that. Initially it has to do it within the four weeks but if it does not make the decision within that time frame, it gets another six weeks. Effectively, the commission gets ten weeks.
I want to move now to the question of section 110(3)(b)(iv). Is it only after the ten weeks that the fines kick in, as set out?
So the Bill is giving them a statutory timeline for decisions.
Four weeks and six weeks. It is explained well on pages 40 and 41 of the explanatory memorandum.
This applies to any general application that goes directly to the commission and that has a statutory timeline, which is set out. If they are not meeting that statutory timeline of four weeks, then they are given six weeks. Why is there a four-week and a six-week period, and then a fine after the six-week period? Is it just to give them an initial bit of latitude? Obviously, the statutory timelines are important.
I agree. We had a good discussion about the statutory timeframe and the fines or penalties, or whatever one might call them. It is to give an opportunity to the commission. We discussed this at length a few weeks ago and there were differing views about costs and delays, which is appropriate given there will be delays from time to time. We want them to meet the statutory timelines that are set down. However, these are two fair provisions. There is a first four-week period and, obviously, we want to operate within that. If that is not possible, then there is a further six weeks before fines or penalties would kick in with an coimisiún.
I have two further questions. This is an important section regarding the operation of the timelines. At page 235, the Bill states: “notify the Minister and the Office of the Planning Regulator that it has not made the decision”. It is only after the ten weeks has expired that the notification to the Minister has to be made, so that in every individual application-----
That is correct.
Could that not be quite a number?
Hopefully not, but it could be.
All things being equal.
All things being equal, but it is important that there is that additional requirement for the commission to report.
Does that only apply to those areas where the primary planning authority is the commission? This is for SIDs and those types of things.
It is also for appeals.
It is also for appeals.
Yes. The reason for getting that information is something we discussed a few weeks ago. For argument’s sake, let us say the Minister of the day is informed that a number of these are happening. That could flag a procedural issue or a resource issue within the board. The Minister would then get the OPR to conduct a review of what is happening and see what the reasons for this are.
Again, this is not to argue against it. It is for clarity. If we then continue through the section, subsection (5) states: “Each report under section 454...”.
Section 454 covers the annual report.
Therefore, the subsection states that each annual report shall:
(a) contain a statement of—
(i) the number of appeals (other than LRD appeals)…
I presume there is a rationale for not including LRD appeals or are they going to be reported separately in the annual report?
It is covered under paragraph (b) on the next page. It is covered by a separate process. The LRDs are under separate legislation.
That is just to delineate them as separate.
They will still be reported upon.
With regard to section 110(6) and the statutory timelines, I am trying to understand the periods of 18 weeks and six weeks in subparagraphs (a)(i) and (a)(ii), and then the 26 weeks and ten weeks in paragraph (b).
That is where an EIA is required.
This is just for clarity. Can the Minister explain what each of those different periods of 18 weeks, six weeks, 26 weeks and ten weeks relates to?
It is a standard planning application appeal.
The 18 weeks.
The 18 weeks, yes. We have circulated that to the committee.
The 18 weeks is for standard planning applications. What is the six weeks?
That is for further or additional information. That is six weeks following the submission of further information, FI.
What of the 26 weeks?
That is the 26 weeks for normal planning appeals, with EI, and that includes LRDs, plus ten weeks following a submission of FI. The ten weeks and 26 weeks give 36 weeks.
That is perfect. I thank the Minister.
That document was circulated but it might be useful for us to circulate it again.
I just want to explain the rationale. Putting some of that on the public record is very helpful for clarity because not everybody gets access to those documents. I thank the Minister for that.
Question put and agreed to.
Sections 111 to 113, inclusive, agreed to.
SECTION 114
Amendments Nos. 692 to 695, inclusive, not moved.
Question proposed: “That section 114 stand part of the Bill.”
I invite the Minister to explain section 114(1)(a). Section 114(1) states:
A person who is eligible to apply, and intends to apply, for permission for Chapter 4 development (in this Chapter referred to as a “prospective applicant”)-
(a) except where the development is Chapter 4 State authority emergency development, shall request a consultation with the Commission under this section prior to making the application…
I have no issue with this but, for the sake of clarity, I ask him to explain the purpose of that provision.
It goes back to emergency development for a State authority so it can go straight to the commission for a consultation. It relates to security, health, public health and those types of things so people can request a consultation directly with the commission under this section. It could be for public health reasons, State security or otherwise.
That is something that is not available for things that do not fall under State authority emergency development.
Exactly.
Question put and agreed to.
SECTION 115
I move amendment No. 696:
In page 241, line 34, to delete “section,” and substitute “section”.
Amendment agreed to.
Section 115, as amended, agreed to.
SECTION 116
I move amendment No. 697:
In page 242, line 18, to delete “at least 2 proposed approaches” and substitute “a description of not less than 2 proposed approaches”.
Amendment agreed to.
I move amendment No. 698:
In page 242, line 29, to delete “the proposed development” and substitute “the part of the proposed development to which the aspect concerned relates”.
Amendment agreed to.
I move amendment No. 699:
In page 243, line 16, to delete “each” and substitute “a”.
Amendment agreed to.
I move amendment No. 700:
In page 243, line 19, to delete “each” and substitute “a”.
Amendment agreed to.
I have a few questions on the section.
I have to go at 5 p.m. but I will be back at 6 p.m.
Okay, we will suspend until 6 p.m.
Sitting suspended at 4.59 p.m. and resumed at 6.04 p.m.
Question proposed: "That section 116, as amended, stand part of the Bill."
I welcome everybody back to the Committee Stage consideration of the Planning and Development Bill 2023. I welcome the Minister, Deputy O'Brien, back to the committee. We are on section 116 and Deputy Ó Broin had a question on the section before we put the question on it.
I have three questions and I will go through them together. Section 116 contains a provision request for a meeting where certain aspects of a proposed development is not confirmed. Will the Minister explain exactly what this provision is? From my reading of it, it is a new provision but correct me if I am wrong. I want to get a sense of what kinds of aspects of the proposed development would not be confirmed.
The second question is, section 116(2)(b)(ii) talks about "circumstances relating to any particular class of development as may be prescribed." What does "circumstances" mean in that sentence?
Subsection (19) has an interesting proposition. "A request, document or record kept in accordance with subsection..."-----
Which subsection?
It is section 116(9), apologies.
A request, document or record kept in accordance with subsection (8) shall be published and made available to the public, in such manner as may be prescribed, not later than 3 days from the day on which the Commission receives an application for permission for the proposed development concerned.
When the Minister talks about documents or records will he clarify if they are the ones that would have related to or emerged from the request for the meeting or is it just the planning application itself?
To take the last question first, under subsection (8):
The Commission shall keep—
(a) each request under this section,
(b) all documents included with or accompanying that request in accordance with subsection (2),...
That is the request in writing mentioned on page 242, and "a record in writing of each meeting convened under subsection (4)". It is basically details relating to the meeting request and the content of what the proposed meeting would be about so that is "not later than 3 days from the day on which the Commission receives an application for permission for the proposed development concerned." It relates to the meeting arrangements, the original request for the meeting and what the purpose of the meetings were.
That seems to be a very good idea. I am interested to know about it because it seems to be a new approach. We previously had discussions about preplanning applications, pre-meetings and public access to documents. That seems to be what this is. Am I correct in that?
Yes, and looking at what we did as regards the LRD as well. Most of us were not fans of the SHD process but we took one piece a lot of people agreed was good which was the preplanning part of that, the retaining and publication of records and that type of thing.
Yes.
A lot of residents and citizens will talk about what happened at that meeting and those are the types of things we would deal with. This puts that principle firmly in place there.
Perfect.
The other question related to-----
The second-----
-----what type of development would it be. Do we have the explanatory note? A good example of the usage of this relates to the wind energy piece which we discussed such as the Rochdale Envelope and that type of thing. A person comes in and discusses a development they might have. The groundworks may be done as well as looking at the type of technology that would be used as that technology might improve. We had a good discussion in that regard about how that would be. There were instances whereby decisions would have been made in the past on the basis of whether a specification was given for a particular turbine along with the application three years previously and by the time it was going to be built the technologies would have advanced and the type of turbine may be different. That situation would fit into this process.
That is clear from section 116(2)(b)(i). Section 116(2)(b)(ii) then goes beyond that stating "circumstances relating to any particular class of development as may be prescribed." Obviously, that means they would have to be prescribed in legislation but what kind of other circumstances is it envisaged would be in those regulations at this point?
It is a provision for other measures that may not be present right now but to allow the ability to do that in future circumstances. I do not have an exact example to give the Deputy but it is to allow that we would not have to come back and amend the legislation further in the future.
It could be, as Colin Ryan says, battery storage or something like that in the future. It is that type of thing. It is not a catchall provision but it is to provide that ability to do so.
The generality of this is about the design envelope issue. Obviously, we will come to that in section 117 as well. This is to give flexibility beyond that, should the circumstances arise. Is the Minister saying that at this point in time there are not necessarily circumstances that would fit that, but who knows what may happen in the future?
Yes, as we were saying before, that is exactly it.
Okay.
Question put and agreed to.
SECTION 117
I move amendment No. 701:
In page 244, to delete lines 8 to 10 and substitute the following:
“(c) that the application shall, in addition to any other requirement imposed by or under this Act, include the description or statement referred to in the undertaking given in accordance with subparagraph (iv) of paragraph (a) of subsection (2) of section 116.”.
Amendment agreed to.
Question proposed: "That section 117, as amended, stand part of the Bill."
This continues the conversation about the design envelope. The particular thing is on page 244, section 117(2)(a), which refers to section 117(1)(a).
This states: "If the Commission is satisfied that would be appropriate for the application referred to in subsection (1) of that section to be made before the confirmation of all aspects of the proposed development concerned, it shall provide the prospective applicant with an opinion to that effect." Is this where, before the application, having had the meeting, they are setting out their general views as to what might be permissible to guide them when they actually go to make the application itself?
That sounds very sensible. Is this a process that exists anywhere else in our planning system or is it just innovation specific to this area?
It is an innovation that will be specific to this area. It is under the LRD legislation. It would be similar then as well.
Okay, so under the existing LRD provision there is something not dissimilar to that.
Yes, exactly. It will give not a guidance as such, but what the opinion would be of a proposed development in advance of the lodging of the application.
Again, I am not arguing against it; I just want to get clarity. Traditionally, with preplanning there would not necessarily be an opinion or a guide. We now have LRD and these provisions, which are obviously predominantly for wind and offshore wind, but not exclusively. Is that in recognition of whether it is large-scale residential development because of the importance of the housing crisis or offshore wind to just assist those particularly categories of development, specifically?
The LRD obviously relates to developments of more than 100. That is in place. It does speak to the discussion we had just a couple minutes ago in relation to the clarity around the discussions at the preplanning stage. It is not exactly a mystery, but one of the grey areas before when preplanning took place, and we would have seen it going back years where there would be a scrawled note in triplicate, or that type of thing. It made it difficult for people to discern what was in it and the nature of it. This is a clearer way of actually doing that. It provides a view in advance of the application as to what it looks like.
Again, this is not an argument against it. I presume this is a recognition of the importance of wind and offshore wind, the developing technology, and the need to get the design envelope flexibility correct. I do not mean that they are getting preferential treatment, because they are not, but they are getting a bit of the planning process as LRD.
They are getting the parameters. It is a case of considering what are the design parameters that may be applicable. It is giving parameters within it and an indication of whether one would work or another one would not.
Perfect.
Question put and agreed to.
Section 118 agreed to.
SECTION 119
I move amendment No. 702:
In page 246, line 25, to delete "subsection", and substitute "subsection".
Amendment agreed to.
Question proposed: "That section 119, as amended, stand part of the Bill."
I have a query on this section and I just want to get clarity.
Section 119(1) states:
(1) Subject to subsection (4) of section 113, where the appropriate planning authority receives a copy of an application for permission for Chapter 4 development, the planning authority shall prepare and submit to the Commission a report setting out the views of the planning authority in relation to the proposed development, having regard in particular to the matters specified in section 83.
Section 119(3) states:
The chief executive of the appropriate planning authority shall, before any report of the planning authority in relation to a proposed development is submitted to the Commission under subsection (1), submit the report to the members of the planning authority and seek the views of the members on the proposed development.
The members may, by resolution decide to attach recommendations. Will the Minister explain in plain English what this section and particularly the function of the local authority manager's report and the elected members are?
Currently, they are in the strategic investment plan, SIP, process already. Where there is a Chapter 4 development effectively it happens already that the local authority would be asked for its view on that. What is important to note when the Deputy refers to subsection (4) is that the members of the planning authority would also be asked for their views on it. They may, by resolution, as it says there, outline and attach recommendations. That would be submitted to the commission as part of the submission by the planning authority or the local authority in this instance.
Chapter 4 of this legislation is the regional spatial economic strategies. I am wondering about it when the Minister talks about it for Chapter 4 development.
No, it is Chapter 4 development here on Part 4.
So, Chapter 4 in Part 4. Please bear with me because I have a supplementary question on that.
Applications go directly to the board
The opening of that section talks about where the appropriate planning authority receives a copy of an application for permission. The application goes to the board and the board then sends a copy to the relevant local authority. The manager produces a report but before the report from the manager is submitted to the board – soon to be commission - the elected members are consulted and by way of resolution they can add conditions to it. That is the standard provision in SIDs currently. In a sense, this just applies the existing conditions to the existing category with no new category of planning permissions.
There is no new category of planning permissions.
Question put and agreed to.
SECTION 120
I move amendment No. 703:
In page 247, lines 16 and 17, to delete "it may specify" and substitute "may be prescribed".
Amendment agreed to.
I move amendment No. 704:
In page 247, line 21, after "licence" to insert "an industrial emissions licence,".
Amendment agreed to.
Section 120, as amended agreed to.
SECTION 121.
I move amendment No. 705:
In page 249, to delete lines 20 to 23 and substitute the following:
"(i) the date of the commencement of the part of the proposed development to which that aspect relates, or".
Amendment agreed to.
Amendments Nos. 706 and 707 not moved.
Section 121, as amended, agreed to.
SECTION 122
I move amendment No. 708:
In page 250, line 20, after “Framework” to insert “or maritime spatial plan”.
Amendment agreed to.
I move amendment No. 709:
In page 250, between lines 22 and 23, to insert the following:
“(c) Where an application for permission is made under this Chapter for development, or proposed development that—
(i) is situated or proposed to be situated wholly or partly in a Limistéar Pleanála Teanga Gaeltachta or a Baile Seirbhíse Gaeltachta within the Gaeltacht, and
(ii) materially contravenes any relevant language plan agreed pursuant to Acht na Gaeltachta 2012,
the Commission shall, subject to subsection (2), refuse to grant permission under section 121.”.
Amendment put:
The Committee divided: Tá, 3; Níl, 4.
Tá
- O'Callaghan, Cian.
- O'Donoghue, Richard.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Brien, Darragh.
Amendment declared lost.
Based on the Minister's response, I will withdraw amendment No. 710.
Amendment No. 710 not moved.
I move amendment No. 711:
In page 250, between lines 34 and 35, to insert the following:
“(3) The Commission shall remain free to determine whether or not there exists a material contravention before these restrictions apply.”.
Amendment, by leave, withdrawn.
Based on the Minister's response, I will withdraw amendment No. 712.
Amendment No. 712 not moved.
Question, "That section 122, as amended, stand part of the Bill", put and declared carried.
SECTION 123
Amendment No. 713 is my name and I will withdraw it.
Amendments Nos. 713 and 714 not moved.
Section 123 agreed to.
SECTION 124
I move amendment No. 715:
In page 253, line 8, after “weeks” to insert “, or such longer period as the applicant may consent to in accordance with subsection (3),”.
Amendment agreed to.
I move amendment No. 716:
In page 255, line 5, to delete “section,” and substitute “section”.
Amendment agreed to.
Question proposed: "That section 124, as amended, stand part of the Bill."
I have two questions on this section.
We will invite the officials back in then.
I have two questions. This is around the timelines for a decision of the commission. We had a similar discussion previously and I am pretty sure it was with respect to the local authorities. First, is this kind of the same formulation as with respect to the local authorities? Yes, it is exactly the same.
Second, if we pop over to page 253 and to section 124(5)(b)-----
Is it the one "Where the commission fails"?
Exactly. In the earlier section we were dealing with, there was a four-week period and a six-week period. This is just a straight six weeks, is that correct?
Regarding the fine, in the other sections, it determined the fine either as equivalent to the planning fee or the fee. I presume that is here as well.
It is in section 124(5)(b)(iv), where it states, “pay to the applicant a sum equal to such proportion of the fees paid to the Commission as may be prescribed". It is the same.
Okay. Perfect. That is all.
I will put the question that-----
Apologies. I have one other question. In subsection (5)(c), does this imply a second possible extension and a second fine or am I not reading it correctly?
It is a second period.
But the period of time is not specified, is that correct?
I think it is. It provides "t]he period within which ... shall not exceed one week from the date of the expiration”.
So it is six weeks and a fine, and then an additional one week and a fine.
Subsection (5)(c)(ii)(II) provides that “the period within which it will make that decision (which shall not exceed one week from the date of the expiration of the period first mentioned in this paragraph)”.
That means the net effect of it is there is a six-week period provided for in subsection (5) and then an additional one week in this. Is there a second fine at the end of that week?
What about subsection (6), which states, "Any sum payable under this section shall be paid"? The sum in subsection (6) relates to the first fine after the six weeks.
Yes, it does. You basically have another week to make a determination on it. You will have been levied the fine.
So you missed the six weeks, the fine is levied and you are given one final week.
What happens at the end of that week if a decision is not made?
According to subsection (7), "A failure by the Commission, in making a decision ... in relation to an application, to comply with a time period specified in this section shall not invalidate the decision." Then there is a reference to "Where the Minister considers it necessary or expedient that decisions under" the relevant section. It has to make the decision within a week. It states that here. It states that it "will" make that decision. Therefore, it must make the decision within a week.
And if-----
Sorry, going back to that. On page 253, subsection (5)(c)(ii)(II) refers to “the period within which it will make that decision”.
"Will" means it is legally obliged to.
It has to, yes.
And if it does not? This is a serious question.
They will have to notify the Minister. That is what I was referring to with regard to the provision on the next page, which states:
A failure by the Commission, in making a decision under section 121 in relation to an application, to comply with a time period specified ... shall not invalidate the decision. ... Where the Minister considers it necessary or expedient that decisions under [this], in relation to applications of a particular class or classes, be determined as expeditiously as is consistent with objectives of maritime spatial planning and principles of proper planning ... by reason of their being of special strategic, economic or social importance to the State, he or she [shall] give a direction to the Commission to give priority to the making of such decisions, and the Commission shall comply with any such direction.
So if there is no decision in six weeks, then there is a fine. They then have one week to make the decision and if they do not, you tell them to drop everything and a decision needs to be made.
Yes, and that is covered in subsection (8).
Is that ministerial direction new? Is that the only area where such provision has been inserted?
Yes, it is new. Is it the only area where it is inserted? It is for each of the decisions.
Absolutely. Apologies. Is this only place in the Bill or are we using that formulation elsewhere?
It is for the appeals as well, so it could go straight in as for the appeals. However, bar that, it is the only place.
I note it is not the Minister's intention and it is not what any of us desire but let us say, for example, there were a significant number of applications or appeals that missed their six weeks and missed their one week. How does the Minister decide which one shall get priority if there is more than one?
Going back to the discussion just before we had the sos, let us say a number of decisions were missed. We would be bringing in the OPR at that stage to look at the process and make recommendations on it.
Ultimately, it would be at the discretion of the Minister to-----
Yes, it would, in line with subsection (8). One can see it is quite-----
Yes, it is quite specific.
Question put and agreed to.
SECTION 125
I move amendment No. 717:
In page 256, line 34, to delete “referred to in this section as “the CRU” ” and substitute “in this section referred to as the “CRU” ”.
Amendment agreed to.
The Minister agreed to look at amendment No. 718 for Report Stage.
Yes, I did.
On that basis, I will not move the amendment, but I may reintroduce it on Report Stage.
Amendment No. 718 not moved.
Question proposed: "That section 125, as amended, stand part of the Bill."
I have one quick question. These are all just standard transpositions from the existing legislation. There is nothing new in section 125 at all. Okay.
Question put and agreed to.
SECTION 126
Question proposed: "That section 126 stand part of the Bill."
I have some questions. First, I apologise to the Minister. We have had a number of discussions around retention and substitute consent. I am not looking to repeat any of those rather this is just for the sake of clarity. Is the purpose of section 126 and the subsequent sections to replace what we currently call retention and substitute consent and create kind of a single, standardised retrospective consent procedure for those two categories? That is the first question and I then have a supplementary question on it. Again, it relates to a previous discussion but I am not looking to repeat that previous discussion rather I am looking for clarification.
The explanatory memorandum might be helpful. On page 44, it states:
This section sets out the additional procedures for the making of applications for retrospective consent under Chapter 4. Retrospective consent, as defined in section 79, is permission for retention granted in respect of development or part of development already carried out or being carried out in respect of which an EIA [or] AA was or is required. This procedure replaces the substitute consent procedure under the Act of 2000. An application for retrospective consent can be made to regularise unauthorised development. For development for which permission has been granted, an application can be made for the part of the development which has been carried out or for the part of the development which has been carried out and all or any part of the development which has not yet been undertaken. An application for retrospective consent may also include in the application, an application for permission for the development of the land or maritime site, or [the] adjoining lands or maritime sites, [and that would be] the subject of the retrospective consent.
Any Environmental Impact Assessment Report and/or any Natura impact statement shall be submitted in respect of the entire development, including any part of the development that has not yet been undertaken.
I want this to be crystal clear because the explanatory memorandum is not as clear as I am asking the Minister to be. Is this provision for what we commonly understand as retention and substitute consent - the Minister clearly addressed substitute consent - but not for what we commonly understand as retention?
It is substitute consent.
Okay. That is the retention permission we dealt with earlier.
My next question was the subject of discussion previously. I ask the Minister to clarify something. The Cathaoirleach will remember this particular question, which I do not believe has been clarified yet. Section 126(3)(a) states:
Where a person applies under this Chapter for retrospective consent for development, that person may also include in the application an application for permission for the following:
(i) other development on the same land or maritime site on which the development that is the subject of the application for retrospective consent is situated;
If the Minister remembers, when we were dealing with this consent legislation I raised a scenario involving someone who has an unauthorised development, which may have been done deliberately or it may have been done without their knowledge and, as such, may not be the person's fault. There is, however, an unauthorised development and an application has been made for substitute consent or what we are now calling retrospective consent to regularise it. The person is now also allowed to apply for new development on that site, which typically would be related to the activity in which the persons is already involved. Are they two separate decisions? Is the decision to regularise the substitute consent, or now retrospective consent, given first or is the decision on the new proposed development conditional? What is the relationship between those two decisions? The Cathaoirleach will remember the discussion on this. It would be helpful to clarify it.
I believe we did get clarity on it but I will let the Minister respond.
The first stage is to deal with the substitute consent piece. What follows thereafter is the retrospective consent or the development itself, the new development.
Where is that? I am not reading that in the section. It could be that I do not understand.
Under section 128(4), where an applicant for retrospective consent also-----
My apologies. Which section is this?
Section 128(4) states that where an applicant for retrospective consent also applies for permission for development, the commission "shall not grant permission for that development unless it also grants the retrospective consent".
Perfect.
That means the decision must be taken on the retrospective consent first but the decision on both the applications would be issued at the same time. Is that right?
It could be.
My reading of it is that it is not that one is taken first but if someone is being refused retrospective consent, it will not be possible to get the consent. It is, therefore, a single decision.
It is simultaneous.
It is either "Yes" to both, a "Yes" and "No", or "No" to both.
Yes. The substitute consent piece would have to be dealt with first, effectively, because the other would fall if that falls.
Absolutely.
It is all in one process.
I thank the Minister.
Question put and agreed to.
Section 127 agreed to.
SECTION 128
I will not move amendment No. 719. I may reintroduce it with alternative wording.
Amendment No. 719 not moved.
Question proposed: "That section 128 stand part of the Bill."
I presume the answer to my question will be "Yes". Section 128(1) states: "The Commission shall not decide to grant retrospective consent under section 121 (whether subject to conditions or not), unless it is satisfied in accordance with section 132 that exceptional circumstances exist that justify the grant of such consent." Am I right in assuming that section 128(2) also makes it clear that all other regular planning permissions would also have to be met? Not only will the retention application be done on exceptional circumstance grounds but the application will also be judged by what would have been the regular planning criteria by which the application would have been assessed if planning permission had been correctly applied for in the first place. Is that correct and is it set out in section 128(2)?
Section 128(2) states:
Before deciding whether to grant retrospective consent under section 121, the Commission shall, in addition to consideration of the matters to which it is required to have regard pursuant to this Act, also consider the significant effects on the environment, or on a European site, that have occurred, are occurring or could reasonably be expected to occur by reason of the development that is the subject of the application for retrospective consent having been carried out.
My question is very specific. It is just in order that I am clear. The phrase "consideration of the matters to which it is required to have regard pursuant to this Act" means all regular planning rules-----
-----the development plan-----
Exactly.
Is that what that means?
Question put and agreed to.
Sections 129 and 130 agreed to.
SECTION 131
Question proposed: "That section 131 stand part of the Bill."
One of the issues that came up with the substitute consent legislation we previously dealt with was enforcement and restoration, which is the wrong word but I just cannot remember the language used in the original legislation. I am referring to where there is a requirement to remediate such that enforcement means not just stopping the use of the development for a certain purpose but also restoring the land, natural habitat and environment to their original condition. From memory, there was quite a lengthy debate, if the Minister recalls, on the floor of the Dáil around the fact that there was enforcement but not necessarily so much by way of remediation. I think that was the phrase used. This seems to be the same. Am I misreading it?
Pardon me?
This section seems to be similarly deficient in terms of powers or compellability for remediation. For example, where someone has applied for substitute consent-----
In relation to remediation or restitution, or whatever phrase is used, that would be detailed in the enforcement notice itself. That is the function of it.
Is that set out by way of regulation? In terms of the scope and range of powers the planning authority will have-----
It would have to be done on a case-by-case basis in relation to what this specific enforcement notice related to. I am not going to use Derrybrien as an example but it would be determined on a case-by-case basis as to what restitution or remediation is required and it would then be assessed as to what is appropriate to the given site. Is the Deputy asking what the detail, scope or parameters of that would be in guidance?
Would it be done by way of regulation or guidance?
I think it is a planning decision.
Let me tease this out for a second. Obviously it is a planning decision as to whether the development is authorised. If the development is not authorised, the development has to cease. The issue then is whether the physical infrastructure of the development has to be dismantled and what happens if there has been significant damage to the surrounding built environment, natural environment and habitats. What is the scope within which the local authority can act? This goes beyond a planning decision.
It is all set out actually in section 130, which deals with "Refusal of retrospective consent: direction by Commission to take remedial measures".
Where is it set out in that section?
Section 130(4) relates to draft direction.
The section states that where the Commission has served a direction to cease activities-----
Further down, on page 261, it states:
A draft direction served under subsection (1) shall require the person on whom the draft direction is served—
(a) to take the remedial measures specified in the draft direction,
(b) to keep records of the remedial measures being carried out in accordance with the draft direction,
My apologies, I am not seeing this.
It is on page 261.
I thought the Minister said page 262.
It is paragraphs (a) to (e) of section 130(4). That is the purpose of the enforcement notice. It is legal enforcement. The Deputy may wish to have a look at that first. He will see it is detailed very clearly.
Then it further provides that if land or a maritime site has been refused retrospective consent it is an unauthorised consent and cannot be subject to any further application for development "... until any
remedial action required by a direction served under section 130 is complete".
Is there anywhere in legislation, regulations or guidelines where "remedial measures" is defined? Defining it is probably the wrong thing to do because we do not want to be too prescriptive as we do not know what might happen in the real world. However, what about where there is guidance for local authorities or planning authorities when dealing with what "remedial measures" may or may not be?
No, I think it is on a case-by-case basis using the expert advice they have within the planning authority. It could be with regard to biodiversity loss. Section 130(1) states "Where the Commission decides under ... [this section] to refuse to grant retrospective consent, it may serve a draft direction on the applicant concerned requiring the applicant to cease all activities ...". It then refers to measures:
(a) to restore the site on or at which the development to which the application relates is situated, to a safe and environmentally sustainable condition, or
(b) to avoid, in a European site, the deterioration of natural habitats and the habitats of species ... [etc.]
It has to be assessed on a case-by-case basis.
Okay.
I have a question while we are talking about section 131 and section 130 as well, which the Minister has been referencing. Section 130(8) states:
A direction or draft direction under this section shall not require the taking of remedial measures in relation to a development to which subsection (3) of section 320 applies that was carried out more than 7 years before the commencement of this subsection.
Subsection (3) of section 320 refers to:
... unauthorised quarry development or unauthorised peat extraction development in any of the following circumstances:
(a) where no permission for the development has been granted and the development commenced after 15 November 2004;
(b) where permission for the development was granted under the Act of 2000 [...];
(c) where permission has been granted in respect of the development under Part 4.
Will the Minister explain the seven years and what section 130(8) is about?
That is a standard provision and it is effectively statute-barred after seven years.
Yes, but it is very specific because it does not refer to all draft directions. It is a very specific set of draft directions that only have regard to unauthorised quarry development or unauthorised peat extraction. If it is a standard provision why does it not apply to everything? The Bill is very specifically just putting this provision in with regard to unauthorised quarry development or unauthorised peat extraction.
We are jumping all over the Bill here, but section 320 deals with time limits on enforcement. The Deputy will see it is a common provision across the board, so I do not understand what he is asking.
This section is about remedial measures though.
Yes. It is right it is stated there as well.
I want to know why the "remedial measures" from section 130(8) are specific to unauthorised quarry development or unauthorised peat extraction.
I get the Deputy's point.
There must be a reason for section 130(8) being linked to section 320(3). Otherwise the former would just link to time limits in general. Why is there this specific seven-year period in relation to unauthorised quarry development or unauthorised peat extraction?
The Deputy is asking why is it specifically related to quarry development and peat extraction.
I will let Deputy Ó Broin ask a supplementary question and then we might get a response.
This is quite important. There is obviously a standard statute of limitations on planning enforcement of seven years and we deal with that regularly. This is quite unique though, in the sense this is under a section where there is a refusal-----
I think I have answer, but the Deputy should go ahead.
The Minister may not have the answer to the bit I am going to ask-----
You never know.
I will ask first and the Minister can respond then. This is where there is a refusal or retrospective consent, that is, a retrospective consent application has been submitted and it is refused. The issue here is even where it is refused, after seven years the local authority has no powers whatsoever to introduce any requirements for remedial measures. This is crucial when we think about the regular seven-year statute of limitations. Let us say somebody builds a house. It is unauthorised development. Seven years later somebody puts in a complaint but the house is there. The people broke the rules, knowingly or unknowingly, but the house is there. We could have had ten years of very significant illegal quarrying or peat harvesting activity with very significant environmental impacts and if no remediation action is taken those negative impacts could accelerate and deteriorate. To have such a blanket prohibition on any remedial measures seems very broad. It is not the same as the standard seven-year statute of limitations on planning enforcement.
To be fair, we might have all been reading it the wrong way around on this.
Cool.
We need to go back to section 320(3) and the reference to unauthorised quarry development or unauthorised peat extraction development. The subsection states:
Notwithstanding subsection (1), enforcement action may be commenced at any time in respect of unauthorised quarry development or unauthorised peat extraction development in any of the following circumstances:
(a) where no permission for the development has been granted and the development commenced after 15 November 2004;
(b) where permission for the development was granted under the Act of 2000 ...
It is therefore possible to go back further than seven years for those two measures.
Sure.
I get that part of the Bill and do not have an issue with that part of the Bill. My question is why that wording is then being applied to section 130(8), which states:
A direction or draft direction under this section shall not require the taking of remedial measures in relation to a development to which subsection (3) of section 320 applies that was carried out more than 7 years before the commencement of this subsection.
It means a person can take enforcement action without seeking remedial measures as well.
I read it differently. What section 320(3) does is allow people to take enforcement action outside the normal statute of limitations of seven years.
Which I have said.
However, what section 130(8) does, notwithstanding the fact people can do that and stop the illegal quarrying or peat harvesting, is ensure people are not allowed take action. The key words are "shall not require the taking of remedial [action]". On the one hand, therefore, we are saying there is a tougher enforcement regime because people can go back seven years, but even when they stop something that is eight, nine or ten years old, they are not allowed add conditions for remedial measures. That is quite draconian, or quite restrictive, should I say.
No, it is not that people are not allowed. Let me just check that, because we have agreed they can go past that for quarries and peat. The Deputy is referring to the passage that states "A direction or draft direction under this section shall not require the taking of remedial measures in relation to a development ...".
Yes. It states they "shall not require the taking of remedial measures".
In a sense it is going back to the original question. Why do we have section 130(8)? What is the rationale behind having it in the Bill and what is the concern around it not applying if it was carried out more than seven years before the commencement of this subsection? That is the original question and it still stands.
How do you remediate the hole in the ground? If it is an unauthorised development, it can be removed but there is something missing here. Is that what the Deputy is saying?
Remediation of unauthorised quarries and unauthorised peat extraction is very important in terms of environmental damage. It can be very difficult to remediate depending on the level of damage done. The concern is about a provision in the Bill that would prevent remedial action being required under section 130 if section 130(8) applies to it. Why have this prohibition? Why not at least have discretion?
I get the point. We are agreed on going past seven years. Going back to 2005, would a quarry that had been stopped be remediated back up to what it was in 2004 if it goes back to that? You add in 15 years of unauthorised quarrying and an enforcement notice issued. You have stopped that, it is an unauthorised development and you have been able to take enforcement action. Remediation or restitution may not be possible in that instance. The site may be secured in other ways or used for other things but you have stopped the illegal works. You will not be able to remediate a quarry that has been quarried for 15 or 20 years.
I have some knowledge of this area. If we take an unauthorised quarry and the damage that has been caused by it and if it comes to enforcement around it and remediation, remediation does not necessarily mean that you fill in the entire quarry, restore it, get a load of rock, bring it back to the quarry it once was and undo ten years of extraction. That does not necessarily mean remediation. If it is an environmentally sensitive area, remediation could mean taking a number of measures to try to undo some of that damage and create some sort of environmental re-balancing in terms of biodiversity, water tables, etc. That does not necessarily mean that you simply do a full remediation and fill in the quarry. Likewise, unauthorised peat extraction does not mean you come along and restore the entire peat that has been extracted-----
You could not do that.
No, but you could do some very important remediation works that could mitigate some of the damage that has been done. My concern is that section 130(8) prevents that from happening.
On that point-----
Section 130(1)(a) and (b) set out the scope or parameters of remediation. It does not say the site has to be remediated to its original state. Section 130(1)(a) states "to restore the site on or at which the development to which the application relates is situated, to a safe and environmentally sustainable condition" so not to its original state. As we know, people might not know what the original state was because it was so far ago. Section 130(1)(b) states "to avoid, in a European site, the deterioration of natural habitats and the habitats of species or the disturbance of the species for which the site has been designated, insofar as such disturbance could be significant having regard to the objectives of the Habitats Directive".
My question is very simple. With regard to section 130(8), is it not the case that this means there are no sets of remedial measures that a planning authority could apply in that instance? It is not that they could not say that it must be restored to its historic state. There are simply no remedial actions it is permitted to apply. Is that not the case?
There are two things to consider. The enforcement notice itself should detail what actions need to be taken with regard to a site. That is the first thing. The legislation guides that. Regarding section 130(8), I take the point that has been raised because it looks like we are giving an exception in that piece, which is not its intention because the enforcement notice will detail what works have to take place and that is a legal notice. I will have to get clarity about that piece. Section 317(2)(d) states "require such steps (including, where appropriate, the removal, demolition or alteration of any structure, the discontinuance of any use and, in so far as is practicable, the restoration of the land or maritime site to the condition that it was in prior to the commencement of the development) as may be specified in the enforcement notice to be taken by the person or persons on whom the enforcement notice is served within a specified period". That is clear about what an enforcement notice does. The one point I do take from this is that section 130(8) could be stronger. I will ask officials to look at that. I know we are not reading in isolation now and we should not read in isolation anyway but the piece about the enforcement notice in section 317 details what can be done and included there. I will look at section 130(8) to try to remove any ambiguity that might be there or confusion around that. The enforcement notice will detail what you need to do with that site.
Section 317(2)(d) sets out what can be in the enforcement notice, including restoration of land or maritime sites. However, when you read section 130(8) against that, you can see that there is an exception for a quarry or peat extraction site. Here, where the unauthorised development is more than seven years old, no remedial measures can be in that enforcement notice. Does section 130(8) not prohibit remedial measures being included in the enforcement notice for those categories of development mentioned in it?
Remedial measures will be in the enforcement notice.
That is not what section 130(8) says.
On foot of this discussion, I need to get absolute clarity on that piece. The enforcement notice is very clear. That is the legal enforcement that is being taken about what works need to be done to restore or remediate a site. That is covered and we have dealt with that. Regarding how that interacts with section 130(8), which relates to the direction by the commission to take remedial measures, I do not want it to be read in any way, shape or form that there is some type of exception here outside an enforcement notice. With the Cathaoirleach's permission, I will get some clarification on this item because that is not the intention of it and is probably not the meaning of it but from the discussions we have had here, I can see how people might interpret that as and we need to get that piece cleared up.
The Minister's explanation is helpful. So section 317(2)(d) is the planning authority enforcement section. That is the enforcement section of the local authority. Section 130(8) involves the commission in terms of applications for retrospective consent. It seems that the Government wants section 317(2)(d), as do we. Then section 130(8) needs to removed. Obviously, the Minister needs to get clarification about it but my concern is that if it is not removed, there is legal ambiguity in the text between the enforcement notice and the commission's directions in terms of the substitute consent that could give rise to legal action. I appreciate the Minister is saying he wants to get clarification on it and if we could get a note, that would be great but there does seem to be a real conflict between those two.
We will look at it. I do not believe there will be a conflict by the time we will have gone through it. Section 131(3) states:
Where the Commission decides under section 121 to refuse to grant retrospective consent (other than on the basis that retrospective consent is not required) the development concerned shall, notwithstanding any other provision in this Act, be deemed to be unauthorised development and the appropriate planning authority shall, as soon as may be after receipt of a copy of the decision to refuse consent from the Commission, serve an enforcement notice under section 317 in relation to the development.
That links it to the enforcement notice piece we have been talking about in section 317(2)(d). I will also take from this that while this is neither the intention nor the way in which it should be read, I can see how it could be read that way.
My final comment is that in that scenario outlined by the Minister, and if I was the proprietor of the said illegal quarry and the enforcement notice then required remediation, the very first thing I would be doing would be to get legal advice to see whether, as I had been operating for eight or nine years, section 138 surely applies. We will, however, await with interest the Minister's response.
Then the person falls into section 320 and one is going back further than seven years. That provision is very strong and clear that one can go past the seven years, particularly for those two activities: quarrying and-----
That is for enforcement, ceasing, desisting and removing the structure, sure, but the question mark on section 138-----
Remediation is included in the enforcement notice under section 317(2)(d).
Yes.
On this point, from us going through this I am sure that it will not be the case that this would be an exception. We will go back and look at this piece and will come forward with an explanatory note on this.
I have been trying to make a contribution for a while. The Minister concludes, as is his right to do, but I have been trying to make a contribution for the past ten minutes. I say that so that the committee might know that I am not delaying things but have been trying to get in. I raised these issues initially so I should probably be able to take part in a discussion on them.
There are two points I wish to make on this. First, if the enforcement process was sufficient here and there is no need for a direction by the commission to take remedial measures, then why do we have that section 130 here at all if the enforcement is sufficient? If section 317(2)(d) was sufficient, why do we have section 130 with respect to everything else? That is where there is some inconsistency here created by section 8.
Second, from my experience in this regard, these are highly contested areas. There is a great deal at stake here for people involved in these processes with potentially huge amounts of cost and environmental considerations. Any possible ambiguity or inconsistencies here would very much potentially open this up to complex litigation delays. I am aware, as may the Minister also be, that enforcement sections of some of the councils around some of these issues can be going on, back and forth for years, with land and property owners. There can be huge frustrations for all parties around this. Having this very clear, especially in these areas, is very important, and I cannot stress that enough. These are not just abstract issues. Because of the way that quarries have not been regularised or authorised for so many years, with all of the issues around that, these are highly contested areas, as is peat extraction, as the Minister knows also. I will leave it at that.
For absolute clarity, one can go past the seven years and that is very important for those two particular measures and it is very important that that is set down in primary legislation. This is a very serious issue, unquestionably. All of us are aware of cases, particularly on illegal quarrying and peat extraction. I am more than content that within the Bill, as is presented, that it would and does provide for that under the enforcement notice, which will detail what the remediation or restitution work that is required is and which will be issued by the planning authority in the first instance, and second by the commission. What it will do and what I have committed to do on foot of the discussions here, is to get an absolute clarification on that. If we need to tighten that up, post the receipt of that note of clarification, with regard to section 130(8), we will do that.
I have just one comment here. We are still not clear as regards section 317(2)(d) and there are no time limits on enforcement notices on remediation steps.
Section 131(3) requires one there on the time limit for enforcement notices.
Yes, but there is no seven years before the commencement of the subsection applying to that. For unauthorised quarries and peat extraction, an enforcement notice which issues is not subjected-----
Is that under section 320? We have just said that where under section 320, one can take an enforcement action post the seven years for these two activities and it is very clear on that.
Absolutely, so why is there an inconsistency in the legislation? What is the rationale for this seven years before the commencement of this subsection under section 138? That is the original question but the Minister has said he is coming back to us on that and that is fine.
What we all want is here, and if there is a clarity required, I will get a clarification on this. We will then come back and if we need to strengthen or change subsection (8) we will do that. I think that reading them in isolation can give a different view of it. The enforcement notice is key in this. The time periods on these two activities go past the statute bar and the seven years, as I have detailed already. We want to and we will ensure on foot of these discussions that if there is any grey area created by subsection (8) under section 130-----
The Minister will be providing the committee with a note on this.
Absolutely, and if needs be, we will come back to it.
I ask that the Minister get that note as as soon as possible.
The discussion has been useful in moving that through.
Question put:
The Committee divided: Tá, 5; Níl, 3.
Tá
- Duffy, Francis Noel.
- Flaherty, Joe.
- Matthews, Steven.
- McAuliffe, Paul.
- Noonan, Malcolm.
Níl
- O'Callaghan, Cian.
- O'Donoghue, Richard.
- Ó Broin, Eoin.
Question declared carried.
SECTION 132
I move amendment No. 720:
In page 263, line 12, to delete “section 125” and substitute “section 128”.
Amendment agreed to.
Section 132, as amended, agreed to.
SECTION 133
Amendments Nos. 721, 722, 825, 828 to 835, inclusive, 838 to 843, inclusive, 845 to 849, inclusive, 870 to 876, inclusive, and 881 to 887, inclusive, are related and may be discussed together.
I move amendment No. 721:
In page 265, to delete lines 1 and 2.
These amendments relate to Part 6 of the Bill, which provides for environmental assessments, and are designed to make the Part more readable.
Amendments Nos. 721 and 722 are minor amendments that separate out the subsection that notes that Part 6 applies to extensions or alterations of permissions into its own section.
Amendment No. 828 is a textual amendment that reorders text without changing its meaning.
Amendment No. 829 adds the phrase "having regard to the European site’s conservation objectives" into the provision. This is a more accurate reflection of the wording of the habitats directive. The amendment will ensure that the Natura impact report will identify significant effects regarding the site’s conservation objectives only.
Amendments Nos. 831 and 832 change syntax to make the provision more readable.
Amendments Nos. 833, 841, 870 and 872 are the same amendment and will be discussed together. This amendment removes the definition of "Minister" from the section as it is not required. This reflects the fact that heritage functions have moved to the Department of Housing, Local Government and Heritage. This definition occurs a number of times in Part 6, hence the requirement for multiple amendments.
Amendments Nos. 834, 835, 842, 843 and 845 are similar amendments and will be discussed together. These provisions give effect to Article 6(4) of the habitats directive regarding imperative reasons of overriding public interest. The provisions outline the process to be taken in the preparation of a statement of case when the competent authority is the Minister, the competent authority is not the Minister, the site hosts priority habitats and species, or the site does not host priority habitats and species. The proposed amendment is intended to make clear that a statement of case can only be prepared where the competent authority considers that all three tests have been met, that is, there is an absence of alternative solutions, imperative reasons of overriding public interest exist and the compensatory measures proposed are adequate.
Amendments Nos. 838, 839, 840, 846 and 847 are related and will be discussed together. These provisions give effect to Article 6(4) and outline the steps to be taken on receipt of a statement of case in respect of plans and following consideration by the Minister of the statement of case, both where the European site affected hosts a priority habitat or species and where it does not.
Amendments Nos. 838, 839 and 840 provide that the Minister will also have to come to a conclusion, when considering the statement of case received, in relation to the absence of alternative solutions. This will allow the Minister to veto approval of a plan where it is considered that the statement of case does not indicate the competent authority has given proper consideration to all alternative solutions to the plan, and include follow on consequential amendments to reflect the fact that the Minister is to come to a conclusion regarding the absence of alternative solutions.
Amendment No. 840 further relates to the requirement for a competent authority to inform the European Commission of the compensatory measure being undertaken when approving a project under the Article 6(4) process. The proposed amendment provides that the European Commission is informed of the compensatory measures intended to ensure the overall coherence of the Natura 2000 network.
Proposed amendments Nos. 846 and 847 are similar amendments relating to plans which host priority sites or species. Amendment No. 847 was substituted, as it had omitted a line which needed to be deleted to allow for the correct substitution of the new text.
Amendment No. 848 relates to the making of a plan where the site hosts a priority habitat or priority species. The amendment provides that a plan shall not be made unless the competent authority is satisfied that all of the proposed compensatory measures will be carried out. Amendment No. 849 relates to the requirement for a competent authority to inform the European Commission of the compensatory measures being undertaken when making a plan under the Article 6(4) process. This proposed amendment is a technical drafting amendment intended to make the provision more readable.
Amendments Nos. 873, 876 and 885 to 887, inclusive, relate to environmental impact assessments. Amendment No. 873 removes the definition of “public concerned” from this Part as it is not required; for example, there is no reference to public concerned in this Part. Amendment No. 876 gives effect to Article 2(4) of the environmental impact assessment directive, which provides that an exemption may be granted from the requirement to carry out an EIA. It is a technical amendment to make the provision more readable. Amendments Nos. 885 and 886 relate to arrangements prescribed for transboundary environmental impacts. Amendment No. 885 provides that submissions from an EU member state or a transboundary convention state may include submissions in relation to an environmental impact assessment report. Amendment No. 886 provides that a competent authority may also make a submission to an EU member state or a transboundary convention state in relation to a project. Amendment No. 887 provides for the co-ordination of environmental impact assessments under different enactments. The amendments proposed are intended to improve the readability of the section. They also provide for the inclusion of additional relevant permissions, for example, industrial emissions licence and abstraction licences.
I wish to advise members that further consideration is being given to the wording of the provisions in Part 6 and that some further amendments may be made on Report Stage to ensure consistency in the provisions.
Are there any questions? If there are not, I would be grateful if someone would swap into the Chair for me for my amendments but we will deal with the Minister of State's amendments first.
I would be happy to do that.
On amendments Nos. 721 and 722, which relate to Part 6 on environmental assessments, will the Minister of State expand on how they relate to alterations and on the assessments provided for and considered under Part 6? I ask specifically about how they relate to strictly protected species under Annex IV of the habitats directive.
Regarding appropriate assessment and environmental impact assessment, it was to put that amendment into a section of its own to give clarity to that.
I appreciate that but they relate to Part 6 and with respect to the adequacy of the consideration set out in this Bill regarding making alterations to permissions including extensions or other changes. In terms of Part 6 to which these relate, how do amendments Nos. 721 and 722 ensure that adequate assessments are made under Part 6 covering all of the considerations which might need to be addressed regarding making alternations to permissions?
Under Part 6, you have to screen for appropriate assessment obviously so this process is the means by which it moves forward whether there is appropriate assessment required or not.
I understand that. I am asking how strictly protected species under Annex IV of the habitats directive are provided for?
Part 6 of the Bill, to which the Deputy is referring, pertains to strictly protected species. Part 6 deals with protected habitats. This is covered under the birds and habitats Regulations.
In terms of Part 6, which these amendments reference, and ensuring adequate assessments are carried out, how are strictly protected species which are covered under Annex IV of the habitats directive included in the process or the assessment?
Regulation 27 of the birds and habitats directive requires that all public bodies would implement the habitats directive, including Annex IV, which lists the species the Deputy is talking about.
My concern about these Parts of the Bill is that it is not very clear or explicit. The exchange we have just had probably demonstrates that. I just asked that question about Annex IV of the habitats directive, strictly protected species, and it took a while to be able to get an answer on it. I am concerned that the legislation is not explicitly clear here, that this could be missed or that it is not sufficiently robust in terms of ensuring that this happens.
The point is that since it is in the habitats regulations, if we were to duplicate it here, there would be duplication. All public bodies will have to adhere to the habitats regulations in any case. Therefore the protections that are provided for through the habitats regulations do not need to be replicated here.
I am not asking for them to be replicated. I am just asking if it is robust enough to ensure that all of these assessments are adequately considered and if that is considered to be explicit enough here. In your view, it is.
In relation to the role local authorities have been given in respect of development, I note that the deciding authority is the competent authority for the purposes of Part 6, environmental assessments, and that the deciding authority is established in section 133(3), I think. If the local authority is the competent authority, does that have any impact on its role and the decisions it is making?
There is a new clause there in terms of separation of functions. My officials and I will look for that now and will respond to the Deputy in a moment. If we go to page 355, section 193(10)(c) provides:
The officers or members of staff of the local authority or State authority carrying out a screening for appropriate assessment of the development under this section shall not, in relation to the carrying out of such screening, be subject to the direction, control or supervision (direct or indirect) of any officer or member of staff of the local authority or State authority, as the case may be, who performs or has performed any function (other than a function under this Chapter)—
(i)in relation to the formulation of the proposal to carry out the development, or
(ii) otherwise in relation to the development (including the facilitating of the development).
Okay. That is the formal separation of roles and functions under the legislation to ensure there are not any conflicts or pressures.
Exactly, yes.
Amendment No. 828, which relates to page 339 of the Bill, proposes to delete lines 12 to 16 of that page and to insert a new wording there. One of the requirements of the habitats directive, under Article 6.3 is that you need to consider not just the impact of an individual plan or project that is proposed, but also the combination of effects, including complex interactions and cumulative impacts. The wording of the directive refers to "either individually or in combination with other plans or projects". There is no reference to this wider consideration in the text the Minister is putting forward in his amendment. Why not? Will you consider bringing something forward on Report Stage that provides for this?
Section 184, on the Natura impact report, on page 339----
I am sorry, I could not hear the Minister of State.
Section 184(2)(c) of the Bill, on page 339, provides that a Natura impact report shall "identify all potential significant effects of the proposed plan on a European site,whether such effects arise from the plan itself or the plan in combination with any project or other plan".
Sure. However, section 184(2)(a) to (g), inclusive, use "shall".
My concern is that section 184(b) relates to habitat types and species whereas section 184(c) does not. The cumulative effects on habitat types and species is the concern. I do not have an issue with the wording in section 184(c). It is an issue with the wording in section 184(b), which is subject to the Minister's amendment. Section 184(b)(ii) states, “which the likelihood of significant effects arising from the proposed plan cannot be excluded”.
Section 184(2)(b)(i) states, “all of the habitat types and species for which the relevant European site is designated”, so that encompasses all the annex habitats and species for which the site has been designated. I know the Deputy -----
My question is about the way it is written. Could section 184(2)(b)(i) be read such that the wording in section 184 (c) would not apply to section 184(b)?
So everything from subsections (a) to (g) goes together. That is what the Minister of State is saying.
The wording in section 184(c) specifically applies to all habitat types, species -----
That is, therefore, how Article 6(3) of the habitats directive is provided for in the legislation.
Exactly, yes.
I will move on to some of the Minister of State’s other amendments. This is one of the sections of the Bill that got very little attention during pre-legislative scrutiny. It is also one of the most complex areas. It is not only about understanding what is in Irish law but also EU legislation, and a very considerable volume of ECJ case law. I struggle with this in a way that I do not with some other parts of the Bill.
The amendments and the section I want to discuss are the Minister’s amendments to sections 187 and 188. These are to clarify and change text but in some ways my questions relate as much to the sections as to the amendments because I presume the amendments do not change the substance of the text of the Bill and just clarify its language.
This might be a very basic question but “relevant plan” relates to the particular plan under question, anything under the national planning framework to development plan, to priority plan or co-ordinating area plan. This entire section and the subsequent sections, if I understand them correctly, seem to relate to wherein making the assessment of the relevant plan there is an absence of alternative solutions and there is “imperative reasons of overriding public interest”, which are set out in section 188 for the making of the plan and I presume that includes aspects of the plan, and “compensatory measures are proposed to ensure the adequate overall coherence within the Natura 2000” network. I presume the consequence of these sections, notwithstanding whatever would be in the assessment, is to allow the plan or the element of the plan to go ahead. For my benefit and the benefit of folks who are paying attention to this, what does “absence of alternative solutions” mean? When I look at “imperative reasons”, the first, “reasons relating to human health or public safety”, is quite clear and then there is “reasons that the development will have beneficial consequences of primary importance to the environment”. In the other area of work that the Minister of State is working on, the marine protected areas, and the debate we will have when we deal with that legislation around potential conflicts and trade-offs between, for example, more renewable energy versus potential impacts on marine biodiversity, those things, as set out in section 188(1)(b) are not always as clear cut. Then under section 188(1)(c), I am trying to understand in very plain English the kinds of compensatory measures because these are the bars against which the assessment, notwithstanding its content, may allow certain categories of plans or aspects of plans and subsequent development plans to proceed, notwithstanding what could be a very negative impact on the Natura 2000 site and biodiversity within it. I am trying to make sure that I fully understand these sections and I am using the Minister’s amendments as a way to get the Minister of State to explain it in a little more plain English, if that is possible.
In these situations if, after going through appropriate assessment, there is going to be damage to EU sites, they will have to go through three tests. The first is that there are no less damaging alternatives and the second is the reasons of overriding public interest. The third is the compensatory measures that are trying to strike a balance between economic development and environmental objectives. That is the essence of it.
That much I got but that is as far as I got. What I am trying to do is get under the bonnet of this a little. The first is absence of alternative solutions, then imperative reasons of overriding public interest and then compensatory measures are required. All three tests have to be met. Is that correct?
The one where there is an absence of alternative solutions is clear enough. Then there is the one on imperative reasons. The reason I am asking is I am trying to think of a real life case. I am thinking of offshore wind as an example. If the relevant plan is to facilitate offshore wind projects, then it will have beneficial consequences of primary importance to the environment because it will help to increase our renewable energy and reduce carbon emissions so it meets that. However, in a sense there is a trade off then because if the damage we are talking about arising from the appropriate assessment is damage to marine biodiversity then there is a challenge because the plan has both beneficial consequences of primary importance to the environment but also, according to the assessment, negative consequences. I am trying to get a sense of how those kinds of situations would be dealt with because if I am right, the imperative reasons of overriding public interest do not include anything to do with the economy. They are much narrower than that.
They are, yes.
I am happy with that. I am trying to get a sense of what the compensatory measures would be. What would be the case if there was a loss of biodiversity in location A and there was an attempt to facilitate the development or nurturing of that species loss in location B? What kinds of measures are we talking about? I know it is hard unless one is talking about a real-life case. Would the Minister of State be able to think of a better example to illustrate this point? When the Minister of State talked about compensatory measures and mentioned in that context the trade-off between the environment and the economic dimension, I would be interested if he could tease that out more.
On the same topic, perhaps, if the Minister of State looks at amendments in the same list of amendments, such as amendment No. 839, for example, it talks about subsection (11) where the competent authority is satisfied that there is "an absence of alternative solutions to the ... development plan" and where the Minister has concluded that. I assume that the "competent authority" is the planning authority or the Maritime Area Regulatory Authority, MARA, which has decided that there are no alternatives but it is the Minister who decides apparent reasons of "overriding public interest" that compensatory measures are proposed. Is that the two-step approach and formula for decision-making? What level of trade-off is permitted - if the Minister of State can understand what I am saying - between the damage which may arise from the plan or the outworkings of it versus the criteria which are set out, whether by way of compensation or otherwise?
On the projects, they can be for social and economic reasons. In practice, across Europe, very few countries go down the imperative reasons of overriding public interest, IROPI, route. They still have to go through this three-step process. In the case of renewable energy projects, the Deputy mentioned the maritime protected areas, MPAs, and the MPA legislation. The idea behind them is a much more iterative type of process so they could provide compensatory measures with regard to locations also.
Where the Minister of State said it could be economic issues-----
Yes, I am talking about airports, for instance, where there may be-----
On my question, with respect to these particular sections, section 188(1) gives a definition there of "imperative reasons of overriding public interest" and there are three. None of them explicitly refers to, for example, social or economic activity. Is it section 188(1)(c) which permits that or where in that definition does one find that? I was expecting to see "issues of social or economic importance", or whatever the phrase is that has been used elsewhere but it is not there.
These specific cases might be plans which might affect priority habitats or priority species. That is where the IROPI part is relevant.
The Minister of State is saying that imperative reasons of overriding public interest is more than what it set out in section 188(1), for the purposes of these sections.
This is quite complex, a Chathaoirligh, and it might be useful if we went into private session to consider these matters further.
I would suggest that because of the complex nature of this and it might be easier for the officials to actually answer that question. We will need to do that in private session, Deputy Ó Broin.
I have no problem with that.
The committee will now go into private session.
The select committee went into private session at 8.06 p.m. and resumed in public session at 8.21 p.m.
I propose that Deputy Ó Broin take the Chair while I speak to my amendments. Is that agreed? Agreed.
Deputy Eoin Ó Broin took the Chair.
I promise not to use the gavel on Deputy Matthews.
A number of these amendments have probably been addressed in the discussions we have had up to this point. I tabled some of these amendments to have the ability to get clarity on some issues. Amendment No. 825 refers to section 183. It refers to a screening report for appropriate assessment carried out by a planning authority. It is required to publish the notice and the determination. I am wondering about the actual reports done to give the notice and the determination. Is that report a publicly accessible document? What I am suggesting here is that it would publish the report, not just the notice and the determination.
I will respond to that. Amendment No. 825 relates to section 183 of the Bill which provides for screening for appropriate assessment. The amendment if made would require that a screening report, when undertaken, would be published alongside the planning application. Section 183(7) provides that a determination in relation to a screening must be published along with the reasons for making the determination. Section 183(8) provides that a competent authority should publish the screening notice with the notice of the proposal to make the plan. As the competent authority is required to publish both the determination and the reasons for making the determination, it is unnecessary to explicitly provide that the screening determination report must also be published. I think that answers the Deputy's question.
There is such thing as a report that would be done in order to inform the notice and the determination, would that be correct?
No, it is not a statutory requirement.
Is it not? Okay, that clarifies that for me. Amendment No. 830 refers to section 184, Natura impact reports. The Minister of State might clarify this. Section 184(2)(c) provides that the report "shall identify all potential significant effects of the proposed plan on a European site, whether such effects arise from the plan itself or the plan in combination with any project or other plan". Would zoning objectives on an adjoining site be covered under "other plan" since they would be contained in a county development or local area plan?
Amendment No. 830 relates to section 184 of the Bill regarding the preparation of a Natura impact report. The wording of section 184(2)(c) is intended to give effect to Article 6.3 of the habitats directive which provides: "Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives." The amendment proposed would introduce a reference to "zoning objectives of adjoining sites" when identifying the potential significant effects on a European site of a plan in combination with any other plan. This amendment is not necessary as this consideration is already implicit in the wording of the section. In addition, this consideration, if made explicit, would go beyond what is required under the habitats directive. I cannot accept this amendment.
Sure. A landowner of an adjoining site could reasonably expect to get planning permission for something that is contained in the zoning objectives. Is that included under the term "other plan"? Such zoning objectives would be included in a local area plan, area action plans or that kind of thing.
It is, yes.
Okay, fine. I am grateful for the clarity on that. Amendment No. 874 is in respect of exemption from assessment. This is an amendment to page 380 of the Bill, section 205(2). It is really just to get an understanding. This is an exemption from a requirement for assessment by the commission. I am wondering about the circumstances that would exist where there is an exemption for an assessment. Are the public in any way involved in that decision on exemption?
Is that in terms of public consultation?
Section 205(2) states that before deciding on the request, the commission shall invite the planning authority and also consider whether transboundary convention states should be informed about it. Is there any invitation to the public to be part of that? In what cases would the exemption be applicable?
No is the answer. These are generally under an emergency scenario so there would not be cause to have the public involved in that. The public are notified. That is the only involvement of the public in that.
Because it is in relation to some sort of emergency.
Will I read the note on the amendment?
Please do.
Amendments Nos. 874 and 875 relate to section 205 of the Bill. Section 205 provides for an exemption from the requirement to carry out an environmental impact assessment and gives effect to Article 2.4 of the EIA directive. In accordance with the directive, an exemption can only be granted in exceptional cases; where the application of the EIA directive would adversely impact the purpose of the development; and where the objectives of the EIA directive are otherwise met.
Amendment No. 874, if made, would require that the public are consulted in relation to the granting of an exemption from the requirement to carry out an environmental impact assessment. This goes beyond what is required by Article 2.4 of the EIA directive. Furthermore, section 205(5) already provides that the commission shall publish a notice of the granting of an exemption and the reasons for granting that exemption. As the provision in the directive, and by extension the Bill, is intended as an exceptional measure, and the public will be informed of the granting of an exemption, I must oppose this amendment.
Amendment No. 875 if made would require that an exemption can only be granted where, inter alia, the application of the requirements of the environmental impact assessment directive would adversely affect public participation of the development concerned. As noted, the purpose of section 205(5) is to give effect to the Article 2.4 of the EIA directive, which specifically references "the purpose of the development".
For this reason, this amendment is not necessary and I again have to oppose it.
My understanding is that the Article 2.4 the Minister of State referred to is for emergency measures.
It is, yes.
The Minister of State covered amendments Nos. 874 and 875. I was unsure about the section. It mentions adversely affecting the purpose. The purpose is obviously development in the public interest in an emergency situation.
Exactly.
I am going to have to withdraw amendment No. 881 because I misworded it. I meant to refer to the scoping opinion but my amendment refers to the "screening report". I will just take a look at it for a second. It is an amendment to section 210, which is on page 391. It is probably similar to the previous amendment about the screening note. It is on the notice regarding a determination in respect of screening for AA. It is a similar case for scoping. On the scoping opinion that is issued, is there a scoping report that informs the opinion? Is that also non-statutory?
It is the same as with the previous amendment I spoke to, which was about screening. That also applies with scoping.
Is amendment No. 882 next? I am just looking for clarification on this. My suggestion was that a consideration regarding restoration be inserted there. This is section 213(7). I suggest that a new section 213(7)(d) be added that provides for conditions regarding restoration. Is the Minister of State satisfied that conditions for restoration are sufficiently covered as regards offsetting, as referred to in section 213(7)(b), or is there scope to introduce a restoration condition?
I will just read the note, if that is okay.
It is, yes.
This amendment proposes to amend section 213, which provides for the EIA of relevant development and outlines conditions that may be attached to a grant of permission, which is of particular relevance to the proposed amendment. The amendment proposes that an additional condition, namely, "conditions for environmental and nature restoration" be included. This amendment is not necessary as the current provisions are consistent with the wording of the parent EIA directive. Section 213 gives effect to Article 8A of the EIA directive, which refers to "measures envisaged to avoid, prevent or reduce and, if possible, offset significant adverse effects on the environment as well as, where appropriate, monitoring measures." The wording of section 213 as currently drafted aligns with the wording of the EIA directive so I cannot support this amendment.
That is fine. It aligns with the European directive. That is fine.
Thanks for that.
Amendments Nos. 883 and 884 are linked. They refer to section 214(2)(a) on page 397. This section is headed: "Additional provisions applicable to application in connection with development already carried out." This is development that has already been carried out so how is screening for environmental impact assessment to be carried out? I actually do not understand what section 214 is trying to do because of that heading.
Amendments No. 883 and 884 relate to section 214. The section outlines the additional provisions that apply to environmental impact assessments and screening for EIA in respect of applications for retrospective consent.
Amendment No. 883 would insert a provision that the screening for EIA also take account of the "cumulative impact likely from the permitted developments in proximity to the development in question." Again this amendment is not necessary. Section 214 requires that EIA screening is to be carried out in accordance with section 207. Section 207 provides that screening will take into account the significant effects of the development on the environment either by itself or cumulatively with any other project. As the substance of amendment is provided for by another provision of the Bill, I have to oppose this amendment.
Amendment No. 884 requests that "and being carried out" be included in section 214. If I understand the intention of this amendment, it is to align the wording section 214(2) to that of section 214(1), which refers to a development that has or is being carried out. I will review this and consult with the Office of the Parliamentary Counsel to see if it is necessary to also include this phrase in section 214(2) and, if appropriate, I will bring forward a Report Stage amendment on the issue. However, I must reject the amendment
On the clarification I am looking for, this relates to retrospective because it is for development already carried out. Is that correct?
The objective is to try to retrospectively address issues where an EIA has not been carried out. The development has taken place so this tries to retrospectively deal with the issues that would have arisen from that particular development, if the Deputy understands.
I am confused about this. If a retrospective consent is what was previously known as a substitute consent, the very fact of it being a retrospective consent means that the development did need an environmental impact assessment. Why would screening for an EIA be carried out in that case?
I refer the Deputy to section 214(1), which states:
A competent authority shall, for the purpose of carrying out a screening for environmental impact assessment under section 207 in relation to a relevant development that has been or is being carried out, take account of any likely significant effects on the environment that—
(a) have occurred,
(b) are occurring, or
(c) could reasonably be expected to occur,
by reason of the development’s having already been carried out.
Section 214(2) then refers to "An environmental impact report prepared in accordance with section 211 in relation to an application for retrospective consent". The screening is to see whether it falls under the conditions for a substitute consent application.
As such, it is part of the substitute consent process to screen it first to see whether it needed an EIA and needed to go through the retrospective consent process.
It could be for an application for retention.
Will the Minister of State look at that in subsection 2?
We will.
Deputy Steven Matthews resumed the Chair.
Amendment agreed to.
Section 133, as amended, agreed to.
NEW SECTION
I move amendment No. 722:
In page 265, between lines 2 and 3, to insert the following:
“Application of Part 6
134. Part 6 shall apply in addition to this Chapter and, accordingly, the deciding authority shall, for that purpose, be the competent authority under that Part.”.
Amendment agreed to.
Amendments Nos. 723 and 724 not moved.
Section 134, as amended, agreed to.
SECTION 135
Amendments Nos. 725 to 727, inclusive, 729, 734 to 736, inclusive, 738, 776, 779 to 784, inclusive, 788, 789, 791 and amendments Nos. 1 to 5, inclusive, to 791 are related and will discussed together.
Amendment No. 725 not moved.
I move amendment No. 726:
In page 266, line 9, after “permission” to insert “, provided that the development to which the permission relates has commenced”.
These amendments seek to amend the provisions in the Bill regarding requests for alteration or extension of permission and also to insert a new provision to suspend, or pause, a planning permission where it is subject to a judicial review.
Amendment No. 726 seeks to amend section 135 regarding a request for alteration or extension of permission by clarifying that a development must have commenced before an extension of duration can be sought. The Bill as initiated did not have any restriction on when a request for an extension could be sought.
Is the Minister of State discussing amendment No. 729?
I am discussing amendment No. 726. Am I in the wrong grouping?
Amendment No. 725 is the first amendment in the grouping.
Will I start with amendment No. 725?
Amendment No. 726 is in this grouping.
If the Minister of State wishes to speak to the ministerial amendments, he may do so.
Amendment No. 726 seeks to amend section 135 regarding a request for alteration or extension of permission by clarifying that a development must have commenced before an extension of duration can be sought. The Bill as initiated did not have any restriction on when a request for an extension could be sought. It is appropriate that a request for an extension of duration can only be made where works have already commenced and means that the holder of a consent will not be able to seek an extension where the works have not yet commenced. The extension of duration of permission provisions in the Act of 2000 refer to “substantial works” having being carried out before the extension is sought. This language has caused uncertainty, particularly in the courts, and referring to works being commenced brings certainty to it. In most cases, development being commenced would mean that a commencement order would have been submitted to the local authority. This is to encourage holders of permission to commence development as soon as possible. In the event that a holder of a development does not commence before the end of the duration of a permission, the permission will expire and a new application for permission will need to be made.
I also intend bringing a further amendment on Report Stage to provide for transitional arrangements with regard to extension of duration where a development has commenced prior to the enactment of the Bill. An application can be made under the Act of 2000 for an extension of duration for a period of two years from the date of enactment of the Bill. After that date, an application for extension of duration must be made under the provisions of the Bill. Will I continue or do members wish to discuss this amendment?
Could the Minister of State include amendment No. 729 because it is related?
Amendment No. 729 inserts a new section regarding limitations on extension of duration of permission to provide that only one application for an extension of duration can be made and that the period of the extension must be in line with the length of the original permission. If the permission is for five years, then the extension cannot be for longer than five years. Again, the intent of these amendments is to speed up the delivery of development.
My concern with these, particularly the move away from substantial works to commencement, is that in trying to create certainty, and I appreciate that it is a case of who gets to decide what is and is not substantial, the Minister has gone too far on the other end to the extent that getting a commencement notice does not require any work to have been started. The applicant has been given permission to get the works. Even if someone gets a commencement notice, a very minimal amount of work, which could be very basic site servicing or clearing of a site, could satisfy the test if it is the securing of the commencement notice. The difficulty relates to somebody with a permission for five years who has done nothing more than obtained a commencement notice and done the most minimal amount of site works. Surely there should be a higher threshold or test as to why he or she should be able to get an extension. I am not looking to punish somebody who, for a very good reason, has not been able to commence. There could be financial difficulties or economic circumstances but it seems the Minister has lowered the bar quite significantly. I am looking for the Minister of State to convince me that I am wrong.
The term "substantial works" was possibly open to interpretation.
I accept that unless the meaning of substantial works is defined, there is a problem. Who gets to decide? I accept that there needs to be a much clearer definition. From what the Minister has said in speaking to his amendments, it seems that "commence" means simply having received a commencement notice. No actual work could have commenced. If I am interpreting the Minister of State's words correctly, it means that when literally nothing has happened on site bar getting the notice, that is sufficient. Am I interpreting that correctly?
It can be more than a commencement notice. Subsection 135(3) refers to such documents or information as may be prescribed so that can be determined in terms of what is meant by a commencement notice.
The Minister of State is on section 135-----
Regarding a request for alteration or extension of permission.
Is the Minister of State on section 135(4)? Which part of that section is the he referring to?
That information would be set out in regulation. If you look at the amendment-----
Before the Minister goes to the amendment, which part of section 135(3) is he referring to?
I am referring to section 135(3)(iii).
I am not in the same place as the Minister of State.
It is page 266.
It is section 135 then.
It is line 30.
It refers to such documents or information as may be prescribed.
Amendment No. 726 states "after “permission” to insert “, provided that the development to which the permission relates has commenced".
What does "has commenced" mean?
Again, that can be set out in the regulations.
Is that it can be or will be? The whole point of this is to provide certainty.
It will be, yes.
What is the intention of the regulations from the point of view of the officials?
It would be evidence that the works have commenced onsite.
Am I correct in saying we would need more than a commencement notice but very minimal site works might have happened over a five-year period?
Yes. We would make it very clear in the regulations what elements would need to be commenced onsite.
Is the Minister of State in a position to share even some of the preliminary thinking on what that is? In some sense, the Minister of State is asking the committee to accept a significant change, which is from substantial commencement or substantial works, notwithstanding the legal ambiguity of that. Could the Minister of State not just, for example, introduce regulations to stipulate exactly what substantial works are? In some sense, this is not really about providing clarity because the clarity is done by way of regulations.
Sure.
This is about lowering the threshold.
It is not, no.
How is it not?
The works at least have to have been started. If anything, there was an ambiguity in the "substantial works" because that was open to interpretation. The regulations will clear up what is required in terms of the commencement of works onsite.
That does not address my question in the sense that I fully accept the phrase "substantial works", if it is just the phrase "substantial works" that is legally ambiguous. The Minister of State had one option, which would have been to provide regulations to clarify very explicitly what substantial works were. The Minister of State has chosen not to do that. Instead, he has used a different word, which is "commenced", and regulations will be used but it is not in any way clear that what the Minister of State is not doing is lowering the threshold. Yes, it will provide clarity.
The worry here is that there are two types of developers. Let us take the example of residential development. Somebody acquires land, gets planning permission and wants to build and whether they are building or not depends on all sorts of factors. Could there be other people who are speculatively sitting on land, for example? Maybe there has been a dip in house prices or an increase in interest rates. They want to hold on to that planning permission until it is more economically advantageous but that could have the detrimental impact of delaying the delivery of much-needed housing. Surely there should be a threshold which is not just "commenced"?
It would be substantial works that would be carried out for each site and each development. This definition of "commenced" is much clearer in terms of what is being asked of a developer. I cannot tell the Deputy now what the regulations will be but they would be substantial. It would be unusual, given the requirements that would be set down in the regulations, that developers would move on to a site, carry out works to a certain level and then move offsite and leave the site sitting there. I am not sure it would be financially viable for anybody to do that.
Let me ask the Minister of State this question. We are taking out the words "substantial works" and putting in the word "commenced" but the Minister of State is telling me that the regulations that will underpin and provide the clarity and certainty to "commenced" will set out what would be "substantial works".
It is to try to set a consistent standard of a commencement of works rather than the substantial works which would vary from site to site.
That could be done by way of regulations in respect of the existing wording.
Again, to go back to the previous wording about "substantial works" in terms of the ambiguity around that and what this will do under section 135. I refer to section 135(3)(c)(i), requiring "sufficient information to allow the deciding authority to assess the request" and the deciding authority or the planning authority will be given in section 135(3)(c)(iii) "such documents or information as may be prescribed". It does give clarity by way of what is being asked about what works are to be commenced onsite. It gives a consistency across planning authorities to do that.
Maybe I am just getting cranky because of the late hour but that is not what that does. What that does is set out that the planning authority will require certain documents and information. We have old language from the Bill, which is not clear. We have new language from the Bill, which is not clear. The Minister of State tells us there will be regulations and that is where the clarity will be. We are removing "substantial works" but the regulations will stipulate substantial works. It is a bit perplexing.
I have a further question on these three amendments. With regard to the transitional arrangements, obviously the existing provision of "substantial works" will be gone if and when this Bill is enacted. What kind of transitional arrangement will there be? Will the existing provisions continue until such time as this new, not necessarily very clear, provision is enacted or what will the transitional mechanism look like?
Sorry, it has been a long day. In terms of transitional arrangements, permissions granted under the 2000 Act for up to two years will still be under that Act so anything granted after that will fall under the new Act. To go back to the point, "commenced" is clearer than "substantial works" in terms of the wording of what is required of the-----
Just so we are clear on the transitional arrangements, is the Minister of State saying that after the passage of this Act any existing planning permission that is two years into its existing permission will avail of the existing provisions of the existing Act?
Yes, an application can be made under the Act of 2000 for an extension of duration for a period of up to two years from the date of the enactment of the Bill.
From the date of the enactment of this Bill, anyone with planning permission can apply under the existing-----
Yes, he or she can apply for an extension of duration.
Under the existing provisions, not the new provisions.
Under the existing provisions.
For what period of time?
For two years.
This is no matter where they are in their planning permission.
There is a two-year period and then any new planning permission will have to be applied for under the provisions of this Act.
Exactly, yes.
After two years all permissions under the Planning and Development Act 2000 will have to apply under the new Act for an extension to duration.
Is that because these provisions will not be enacted for two years? Why is there a two year period? Is it a possibility that this permission could be enacted but existing planning permissions would have to apply under the old Act or would they have a choice?
It is to allow for permissions to apply under the under the existing Act. It is really to give a time period to move into the new legislation.
I apologise and I do not want to hog the discussion but most of the transitional mechanisms that we have agreed to date are notwithstanding the fact the existing Act no longer exists-----
It is where they expected to be able to apply under the 2000 Act. It is to allow for a phasing out period.
Okay, but most of the transition provisions we have dealt with recognise there will be a period between the ending of the old Act and the enactment of the new Act and therefore during that interregnum the old Act applies. In this section the Minister of State is actually saying it is a definite two-year period. Does this mean these provisions will not be enacted for two years or could they be enacted earlier? What happens when we have the new provisions and a transitional mechanism with the old provisions?
It is to transition the current permissions out of the old Act, as I take it, and then for the permissions under this Act and to allow that time period to commence this.
Does that mean that no permission granted under the old Act would ever be able to avail of the provision under the new Act?
Yes after two years they would.
After two years.
I am not clear on that but I might ask one of the officials to explain it outside.
Yes. We will get clarity on that for the Deputy.
It is just after 9 p.m. now. The Minister of State has spoken to some of his amendments. We will return to this amendment No. 725 and the associated grouping of amendments when we meet back at 2 p.m. tomorrow.
I thank the Minister of State, Deputy Noonan, for his attendance at the committee this evening.
Progress reported; Committee to sit again.
The select committee adjourned at 9.03 p.m. until 2 p.m on Thursday, 11 April 2024.