Steven Matthews (Wicklow, Green Party)
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Good afternoon everybody and welcome to the Joint Oireachtas Committee on Housing, Local Government and Heritage. We are continuing with the pre-legislative scrutiny of the draft planning and development Bill 2022. We are joined by representatives of the Construction Industry Federation, CIF, Mr. Connor O'Connell, director of housing and planning, and Mr. Tom Parlon, director general; from the Irish Home Builders Association, IHBA, Mr. Michael Kelleher, vice chairman, and Ms Maeve Smith, director of communications; from Irish Institutional Property, IIP, Mr. Pat O'Farrell, CEO, Mr. Brian Moran, chair of the IIP planning committee, and Ms Jane Doyle, advisory and planning consultant; from Property Industry Ireland, PII, Dr. David Duffy, director, Mr. Ivan Gaine, chairman, and Mr. John Spain, chairman of the PII planning and development policy group; from Wind Energy Ireland, WEI, Mr. Justin Moran, director of external affairs, and Mr. Dennis Devane, senior policy analyst; and from Arthur Cox, by Ms Danielle Conaghan, head of the environment and planning group. We have all received the opening statements and I thank the witnesses for sending them on to us.

I remind members of the constitutional requirement that members must be physically present within the confines of the place where the Parliament has chosen to sit, namely Leinster House, in order to participate in public meetings. Witnesses attending in the committee room are protected by absolute privilege in respect of their contributions to today's meeting. This means witnesses have an absolute defence against any defamation action for anything they say at the meeting. Both members and witnesses are expected not to abuse the privilege they enjoy and it is my duty as Chair to ensure that privilege is not abused. Therefore, if a statement is potentially defamatory in relation to an identifiable person or entity, the speaker will be directed to discontinue such remarks. Compliance with any such direction is imperative. Members and witnesses are reminded of the long-standing parliamentary practice to the effect they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.

The order for the opening statements is Mr. O'Connell on behalf of CIF, Mr. Farrell on behalf of IIP, Dr. Duffy on behalf of PII and Mr. Moran for WEI. Please keep the opening statements to five minutes.

Mr. Conor O'Connell:

I thank the Chairman and committee members. The Irish Home Builders Association is a constituent association of the Construction Industry Federation, and represents hundreds of home builders of all sizes across Ireland. The association supports Irish home builders to deliver quality affordable home to home buyers. A priority for the IHBA is to deliver much-needed homes for those struggling to access the market and find suitable homes. The past number of years have been particularly difficult for those aspiring home buyers who have struggled with the lack of supply and affordability. House builders increased output by nearly 50% last year in comparison with the previous year and nearly 30,000 new homes were constructed in 2022. To achieve our national ambition of constructing more homes for more people so that we can offer people the security of their own home, we need more zoned land, infrastructure and planning permissions and, of course, a viable, affordable product that can be funded.

In relation to planning and development legislation, housing supply does not happen in isolation, and many of the supply determinants are outside the control or resourcing of the house builder. The house building and construction sector provides the necessary infrastructure for Ireland and relies on the State to resource and adequately administer the planning system, and in some cases the legal system, to provide the planning permissions that will ultimately supply more homes. There are many different reports into how many houses are needed, from 33,500 in the Housing for All report up to 62,000 in a much publicised Housing Commission report. Whatever the case, the number of houses we need to supply is much greater than we are currently constructing. We estimate that there are over 70,000 units waiting for a decision from An Bord Pleanála and in the courts. That is nearly two years' supply of houses at current output levels.

A judicial review of homes already granted permission by the planning process can add to the cost of a home by €10,000 to €20,000 per unit. The old expression that time is money has never been more appropriate in the current economic environment as increases in the cost of materials, the rising interest rates and other factors mean the extraordinarily long delays currently in the planning and legal system result in more costs being added to a new home. These are adding unnecessary delays to our younger generations securing their new homes. Commencements declined by 13% last year and we expect that planning permissions will see a dramatic decline over the next 12 months.

It is sometimes said to us in response to the delays in the planning system that there are adequate permissions in place. In urban areas of high demand, most of these are for apartments. Apartments have always been a challenge to deliver due to the high delivery costs and it is doubtful that many will commence in 2023. Government initiatives such as Project Tosaigh and Croí Cónaithe may yield results in terms of apartment commencements later on in 2023. Demand for traditional housing units remains strong as over 70% of Irish households are owner-occupied, and the preference of people is to own their own home. It is not an exaggeration to say that many house builders trying to deliver housing units are concerned they may run out of permissions in areas of high demand later in 2023.

The situation in relation to the resourcing and the planning system and the timelines for decision-making are at a critical juncture. We simply need to build more in this country. We need to build more communities consisting of more houses. We need to build more public transport infrastructure, roads, schools, hospitals, greenways, wastewater treatment plants and electricity infrastructure. The failure to build over the last 12 years is contributing significantly to the many problems we are now facing as a society and economy. It could be argued that these are the problems of success, but they will quickly lead us into failures unless we can build more for our growing population. That is why we welcome so many aspects of the planning and development Bill 2022, including timelines for decision-making and the introduction of appropriate sanctions, including financial penalties, for failure to make the decision in time. A new planning commission, the increased lifespan for local authority development plans, the strengthening of the legal status of national guidelines, the ability to refer certain matters from the courts back to the planning commission and many other aspects are all positive changes.

Ultimately, these will require resourcing and action plans for resourcing. This must commence with the immediate resourcing of An Bord Pleanála to deal with the many applications awaiting decision. Regardless of the question of being for or against a project, we must be able to make decisions more quickly. We have seen objections based on individuals claiming that their houses may be devalued. We have seen objections to housing from organisations or individuals who live several hundred kilometres away from the a site and from politicians objecting to housing who at the same time are calling for more housing. This simply cannot continue if we are serious about an inclusive and harmonious society where the provision of housing is facilitated by the State by means of appropriate legislation and procedures.

The draft Bill is not just about planning. It is also about delivery and the development of this country. It is the process through which we decide, through our zoning process and policies, where housing and other infrastructure should be provided. Prior to an application being made, there should be an assumption of permission on zoned land and that development will take place. The legislation should be about facilitating and allowing for the construction of essential infrastructure for Ireland and we urge the committee to facilitate the passage of this legislation so that houses and other essential infrastructure can be built in a timely manner. Let us build more homes for more people by ensuring that we can provide the necessary zoning, infrastructure and planning permission. We need a unified response to ensure that the increase in housing supply continues. The proposed Bill could be a key component in the context of delivery.

Mr. Pat Farrell:

I thank the committee for affording us the opportunity to be here. The work the committee is departing on in pre-legislative scrutiny of the draft Bill is important. We wish the committee well in that work and are here to support it in any way we can.

IIP is backed by institutional capital, mainly long-term pension funds, as distinct from the equity providers who came into the Irish market after the global financial crash and acquired distressed assets which needed to be acquired and disposed of to activate the market again. Since then, longer term pension investors have entered the market and they are the members I represent. They are long-term investors in the Irish market and long-term holders of assets. They have approximately €20 billion invested in the Irish market in different areas, including retail, logistics, hospitality, offices and especially housing.

I ask the committee to imagine the benefits that investment has brought to Ireland. If members were to stand on the plinth of Leinster House and look across at Molesworth Street, they would see the way that the entire street has been imagined, repurposed and largely rebuilt in the past decade. This was enabled by institutional capital investment. On Kildare Street, there is a development beside the Department of Enterprise, Trade and Employment that includes a sympathetic restoration of a Georgian building into modern offices. On Dawson Street, the same has happened. On Dame Street, there has been huge investment in the iconic former Central Bank building, which is being refurbished to bring a strong addition and new experience to the area. In areas like Cherrywood, we are building a whole new town in which approximately 30,000 people will be accommodated in a fully integrated campus that involves a major commitment to place-making. All the facilities, including worship facilities, retail facilities, shopping experiences and recreational facilities are integrated on one site. That gives the committee a sense of what we are about.

We are the source of almost all the new rental supply for the private market, which the committee will be aware is under pressure due to the exodus of smaller landlords. We are building or funding 60% of the private market output. We are also important providers of debt capital for most of the small and medium builders. That has an impact countrywide.

I will turn to the business of the meeting. While our members are committed to Ireland and are attracted by its strong fundamentals, the planning system needs radical reform. We are drinking in the last-chance saloon. If we do not get it right this time, our international reputation will be at stake. The consensus among our members who have exposure to policy and planning systems across the world is that, at the current juncture, the Irish planning system is among the most difficult to navigate. There is no element of predictability or certainty of outcome and this is adding significant additional cost, uncertainty and risk in an area where investment is badly needed to deliver the required number of new homes and other critical infrastructure the country needs.

I will not go any further. We made a detailed submission in which we included a number of observations about the draft Bill. I am happy to engage with the committee in the next few hours and to respond to any questions members may have.

Dr. David Duffy:

I thank the committee for inviting PII to attend. I am accompanied by Ivan Gaine and John Spain. PII is an independent and inclusive representative organisation for all sub-sectors of the Irish property industry and is part of IBEC. Membership of PII is open to all professional firms across the property industry, including home builders, contractors, private planning firms, architects, surveyors and engineers, legal professionals, property investors and financial institutions. In the delivery of new homes, home-builders face many challenges. The growth in input-cost inflation is impacting on viability and the new home pipeline. Financing is now a particular constraint. Interest rate rises have had a major impact. There are supports for owner-occupiers, but a critical challenge will be in the delivery of homes for rent. Uncertainty can also play a key role in home builders' decision making.

An efficient and effective planning system is essential to Ireland’s national interest and is key to delivering Ireland’s housing and infrastructure needs. The planning system must be robust enough to process the planning permission applications needed for a housing demand that could be as high as 50,000 to 60,000 homes per year in the near term. Delays or uncertainty in the planning process can directly impact the viability of new home delivery, either directly through planning applications or through approval applications for key infrastructure.

In 2022, PII made recommendations on overall planning reform and judicial review reform. There is too much uncertainty and a high level of risk in outcomes in the Irish planning system, especially when legal challenges are taken into consideration. This is making the funding and delivery of multi-unit developments and important infrastructure considerably more difficult, including energy and services. This position also poses a direct risk to Ireland’s attractiveness as a place to do business and for job creation. Without resolving our housing and planning challenges, Ireland’s international competitiveness is being undermined.

PII welcomes the review undertaken by the Government and the proposed Bill being discussed by this committee. The aim of bringing greater clarity and certainty to the overall planning system is very welcome. While many of the proposed changes are to be welcomed in themselves, more fundamental reform is needed to restore an effective planning system in which all participants can have confidence. Greater clarity is also needed on some of the new or changed measures and further steps should be taken on others. One key example of this is the relationship between the national planning framework, NPF, regional spatial and economic strategies and development plans, and how we estimate housing need and ensure sufficient land is available for new housing. Demographic forecasting is a useful tool in trying to estimate housing need. However, we know the population projections on which the housing targets are based need to be revised based on census 2022. This needs to happen with greater urgency. The updating of population and housing figures in the NPF should be undertaken ahead of an overall NPF review given the census results and the significant underestimation of housing needs in current strategies. Zoned housing, based on out-of-date population data and unrealistic assumptions of housing delivery timescales, will only ensure that government housing targets and Ireland’s housing needs will not be met.

The act of zoning land for residential use does not mean it is viable to build homes there, and this is the reason that we are left with some zoned land that is not yet built on. Greater focus is needed on assessing where it is viable to build homes, and in what format and this is not a straightforward exercise.

Given the lead-in time from zoning to completion of housing units, the extension of the duration of a development plan to ten years is welcome as it will contribute to adequate housing supply. The down-zoning of residential land, or the inclusion of core strategy housing development limits, which has the same effect, is unhelpful. We also welcome the greater emphasis on discussion and consultation at the plan-making stage, as opposed to challenges specifically to planning permissions, and greater clarity on the hierarchy of guidelines.

With regard to An Bord Pleanála, the PII welcomes the proposal for timelines for planning decisions and the recent new appointments and committee resourcing to the board. It is essential that robust structures are put in place to ensure the stated timelines can be adhered to. There are many more detailed provisions on which we would want to comment, as there is not enough time for that in this opening statement, but we have included examples of these in the appendix submitted. We are happy to discuss our recommendations in more detail and look forward to engaging with the committee in the question-and-answer session later.

Mr. Justin Moran:

I thank the committee for the invitation. I am joined by my colleagues, Mr. Devane, senior policy analyst, and Ms Conaghan, head of the environment and planning group at Arthur Cox and a member of the council of Wind Energy Ireland.

We are living in a global climate and energy crisis. The job of our members, in helping to respond to these dual threats, is to deliver the renewable energy targets set out in the climate action plan, which require a doubling of our onshore wind energy capacity and the construction of approximately seven to ten offshore wind farms. The focus of our contributions will, therefore, be on how the planning system can be improved to ensure these targets, which must be met to deliver our legally binding carbon emissions reductions, can be delivered.

Before making some comments specific to the Bill, I will highlight the issue of resources, which has been mentioned a couple of times. It is essential that An Bord Pleanála, along with the National Parks and Wildlife Service, NPWS, and key environmental stakeholders, has the resources and expertise to operate a fair, robust and accessible planning system. As we have said publicly on many occasions, including before the committee, An Bord Pleanála simply does not have anything like the resources needed to deal with the volume and complexity of planning applications for projects necessary to deliver the climate action plan. We cannot decarbonise our energy system if we cannot quickly build wind farms and grid connections, and we cannot get projects permitted fast enough, and robustly enough, without more inspectors, ecologists and administrative staff in An Bord Pleanála, all supported by a well-resourced legal department. I ask the committee to include this recommendation in its report.

We welcome the proposal in section 108 to include mandatory timelines for decisions. As committee members may be aware, the current objective for An Bord Pleanála is to decide on a wind farm strategic infrastructure development, SID, application or appeal in 18 weeks. The average for appeals in 2021 was 42 weeks, rising to 58 weeks in 2022. In 2021, the average for SID decisions was 68 weeks, rising to 76 last year. Given the complexity of wind farm applications, we accept that 18 weeks is not enough time for a decision, however, a properly resourced and effectively-run planning authority should be able to make these decisions in 20 to 30 weeks. I ask the committee to propose that in its report. On the matter of fines, as set out in subsection 3, we recommend dropping this proposal. Rather than taking money from An Bord Pleanála, we should be investing in training and supporting the board’s staff.

Committee members will recall during pre-legislative scrutiny of the then marine planning and development management Bill, my colleagues explained that at the time an application for planning is submitted for a wind farm, the exact type and dimensions of a turbine, as well as its base and position can be difficult and even impossible to know. Adjustments may be required post consent to the routing of a cable or the exact turbine location, particularly for offshore projects. In its pre-legislative scrutiny report, the committee recommended that "consideration be given to the allowance of design envelope flexibility subject to periodic review as part of the planning process in instances where there are no detrimental environmental impacts". Regrettably, the Minister did not adopt the proposal. We ask the committee to again support the sustainable development of renewable energy by recommending the deletion of section 113(2)(d) and the amending of section 111(3)(b) by the insertion of the text provided in my written submission. A degree of design flexibility will enable our members to deploy the most efficient technologies and to minimise the environmental impact of development.

When a wind farm reaches its operational end of life, which is generally between 30 and 35 years, owners of such wind farms face a choice. They can decommission the wind farm, meaning it is shut down, the turbines dismantled and the land restored, or they can repower, meaning they replace the existing turbines with new technology. This allows them to continue to use existing infrastructure in a location where the wind farm is familiar to the community. In one repowering project currently being developed by of our members, they plan to replace 25 turbines, which have a generating capacity of 15 MW, with between 12 to 13 turbines with a generating capacity of 60 MW to 70 MW - fewer turbines, more power.

The more wind farms decommissioned, the more installed renewable capacity is lost and the more difficult it becomes to deliver the climate action plan. We believe it is reasonable for the committee to recommend that there be a presumption in law for the approval of applications for planning permission from repowering projects. As the December EU regulation on accelerating the deployment of renewable energy states, "The repowering of renewable energy power plants is an option for rapidly increasing renewable energy production with the least impact on the grid infrastructure and the environment."

We also ask the committee to consider making a proposal regarding the duration of the operational life of wind farms to be included in planning permissions. Historically, most wind farm planning permissions in Ireland included a condition that restricts their operational life to 20 or 25 years. To continue operation, the wind farm operator must apply for planning permission for life extension. This can be a costly and time-consuming process. There are operating wind farms that were granted planning permission in the 1990s without a condition limiting their life. Our oldest wind farm is more than 30 years old and still generating power. We ask the committee to recommend to the Minister that the Bill includes a provision ruling out restrictions on the duration of the operational life of wind farms granted planning permission.

We welcome the introduction of section 184, which recognises the overwhelming imperative reasons of public interest to deliver the renewable energy projects that will be required to meet our legally binding carbon emissions reductions. This helps to give us a fighting chance of reaching the 2030 targets. We strongly recommend that the committee endorses this provision in its report.

We welcome the expedited timelines for judicial review decisions as set out in section 249 but, as drafted, they would not apply to a judicial review of a decision made by the new Maritime Area Regulatory Authority, MARA, to grant a marine area consent, MAC, under the Marine Area Planning Act 2021. Conscious of the cross-party support for offshore wind energy expressed at this committee on several occasions, we ask the committee to recommend that section 249 be amended to bring decisions by MARA regarding MACs under the scope of the expedited judicial review timelines.

We thank committee members for the opportunity to meet with them today and hope to be able to make a more substantive written submission to the committee before the conclusion of the pre-legislative scrutiny process. We are happy to take any questions.

Steven Matthews (Wicklow, Green Party)
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Wind Energy Ireland's conference is being held today and, therefore, I thank Mr. Moran and his colleagues for leaving the conference to be here to assist us with this matter, as the rest of the groups have done. As the witnesses represent the experience of developer interest in this area, it is important the committee engages with them and listens to their concerns on the planning system. We have met with the Department of Housing, Local Government and Heritage, the Office of the Planning Regulator and An Bord Pleanála. We have a further seven meetings arranged with a range of sectors and interest groups in planning, development and construction, and environmental groups. We will produce a pre-legislative scrutiny, PLS, report containing our recommendations based on these meetings and send it to the Department. We hope to have that report completed by the end of March 2023.

The format we will follow today is that members will have seven-minute segments within which to ask a question and receive an answer. It would be helpful if members are direct with their questions. It will also help the running of the meeting if they direct their questions to an individual or group.

Paul McAuliffe (Dublin North West, Fianna Fail)
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I thank all our witnesses for being here. There is an array of acronyms before us - CIF, IIP and PII. Wind Energy Ireland would be well advised not to shorten its name to an acronym. I acknowledge the submissions are useful at this stage of PLS because the slot for opening statements sometimes does not afford witnesses the time to make their full observations.

It is inevitable in this discussion that the delivery issues will become a factor in the conversation even though they are not necessarily at the core of what the legislation is dealing with. CIF's submission deals largely with the area of delivery. I could not agree more about building more housing but, as we know, it is much more complex than that. It is worth noting, some of the changes proposed in the planning Bill will not have any real impact on housing supply in the short term, and certainly not during the lifetime of the Government. What we are doing is putting in place something that will put Ireland in good shape in respect of housing and infrastructural development in the next decade.

For the moment, I am going to park the delivery and shortage-of-housing issues, which we normally talk about in this committee, so we can concentrate on the legislation. I will invite the bodies that made specific observations on sections of the Bill to elaborate. Mr. Moran referred to sections 184 and 249. Will he expand on his concerns regarding these sections?

Mr. Justin Moran:

On section 249, it is less a concern and more a desire to see what we think are positive changes in judicial review timelines extended elsewhere.

As members will be aware, we are hoping to develop approximately 7,000 MW of offshore wind energy between now and 2030. The first set of maritime area consents have been offered to what are called the relevant projects. Members will be familiar with those from their previous legislative discussions. We will see more maritime area consents being issued in the near term. What we would like to see is that if a maritime area consent is awarded to a project and if an application for leave to take a judicial review is applied and if the judicial review is granted, the timelines that are set out in section 249 would apply in that context as well. This is critical for us to be able to develop offshore wind energy. One thing we were asked in a previous committee meeting was what we thought the chances were of us hitting our 2030 targets for offshore wind. We were honest and said that they are less than 50:50. We are working as hard as we can. We have the timeline of projects, we have the expertise and we have the investment but anything that would slow that down would be a drawback to this-----

Paul McAuliffe (Dublin North West, Fianna Fail)
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Does Mr. Moran therefore think that requires a further amendment to the Maritime Area Planning Act or an extension within this legislation to those projects he referenced? What is the best mechanism he would recommend to ensure that the same timelines apply for both?

Mr. Justin Moran:

I will ask my colleague, Ms Conaghan, to respond to that. She might have a more informed perspective.

Ms Danielle Conaghan:

It can be done either via an amendment to the planning Bill or an amendment to the Maritime Area Planning Act. However, the amendment is simple. It is just a matter of the application of the expedited judicial review timelines proposed for planning decisions to the decisions made by MARA in relation to the maritime area consents, MACs.

Paul McAuliffe (Dublin North West, Fianna Fail)
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That is okay. What is the situation regarding section 184?

Ms Danielle Conaghan:

I am happy to take that. Section 184 is a recognition that renewable energy projects - at a European level and now at a national level for the first time in the planning Bill - must proceed because of imperative reasons of overriding public interest. That public interest is in the decarbonisation of the country and beyond. It is an injection into the planning legislation for the first time in Irish law of what is already in a Council regulation that took effect in January of this year to accelerate the deployment of renewable energy. It injects the balancing of interests.

Paul McAuliffe (Dublin North West, Fianna Fail)
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Is it therefore the case that when that final decision is being made, that is one of the criteria that will be considered?

Ms Danielle Conaghan:

That is correct. Largely, there are two competing interests we need to reconcile because we are in a climate crisis and in a biodiversity crisis. On the one hand, the question is whether a renewable energy project will have an adverse effect on the integrity of our protected sites, such as special areas of conservation, SAC, and special protection areas, SPA, for birds. There is also the question as to whether there are imperative reasons of overriding interest where there are no alternative solutions, as well as how we provide the compensatory measures to compensate for the SAC or SPA-level impact.

Paul McAuliffe (Dublin North West, Fianna Fail)
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That is okay.

I have a large number of suggestions for the IIP but will not be able to go through them all in the time I have left. In regard to the extension of the local development plan from a six-year plan to a ten-year plan, could the IIP comment on that and on how that might provide more certainty? As the IIP has mentioned a need for a stronger review mechanism and a stronger procedure for the review mechanism, could its representatives speak a little about that?

Ms Jane Doyle:

We welcome the ten-year period because so much information goes into those development plans and so much resourcing goes into them. However, it is important that the mid-term review will be a proper mid-term review. In some cases, it will be a matter of taking out full sections and reviewing them in line with socioeconomic changes, population changes and retail changes. There are so many different issues that need to be addressed that we are a little concerned that it could be the case that the mid-term review could be an easy paper exercise. We think it needs to be really clear.

Paul McAuliffe (Dublin North West, Fianna Fail)
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That is an important point and is one of the reasons each mandate of a council is a five-year term. I set a development plan in 2009 and 2010 and Dublin city was a very different place in 2020. Unless we made changes in 2016, it would not have been fit for purpose. Given that development plans have an impact even five or six years after they come into existence, that is a crucial point.

Unfortunately, I have run out of time, but I will come back for a second round.

Steven Matthews (Wicklow, Green Party)
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I will now go to Deputy Ó Broin.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I do not think we have had as large a number of people before our committee before. There are more witnesses than there are full members of the committee. It may be a case of safety in numbers, but we will see how we get on.

First, there is much in all the opening statements that I agree with. All of us in this committee want to see more homes built and more offshore wind energy. With respect to the homes, we also want to make sure they are well planned, well built and, if possible, more affordable. We share that common objective. I also have to say that we strongly agree that our planning system needs to be properly resourced, both in terms of the additional plan-led elements of this Bill, but also of the consents both of the board and the planning authorities. I think we probably collectively will be making that case to the Government at the end of this.

I have some specific questions related to the Bill and aspects of it, first for Mr. O’Connell and then for Dr. Duffy. Mr. O’Connell mentioned planning objections and legal challenges from various groups of people. The one group of people he did not mention was developers. There has been a significant increase in judicial reviews initiated by developers. Without, of course, commenting on any of those, is Mr. O’Connell as concerned about the impact those judicial reviews will have on delays and costs as he is about judicial reviews that are taken by other parties in the planning process? I believe there have been approximately 32 judicial reviews that are predominately housing, planning and development plan-related. Does he have a sense of where they are coming from and is that something we need to be mindful of as we consider the content of the Bill?

Mr. Conor O'Connell:

Without commenting on specifics, I will comment on a general basis. The extent of the objections and the extent of the judicial reviews are largely not based in the development community but are from those who are objecting to housing on zoned lands. They are within the areas of these specific areas where the land has been zoned.

In relation to judicial reviews from developers, without seeing the individuals I cannot comment. I just do not know. I have not heard of it being a major trend.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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That is okay. Just to let Mr. O’Connell know, there have been 32 and over 23 of those are from residential developers. It might be something worth looking at and exploring to see.

In terms of the rise of those judicial reviews, Mr. O’Connell will remember that there was a period when one would almost never have got a judicial review of a large-scale residential development. That is a particular feature of our planning system in more recent years, particularly in 2020, 2021 and 2022. What is Mr. O’Connell’s understanding of what caused that? He could argue that people have always been concerned about developments in their own neighbourhood but in his assessment, what led to a dramatic surge in judicial reviews during that period?

Mr. Conor O'Connell:

That is a difficult question. I am not in the shoes of those who are objecting so I cannot answer on their behalf. Certainly, the extent of the objections probably rose with the extension of applications for residential developments. Maybe people were more concerned. I just cannot comment. Each objection is probably individual in its nature. Certainly, however, we have seen that as the number of housing applications rose during the recovery period, there was a corresponding significant increase in the number of objections. I would like to comment on those objections. They are objections regarding lands that were zoned for residential development. I know there are various different views about what gave rise to this, but certainly there have been growing legal challenges over the last number of years.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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The last question is with respect to Part 9 of the Bill, which relates to the reforms of judicial reviews. From Mr. O’Connell’s reading of it, does he think that will lead to a reduction in judicial reviews? Is that a section of the Bill he welcomes? What is his read of that?

Mr. Conor O'Connell:

We are going through an 800-page Bill and it is very detailed. There are aspects of locus standi, for instance, from sufficient interests to substantial interests that we are concerned about. Is sufficient interest and the grounding there strong enough? There are other aspects, such as people being in a position to object even though they have not made an objection to the original planning application, for instance. There are various different aspects of that about which we have concerns.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I thank Mr. O’Connell for that.

Dr. Duffy will remember that we first met in one of these rooms, probably back in 2018 or 2019, when there was a previous attempt to reform our planning system. We were told at the time - including by his own organisation - that the changes they were advocating for should speed up large-scale residential developments and planning applications. Clearly, that is not what happened. With the benefit of hindsight, what does Dr. Duffy think went wrong from the introduction of the strategic housing developments, the introduction of the mandatory ministerial guidelines, the rising level of conflict between applications and development plans and lost judicial reviews? I am asking because if we make more bad changes to the system that could make things worse.

It would be good for us to reflect on everyone's view on that legislation. Why did it not do what many on the development committee hoped? How can we avoid those mistakes this time around?

Dr. David Duffy:

We have seen a significant rise in the number of applications. We mentioned in our opening statement that we need to see more resources within the planning system to be able to deal with the applications. The volume of applications went up significantly and there were not sufficient resources to meet the demand. That led to an extension of timelines.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I refer to the significant increase in the number of judicial reviews in the years 2020 to 2022, inclusive, and to the judicial reviews that were upheld by the courts. We cannot comment on any of those decisions. What went wrong in the architecture and legislation that the Oireachtas passed prior to that period? Are there learnings we would benefit from in order to ensure that we do not make those mistakes again and introduce changes to try to make the planning system more efficient but that would actually make it less efficient, which is what happened in those years?

Dr. David Duffy:

Hopefully, many of the changes will make the system more efficient. Our understanding would be that a lot of the challenges are on the basis of legal and technical issues rather than planning issues. While many the reforms will hopefully make the planning system more efficient, it is difficult to judge the impact within-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I will ask the question in another way. The vast majority of those judicial reviews were about substantive conflicts between central Government planning policy and ministerial regulations and development plans. They were planning matters, although they were challenged in the context of legal aspects. Given that, does PII see the proposed Bill rectifying those issues or does it see them potentially expanding those areas of conflict?

Dr. David Duffy:

I will pass that to Mr. Spain, who is the planning expert.

Mr. John Spain:

That is a valid point. It is the key issue we need to resolve in the reform of the planning system. With one of the elements, there has been a weakness. One of the issues that needs to be addressed relates to putting in place a more robust system whereby decisions that are made stand up in court and people can have confidence in the system delivering outcomes and enabling housing development, infrastructure and other important developments to proceed and not be held up for long periods in the courts. There are important provisions in the draft Bill that are designed to try to address that matter. Development plans are made at particular points, and Government policy is always evolving. There is always the issue of Government policy changes after a development plan is adopted, so we need to examine how that is tied back in. There are important measures in the draft Bill that seek to address this and to provide for planning authorities taking forward variations of their development plans promptly, following updated Government guidelines, in order that they align with national policy and avoid conflict. That is an important message.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Has that lack of alignment been the nub of the problem in terms of rising numbers of lost judicial reviews? Is that they key issue?

Mr. John Spain:

There are a number of complex issues, and that is simply one of them. It is one that the measures in the draft Bill will help address. There needs to be a more agile planning framework in place that is more responsive to change and that responsiveness has to feed into the development plan process in an almost rolling update of development plans. Maybe they need an annual review to ensure they remain in line with national and regional policy, rather than, over time, the gap gradually widening. Likewise, national policy needs to be more agile and needs the legislation to respond to changed conditions and to judgments handed down in the courts. Where there is a certain direction that is unhelpful it is useful to go back and look at the relevant provisions that led to that and see if they can be addressed quickly and promptly, and without waiting for-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I hope Mr. Spain is not suggesting the courts are unhelpful.

Mr. John Spain:

-----a comprehensive review, which is welcome in itself. We need more agility in the system to respond to changing circumstances.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I hope Mr. Spain was not suggesting the courts are unhelpful in any of these matters. That would be further than we should go in any of these hearings. Mr. Spain used the word "unhelpful" in respect of court decisions.

Mr. John Spain:

Yes. If judgments put in place an interpretation of a guideline that is not consistent with the intention behind that guideline in the first place, perhaps because of the way it was drafted, that causes difficulties going forward in the assessment of planning applications. The guidelines need to be then clarified in order to state what is meant and how it should work going forward.

Emer Higgins (Dublin Mid West, Fine Gael)
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I thank all of our witnesses for being with us. I and most of us on the committee want this new Bill to amount to robust planning decisions as soon as possible, because that is how we need to respond to the housing crisis. It needs to do it through the delivery of homes and communities. That includes things like roads, public transport access, healthcare services and community amenities. All of that needs to be part of it. Dr. Duffy said that the planning system needs to be efficient and effective and it does but it also needs to be holistic. It needs to work and to increase our output and from that perspective I was particularly struck by what CIF said about proposals for 70,000 homes being with An Bord Pleanála for decision still and the fact that this is a potential two-year supply. An Bord Pleanála was before the committee last week and it was at pains to go through the resourcing issues and how it needs to be better resourced. We all agree with it on that and that is common ground for all of us in this room. It seems to also be common ground that there need to be statutory timeframes but I would be interested in hearing all four organisations opinions on what those timelines and deadlines should be tied to. There is a general feeling that a State organisation paying fines to developers is not necessarily the way forward.

The delivery of adequate homes is crucial when it comes to solving the housing crisis. I was interested to see IIP point to issues with the housing need and demand assessments, HNDAs, and I would like to learn more about that. I would also like PII to speak about the reliability of the assessments of need and the delivery time frames. I would like both of those organisations to elaborate on those points. Does PII have its own estimates based on the preliminary Central Statistics Office, CSO, data and the real-time lived experience of the delivery of homes? That would be helpful.

I was disappointed by CIF's statement on zoned lands and the need for an assumption of permission on zoned land prior to applications being made. That simplifies a complex situation. All of us who have worked on development plans deal know they deal with large swathes of land. They are all zoned as a big picture and what is on that land is not site-specific in terms of protected structures or the nature or ecology of it. None of that is looked at when land is zoned. I want to give CIF the opportunity to clarify that statement in case it wanted to couch it.

Wind Energy Ireland has spoken to us in this committee before about envelope flexibility. Did the Minister give Wind Energy Ireland any reason for not including it in the legislation? I ask our guests from Wind Energy Ireland to give us a little bit more indication on how we can support it to get the duration of operational life into the draft Bill.

I would like all the organisations to address how the timelines should be administered and what should they be tied to. I also put questions on the HNDA, the housing land, the zoned land and to Wind Energy Ireland. Maybe IIP would like to answer first.

Mr. Pat Farrell:

The HNDA is a tool that was developed in relatively recent times under the aegis of the Department of Housing, Local Government and Heritage, and the idea was to put some science and process behind the estimation of the housing need across various planning areas. The problem, as we have observed it in reality, is that the HNDA tool is being used as a ceiling instead of a floor. Second, we are working off the wrong set of numbers. We were the first organisation to clearly call this out. We had an extensive study done in 2020, which is nearly three years ago, by Professor Ronan Lyons. In that study we examined the failure to take into account headship conversion rates, or in other words the number of people per household converging to the European norm because we are outliers in that respect, and obsolescence. When both of those were factored in, the number of homes we need to deliver on an annual basis is 47,000, not 33,000.

In the first instance the housing need and demand assessment process is working off an underambitious number of 33,000 houses per annum. In recent weeks the Housing Commission has mentioned a range of 40,000 to 60,000 houses per annum. It is unpublished but attributed and we must accept that it is valid. There is general consensus that we need approximately 50,000 houses per annum. This is not reflected in the housing need and demand assessment.

Deputy Ó Broin mentioned judicial reviews. There has been some activity in this area and there are a number of reviews. There is a particular judicial review, and I do not want to speak about it too much because of what it is, challenging the housing need and demand assessment process in a number of counties contiguous to Dublin. These are counties that traditionally provided additional housing stock to cater for the demands of the metropolitan area. My understanding is the housing need and demand assessments for these counties are based more or less on the county's indigenous needs, if we can call them that, rather than taking into account the traditional migration from the metropolitan area of people who want to acquire their first home. All of these have caused issues. In short, it is baking in undersupply.

Dr. David Duffy:

The figure of 50,000 to 60,000 is reached though similar analysis to that which underpins the comments that Mr. Farrell made. Stronger than expected growth in population has been shown in the census. We look at average household size and assume it is declining. Over the longer term we have seen average household size in Ireland decline. There was a pause in this between the census in 2011 and that in 2016 but research shows this was due to economic factors rather than behavioural changes. If we take account of a higher population, a resumption of a decline in average household size, and allow for obsolescence or replacement of stock that becomes obsolescent, it pushes up the numbers to 50,000 to 60,000. Again, it depends on the assumption on average household size. It shows that the need is greater than previously anticipated. We must also include stronger migration flows, which is something that is difficult to forecast. All of these factors point to a higher demand than previously anticipated.

Steven Matthews (Wicklow, Green Party)
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We all want to deliver housing, apart from Wind Energy Ireland, which wants to deliver wind turbines.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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It needs houses to supply the wind to.

Steven Matthews (Wicklow, Green Party)
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We want to see housing delivered. We know there is a climate challenge in delivering all that housing and we have done a report on it. We know the difficulties with construction. A town centre development or infill development is a bit more difficult than building three-bedroom semi-detached houses on a greenfield site. We know this but we cannot keep going with that model. We have to start to turn the planning system towards looking into town centres and revitalising them. There is a real challenge in this viability gap and delivering housing that is affordable. There is massive demand but if the sector delivers a product that people cannot afford then demand does not exist because people cannot meet the price. I agree that an assumption of permission should exist. It very much depends on the application made. If an application very much aligns and complies with the objectives set out in a county development plan or local area plan, would planning permission be expected to be granted for this rather than for something that stretches the objectives or pushes the bounds of what is in the local area plans as agreed by councillors and local people?

Mr. Conor O'Connell:

Absolutely, and we have seen it in the development plan process throughout Ireland in recent years. The zoning objectives of local authorities have been determined by the national planning framework and the OPR is overseeing this process at present. We know it has made submissions to many development plans. Zoning of land for the future is based along transport corridors. It has brownfield development in major urban centres and 50% inward development but there are significant challenges with apartment delivery. We need to put the planning and development Bill and the new Act in a more broader perspective. We need a review of the design and density guidelines. I hope this would allow for higher density development using own door and European models of housing delivery. This would allow people to purchase their own homes in more brownfield developments. Up until now this has been difficult to do. This is a key component of the move towards more sustainable development patterns. We have a strict template on where we develop, how we develop and the type of unit we can develop. We need the design and density guidelines reviewed in conjunction with this.

Steven Matthews (Wicklow, Green Party)
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The Royal Institute of the Architects of Ireland will come before the committee. It recently produced a paper on low-rise medium density, or perhaps it was medium-rise high density, and it does look interesting.

At present there are 80,000 extant planning permissions. Why is the planning system a difficulty in delivering these?

Mr. Conor O'Connell:

Many of them are for apartments and apartments have always been costly to deliver. We did reports back in 2017 and 2018 that showed the high cost of delivery. Until recently in the private rental sector, real estate investment trusts and international funds were forward-funding apartments, mainly for rental purposes and mainly in the Dublin area. It is very difficult for housebuilders to secure funding for apartments. We have to show the yield to these international investors and prove it is profitable to deliver them. We recently met local authorities, who will tell the committee that the vast majority of existing planning permissions are for apartments. Unfortunately, it has been more difficult to secure funding for them in recent times. This will be the challenge for housing delivery later in 2023 and onwards.

Steven Matthews (Wicklow, Green Party)
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My next question is for Mr. Farrell and his group. How can density be built in our cities? The 15-minute city is being spoken about a lot. How do we do this and close the affordability and viability gap? If he can answer this question, he has cracked it.

Mr. Pat Farrell:

It is a very good question that I am sure I will struggle to answer adequately. Only 20% of strategic housing developments submitted have not commenced. Sometimes there is a notion out there that this is where the problem is. We all know there is a viability issue. Let us go back a little bit. The political system in this country ordained that we should have densification. This is for very good reason because we cannot continue the sprawl we traditionally had. It is unsustainable from an infrastructure and transport point of view and with the onset of the climate change agenda. In bringing forward densification, there was a failure to adequately sell the concept. For example, there is almost a notion that apartment development is associated with institutional investment. In fact, apartment development is a direct consequence of densification policies that require building apartments to achieve certain densities on development lands in certain areas. This is the only way to achieve the density.

Unfortunately it is a fact, which I must admit I did not know until I became more involved in the industry, that apartments are much more expensive to build than houses and, therefore we have a significant viability issue with apartment development in the country. This is why in recent years apartments have not been viable for traditional first-time buyers. There are constraints of the amount they can borrow, which is reasonable and fair under Central Bank rules and I am not critical of it, and there is also the cost of these developments. There is a major viability issue with regard to people buying apartments. Apartments have been forward funded and forward purchased. This has not been a bad thing in its own right because it has provided supply for the rental market that otherwise would have had no new source of supply.

The Government has adopted two new initiatives. One is Project Tosaigh and the other is Croí Cónaithe. One intends to offer support by way of subsidy to allow people to be able to buy more apartments to tackle the viability issue. The other is to create collaboration with developers, such as through mechanism funding, to try to activate sites that are not being commenced because it does not make economic sense to develop them in the current cost environment. Perhaps I have not answered but I have explained the rationale.

Those two initiatives by the Government are an attempt to try to address that issue. Time will tell how successful they will be.

Victor Boyhan (Independent)
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I welcome the witnesses. They are big players in this game.

Ms Danielle Conaghan:

Members are big players in this game.

Victor Boyhan (Independent)
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We are familiar with them. They are unfairly criticised on some occasions in public discourse. There is a view that they represent big industry, which is the case, but that they also represent big bucks. In simple terms, that is just the perception. I recognise it is somewhat different from that.

I want to focus on three groups on this first round, namely, the CIF, the PII and the IIP. Anyone who read The Irish Timesonline this morning or later in the day would have seen a headline by Harry McGee about planning applications for 70,000 homes awaiting decisions from An Bord Pleanála or the High Court. That is the reality of it. We had An Bord Pleanála before the committee last week. We all recognise it needs more staff, funding and resources. I raised the suggestion with An Bord Pleanála last week about fees. I asked if we are talking about the applicants or the citizens engaging. There was a strong hint that the construction industry and developers collectively should pony up substantially more money to run An Bord Pleanála. That is something I would like to hear about because there has been talk about sustainability and that they must be financially viable. "Property" and "business" are not bad words in my vocabulary. Everyone outside here too realises that, but I would welcome the comments of witnesses on it.

I will go to the CIF first. It was stated there are a lot of planning applications but most of them are for apartments. People want to know what is happening. Mr. Farrell spoke earlier about the figures and gave us a bit of a reality check. That is important. I wish to touch on two or three issues. He said it is sometimes said in response to delays in the planning system that there are adequate permissions in place. It is not an exaggeration that many householders trying to deliver housing units are concerned. He also states that, given the high demand, permissions will run out by 2023. It is a concern that permissions are about to run out. What are the statistics in that regard? What does he think should be done in regard to that concern?

I commend the PII on the way it set out its paper. Specific annexes, observations and asks are set out clearly at the back. I always think the bottom line is what is the ask. We are used to having a lot of meetings with the witnesses and everybody else. We go away and scratch our head and say what was the ask. I will try to summarise them.

It was stated that many of the provisions in the Bill refer to regulations. It was also stated it is difficult to interpret how the provisions of the Bill will operate in practice without also seeing the regulations that will apply to them. The PIA asked that the revised planning and development regulations would be published in draft form with the Bill. I fully concur with that. It makes sense. We talk about certainty and confidence in the planning process. How can we have certainty and confidence if we do not know what is inside the tin? The Department clearly knows what it has in mind, and we must have transparency on both sides of the fence. I do not wish to ask a question, I just want to be affirmative and say I think the PII is spot on and dead right.

It was also stated that An Bord Pleanála should retain the powers to grant permission for developments which may materially contravene a development plan policy objective by setting out appropriate terms. Will the witnesses explain the rationale for that? I would have some concerns in that regard. We talk about subsidiarity, decisions being made in communities and local plans, but I accept we also have regional plans and national plans. Will the witnesses from PII touch on that issue because it is an important one?

I now turn to Mr. Farrell from the IIP. He raised a particular concern that is of interest to me, namely, protected structures. That is why it jumped off the page. He refers to section 153 of the draft Bill. He says that, notwithstanding any of the other issues in the Bill, the word "demolition" may need to be replaced by "substantial demolition" or alternative wording. I would have concerns with that. He also referenced the High Court case of Sherwin v. An Bord Pleanála in 2021, which touched on these very important issues. Protected structures are clearly protected by statutory regulation and legislation. Mr. Farrell might not have time now, but I ask him to send a little note to the committee about it. I believe we would have many concerns about that. I ask the three groups to address those issues.

Mr. John Spain:

I welcome Senator Boyhan's comments on the regulations. It would be very helpful to understand fully some of these very welcome provisions, but the detail is critical as well on how they will work in practice. There is already exempted development around extensions of duration. It is a critical issue for implementing the unbuilt housing permissions, some of which are towards the end of their life. One or two years to go is too short to commence, because you would not get there before it runs out, and due to changes made in 2021, the permission cannot be extended before development starts unless there is confidence the permission would be there to finish it. That is the type of thing we need to understand better. It could help unlock that key issue of permissions not being implemented.

In response to the point on material contravention, the Bill still allows for material contravention in certain circumstances, but they are more restricted than in the current legislation. We would say that, at a very minimum, the provisions in the current legislation in terms of the powers of An Bord Pleanála to grant permission where there is clear contravention should be retained because it is an independent body, a person can make the case through it and it can make the ultimate planning judgement on the point, whereas development plans are at a fixed point in time and, even with variations and reviews, there will always be circumstances which were not predicted at the time the plan was adopted. We understand that new Government guidelines will be published shortly on more compact forms of urban housing development that we talked about with the CIF. That will be very welcome. They will again help to deal with the viability issue with apartments and help deliver the right density in the new housing format. If development plans contain policies on size, separation distance or whatever else that relates to traditional housing models and do not reflect that, it will be difficult for An Bord Pleanála to grant permission because there will be material contraventions arising. There are quite a number of circumstances that can arise that may not be anticipated. The board needs to retain that power to decide on applications on their merit in the context of proper planning and sustainable development at that time.

John Cummins (Fine Gael)
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I apologise for not being present at the start but I was listening to the meeting in the car while travelling so I did hear all of the opening statements. I am not sure who made the comment about our international reputation and the difficulty in that regard. If the community outside of Ireland perceives it to have a problem and delay in terms of planning, then we have a big problem. We can never guarantee certainty on decision-making, but the aim is to try to ensure certainty in terms of timelines. The witnesses collectively welcomed the goal of trying to introduce statutory timelines for An Bord Pleanála. We know it has 18 weeks at present, which it has regularly extended by six weeks, but unfortunately at the end of the six-week period it is anybody's guess as to when a decision will be made. We know the reasons for that such as the availability of staff to make a decision. Given the context and the fact the planning legislation will be in place for the next 20 years, what do the witnesses consider to be the appropriate timeline for a decision to be made by An Bord Pleanála? In the first meeting with the Department, it was talking about interim arrangements initially given the staffing challenges that exist in An Bord Pleanála. The point I made at the time is that the legislation is for 20 years, so if we are going to have interim arrangements, what is the ultimate goal in terms of decision-making time?

Wind Energy Ireland thought it was reasonable to have 20 to 30 weeks for an SID. What do the other organisations feel? Perhaps I could start with IIP.

Mr. Pat Farrell:

In our submission, we said that, first, we would support the concept of mandatory timelines. What is very important is certainty and understanding, when someone enters a process, as to how long it is going to take to get out the other end and get a clear result, whatever the result might be. Then, in regard to a tiered system of statutory timelines, we are saying that 18 weeks is a reasonable timeframe for normal appeals. With more complex cases that include strategic investment, infrastructure development or large-scale residential development, they need timelines that will reflect the complexity of that case.

John Cummins (Fine Gael)
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Does Mr. Farrell have no opinion in regard to what that would be? We have to make recommendations, as a committee, so we want to very much reflect what-----

Mr. Pat Farrell:

I might refer to my colleague.

Ms Jane Doyle:

It very much depends on the complexity of the case, given we are talking about strategic infrastructure development and large-scale residential development with an environmental impact assessment and a Natura impact statement. The minimum time in the Bill at the moment is around the 18 weeks. For some of these larger projects, 18 weeks is probably not achievable and, in those instances, what happens is that we get letters from the board to say it cannot achieve the deadline but there is no new date.

John Cummins (Fine Gael)
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Correct. That is the problem. Is 24 weeks or 26 weeks the appropriate time? I am conscious I have to get to the other organisations.

Ms Jane Doyle:

Again, it depends on the complexity. We are talking about a very large infrastructure project versus, say, a housing scheme of 500 houses. It depends on the number of reports that have to be added on for the board to review in that instance. It may have to get in its own experts and there is a lot of circulation of documentation that we have to take into consideration. It could be 24 weeks on certain projects but I do not think we can put in a one-size-fits-all for regular and large-scale projects.

John Cummins (Fine Gael)
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I ask for a comment from Property Industry Ireland.

Dr. David Duffy:

In line with our opening statement, one of the key things will be certainty, regardless of what timelines are set. With regard to the timelines, I will hand over to Mr. Spain.

Mr. John Spain:

Certainty is the most important thing. People want to know when they are going to get the decision. From talking to international investors, it is due to this open-ended process that they find it very difficult to manage their business and their investment in that they do not know when the decision is coming. Certainly, 16 weeks should be the default in most of the appeals and most decisions of the board should be able to be made in 16 weeks, provided the board is resourced to do that. That is the critical point. Whatever result is wanted, if they do not have the resources, they will not be able to do that, and that means resourcing at inspector level, at administrative level and at board level.

We welcome the provisions to expand the board but there is now real urgency to put in place those extra board members. They were needed a long time ago, they are needed today, they are needed immediately. It should be 14 board members and that has to be an absolute priority right now. We have a very serious situation in terms of delays and they are getting worse as we speak, so that needs to be addressed. The legislation is there and it needs to happen in practice. Once that is in place, we can follow with the provisions in the Bill and fill that out with the actual timescale. I would certainly agree for more complex cases that a longer time period would be acceptable, say, 24 weeks for the largest type of housing schemes and more complex industrial projects. For those projects, the threshold could be 24 weeks instead of 16 weeks.

John Cummins (Fine Gael)
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I ask for the comments of Wind Energy Ireland and the Construction Industry Federation.

Mr. Justin Moran:

Attracting and maintaining international investment is an issue for ourselves, as well as for construction, and it is certainly a challenge. There was an organisational review of An Bord Pleanála a number of years ago which suggested 22 weeks for SID. The reason we went with 20 to 30 indicated a range but our understanding is the complexity and detail of cases has changed substantially since then.

I would make two additional points. If a request for further information is put out by the board, the clock should stop at that point and the responsibility then moves to the developer. However, once the developer has provided that further information, then it should be 12 weeks after that for a decision. Whatever figure we end up with, whether it is 22 or 24, if there is a breach and it goes beyond that, again, a 12-week limit should be put in. Somebody earlier mentioned that it should not be an indefinite extension.

Mr. Tom Parlon:

It is important to examine the reasons for the timescale. Clearly, there are very complicated complexities and we need all sorts of disciplines and ecologists, hydrologists and so on, and that is fine. However, if the appeal is sitting in an in-tray for 14 weeks because there is nobody to look at it and there are not enough resources, that is going to be the primary issue in terms of this new legislation. A Deputy said we are talking about the present. Looking at the new legislation, unless it has the resources to deal with the complexity and the volume of stuff coming through, we are still going to have a problem.

Steven Matthews (Wicklow, Green Party)
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I thank Senator Cummins and call Deputy Cian O’Callaghan.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I have a question for the representatives of Property Industry Ireland. In the annexe to their opening statement, they talk about wanting An Bord Pleanála to retain its powers to grant permission for developments that may materially contravene development plan policy or objectives. In the rest of their contribution, they have been talking about the importance of certainty and reducing risk. If this was retained, is this not a measure that would continue to increase uncertainty and risk?

Mr. John Spain:

It is critical that we have greater certainty and clarity. We very much welcome that objective in the planning Bill and we will be making submissions as to how we think that can be further improved. However, for the reasons I spoke about earlier, we think there is a need to retain that power for granting permission in material contravention of the plan in appropriate circumstances. This is particularly where the development plan has not anticipated a particular situation arising which is considered to be very much in the interests of proper planning and sustainable development, or where Government policy has overtaken the plan and has yet to be updated. Notwithstanding the requirement for the planning authority to update its plans relatively quickly following new policy, there will always be some gaps in that.

There is a range of circumstances that arise. For example, there is no provision at the moment and no proposal to have any appeal process for development plans. Development plans do not get everything right and they are not perfect, although they go through a robust process. For example, one of the restrictions in development plan submissions is that people cannot make submissions on the zoning of land at the pre-draft stage and by the time the draft is produced, there is very little flexibility on that. There will always be circumstances that arise so there is a very good planning case to make. The board has the expertise and experience to be able to make the planning judgment in those circumstances and it should retain the power to do so.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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On a question for the Construction Industry Federation, head 83 of the bail is about planning conditions and subhead (2)(g) concerns conditions requiring bonds. I want to get the view of the Construction Industry Federation. I am aware of a number of cases where the bonds end up being insufficient, the development is not completed to a full standard, it is not then taken in charge by the local authority and then, years later, after a new development has been finished, there are situations where the residents are left in limbo. For example, in my constituency, a playground was removed recently that had been put in by the developer but was never taken in charge, and the bond was insufficient to bring it up to standard - there are all of those sorts of things. On the whole issue around bonds, could anything in this section of the Bill be changed to make this more effective? Does the Construction Industry Federation have a view or input on that?

Mr. Conor O'Connell:

In terms of the effectiveness of the development bond that is usually submitted by the developer, what needs to happen is that a timeline needs to be put in place for a development bond and stricter procedures are needed in regard to the taking in charge of estates. The Deputy outlined some instances of historical perspective but, unfortunately, there are more recent examples of the difficulties of getting estates taken in charge and the difficulties of getting the bond released by the local authority to the developer. We find that the timelines are too lengthy.

We also have the problem that there is no financial instrument or product available to the industry that can be issued to a local authority. In other words, unfortunately, there is no insurance company that will provide a development bond. The option is not available in the financial marketplace at the moment. As we have consistently said, if more stringent guidelines or a more stringent statutory process are put in place for the taking in charge of estates, that will automatically allow the industry to secure a financial product for a development bond. The practice at the moment is that, generally speaking, the developer must pay cash, which ties up resources unnecessarily on both sides. One of our submissions on the proposed Bill is that there should be stricter procedures for the taking in charge of estates for both sides. There can be a plebiscite seven years after the expiration of planning permission. However, seven years after a five-year planning permission, the estate, roads and playgrounds will be worn down and the engineer comes out and says, "Sorry, Mr. Developer". That will be a considerable period after the estate has been constructed.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Yes, and that scenario does not work for anyone.

Mr. Conor O'Connell:

It does not work for anyone.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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This section of the Bill does not address it.

Mr. Conor O'Connell:

Yes.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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It does not have the kinds of timelines Mr. O'Connell mentioned. There is a lot of talk about timelines in the Bill but we do not have them.

Is the IIP happy with the changes made with regard to judicial reviews, in terms of what it lobbied for?

Ms Jane Doyle:

In many ways we are. It is important the issue has been addressed. The Bill will in some way reduce the number of judicial reviews. Our biggest concern is that the provision must not be diluted any further in the Bill and must stand as is and perhaps be made stronger.

We have an issue with the specific local standout, which we feel should be fully enshrined in the legislation. The appropriate time to raise a planning objection, concern or issue is at the planning application stage and the appeal stage. These should not be submitted unless they relate to something that has come out as a result of a decision. One should not be able to move on to the next level, not having gone through the process.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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The representatives of Wind Energy Ireland gave us their view of the proposed fines by An Bord Pleanála. Has the IIP a view on the proposed fines? Are they helpful or not?

Mr. Pat Farrell:

The Deputy has asked an interesting question. We are more concerned with certainty about getting a decision than the fines. In one way, there is not an awful lot of benefit in handing people back their own money if the purpose of it is to buy more time in order to prolong the decision-making process. It is far better to get certainty of outcome and adherence to the timelines that have been set out. I am not convinced that the monetary fines are a sufficient incentive to address the issue concerned.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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None of Mr. Farrell's members needs ten grand from a delayed planning permission. That is for sure.

Mr. O'Connell's statement refers to "over 70,000 units waiting for a decision from An Bord Pleanála." Does he have a breakdown of the figure in terms of applications within the time limit awaiting decisions, applications that are late, applications that are not applications but challenges about land zoning, etc? Is that information he can share with the committee?

Mr. Conor O'Connell:

We gleaned the number from our trawl of the websites that belong to An Bord Pleanála and the High Court. We estimate that there are 98 individual applications that are currently subject, or have been subject, to a strategic housing development or SHD that have been reviews. There are 98 individual applications, totalling 32,073 residential units and 1,837 student apartment units. In terms of SHDs pending applications by An Bord Pleanála, there are 93 individual residential applications totalling 32,744 residential units and 1,469 student apartments. There could be an element of re-applications. This is not an exact science. If one adds in the totality of units in developments of less than 100, a considerable number of housing developments would have gone through the traditional path into the local authority subject to an objection or observation into An Bord Pleanála. That is unquantifiable. I have not seen any figures around that but it is certainly in the thousands.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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My next question is for Mr. Spain, with his planner's hat on. I want to get into the meat of the Bill. I am interested in the question that he raised at the end of his last answer about how the overall rules of the system are live and development plans, strategic development zones and other plans keep pace.

Section 22 of the Bill concerns the planning statements, which are going to be a key part of the system. Section 28 is on transitional arrangements - we do not know the details yet - for all of the existing specific planning policy requirements, SPPRs. Section 62 is on the expedited amendments to the development plans. Section 120 is on material contravention of the board on the basis of breaches of national planning statements. We have not talked about SDZs because they are not in the Bill in terms of this. Is Mr. Spain concerned that if the Bill is not crafted right, there is a possibility of a whole series of legal battles when conflicts emerge, for example, between the new national planning policy statement and an existing development plan or SDZ? Is he concerned that the cluster of sections in Part 3 could shift the focus from what has been litigation around a decision by the board, for example, on a SHD, toward battles? For example, Dublin City Council has been twice in conflict with the board over plans and judicial reviews of them. Is there a concern about the drafting of this and how it would work in real life?

Mr. John Spain:

Certainly, it shifts the emphasis from individual decisions and challenges to those cases in the courts to greater participation in the plan-making and policymaking processes and also to deliver greater certainty. That certainly carries through because with greater clarity in the legislation there is less scope for it to be interpreted in different ways and, therefore, less scope for challenge. That is absolutely critical and I know it is one of the key objectives.

Without going into the detail today, we have made a submission already and will be very happy to make further detailed submissions to the Department on the detail of some of those mechanisms and how they can be improved. There is still scope for conflict to arise between emerging national policy and local policy. It is very difficult to square that circle. The mechanisms in the plan are a step forward in that regard and they are welcome in themselves.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Let me give a real-case scenario though not an actual case. Let us say we have a large strategic development zone for many thousands of homes but there is a new government which puts in place a national planning policy statement. That then requires, if it is in the transitional arrangements as the Department says it will be, retrospective amendment of the SDZ. If the local authority in question decides it is not happy with that, as we found in SDZs before, that could hold up an entire SDZ for a year in the courts. The reason I mention this is that having got this wrong before, many members of this committee want to make sure we get this right this time so that we do not end up with a new set of problems, even if we fix what some people believe are the old ones.

Mr. John Spain:

The Deputy's question about SDZs is very relevant, particularly where there was a proposal to introduce, on a much wider basis, a similar mechanism called an urban development zone, UDZ. The details are not in the Bill.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Yes.

Mr. John Spain:

There are situations where the planning authority must make its decision in accordance with the planning scheme and there is no appeal by any party to the board. Whatever Government policy says, it is the planning scheme that still carries the weight. Great difficulties arise in certain SDZs where there is either a very long delay or no update of those plans to bring them into line with Government policy. For example, the urban development and building height guidelines were a critical change of Government policy. They still have not yet been incorporated, for all kinds of reasons I will not go into, into the one of the most key development areas in the State, namely, the Dublin docklands SDZ. It is still working off a framework that was decided ten years ago.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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And a material contravention that was rejected by the board.

Mr. John Spain:

This is why I say the board needs a more agile system. If we are bringing in UDZs, development plans will need an annual review process or check and it needs to be a streamlined process. Of course, this takes the resources of planning authorities but it is too important not to do it.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Can I ask Mr. Spain this then? The bit where, I think, we all agree is that issue of certainty in all of the areas. On the one hand, we want certainty but if we then have annual reviews because the development process for large-scale residential developments is five years plus - if we are saying on the one hand we want longer plans and more concrete 3D plans but we are saying we want regular reviews - those two wants do not fit together. It is a bit like Deputy Cian O'Callaghan taking about material contraventions. On the one hand, we want certainty but the panel is also asking for flexibility. If we get that balance wrong, everybody in the room is in trouble. I am not hearing how we get that balance right. The witnesses are telling us they want certainty, except when they want the rules to be a little bit more flexible. It could be for good reasons. It could for questionable reasons. How do we fix that in legislation?

Mr. John Spain:

It is a challenge to get that balance. We do not have it right at present, particularly for strategic development zones. In terms of the ten-year time period for development plans, the real advantage is that allows sufficient time to provide for housing supply. If you have only a six-year plan, you have only got six years' worth of core strategy housing delivery targets, and they are treated as maximums. You have only six years' worth of planned supply and housing takes far longer than six years from zoning a plan to delivery of completed units, particularly with the delays in the planning system we have all been talking about, that is, if you have only six years' housing supply and you have a six-year housing target, you will not meet that target because you do not have enough flexibility in the land supply that you have. If you are to have ten-years, that allows ten-year housing supply of land.

Steven Matthews (Wicklow, Green Party)
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I am sorry to interrupt. I have to move on. I have to be strict. There are so many who want to come back in. Mr. Spain can respond in the next round and finish that line of questioning, if he wants. I call Deputy Flaherty.

Joe Flaherty (Longford-Westmeath, Fianna Fail)
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I thank all the speakers for coming in.

I will start of with Mr. Moran and wind energy. It has mythical status at this stage, but Mr. Moran can elaborate on it. Is it more commercially viable to go offshore? Are we looking at a change in wind energy where the move is offshore and no longer onshore?

Mr. Justin Moran:

For our perspective, we need to do both. If we are to hit the carbon emissions targets that have been set for us and that are legally binding, we need to double our onshore wind capacity - that is approximately another 4,000 MW of onshore wind - and we need 7,000 MW of offshore wind. It works out at between seven to ten offshore wind farms.

One of the big challenges we have with offshore, although the turbines at sea are able to generate more efficiently, is that they are more expensive to build. One of the real challenges we have is we do not yet have the planning system in place for us to enable application for those offshore wind farms. Some who received MACs before Christmas have still to have the opportunity to engage in preplanning consultation with An Bord Pleanála. Hopefully, they will get to submit their planning application later this year but we are still looking at the best case scenario being the first new operational offshore connecting at some point in 2028. We still need to deliver onshore, not only up to 2028 but beyond.

Joe Flaherty (Longford-Westmeath, Fianna Fail)
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There is some suspicion that the strategy developments will make it easier for wind farms to get planning. Given that it is probably more expensive to develop a wind farm onshore now, is it a case that it will be larger scale wind farms Wind Energy Ireland will consider onshore?

Mr. Justin Moran:

From our perspective, we need to deliver these wind farms to reduce our carbon emissions but the larger the turbine that can be used and the more efficient it is, the more efficient it is at generating electricity at lower cost. Taller turbines mean the power can be developed in a way that companies can bid into an option at a lower price. It means they can pass those savings to consumers. It is likely that in the years to come we are going to see - if they are onshore projects - they may be a little bit bigger than we would have had in the past, but bigger in terms of megawatts. Because the turbines themselves are more efficient, we need fewer turbines to get to our targets. For example, we have - Mr. Devane could probably correct me - approximately 2,500 turbines in this country to get to the 4,000 MW we have at present. We probably need only 1,000 turbines to get to the 2030 targets because we are using more powerful and more efficient turbines. The repowering example I provided in the opening statement is a good example of that.

Joe Flaherty (Longford-Westmeath, Fianna Fail)
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Good stuff. I thank Mr. Moran.

My next question is for the CIF. When we talk about house building, we are fixated on the big cities but it is a major problem in rural Ireland as well. Longford County Council did an exercise recently. Currently, it has 900 units for which there is planning but they have not been activated. We have a unique problem. Mr. Parlon will be familiar with this in County Offaly, which is not dissimilar to Longford. It is still significantly cheaper to buy a second-hand house than it is to build. This has escalated as a result of the Ukraine crisis and inflation.

The sector probably is not given credit for the significantly improved standard of housing that is being built now. We have learned our lessons from mica and apartment defects. Can the CIF give an indication of the standard and specifications and how Ireland compares with European countries and our closest neighbour, England? How significantly better are the houses being built now?

Mr. Tom Parlon:

I will hand over to Mr. Kelleher on that point.

Mr. Michael Kelleher:

New building regulations came in in 2014. At that point, the whole landscape changed in respect of regulation and inspections. We have had a number of legislative provisions in Part L and Part B come through the system as well. This has substantially improved the product we are producing today. We now have air-to-water units, which are very efficient from the point of view of the operational costs for the end user and we have airtight houses with fresh air. All this means that the product we are producing today is up to any standard and better than in England or much of Europe. We have a very good product. Unfortunately, economically, there is a cost to putting that product there.

Joe Flaherty (Longford-Westmeath, Fianna Fail)
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Percentage wise, what is that costing the builder?

Mr. Michael Kelleher:

Unfortunately, we have had a perfect storm. We have the increased product efficiency of the type of unit we are creating now and we also have had unfortunately the cost increases that we have had to sustain because of the global issues over the past couple of years. Our sense is approximately €30,000 to €35,000 for a standard three-bedroom semi-detached house is the increase in costs since 2015 or 2016. It is substantial.

Joe Flaherty (Longford-Westmeath, Fianna Fail)
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I thank Mr. Kelleher.

IIP and PII are like twins. We all agree we have to build more houses. That is obvious. I do not accept the theory that they, the investors, are the bogey. That is all wrong. It is important that we get investors into the market. Builders tell us it is hard to get investors into construction at present.

We got burned in the past when we looked at tax incentives and no political party more so than mine got burned as a result of policies that we pursued at the time. What we are doing in both forestry and land leasing at present is very much based on tax reliefs. Would IIP and PII say there is argument that we need to consider that again, albeit cautiously, for construction?

Mr. Pat Farrell:

I suppose the way I look at it is I do not have any particular bias. Given the scale of the challenge, no option should be ruled out. There are lots of elements to this. The planning reform that we are talking about here today over time, not immediately, will deliver a lot of benefits and should deliver cost savings. Likewise, the cost input from the Exchequer to a typical house is of the order of 30%. It is not inconsiderable. That is another element. Then there is the issue of modular construction and modern methods of construction. I do not believe it is something that will deliver any short-term benefit over the next few years but it is something that needs to be put on the agenda if we are to have a more sustainable sector. Then we need to look at, as I said, the kind of incentives that have been referenced, such as Project Tosaigh and the Croí Cónaithe scheme. There is no silver bullet here. I am not ruling anything in or out. Everything should be considered because the scale of the challenge is such that we cannot afford to bypass any particular solution.

Joe Flaherty (Longford-Westmeath, Fianna Fail)
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I thank Mr. Farrell and the Chair.

Steven Matthews (Wicklow, Green Party)
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I thank Deputy Flaherty and call Senator Boyhan.

Victor Boyhan (Independent)
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I want to go back to the issues that I raised earlier. I am conscious that our guests have to keep their responses short because of the time constraint.

The one reccurring theme is resources. The real issue is the blockage in the system with An Bord Pleanála with more than 70,000 units before it. We had the board in here clearly talking about the need for resources last week. There was no doubt about it. The board's representatives set out they need more resources, including manpower.

I touched on the issues of fees and planning fees. The witnesses represent investors, the industry and the construction sector. Do they see scope and a willingness to see an increase in fees in some way to oil up the An Bord Pleanála process in terms of its resources?

It has a mandate. It has indicated it needs a substantial increase in resources. I want to hear from the witnesses, who represent the industry, whether the industry could take it. How can the industry, which is in business to make money and deliver houses, rise to the challenge? The organisations before us are not in business for nothing; we all respect that or at least I do. Will they rise to the challenge? What can they bring to the table here for those who are listening in? Construction is a multibillion euro industry that exists to make money and deliver houses. It is not a charity and I do not expect it to be one. How can it make a positive contribution to the resources of An Bord Pleanála?

On the issue around protected structures in section 153, which IIP raised in its submission, if it cannot do so today, I ask IIP to send the committee a note on that afterwards. I think I saw Ms Doyle nodding her head.

To return to my question, what message can the industry leave the committee today in terms of additional resources or support for resources to loosen up and get the whole thing moving in terms of planning?

Mr. Conor O'Connell:

In relation to the resources, substantial fees are already paid to An Bord Pleanála for individual planning applications. They are not insignificant, at €30,000 per large-scale residential development, LRD. Then there is also the extensive range of consultants, including environmental, noise and daylight consultants, and the fees associated with those over the past number of years. I am sure Mr. Spain can detail the whole range of consultants who are now employed for an individual application. The cost of planning applications has increased significantly. We are already extremely cost-sensitive and viability is already very marginal. Increasing fees and costs for planning applications, when we are facing significant delays that are already increasing costs to the industry, are very hard to bear. Looking at the increased output that could come from a more efficient system - we know the tax take from an individual housing unit is significant - if the industry is developing and building more, the increased tax take and, dare I say it, VAT increase from the sale of more units through a more efficient planning system will pay for itself.

Victor Boyhan (Independent)
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The message I will take home from his comment is that the construction industry is maxed out. It is under pressure and cannot deliver more. Let us be clear about that. That is Mr. O'Connell's message. That is grand so let us move on.

Mr. Pat Farrell:

I concur with what has been said but the point Mr. O'Connell is making is that the capacity that is freed up by an efficiently functioning An Bord Pleanála will unleash significant additional house building activity, which in turn generates approximately 30% additional taxes and levies per home. This should, in turn, create a significant flow of revenue, a portion of which could be ring-fenced to fund or resource An Bord Pleanála to the level it needs to be resourced.

Victor Boyhan (Independent)
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I take it Mr. Farrell is saying his organisation has no appetite for an increase.

Mr. Pat Farrell:

No.

Victor Boyhan (Independent)
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That is all I want to hear. I ask the next organisation to respond.

Mr. Ivan Gaine:

It is back to viability and the constraints within it. One of the issues we have not yet spoken about today but and we have spoken about a lot is the different types of housing need. There are very good supports available now for first-time buyers and owner occupiers. There are insufficient supports available for rental product. Again, it is about breaking down the problem. We have talked about the requirement for 50,000 to 60,000 homes but the biggest challenge is in rental delivery. We have an exodus of landlords, which is down to bureaucracy and challenges within that. We need to look at the situation as a whole but apartment viability and stimulating international institutional investment are critical. There is also the issue of the interest rate environment and returns. We are competing with other jurisdictions.

Victor Boyhan (Independent)
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I apologise for cutting across Mr. Gaine but I want to tighten up on this because there is a lot of discussion about this. He is basically of the view that the construction industry is maxed out and cannot make-----

Mr. Ivan Gaine:

It is about viability.

Victor Boyhan (Independent)
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It is about viability but ultimately the industry is maxed out and is not in the position to pony up more. Is that the message?

Mr. Ivan Gaine:

That is the message in the round, yes.

Victor Boyhan (Independent)
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That is great. I thank Mr. Gaine. Do the other witnesses wish to comment?

Mr. Justin Moran:

The Senator asked a straight question and I will give a straight answer. It depends on what is being provided to our members off the back of that. Are we going to get the mandatory timelines and will they be adhered to and connected-----

Victor Boyhan (Independent)
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That is a fair comment.

Mr. Justin Moran:

Will our members get the decisions we need? Will we see the environmental planning court and all the other structures put in place? If that is on the table, I think our members would be open to a discussion because we are absolutely committed to the development of renewable energy. I would add, however, that there is a trust issue and scepticism about whether the resources are going to be put in place. It is worth noting that it is very difficult to hire planners and inspectors, even if the money is available. People in my industry are chasing ecologists all over the world. One point we need to focus on is how we attract these people to work here and help to deliver the renewable energy and housing that are essential.

Victor Boyhan (Independent)
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I thank the witnesses.

Steven Matthews (Wicklow, Green Party)
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We did not even touch on development contributions there.

Victor Boyhan (Independent)
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Those responses were enough. There was a message in them.

Steven Matthews (Wicklow, Green Party)
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I want to clarify something I did not follow in Wind Energy Ireland's opening statement. If an application is made under the Maritime Area Planning Act, WEI understands the judicial review timelines do not apply to it but that those applications are to An Bord Pleanála. Why would they not apply?

Ms Danielle Conaghan:

I will take that question. It is the maritime area consent, MAC, as distinct from the planning permissions to be granted by the board.

Steven Matthews (Wicklow, Green Party)
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It is the MACs which are not covered by those timelines.

Ms Danielle Conaghan:

That is correct.

Steven Matthews (Wicklow, Green Party)
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One can continue in the planning process even though the MACs have been challenged.

Ms Danielle Conaghan:

That is correct. An application can be made and the board shall grant an application if that is the outcome after assessment. However, the planning permission granted does not take effect while a judicial review challenge to a MAC continues.

Steven Matthews (Wicklow, Green Party)
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In real timeline terms, there would be 90 days' response time for an application for a MAC. If someone seeks a judicial review on that, under current timelines they could be waiting for a response for a year. Does Ms Conaghan envisage that a planning application would have been complete or how far would she expect it to move along during that time?

Ms Danielle Conaghan:

The developers work in parallel with the application for a MAC. They prepare their site surveys, environmental impact assessment reports and Natura impact assessment reports. They package their entire planning application together for the offshore and onshore elements, or just onshore if that is where they are, along with the grid considerations. The relevant projects, which were the first to go ahead, were awarded their MACs just before Christmas and so are ready to go in with pre-applications to the board. The point is that for as long as a judiciary challenge continues, and no one knows how long that is going to take, there is no certainty. They cannot really move on to the next stage unless they have certainty. Where we are providing for certainty in relation to judicial review timelines and expedited ones here in respect of planning permissions, we respectfully suggest that the same expedited timelines be afforded to maritime area consents. Otherwise, we are going to get stuck on the very first rung on the ladder in achieving the targets.

Steven Matthews (Wicklow, Green Party)
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I understand. On section 249 and Part 9 judicial reviews, there is the suggestion that the deciding body can correct any error of law. Are all the witnesses in support of that? Does anybody have a concern that it might introduce further uncertainty? Are they 100% sure that this will correct any uncertainty that exists? In a scenario where an amended decision is given and somebody else is unhappy with that decision, could they seek a judicial review of it? We want to bring certainty to the process. Are we introducing more uncertainty by introducing this very wide-ranging phrase "correct any error of law" because we could end up with an amendment to a decision made by a planning authority that people were happy with in the first place?

Mr. Brian Moran:

I will respond as a developer who needs certainty in this process and employs large teams of architects, planners and engineers to put together extremely complex planning applications, while responding to development plans, Government guidelines and many different and often conflicting agendas. We do our best to find the right balance and make that submission. We then have to trust that the people on the other side, in the city council and, in turn, potentially an inspector and the board, will look at that and, on balance, navigate an outcome between many conflicting agendas.

The opening statement of the Bill, and it is one of its essential elements, outlines the establishment of a balance between social, economic and environmental considerations to deliver sustainable development. The reality is, from experience, and I have a lot of scars on my back from it, there is no way a planning application can be put together without having slight conflicts between one policy and another, whether it concerns local or national objectives. We have to trust the city planner, in the first instance, and then potentially the inspector and the board, to make a call on behalf of society as to what the outcome should be on balance. The words used in the Bill are: "in the interests of the common good". If we do not allow that to happen, we will not see any planning permissions being issued for substantial, complex projects.

Steven Matthews (Wicklow, Green Party)
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I will add to that question. If the option exists to go back to correct any error of law, does that generate a better decision-making process, or does it say that if we do not get something right we can go back to correct it? I want good planning decisions made. I totally accept a planning application is so complex and involves so many issues that mistakes can be made. I do not mind going back to correct some minor mistakes but this can correct any error of law. Is that a step too far?

Mr. Brian Moran:

The reason we are having this discussion is to try to tease this out. We recognise there is a problem. It is very important for Ireland that we find the right balance with this legislation to find solutions.

Steven Matthews (Wicklow, Green Party)
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Is it a step too far to say we can correct any error of law in a planning system, which is a judicial system in itself? Can we do that?

Mr. Brian Moran:

I will revert to one of the planners for a better-----

Steven Matthews (Wicklow, Green Party)
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Does Mr. Spain or somebody else have a view on that?

Mr. John Spain:

This is a very welcome and important provision because if there is a judicial review challenge, and that challenge is against it, it can be corrected.

Steven Matthews (Wicklow, Green Party)
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It can at the moment.

Mr. John Spain:

It can be corrected.

Steven Matthews (Wicklow, Green Party)
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Under the current Act, minor errors can be corrected.

Mr. John Spain:

Yes, minor.

Steven Matthews (Wicklow, Green Party)
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We will now be going to any error.

Mr. John Spain:

Yes. If we can correct the error that is the cause of the complaint in a judicial review, that should address that complaint because it is rectified and, therefore, addresses the concern. The Chair made a point regarding the risk of a further judicial review on the amended permission.

Steven Matthews (Wicklow, Green Party)
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Who knows?

Mr. John Spain:

We have seen this happen in a longer process. This is a short-cut to a process where, at present, if there is an error, the permission goes back to the board to re-decide, which takes some time. We have seen many cases where there has been another judicial review on a range of grounds different from the first one.

Steven Matthews (Wicklow, Green Party)
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We do not want to introduce any more-----

Mr. John Spain:

The previous PII submission on the Bill was that this review should be confined, the second time around, to the points originally raised. People cannot have a second bite of the cherry and open up a whole range of other issues. If they had their judicial review challenge, and the points have been addressed to the satisfaction of the court, then the permission should stand. People should not be able to then say, "Let's find some other points."

Steven Matthews (Wicklow, Green Party)
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Yes, but now if someone-----

Mr. John Spain:

The legislation should make that very clear.

Steven Matthews (Wicklow, Green Party)
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Okay. I accept that. However, if the goalposts are moved in the middle of a judicial review process to say we have corrected that error of law, that is not the same scenario, as Mr. Spain said.

Mr. John Spain:

We are trying to find the most efficient and effective way to address this. At present, we have an inefficient way that takes very long and is uncertain because it can open up other issues. It does not actually resolve it.

Steven Matthews (Wicklow, Green Party)
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Are we better off with consistent, short timelines to make decisions or going with this route, where the error of law can be changed? Does the judicial review then just fall?

Mr. John Spain:

The issue-----

Steven Matthews (Wicklow, Green Party)
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Sorry, we will come back to it. The next slot is Fianna Fáil's but Senator Fitzpatrick is tied up in the Seanad. I will go to Senator Seery Kearney for Fine Gael. Deputy Higgins will be first in the third round.

Mary Seery Kearney (Fine Gael)
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I am mindful that the clock has started ticking already. I will ask questions on two areas. One is about the judicial review and the IIP's submission in that regard. The second is about timelines, the adherence to timelines process and how best that might be executed.

I apologise if any of this has been asked previously. I was at the children's committee but I will play back the recording for the part of this meeting I have missed. The IIP talked about the sufficient interest test and ensuring there is greater clarity in the legislation with regard to what this test should be. It suggested something around 200 miles or whatever. Is there not a danger, however, in cases such as environmental NGOs, that there will be a particular expertise in a NGO in Cork, for example, although the development might be in Dublin, and, therefore, the sufficient interest test cannot be applied? When we get down to it, if we were to legislate for the devil of detail, we would perhaps end up creating a situation that is unworkable. How does the IIP see that working?

Ms Jane Doyle:

One of the issues is that we can have a situation where somebody objects to the impact on a view of glint and glare from a wind turbine, solar panel or whatever, where that person could be 500 m away and it has no impact. It has to be balanced. We have situations where people's names appear on appeals who have-----

Mary Seery Kearney (Fine Gael)
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Serial objectors.

Ms Jane Doyle:

-----no particular interest in the area concerned. That is what we are talking about. People must have sufficient interest to take a case further.

Mary Seery Kearney (Fine Gael)
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Given such interest is particular to each case, it would be very difficult to legislate for that. If we look at other legal tests, they might not be defined but there is a feeling and body of case law that accumulates as to how that would work its way out. If we were to wait for a body of case law to be developed in this instance, it would delay the process further. Does the IIP have a wording or a specific in mind as to how we would do that?

Mr. Pat Farrell:

We can reflect on that.

Mary Seery Kearney (Fine Gael)
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My next question regards thelocus standi. I am with the IIP, and it is a principle of JR anyway, that something completely new should not be introduced at that stage. Residents' groups are at pains to make sure they put in every possible scenario in case it is not considered. There is a burden on people affected by a development who may not have the expertise, or the deep pockets that perhaps developers and investors have, to be able to come up with understanding. We will have a challenge on locus standi, if we were to be too precise about it. Does the IIP have a view on how we overcome that?

Ms Jane Doyle:

We do not have a view on how we overcome that. One of the things we have to remember is that if a third party has an objection to a scheme, that party puts its reasons out there. In balanced decision-making, those issues will be addressed. Everybody may not be happy with the decision but it is about ensuring if other issues are then introduced, we know we can take that to the courts and have it covered under environmental protection. One of the biggest issues is that people have genuine concerns about a development but the reason cases are falling under JR is nothing to do with the actual development itself but some particular element of the decision-making process.

Mary Seery Kearney (Fine Gael)
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Okay. That is getting into the procedure rather than the substantive questions and oversight.

I will address the matter of timelines. I agree we should keep to statutory timelines. At present, when the timeline for a decision from An Bord Pleanála has passed, there is no definite date for another so there should be a second date. How do we enforce that? It would be a farcical situation if we were to pay fines. On the one hand, fines are part of a statutory structure that works in other spheres but, in this sphere, it seems quite farcical a State-sponsored body would pay from State resources for non-adherence to its own guidelines. How would we support keeping to the timelines? Are there any ideas on that? How do we review it? Do we review it?

Ms Jane Doyle:

An Bord Pleanála representatives who were before the committee last week discussed it.

They said they would be happy to look at it in terms of their accountability to the Oireachtas committee, the Department or the public. At the moment, there is no accountability. That is the problem, and it is not the board’s fault. It is completely under-resourced and understaffed. We completely understand that and we are fully behind it from that point of view. We understand it. However, at the same time, a number of strategic housing developments, SHDs, have all the fines paid back to us and we still do not know if we will get a decision.

Mary Seery Kearney (Fine Gael)
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And there is no idea when.

Ms Jane Doyle:

The next issue is that, even when it comes to the decision-making, a number of the development plans have changed and we may be contravening those development plans. There is a whole thing that needs to be teased out there.

Mary Seery Kearney (Fine Gael)
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I agree. It should have been capped. We need some sort of structure on how accountability is measured. We need some form of metrics to make sure we have the resources in place.

Mr. Conor O'Connell:

An applicant pays a fee to the board to make a decision within a certain time period. It is not public money in a way; it is private money. A fee is paid to make a decision within a certain time period, and if the decision is not made during that time period, a small portion of that fee gets paid back.

Mary Seery Kearney (Fine Gael)
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Okay. That is great.

Emer Higgins (Dublin Mid West, Fine Gael)
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I will start with two questions for CIF and Wind Energy Ireland that they have had much time to think about because I raised them in my first contribution. I ask about the zoned land and the simplification of that. I ask Wind Energy Ireland about the design envelope flexibility and how we bake repowering back into this legislation to make it work.

I was interested to hear Ms. Doyle’s thoughts on accountability. I am not sure I would agree with the CIF that it is not public money that would be paying the fines.

Something that has come up twice, both in an opening statement, I believe by IIP, and in the discussion since, is this idea of attracting talent into An Bord Pleanála. I questioned An Bord Pleanála representatives last week about that accountability space. They floated the idea of fixed-term contracts, which I would be a little bit hesitant about because that might make the situation worse. I am not an industry expert, so I would be open to hearing, in particular, IIP’s representatives’ views on that, given they raised this.

We will start with CIF and Wind Energy Ireland, followed by that hiring piece.

Mr. Conor O'Connell:

I am sorry-----

Emer Higgins (Dublin Mid West, Fine Gael)
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This was the question around zoned land and how there should be a presumption that all zoned land should be getting planning permissions.

Mr. Conor O'Connell:

At a local authority level, the planning officials who know the locality decide, based on a certain set of metrics through the national planning framework and the regional spatial and economic strategies, where development should take place within their locality. They are the experts at a local level. They then put forward proposals through the development plan process to the local authority, and the elected officials vote democratically that the development should take place in specific locations.

Emer Higgins (Dublin Mid West, Fine Gael)
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I apologise for cutting across. They are saying a huge tranche of land should be looked at in the context of being there for future residential development. In my contribution earlier, I said that does not take account of the likes of, for example, protected structures or ecological factors. It is not site specific and does not look at whether that site is serviced from ESB and water perspectives. All of that comes through the planning application. I just feared that particular statement simplified quite a complex process.

Mr. Conor O'Connell:

Why would the local authority zone the land for residential and general development if it was not suitable? The planning application process is to decide, for example, what types of units, how many units and the density of those units that should go on that land. They then take into consideration all the metrics the Deputy just mentioned. There has to be an assumption we have gone through an extensive process to zone lands for residential or other purposes. Therefore, I am not saying it is an automatic right of a planning permission but certainly there has to be an assumption that development will take place. It is the type of the development that will take place that is the matter to be decided through planning.

Emer Higgins (Dublin Mid West, Fine Gael)
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Mr. O'Connell got there eventually. Fair enough.

Mr. Justin Moran:

The Government brought in a limited form of design flexibility in the property and development valuation Act last year. Unfortunately, we still have not seen the guidance note to An Bord Pleanála to explain to the board how to apply the design flexibility that was supposed to come out of that. To go back to Ms Conaghan’s point, our members right now are putting together planning applications without any knowledge of how An Bord Pleanála will treat that issue of design flexibility. The amendment we are putting forward gives An Bord Pleanála, or the commission, as it would be, the power to decide the level of detail it wants. It is not the developer who gets to decide. The commission gets to decide the envelope and parameters to be operated in.

I will pass it to my colleague Ms Conaghan for the question on repowering.

Ms Danielle Conaghan:

On repowering, at an EU level, we already have the Council regulation that came into force in January. Its focus on repowering is not yet in the planning Bill at all. To summarise it, repowering applications, generally speaking, refer to fewer turbines with a greater output in an area that is already acceptable for wind and has been demonstrably there for 20 or 25 years. Because of all of that, they are saying the consenting timelines for repowering projects should be six months at most and quicker if possible because of the incentive and criticality of delivering these projects in decarbonising. That includes the environmental assessment process bit in that. The point is the legislation is also stating the lens through which those applications would be looked at is the environmental impact of the change or extension. We are not reimagining what it would be if the wind farm were never there; it has been there. It is important to the members and the country to get the targets achieved and to have that articulated in the context of the planning Bill, because it is not at the moment. When it comes to looking at the different timelines for different types of decisions, repowering is one to be treated as a separate line item.

Dr. David Duffy:

Our view is that An Bord Pleanála needs to be fully and adequately resourced. It is a question of identifying the barriers to getting the right skills into An Bord Pleanála. I do not know what they are but that is an important thing to address so that the board is fully resourced and all the seats are fully occupied so decisions can be made.

Steven Matthews (Wicklow, Green Party)
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As a committee, we can chase up on where that guidance note is. That applied to housing as well. It was not just applicable to wind energy.

John Cummins (Fine Gael)
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We have teased out many of the planning issues. One of the issues that is being raised in particular is the viability of apartment development. I wish to tease that out with the witnesses. There has been a flight in the private rented sector, but that presents an opportunity as well were the State to step into that space. These developments were designed and the finance model in place never intended for these developments to be for sale. These were developments to be developed for rent. If the State or an apparatus of the State in the context of the Land Development Agency, LDA, or an approved housing body, AHB, were to step into that space, are they for sale? If the Government or the LDA were to step in and activate that development through a forward purchase agreement to provide these units for cost rental development, is there a willingness from those developers to make them available for that purpose?

Mr. Brian Moran:

I will let Mr. Gaine talk about who might sell. On the quality of the developments, IIP did a note on this issue. It is important to note the build-to-rent standards, on average, are approximately 11% higher than the European norm for apartments.

The build-to-sell standards we have are approximately 19% higher than the European norm. The units being built under the permits that are there are of high quality relative to Madrid, Berlin or Paris in terms of quality and size. They are by no means bad designs; they are of a much higher standard than was the case back in the 1970s or 1980s. Mr. Gaine may wish to address the issue of whether developers might sell.

Mr. Ivan Gaine:

One of the biggest challenges the industry has had in recent years relates to that mixed tenure approach. There are different policies, such as Croí Cónaithe, Project Tosaigh and so on, that speak to different parts of the market. Mixed tenure and mixed communities are better communities. Schemes north of 200 units need a bit of everything in them. It should not be overly restrictive in the context of that being overlaid with a planning code. Croí Cónaithe just got EU approval. If that scheme was more mixed tenure such that there was owner-occupier and rental within it, that would lead to much better and more viable developments and could potentially be funded. The challenge with the likes of Croí Cónaithe, which we welcome as a subvention, is at completion, and it cannot be funded. There is definitely a willingness for house builders and developers to build and deliver apartments. Coupled with the likes of the first home shared equity scheme, that is genuinely affordable but the challenge is the constant delivery of single tenure, whereby the options are to rent in that building or to buy a property around the corner. What the density guidelines have pushed is that one cannot purchase because it is not viable or fundable, so there is no choice. One of the criticisms of the stamp duty changes is that those who want to rent a house can forget about it. In the UK, there is a mixed tenure approach. One cannot tell what is cost rental, affordable purchase, purchase or supported ownership. We need to get away from single tenures. The urban locations are different. There is a different complexity in some of the central business district locations, for example. In the round, a mixed tenure connectivity of thought, certainly in terms of larger scale schemes, is important.

Mr. Michael Kelleher:

The industry is willing to engage. The only way we will fix this problem is through collaboration. Project Tosaigh is an instrument that is bringing forward either cost rental or affordable units. Likewise, if Croí Cónaithe was modelled a little bit more, it could, as Mr. Gaine said, be part of a backstop. It could provide a Government-backed entity that could backstop a development such that, in the event that individual end users were not there to purchase, the units could go to cost rental. That is a way of delivering mixed tenure, which, as Mr. Gaine said, is what we need to do. The industry is about building and delivering units. We need to build them in cities and we need to build a mix there so that we have rental accommodation for foreign employees who want to come and work in Ireland. We are happy to engage in a collaborative way and build units.

John Cummins (Fine Gael)
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The advantage the sector has in the context of a turnkey social development, let us say, is that one has the knowledge that the entire development is, in essence, fully sold at the end of the process and that gives the sector confidence to build its interest rates in terms of finance, which would probably reduce from 15% to 6%. The witnesses can correct me on the figures but I am offering a ballpark percentage in terms of borrowing costs. I have no issue in terms of the design standards, although others may have an issue in that regard. I know the witnesses are saying the industry is willing to engage but, in the context of these developments, and notwithstanding the design, the door is open for the State to come in and say it will finance this lock, stock and barrel, rather than an institution doing so, and take it for cost rental.

Mr. Conor O'Connell:

Absolutely. There are more than 100 applications to Project Tosaigh. If one considers the models, which are in their infancy, that have delivered, particularly apartment units, as the Senator mentioned, approved housing bodies in recent years have developed very good cost rental models that have three staged payments. That model reduces the finance costs, de-risks the development completely and delivers a more affordable product. That type of model recognises the practicality of the funding requirements for us that will work and deliver.

John Cummins (Fine Gael)
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A difficulty for members of the witnesses' organisations in the context of the cost rental piece is that they are dealing with AHBs predominantly, as well as the LDA in terms of Project Tosaigh. Is there space for cost rental development to be provided by the private sector - there is provision for that in the legislation - or are the witnesses happy with their engagement in collaboration with the LDA or AHBs?

Mr. Michael Kelleher:

We are happy with the engagement with AHBs and the LDA. All we want to do is to provide the product and deliver homes for people. We need affordable rental and housing and the only way we will deliver that is by collaboration with the financial arms of the State which will be able to underwrite it as a financial model. If they are economically viable, we will deliver.

Steven Matthews (Wicklow, Green Party)
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We all agree in respect of the 70,000 applications that are delayed by the board. There are 200 people working in An Bord Pleanála but there probably should be 400. Would that fix the delay in the planning system that we hear about the whole time? Would it deliver a fully functioning board, with board meetings decisions within those timeframes? Is that the delay in the planning system? We hear this narrative the whole time.

Mr. Michael Kelleher:

The backlog needs to be dealt with as a matter of urgency.

Steven Matthews (Wicklow, Green Party)
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If the backlog is removed and An Bord Pleanála is fully resourced, will the delays in the planning system be gone?

Mr. Michael Kelleher:

We also need to look at the local authorities because-----

Steven Matthews (Wicklow, Green Party)
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Local authorities meet them in nine weeks, on average. They are very good at that.

Mr. Michael Kelleher:

They are, but the system that has now come through is more complex in terms of what they have to analyse to get the application. We need to be mindful of that. It may be that An Bord Pleanála would be fully resourced but we need to be mindful of local authorities as well.

Steven Matthews (Wicklow, Green Party)
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What makes the 70,000 that are currently delayed different from the 70,000 that are currently extant? Why should we think it was done right this time and the delayed projects will not turn out to be another 70,000 units for which permission has been granted but that are not getting built? I am asking the witnesses to give me confidence in that regard.

Mr. Conor O'Connell:

The whole system is log-jammed at the moment. Everything coming behind it is being delayed as a result of the current delays. There are 70,000 units there. There is no guarantee-----

Steven Matthews (Wicklow, Green Party)
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Why are they different from the 70,000 units that are currently permitted but not being built?

Mr. Conor O'Connell:

It is because there are more units, applications and choice. There are more housing units stuck there; it is not just apartments.

Steven Matthews (Wicklow, Green Party)
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The 70,000 units that are stuck in the planning system are all viable and, once planning permission is obtained, the industry will build them.

Mr. Conor O'Connell:

In fairness-----

Steven Matthews (Wicklow, Green Party)
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People who are not as immersed in the matter as us are wondering why the industry is complaining about the 70,000 stuck in the system, given that there are 70,000 already permitted. They believe the industry should build the first 70,000.

Mr. Michael Kelleher:

From speaking to the industry nationally, there are a number of applications. Some of our members are laying off workers because, unfortunately, their planning applications are stuck in the system.

Steven Matthews (Wicklow, Green Party)
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If there are so many builders looking for work, send them this way.

Mr. Michael Kelleher:

We know there are viable planning applications in the system. There are some plannings that are not viable but many of them are and they are in the system, so-----

Steven Matthews (Wicklow, Green Party)
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Every one of those 70,000 units is viable and would get built if planning permission was granted.

Mr. Michael Kelleher:

Not every one of them, no.

Mr. Conor O'Connell:

I do not think anyone could make that statement.

Steven Matthews (Wicklow, Green Party)
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Okay.

Mr. Ivan Gaine:

The Chairman referred to compact urban growth, in respect of which there is a lot of expectation. That is own-door housing, as Mr. O'Connell said, at 50, 60 or 70 per hectare. The resourcing on a go-forward basis is incredibly important because it is to be hoped that is the next layer of viable permissions, which will be more mixed tenure. It is important. Whatever about the 70,000 that are in the log-jam in the system, it is about units designed for a different market. The next to three to five or ten years will be important and that awareness and general communication as to what that is will be important. If is something we expected before Christmas and we would like to see progress on it.

Steven Matthews (Wicklow, Green Party)
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The people the witnesses represent will be going back and submitting new applications on the many of the 70,000 that are extant.

Mr. Ivan Gaine:

There is probably a portion that will need to be replanned for reasons of viability and changing policy.

Mr. Justin Moran:

May we come back in on the issue of section 249 the Chairman raised previously?

Steven Matthews (Wicklow, Green Party)
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Yes.

Mr. Justin Moran:

Ms Conaghan will address that issue.

Ms Danielle Conaghan:

It is about whether the fixing power the Chairman mentioned in the context of the board makes sense. It is worth pausing to remind ourselves that a judicial review is an ask of the courts to look at the decision made by the coimisiún, whether it was made in accordance with Irish and European law, and any gap that may exist between the two.

There is an interest in decision-makers, individually and collectively, making robust decisions in accordance with the law. Decision-makers have a duty of candour to act in accordance with the law. The case law states that. This provision will enable them to do that. It states that at any time within eight weeks of making a decision, the decision-maker involved can review it in terms of assessing whether they got it wrong or made an error of law. It is in everyone’s interest, including their own, to carry out that spot check in order to ensure that they have taken into account the relevant considerations or submissions or have used the appropriate assessment test. It is in everyone’s interests that they have the power to do that.

This is before judicial review arises. It is especially important that decision-makers have the power to do it if judicial review proceedings are brought and that they have the power to seek to have judicial reviews adjourned. When judicial review proceedings are brought, you have the grounds on which it is alleged that you have made an error of law in this or that respect. If you allow a case to run, even with the expedited timelines, for a year, it gets to the stage where that review leads to the planning permission being quashed, it is then - after one year at best, with the expedited timelines - going to be remitted to the coimisiún to fix the matter. There are several positives in this in the context of saving time and the proactive fixing provision, but it has to be resourced.

Steven Matthews (Wicklow, Green Party)
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I get Ms Conaghan's point. However, at that stage, the board will have made its decision. Its decision-making process is complete under the law. The court then looks at whether it got to the decision through the right processes. Now we are saying that a decision has been made and that we are going to go back to the decision-maker to do something different and make the decision again. That is where the uncertainty lies.

Ms Danielle Conaghan:

Sometimes the flaw in the decision is clear. I refer, for example, to a decision-maker asking whether he or she took the relevant national plan into account before making his or her decision. That is eminently fixable. If a submission has not been taken into account when it should have been, I go back and take it into account as I should have done, and make my decision again. Can a judicial review be brought in respect of that decision? Yes, because it is a fresh decision. The question then is whether that decision has been made in accordance with the law. We have seen multiple challenges to wind energy developments where permission has been granted, quashed by means of judicial review and the matter has then gone back to the board. In such cases, fresh decisions were made and new judicial reviews were commenced.

Steven Matthews (Wicklow, Green Party)
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I need to move on. We have taken the spotlight off the 70,000 extant permissions for a moment.

Mr. Justin Moran:

To put that in context, let us say you are talking about a wind farm in respect of which the planing permission gets quashed and the matter goes back like that. Say it is a typical 60 MW wind farm that has lost three years. That is 180 MW or 200,000 tonnes of carbon that we just threw out into the atmosphere, which already has enough tonnes of carbon-----

Steven Matthews (Wicklow, Green Party)
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I get the climate challenge aspect and how we need to get involved. I have one question for Ms Doyle. She may not get time to answer but she might have to think about it. Who has sufficient interest in climate, environment and biodiversity? I think it is everybody.

Ms Jane Doyle:

Everybody.

Steven Matthews (Wicklow, Green Party)
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Directly or indirectly, everybody is affected. If there is a development that will impact on water quality anywhere in this country, that indirectly impacts on me and on future generations. That is the-----

Ms Jane Doyle:

I was talking about the visual impact. I raised it in the context of a visual impact.

Steven Matthews (Wicklow, Green Party)
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The person who observes that vista every day will not be the person who will be deprived of ever enjoying that vista in the future.

Ms Jane Doyle:

Well, you cannot be perfect.

Steven Matthews (Wicklow, Green Party)
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All right. It was just a thought. I call Deputy Gould.

Thomas Gould (Cork North Central, Sinn Fein)
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A great deal has come up in this discussion. I have a few questions. In regard to WEI, the witnesses spoke earlier about the lifespan, and it is in the submission. This came up in our meetings over the years. The submission states that it is restricted to between 20 and 25 years. WEI made the point that in the 1990s permission was unconditional. I am not sure I would go that far. However, technologies are improving. As I said earlier, some of the wind farms built 30 years ago are still operating and delivering energy. In addition, if we built a wind farm in 2028 when it looks like they are coming on board, will we be looking at refitting that in 30 years’ time with the newest technologies then available in order to give it a longer life and even better output? Will the witnesses comment on that? Is that how we should look at planning offshore wind farms?

Mr. Justin Moran:

On the life extension, different planning authorities apply different conditions. Some had none in the 1990s. Then, 20 and 25 years became the standard that different local authorities and planning authorities applied. The challenge we have is that a well-maintained turbine has a life expectancy of between 30 and 35 years. That creates an issue of going back for a life extension when the 20- or 25-year barrier is reached. The big advantage of repowering is that it minimises the environmental impact because the same grid infrastructure is used. It may be a completely new turbine, but, in the case of an onshore project, for example, it will use the same 10 km to 20 km of cable going from the wind farm to the grid. That does not need to be replaced. By using existing infrastructure and more efficient turbines, as suggested in the opening statement, will mean that fewer turbines will be needed. This, in turn, will, to put it bluntly, mean fewer holes and less concrete, which, again, involves massive environmental advantages. We would love to see that in the offshore space as well.

Thomas Gould (Cork North Central, Sinn Fein)
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CIF outlined the 13% reduction at the end of last year and that it expected a dramatic decline in planning permissions. Is it referring to the backlog of 70,000? Many people have talked about the resources of An Bord Pleanála in regard to staffing, members of the board and skills. Representatives from An Bord Pleanála were here last week. From the information the provided, it is clear that An Bord Pleanála knows the importance of clearing the backlog. What kind of timeline would CIF like to see in the context of An Bord Pleanála clearing that? We are looking at two years' supply of homes. What would be a realistic expectation for the CIF to see those permissions gone through?

Mr. Tom Parlon:

The Chair mentioned the timeline and the backlog earlier. There are several thousand cases in the backlog at the moment. A limited number of board members are available to adjudicate them. It takes time. The backlog is rolling on. Every day there are new appeals to the board. In regard to solving the situation, it is getting worse. If we said that we should priorities matters, some people would state that housing should be prioritised and some would say that renewable energy should be prioritised. In the meantime, issues such as those relating to bus corridors, water treatment works, greenways and all the other good things that need to be done will be placed on the long finger. The situation at the moment is mad. It has to be addressed. I have heard the Minsters for Finance, and the Minister for Public Expenditure, National Development Plan Deliver and Reform stating that there is no restriction on financial resources when it comes to putting people in place. They are going to have to be recruited by the Civil Service, and they will be appointed in a temporary capacity. That is absolutely essential. It needs to be done. There should be a dozen or more people in there to start dealing with these in order to get through them as quickly as possible. If we do not clear the backlog, we have no chance of processing the new applications.

Thomas Gould (Cork North Central, Sinn Fein)
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The next question is one I raise at every meeting. It relates to derelict or vacant properties. There are between 98,000 to 166,000 of such properties depending on where you get your figures from. This is a consequence of some construction. If you want to develop a site, but right next to it is a derelict property that has been there for years, to develop properties you want to develop the whole area. We have a shortfall of people in the construction sector. However, we have an abundance of vacant or derelict properties. Surely to God the emphasis should be to turn those properties around. That would deliver housing more quickly, it would be better for the environment and would also maximise the amount of construction workers we have to get the biggest output. The big issue I have is that some developers and speculators are sitting on properties and leaving them vacant and derelict for years. Is there anything we can put into the legislation in this regard?

That is going to be important if we want to solve the housing crisis. Would any of our guests like to comment on that point?

Mr. Conor O'Connell:

Derelict and vacant properties are part of the solution. Housing policy to address supply issues requires a little bit of everything. There are many metrics out there in respect of the number of vacant units. There are many reasons why they are derelict and vacant. We are the building industry. Our business is building. That is how we make our living. We do not sit on derelict or vacant properties. We have no interest in doing that. There are many different measures to free up such property. There are some issues with some of the schemes that are in place for derelict and vacant properties. They target the end user rather than the industry. End users, in many respects, can be fearful of going into an old building because they do not know what they are going to find. There may be issues in respect of the electrics or foundations. What is the situation in respect of the damp-proof coarse level? Is there dry rot or wet rot? End users are reluctant to avail of some of those schemes because of the knowledge gap or the fear of what they may get into. We have made budget submissions in this regard. We are talking about the use of tax-based incentives but if we are also talking about sustainable development, surely we need sustainable development initiatives to target those brownfield developments. Those initiatives should be aimed at the industry, the professionals who know what they are doing, to repurpose and regenerate those buildings.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I thank our guests for their detailed engagement, which is helpful for us in getting our heads around the provisions of the draft Bill. I have a couple of comments and will then put a general question about the draft Bill to all of the groups. I will also ask a specific question of WEI. It is important to put additional information on the record in respect, for example, of planning permission. According to the CSO, planning permission was granted for 40,695 new units. The year before, the relevant number was 39,934. There is a significant outturn of new planning permission. That does not contradict or undermine Mr. O'Connell's point on those in the system. However, a large number of planning permission applications are being processed through the system each year. It is important to put that on the record.

There are also 10,000 ha of zoned and serviced land, some of it with planning permission and some of it without. At a conservative estimate, that is at least 200,000 homes. If some of the land is in higher density areas, the number of homes will be even higher. I agree with Mr. O'Connell. I do not believe the home builders he represents would be sitting on sites. I am aware, however, of landowners, not home builders, in my constituency who in certain instances are making strategic calculations about the value of their assets. That is a separate issue that will have to be dealt with when we deal with related legislation.

I fully agree with all of the criticisms of the housing needs demand assessment. One thing that has not been mentioned is that the assessment never took account of pent-up demand, existing demand that had emerged over years and years. In particular, its figures for social and affordable housing are a fiction. They were based on outdated census data. The granular detail and the estimates not only for how many homes are required but how many social and affordable houses for purchase and rental are required simply have no basis in fact. We have commonality on that point.

I am less convinced by the arguments in respect of zoning. If we accept we have to bring about an end to suburban sprawl and must have compact growth, the conversation should be a little bit more lax about zoning in the commuter belt and it should be about asking how we can assist people to develop compact growth in our urban cores. That is a policy conversation for another day. I do not wish to pick a row, but there is a danger with the presumption of grant. The second formulation that Mr. O'Connell gave to Deputy Higgins is a better one. Mr. O'Connell is not going to accept this on the record but we all know that there are bad planning applications. We all know there are people who put in applications in the hope that during the two-stage process, or whatever, the inadequacies of the application will be washed out in the system. The presumption of grant would only work in a world where everybody's planning application is up to standard. In the real world, that is not the case. I am not castigating the development industry. I am just saying we all know of some planning applications and developments that even as they are built are hugely problematic.

I say to Mr. Gaine that we are going to have to rethink how big we want the private rental sector to be. It grew too dramatically and in too unplanned a way, with too many individual landlords and tenants finding themselves in a sector with which they cannot cope. One third of all private rental tenancies are social housing tenants, subsidised by the housing assistant payment, the rental accommodation scheme or rent supplement. That is not an argument against the private rental sector but we must ask what we want that sector to be in our housing system. How big should it be? Who should it be for? Over what time period? I am not convinced that as a percentage of our housing system it has to grow. That is not an argument against new private rental sector stock. It has to grow, particularly to replace stock that is leaving the market. I wanted to put that on the market. The social, affordable purchase and cost rental sectors are the real growth areas, plus affordable purchase from the private sector.

If our guests had the opportunity, which two or three improvements to the Bill itself, and not the surrounding policy areas, would they articulate to the Minister? I would be interested to hear their suggestions. It is a question we often ask people who come in for these pre-legislative scrutiny sessions.

I will go back to what Ms Conaghan said about an error in fact and law. I hear the argument. There is a flip side, which is that it could create a perverse incentive that somebody might not do as much due diligence before they put the application in because they know they will get a second bite if they have that period. How do we ensure we do not have that perverse incentive?

I am not going to argue in favour of or against judicial reviews. If we had a planning system where everything was plan-led, there would be far fewer challenges and, therefore, for fewer reasons to go to court. However, the value of a judicial review is there is a challenge on a point of law or process and it is for the courts to decide. It is not for me, an applicant or a third party to decide. It is judges who decides and we may like or dislike their decisions but they are independent and get to make those decisions. One of the concerns about allowing for changes to the decision on substantive matters of errors or law is that we could be denying the Judiciary its role in these legal processes to make legal clarifications. Ms Conaghan is right in that the board, for example, may clear up its act, or whatever, but we have lost the opportunity to establish in law what the actual legal fact is. To return to a point made by Mr. Spain, legal decisions may be unhelpful but it is the job of judges to interpret the law. Once they do that in judgments, it is meant to provide clarity. Mr. Brian Moran is right to say there are many contradictions in the system and, therefore, sometimes clarification on a point of law through a judicial review decision clears things up for many people.

I would like to hear from everybody, starting with Mr. Duffy, two or three things about the draft Bill that should be changed. If Ms Conaghan has time, with the indulgence of the Chair, perhaps she could respond to that point about an error in fact and law. Would it not be better, for example, if we used quash and remit more often and had one dedicated planning and environmental court that could expedite decisions in a more informed and timely manner, rather than the complicated provisions around judicial review contained in this draft Bill?

Mr. John Spain:

I can touch on a number of points the Deputy has raised. I made a detailed submission previously but I can pick out a couple of the points. There are three key issues we need to address in order to get back to a more robust planning system in which everyone can have confidence and which delivers on the needs of the country in terms of------

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I am not being in any way adversarial but I am looking for changes to the Bill rather than general principles. Perhaps Mr. Spain has some in mind.

Steven Matthews (Wicklow, Green Party)
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We are not going to have time for that.

Mr. John Spain:

The changes I would propose to the draft Bill relate to those issues.

Steven Matthews (Wicklow, Green Party)
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Mr. Spain can go ahead. He has one minute.

Mr. John Spain:

The first issue relates to what we have been talking about with regard to judicial review. That is critical, and the provisions in the draft Bill are welcome. However, they need to go further. I do not think they are going to radically change the situation. We have an extreme situation in respect of the levels of challenge and overturn in the context of judicial review. Those issues need to be looked at further. There needs to be detailed engagement with all the parties involved in that process. We need to put mechanisms in place. We set out a number of such mechanisms in our previous submissions. If people identify issues or difficulties with a permission, how can they be addressed and resolved as quickly and in the most efficient way possible so that permission can then stand up? We have talked about provisions to allow the board the power to amend and correct its decision. That is an important step but we need to go further than what is contained in the draft Bill. We need to extend that provision to the entire process and not only the board's decision in order to get back to a situation where planning decisions can stand up in court and people can have confidence in the system.

In terms of the development plan process and the ten-year review, a key change would be a five-year review within that. An interim review becomes more meaningful where there is public consultation as part of that. That five-year review must review in particular housing targets and housing land supply at that five-year point.

Steven Matthews (Wicklow, Green Party)
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I need to interrupt Mr. Spain. If somebody takes six minutes to ask a question, I cannot give Mr. Spain more than a minute or two.

Mr. John Spain:

My fault, Chair.

Steven Matthews (Wicklow, Green Party)
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I come to my slot now. We have three people wishing to speak and about 18 minutes left. I will be really strict with everybody. The Office of the Planning Regulator, OPR, produced a report on the 146 judicial reviews and various outcomes - quashed, permitted, upheld. In how many of those 146 decisions would there have been a different outcome, had section 249 been in place? Has anybody within PII or IIP had an opportunity to look at that? Essentially we did not look at 146 judicial review cases that the OPR had outlined to identify the problems we are trying to fix here. Instead, we decided to just change the decision-making process and the error of law.

Have any of the witnesses had an opportunity to work out a tracked changes document on this? Have they been able to look at the consolidated Act that the Law Society has very helpfully produced and compared it with this to identify differences and omissions?

Mr. John Spain:

We have called for a clear explanation of what the changes are and where they are because it is quite hard to find some of them and identify them.

Steven Matthews (Wicklow, Green Party)
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It certainly is. I can give one small example. Community Gardens Ireland contacted all of us over the weekend because a provision for the local authority development plan objectives to designate or identify places for allotments and community gardens was completely missed in this draft. It may not impact anybody present, but it does affect people who want community gardens and allotments. I missed it and I have read it twice. I ask somebody from IIP to comment. Has it produced a tracked-changes comparison document contacting?

Mr. Pat Farrell:

No.

Steven Matthews (Wicklow, Green Party)
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What about Wind Energy Ireland?

Ms Danielle Conaghan:

I understand that it is being prepared. We are doing it on a piecemeal basis by sector.

Steven Matthews (Wicklow, Green Party)
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We asked that question of departmental officials last week and they said the Department is producing it. Given that it has so much skin in the game, has Wind Energy Ireland had an opportunity to do that or is it dependent on the Department to produce that?

Ms Danielle Conaghan:

We are doing it in parallel, but we are depending on the Department for the ultimate.

Steven Matthews (Wicklow, Green Party)
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We recently discussed land value sharing, urban development zones which will probably replace strategic development zones. We have the general scheme which was produced a while ago. I ask the witnesses to give their views on land value sharing. I know we talked about all the different costs of costs on construction. We did not get the development costs. Does Dr. Duffy or Mr. Moran have a view on sharing back the profit that is gained from a rezoning?

Mr. Brian Moran:

On the concept of land value sharing, certainly paying development levies, impact levies, makes a lot of sense. As I understand it, where it is used it will be replacing those levies. We evaluate many opportunities to develop and in many cases we come up with zero land residual values on high-density sites. Rezoning the land might actually reduce its value. Collecting some of that in certain locations may be wishful thinking. That is not the case in Dublin docklands or certain other locations.

I come back to the 70,000 units because I am not sure that is the right number. I have not seen a breakdown anywhere to show it to me. For example, 27,700 SHDs have not been commenced and 13,000 have been quashed, 1,800 have been withdrawn, 14,000 are still in the courts. So, roughly 27,000 are not being built currently, 27,000 are stuck or quashed in judicial review. That leaves about 18,000 which are probably a one-off developments and smaller schemes around the country not commenced. According to the Irish Government Economic and Evaluation Service, IGEES, about 61% of the 27,000 that are not commenced are apartments. It comes back to the viability issue. Many of them will be apartments in locations on the edges of towns where they just do not stack; they cannot be built. It may well be that the LDA or Project Tosaigh steps in and empowers them and gets them going. That is one of the challenges and why a lot of the stuff is not being built at the moment. I track these things through websites rather than having a definitive answer. I think that 70,000 number is loosely thrown around, but when it is broken down, many of those are units that are being quashed in judicial review.

Steven Matthews (Wicklow, Green Party)
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Does Mr. O'Connell wish to respond to that? It was his figure.

Mr. Conor O'Connell:

Maybe there was confusion caused by 70,000 stuck in An Bord Pleanála. I never said that. There was a combination between stuck in judicial review or not subject to judicial review and units held up in An Bord Pleanála; it was a combined figure. For the sake of the record, I will read it out again. There are 98 judicial review cases involving 32,073 units, 1,837 student apartments. Those are the judicial review cases. The number for SHDs pending applications to be determined by An Bord Pleanála is 93. These are applications consisting of 32,744 units, 1,469 student apartments. That comes with a big caveat. Some of those may be subject to regrants etc. The SHDs for more than 100 units excludes the developments of 100 units or less.

Steven Matthews (Wicklow, Green Party)
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We know An Bord Pleanála is understaffed and under-resourced. We know the complexities of environmental law and European directives. It may be the decision-making process because of pressures was not as good as it should have been and some of them ended up in judicial review. That could be a factor in that.

Mr. Conor O'Connell:

Absolutely. It comes down to resources.

Steven Matthews (Wicklow, Green Party)
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As I said the last day, I cannot believe that An Bord Pleanála is functioning with only 200 staff. It is incredible that it has managed to get this far with only 200 staff. It should be double that. If it did have that, we would arguably not be dealing with many of these delays or judicial review cases.

John Cummins (Fine Gael)
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I wish to return to the previous point about unlocking the existing planning permissions. Is it prefunding or would it be sufficient that the State guarantees the backstop, as Mr. Kelleher mentioned in his previous comments? Is it prefunding that the State is involved in financing or would it be enough if there is a backstop there that developers can garner their own finance because they have the backstop of this State guarantee in that it is taking the development?

Mr. Michael Kelleher:

Especially with the apartments, the banks will not speculatively fund that. If a developer has a contract with the LDA, an AHB or others, they will fund the working capital to build it out. That is how it would function. So, that would assist in unlocking these units.

John Cummins (Fine Gael)
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So, an expanded Project Tosaigh, in essence, is sufficient.

Mr. Michael Kelleher:

On Project Tosaigh, we would-----

John Cummins (Fine Gael)
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What additional changes are required to unlock these existing permissions?

Mr. Michael Kelleher:

There is a viability issue with Project Tosaigh. Whatever the price the economic potential of the units is, that is the price that will have to be paid, working with an open book with a quantity surveyor. Some of these units are apartments which are quite expensive to build in brownfield sites. It requires an open book for the economic value to be returned so that everyone can deliver and the banks can fund it then because they see a viable project. Croí Cónaithe also needs to be looked at because it needs a mixture which would be more beneficial for these larger apartment blocks, especially in cities.

John Cummins (Fine Gael)
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Particularly in the urban centres, existing permissions are already in place. Given the comparison Mr. Moran gave about the sizes that we are talking about here, there is a great opportunity for these developments to be unlocked for cost-rental, which would be very advantageous for the State. It is disappointing that there has been a retreat in terms of the private rented sector.

There is certainly an opportunity there for the LDA in particular to step in, fill that void and essentially get an accelerated delivery of cost rental that typically we would not have got without that retreat. While it is disappointing and we see a drop in commencements, particularly in the past three to four months, if there is active engagement to activate these sites for cost rental, does Mr. Farrell agree that is what should be done?

Mr. Pat Farrell:

Yes, the issue is that Housing for All has certain projections and targets moving up towards 33,000 units. We have a figure for the year just gone by. What we need is momentum over the next number of years. There is a structural issue with the pipeline at the moment in that approximately 60% to 70% of that is apartments. We all know about the viability issues with apartments. Unless there is an intervention via Croí Cónaithe and Project Tosaigh to address the viability issue, we will then have an issue with the supply of units and the momentum that is needed in Housing for All over the next couple of years. Mr. Kelleher has called it out. There is need for the interventions around Croí Cónaithe and Project Tosaigh to be more front-ended rather than back-ended because at the summit we were at, and there was a representative there from the banking sector, it was said on the day that the way there are designed at the moment and because of the way they are currently structured, it is very difficult to get a banking institution to fund that development . There needs to be an improvement.

John Cummins (Fine Gael)
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What I am trying to garner from the witnesses is the design or construct of that because it would be hugely useful if we could tease that out and this is an opportunity now that we have them in the room. There is an opportunity as a result of the retreat from the private rented sector.

Mr. Ivan Gaine:

We are working on a submission at the moment on that point and it should be ready in ten days or so. If we look to Mr. Farrell's point about the broader picture, if we need 50,000 units a year, which I think we broadly agree we do, we need capital investment in the order of €25 billion to €30 billion. The scale of the Irish banks and the scale of the Irish State are in good shape but we need that institutional capital alongside all sorts of funds. It is back to whether we could have cost rental or we could have that. We need to have all of it. I take Deputy Ó Broin's comments on board in the round. It is that scale and that level of investment we need to stimulate and attract, and we cannot do that as Ireland on its own.

John Cummins (Fine Gael)
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I know it is a submission to the Department but as committee members we would be very interested.

Mr. Ivan Gaine:

It is pretty well advanced and the intention is to tweak around the current policy and to learn from some of the live examples.

John Cummins (Fine Gael)
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The difficulty in terms of the front-ending piece is the state aid which is what went to the Commission and is being approved now. The fear I have in what may or may not be suggested from the witnesses is that we are potentially opening up that process again. Can we work within what has already been approved to activate and accelerate delivery?

Mr. Ivan Gaine:

It is the pace of the international markets and that change. In January of last year, we were not looking at the environment we are looking at today. Again, it is around competition from other jurisdictions and adapting to that. It is all very live and agile but we will put our best foot forward.

John Cummins (Fine Gael)
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I thank Mr. Gaine.

Mr. Conor O'Connell:

There models that are delivering apartments. Some of the approved housing bodies are delivering cost rental apartments via various mechanisms. One of the very popular ones is the stage payment model, where they purchase the land at the outset and then payments are made at different stages. There are models that could be adopted by the State.

Thomas Gould (Cork North Central, Sinn Fein)
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Will people comment on Deputy Ó Broin's points and the questions he asked about this Bill? If there are two or three changes or points or something they want to have included, this is an opportunity for them to state them.

Steven Matthews (Wicklow, Green Party)
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We have covered some of this already.

Mr. Pat Farrell:

One of the things, because it cannot be divorced from this because it is part of the whole ecosystem, is reform of the housing need and demand assessment, HNDA, model. We have already identified, analysed and diagnosed what the issue is there. It is self-evident and I would not be taking up scarce time on that.

The other very important thing is certainty of outcome. Everyone agrees that when race is run and the day is done, the outcome may not be what was wanted in terms of decision, but what it is critical is to get a decision and in the timeframes that have been set out. We said in our submission that, even when there is an extended deadline, there should be a deadline attached to that as well because, at the moment, that is not what happens. Once it goes beyond the first deadline, you are lost in a wilderness in terms of when you might get an outcome.

The other piece is around the material contravention regarding which, again not to take up too much time as that has already been articulated, there is a need to maintain that ability. We live in a very dynamic country, our population is changing rapidly and none of the things were forecast 20 years ago about what would happen in this country in terms of pace of economic growth and growth in population. That is likely to continue, so we need the system to be sufficiently dynamic to be able to take account of that. That is why we say the material contravention aspect in particular circumstances needs to be maintained.

Steven Matthews (Wicklow, Green Party)
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I thought there was still scope to make a decision on material contravention of the development plan within a limited scope.

Ms Jane Doyle:

Within limited scope?

Steven Matthews (Wicklow, Green Party)
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That is what Mr. Farrell said - within limited scope.

Ms Jane Doyle:

We are saying there should be more definition of what actually constitutes material contravention. We have guidelines which we are materially contravening. Ten years ago, zoning of land would have been deemed material contravention whereas now we are down to the percentage of windows that are not complying with a particular guideline.

Steven Matthews (Wicklow, Green Party)
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A limited scope may be defined as well.

Ms Jane Doyle:

It is actually the definition of that within the legislation. We all support that there has to be a material contravention and you cannot go beyond it, but it has to be a reasonable case.

Mr. Conor O'Connell:

The points asked for are in our submission, but some of the key points have been mentioned already. HNDA in particular is a very key one and we should zone for the minimum, not the maximum and restricting it.

The legislation should enclose a practice, developed through case law, that the appropriate time to raise planning issues is during the planning process, and that the 11 grounds of challenge raised during judicial reviews that could have and should have been submitted and raised before the commission and local authority cannot be submitted and raised for the first time in judicial review proceedings.

Another point is the ability of a local authority to deviate from some of the suggestions or recommendations from the Office of the Planning Regulator, OPR. Observations and deviations should be permissible if supported by the council executive and a majority of the members pursuant to a statement of compliance with the principles of proper planning and development.

I emphasise that point on timelines. The Construction Industry Federation believes there should be a mandatory period of 16 weeks.

Steven Matthews (Wicklow, Green Party)
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I thank Mr. O'Connell. I will go to Wind Energy Ireland. Someone made the suggestion that the regulations will have a big impact here as well as the transitional arrangements.

Mr. Justin Moran:

Ms Conaghan will be able to answer the other question about section 249. Coming back to what was in the opening statement, in the context of the amendment on design flexibility, we hope to bring forward texts on the issues of repowering and life extension. We also hope to bring forward amendments in a written submission on the issue of applying the expedited judicial review times to maritime area consents. I will ask Ms Conaghan to come in.

Ms Danielle Conaghan:

I will answer Deputy Ó Broin's three questions as quickly as I can. As to whether there is a perverse incentive for developers to do less of a job when they submit their application, there is zero risk of that. This is specific to the wind sector but also generally to any development sector, every single member will get a legal review done of their planning application because it is so difficult to get it right. There is so much law out there and it is continually evolving and the bar keeps getting higher, so there is no fear of that.

On the second question about the fixing power disenfranchising the Judiciary, the more I think about it, the onus should be on the decision-maker to fix an error it has made because it is obliged to make its decision in accordance with the law. That is its obligation and that is the expectation that everyone has when they enter into the process, either as a developer or someone who is coming to the process to engage in it and make submissions on it. I do not think the fixing power disenfranchises the Judiciary. When it comes to the OPR-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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It should be an application of public law-----

Ms Danielle Conaghan:

There is a categorisation exercise that needs to be done and the Cathaoirleach asked about the OPR and the reasons these decisions are quashed.

The reasons are common across all development sectors, which is very important. They fall, broadly, within a few categories, the vast majority of which can be addressed and never be made again. The flaws need never be made again, with the lessons learned being applied by a properly resourced coimisiún. I fully believe that. I refer, for example, to not giving reasons for disagreeing with the report of An Bord Pleanála or the coimisiún inspector's report. That is pretty basic decision-making. To do that again is just not the expectation that anyone has of a robust, functioning planning system.

Another category of flaws that can be avoided completely with a bit of thought employed - we see this especially in our sector - is that where developers have put up science and where people who have made submissions disagree with it generally speaking, and there is case law on the question, then the onus is on the inspector to state which science is preferred and why. That is basic decision-making - taking into account plans and having a rolling eye on what has changed. That is not an easy job. We are a fully resourced legal team, and we find it difficult to keep up with the pace of change in EU legislation and case law, and Irish law and case law. We can offer to do that job of work in terms of the categorisation of the OPR's reasons for refusal. We have done the exercise ourselves because we have to do it. In our legal reviews of applications, the onus is on us to have applied those lessons learned, but it is a difficult job to do.

Coming back to the question, there are points of law on which we need guidance from the court. For example, where is the line in terms of conducting a lawful EIA for indirect effects? Where do we get into remoteness territory where the obligation to conduct an EIA does not apply? We had the Supreme Court opine on that last year. There are questions of law that are important, but the vast majority are fixable and avoidable.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Is there a way the legislation could make a distinction, not between the real case categories but certain types of error or procedures and certain matters of law? The question in my head is that third category. Ms Conaghan makes a compelling case for the first two. The third relates to a dispute, for example, on whether a mandatory ministerial guideline is legally superior to a strategic development zone. That is a genuine question on which we would all like legal certainty, whether people in the room are happy with it or not, but if the decision had not been made, we would not have the legal clarity we have now.

Ms Danielle Conaghan:

I think that requires deep consideration. It is hard to legislate for something that moves.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Yet we have to do so, including in the area of wind.

Ms Danielle Conaghan:

I am very happy to give it deep consideration in order to do justice to it, and then give a proper answer. We can come back on that.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I would appreciate that. I thank Ms Conaghan.

Steven Matthews (Wicklow, Green Party)
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Mr. Spain was finishing the answers to the questions in the previous round. He may continue.

Mr. John Spain:

These relate to the judicial review process. At judicial review, the applicant taking the case must have raised the issues at planning application stage if they were capable of being raised, rather than raising them for the first time at judicial review.

Where there is a second judicial review challenge on the same planning application, following a remittal and a correction, the second judicial review is confined to the issue raised in the first instance and additional judicial review points cannot be added at that stage to avoid the interminable roundabout that goes on at present.

Third, where the issues on which it is challenged would not make any difference whatsoever to the outcome of the planning decision, the submission should not be quashed on that basis.

Steven Matthews (Wicklow, Green Party)
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I thank the witnesses for their time and assistance to the committee. This has been very helpful for us. Towards the end of March, we will produce a report with recommendations. We will send the witnesses a copy of and submit it to the Minister for him to produce the next iteration of this Bill. I thank everybody.