Simon Coveney (Cork South Central, Fine Gael) | Oireachtas source

I will make a general comment before going through the individual amendments. A judgment call is required here in what we are trying to do as regards where the buck should stop on decisions to intervene to correct an inappropriate decision or to respond to corruption, although if it is a breach of the law it should involve the Garda. Ultimately, we are proposing in the Bill that the office of the planning regulator would essentially assess the procedure by which decisions are made, be it in respect of county development plans, local development plans, planning decisions and so forth. Before a county development plan is signed off on it will have to go to the planning regulator's office for a full assessment. If there are concerns in that regard, whether they are procedural concerns or decisions or the regulator believes that the local area plans or county development plans are not consistent with national policy or good planning practice, the regulator will report that to the Minister who will have to take action on it.

What appears to be under discussion here is who will be the appropriate body or person to make the intervention to correct a wrong. Should it be the Minister or the independent regulator? There is nothing to suggest that an office of planning regulation is beyond corruption or inappropriate decisions. At least a Minister is in the public eye and has a mandate from the people to be there. The Minister must respond in a very transparent way and if a Minister is not going to accept the recommendation of the new regulator's office, he or she will have to publish the reasons for that and will be questioned on it in the Dáil. None of that accountability applies to a regulator's office. Most people will never see the regulator or even know the names of the people who are making the determinations or decisions. If people persuade me otherwise, we will go in a different direction. This is not an absolute position. However, we have had a long discussion on this in the Department. Most of our team agree that the person who ultimately should be accountable here is a Minister with responsibility for planning. If that person decides they will ignore the advice of a planning regulator's office, they had better be damned sure they have a good reason to explain why they have not intervened.

In some ways that is a more transparent and accountable process. We all know what happens to Ministers who do not act in the way they should. They are put under huge pressure. The spotlight is on them and they must answer for their actions. Regulators have nothing like that level of scrutiny regarding the decisions they make. They never will have it, because that is the way our system works. The functions of the regulator's office are:

"(a) to evaluate and assess—(i) development plans, including draft development plans,

(ii) variations of development plans, including proposed variations,

(iii) local area plans, including the amendment or revocation of such plans, and

(iv) regional spatial and economic strategies, ...(b) in respect of any plan or strategy to which paragraph (a) relates, to inform the Minister if, in the opinion of the Office, any such plan or strategy is not consistent with its observations and recommendations, especially where, in its opinion, failure to be so consistent would affect the overall strategy for proper planning and sustainable development of the area concerned..."

Subsection (e) provides "to conduct reviews under Chapter IV of the performance by the Board and by planning authorities of their respective functions," while subsection (f) provides:

"to oversee the delivery of effective planning services to the public by planning authorities including having regard to—(i) any relevant indicator (within the meaning of Part 12A of the Local Government Act 2001) identified by the National Oversight and Audit Commission or prescribed by the Minister under section 126C(1) of that Act, or ..."

The Bill also provides that the office shall conduct, at such intervals as it thinks fit or as the Minister directs, reviews of its organisation and the systems and procedures used by it in respect of the performance of its functions.

We are trying to ensure that professional planners in a regulator's office are assessing and reviewing all of the decisions around the country, the type of decisions Deputy O'Dowd refers to as being potentially undermined in the past. The regulator raises a red flag and says, for example, that there is something happening in Cork that should not be happening. The regulator sends that to the Minister and the Minister has a responsibility to act on it in a public and transparent way, having to account for their decisions before committees such as this or on the floor of the Dáil. If we were to decide not to go down that route and to provide that the regulator has the power to intervene and force a change in the decision, who questions the regulator and holds them to account in terms of consistency with national policy?

If, for example, we have a housing crisis and local authorities make a decision in using initiative or emergency powers to try to get the provision of local authority housing moving faster than it otherwise might be through the normal system, is that justified or not? Sometimes there are political or policy considerations that can be explained or justified by a Minister, but they need to be tested through debate and discussion, which cannot be done with a regulator. The regulator will produce an annual report that I presume will be discussed by this committee in terms of its assessment and decisions.

I am open to being convinced that we should move in a different direction, but my view is that the buck should stop with somebody who is accountable, has been elected to do a job and is available in a very transparent way to justify decisions. That is the way in which we will most effectively achieve accountability in the eyes of the public. I do not subscribe to the view that the political system cannot be trusted and that, therefore, we need to set up independent regulators to take all decisions in the implementation of policy. Instead, let us have a much more transparent political system that forces Ministers to stand over their decisions under questioning under the spotlight by both the media and the Opposition. For me, that is the way to deal with planning irregularities because we have seen, unfortunately, that senior officials, as well as public representatives, have been corrupted by the system. It is not just politicians who have made bad decisions, not by a long shot. What we are proposing is the right balance, but I have an open mind on the issue. We should not be ignoring the responsibilities and accountability that should come with holding ministerial office which is ultimately where the buck should stop.

I will address amendments Nos. 6 to 10, inclusive. I oppose these five amendments which primarily propose the making of legally binding determinations by the OPR. The role of the Office of the Planning Regulator is to evaluate and assess development plans and regional strategies and make statutory observations and recommendations on them. It is not necessary to amend the Bill to give the OPR the power to make legally binding determinations. The Bill provides that the OPR will be independent in carrying out its functions. It also provides the OPR with sufficient powers to make recommendations to planning authorities and regional assemblies on local area plans, development plans and regional strategies and for these recommendations to have sufficient weight. The OPR can submit observations or recommendations to the relevant planning authority on draft plans and strategies. It would be extraordinary if a local authority did not act on the recommendations of the planning regulator. It would signal that the next step of the planning regulator would be, essentially, to inform the Minister that there was something untoward because they had warned the local authority which did not take their advice and that the Minister needed to do something about it. It will happen because sometimes local authorities take a stubborn stand on something. We see this at the moment where the Minister needs to intervene to change county development and local area plans. We have done it a number of times this year. I am not very popular with local councillors when I do it, but it is the right thing to do to ensure good planning. This is an independent office making that judgment and observation early and most local authorities will respond to it. A planning authority is then required to notify the OPR and state the reasons why its plan has been made in such a manner as to be inconsistent with OPR observations and recommendations. The information on the to-ing and fro-ing around notification and justification and so on will be publicly available. Where the OPR is subsequently of the opinion that the development plan or regional strategies made by the relevant planning authority do not set out an overall strategy for the proper planning and sustainable development of the area or region concerned, it shall recommend the use of a ministerial direction for the plan to be revised and submit a draft direction to the Minister for issue to the planning authority or regional assembly concerned. A copy of the notice submitted to the Minister shall be made available on the website of the OPR. The Bill further provides that where the Minister agrees with the recommendation of the OPR on a plan or strategy, he or she will issue a direction to the relevant local authority or regional assembly. The Bill sets out the detailed procedures that should then ensue.

To a certain extent, the OPR is taking over a function currently carried out by the chief planner in the Department. For example, I might get a file on my desk stating there is something happening in Kildare with which the OPR does not agree and outlining the reasons the Minister should intervene and disallow it. We do that. The local authority will then come back with a further justification or an acceptance of the ruling. The next step for me is to either confirm that the ruling should stand or to put in place an independent inspector to verify whether the planning considerations on which we have ruled are sound. We have done that in one or two cases. It is about introducing a more substantial body to intervene and make recommendations. It will have a lot of credibility and ensure the correspondence and interaction will happen in a very transparent way. If a journalist is into planning, he or she can follow the way the decisions are being considered and finalised in a way that is very healthy. The tooth of the tiger description is not accurate. I can understand the point the Deputy is making, but there is a lot in this which will expose the decision-making process to the public for real public scrutiny which is very positive. If the Minister does not agree with the recommendation of the OPR, the Bill provides that he or she is required to explain the reasons for such disagreement. The Minister must lay the reasons for such disagreement before the Houses of the Oireachtas and also publish them on the Department's website. These provisions will ensure the recommendations of the OPR are given due weight in the preparation of local area plans, development plans and regional spatial and economic strategies and that the procedures will be conducted in an open and transparent manner. Therefore, I do not propose to accept the amendments.

I do not propose to accept amendment No. 11 as there must be clear lines of demarcation between the role of the OPR and other responsible bodies, particularly in investigating possible corruption in decision-making in planning. In instances where there is evidence of planning corruption or breaches of the law, they are strictly for investigation by An Garda Síochána. The Bill already has includes sufficient provisions for the investigation of complaints by the OPR and ensures they can, where appropriate, be deferred to more appropriate State authorities. It further provides that the OPR may, at its own behest, at the request of the Minister or on foot of a complaint received, carry out reviews and examinations to determine if a planning authority is properly carrying out its functions under the planning Acts. The Bill also allows the OPR to form its own opinion on complaints and make recommendations, as appropriate, to planning authorities and the Minister. Furthermore, it provides that, with regard to complaints made by any person to the OPR on a planning matter, the OPR can, where it considers it to be warranted, refer the matter and related documents to the Ombudsman, the Standards in Public Office Commission, An Garda Síochána or any other State authority, as may be prescribed. The Bill further requires that information, records or documents be made available to the OPR or an authorised person appointed by him or her as part of any review or examination and that a planning authority or the board and its staff comply with any request for information or records and that they co-operate with the OPR in this regard.

Any person who obstructs or refuses to comply with the request of the OPR or an authorised person commits an offence and shall be liable on summary conviction to specific penalties. Accordingly, there are sufficient checks and balances built into the provisions for the conducting of investigations into planning corruption. Therefore, I oppose the amendment.

With regard to amendments Nos. 12 to 15, inclusive, which seek to enhance planning enforcement, I am opposed to the amendments with the exception of amendment No. 14. In addition to evaluating and assessing local area plans, developments plans and regional spatial and economic strategies, one of the key roles of the OPR, as provided for in the Bill, will be to undertake reviews of the organisation, systems and procedures used by planning authorities in the performance of their functions under the planning Acts. These functions include planning enforcement. In situations where a sufficient number of complaints is received by the OPR about planning enforcement by a planning authority, there is scope within the provisions of the Bill, as drafted, for the OPR to review the organisation, systems and procedures used by the authority in respect of its enforcement functions under the planning Acts. In effect, while planning authorities will still retain primary responsibility for planning enforcement, where there are potential issues about the organisation, systems and procedures used by a planning authority in the performance of its enforcement functions arising from complaints received, there is scope for the OPR to examine the matter. This is considered to be the most pragmatic approach to adopt. I do not favour the OPR being empowered to investigate individual planning complaints. Otherwise, it is likely that the Office of the Planning Regulator would be inundated with such complaints, thereby undermining its ability to effectively perform its core and primary functions.

We have to have some faith in the processes for determining planning decisions. We have an appeals process and so on. If there are procedural flaws in it and complaints coming in in that respect, the planning regulator will have the power to raise these issues. He or she can refer them on to an appropriate body or inform the Minister that something is wrong. If a planning department in a local authority has been corrupted, there will be an opportunity for the OPR to raise a red flag. I am not sure the planning regulator should essentially be a second appeals body for planning decisions. We would then end up with people using the office as a way of delaying the granting of planning permission.

On the broader issue of corruption in the State, my personal view is that we need to look at new structures to deal with whistleblowers and how they are dealt with. The way it works is overly political and results in Ministers having to take almost personal responsibility for whistleblowers' complaints. We need to look at what works elsewhere. Perhaps we might need to look at some new structures for how complaints of corruption, in State bodies in particular, can be dealt with in a way that is efficient and does not get caught up in political accusations and to-ing and fro-ing and so on but actually gets to the core of the issues a lot faster. That is for another day, but I do not think we should allow the new Office of the Planning Regulator to get caught up in that stuff. There are other ways we can do it. Accordingly, as stated, I am opposing the amendments with the exception of amendment No. 14 which I can accept as its wording is consistent with the wording of section 31Q.