Mr. Eamonn Kelly:

I thank the Chairman and committee members for inviting the Department here and giving it the opportunity, at short notice, to further brief it on the proposed Committee Stage amendments to the Planning and Development Bill 2020. By way of introduction, I am a principal officer in the EU and international planning regulation section within the planning division of the Department. I am accompanied by my colleagues, Mr. Paul Lemass, assistant secretary of the housing policy legislation and governance division, and Mr. Paul Hogan, principal planning adviser in the Department, who is visible on the video link. Mr. Lemass will give a short opening statement on the proposed amendments relating to the Residential Tenancies Acts 2004 to 2020, and Mr. Hogan will also be available, if required, to answer questions on the practical operation of section 11(3)(b) provisions.

I will briefly outline the two main elements of the Planning and Development Bill 2020, as passed by the Seanad last week, as well as referencing the two further amendments to be introduced on Committee Stage. One of those relates to planning legislation and amendments to substitute consent provisions, which I will address, and the other relates to residential tenancy provisions, which will be addressed in Mr. Lemass’s opening statement. These amendments will also require a modification to the Long Title of the Bill.

As per the supplementary briefing note circulated to the committee, the Planning and Development Bill 2020 has been brought forward as a matter of urgency in light of the present Covid-19 pandemic to ensure the necessary protections are in place to safeguard the operation of the planning and building control systems. The purpose of the Planning and Development Bill 2020, as passed by Seanad Éireann, was twofold. First, it amended section 11(3)(b) of the Planning and Development Act 2000, which is the principal Act, in respect of the mandatory requirement to hold public meetings on a proposed development plan at the early issue stage. Second, the Bill allows the Government to make orders during the period of the Covid-19 pandemic to extend certain statutory periods applying under the Planning and Development Acts and Building Control Acts.

The Bill will amend section 11(3)(b) of the Planning and Development Act 2000 to replace the mandatory requirement to hold public meetings on a proposed development plan at the "issues stage" of the process, which is before any draft plan has been produced, with the positive obligation for planning authorities to consult with members of the public, in such manner as they consider appropriate, and to invite submissions in writing from members of the public on a proposed development plan. Following a Government Committee Stage amendment in the Seanad, which was made for the avoidance of doubt, this public consultation by the planning authority shall include the public holding of a meeting or an online public meeting. In other words, as part of a planning authority’s statutory obligation to consult with the public in respect of the commencement of the two-year draft development plan process, some format of public meeting will always be required under section 11(3)(b) at the initial pre-draft stage of the development plan process, by way of either a public meeting attended by the public in person or an online public meeting.

Once the Covid-19-related public meeting restrictions have passed, a planning authority could hold both an online meeting as well as an in-person meeting if it wished.

This amendment is immediately required to address present restrictions on public gatherings during the pandemic, which may impact on the progression of development plans during the pandemic. It is also in line with the modernisation agenda for the planning system, to improve accessibility and inclusiveness through increased online activity and to ensure continued flexibility in communicating with the public at the initial pre-draft stage of the development plan process, and will therefore be a permanent amendment.

I now move to emergency periods in section 3, as passed by the Seanad. The purpose of this provision is to allow the Government to make orders, during the period of the Covid-19 pandemic, which would extend certain statutory periods applying under the Planning and Development Acts and Building Control Acts. This contingency measure is urgently required so that public participation elements of the planning regime, and certain decision making and enforcement systems of the building control regime, are not compromised in the event that further waves of Covid-19 infections may necessitate a further period of stay at home travel restrictions, or indeed may critically impact on the operation of individual planning authorities.This measure broadly mirrors the recently expended section 251A of the Planning and Development Act 2000, as inserted by section 9 of the Emergency Measures in the Public Interest (Covid-19) Act 2020, which was in turn modelled on similar provisions in section 251 of the Planning and Development Act 2000 that covers the Christmas period. That extends the timelines of the planning Act from Christmas day through to new year’s day. That happens every year.

However, the present provision includes new flexibilities as follows. More than one extension period order may be made within the confined operative period for this general scheme, which is due to end on 9 June 2021, by virtue of it being linked to the operation of Part 3 of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020; extension orders can now be applied not only to the whole country, but to specific administrative areas as required; and the Government, at the request of the Minister, may choose which statutory periods, in which specific legislative provision, they require to extend rather than applying the extension to all periods under the Planning Acts and the specified provisions of the Building Control Acts.

In terms of which legislative periods might be extended, an order could, for example, apply to the Planning Acts and not the Building Control Acts, or vice versa, or, if required, an order might apply to specific periods within Acts, particularly those with public participation objectives, such as the public consultation periods in planning applications, planning appeals, or in the adoption of statutory plans, such as city or county development plans, local area plans or variations to those plans. That would have to be decided at the time a decision would be made, assuming the legislation is passed.

The recently expended section 251A of the Planning and Development Act 2000 introduced a similar disregard provision for statutory periods during the first lockdown earlier this year, in which case the Government Order made under section 251A lasted for 8 weeks, from the end of March until 23 May 2020 and applied to all relevant statutory periods in the Planning Acts as well as to specified provisions in the Building Control Act.

It is important to note that while this proposed legislation may never be used, it is still an essential temporary safeguard that is urgently needed for as long as the pandemic persists, to provide an agile and flexible process to ensure that the integrity of the planning and building control systems are maintained in the event of further waves of infection.

I will conclude on the proposed Committee Stage amendments relating to substitute consent provisions in the Planning and Development Acts. As I set out last week at a session with the committee online, in order to the comply with the findings of the Supreme Court judgment of 1 July 2020, it is necessary to amend the substitute consent provisions at Part XA of the Planning and Development Act 2000 to provide for “exceptional circumstances” to be considered in an application for substitute consent at section 177K of the Planning Act, along with the necessary ancillary provisions to ensure additional public participation, where required, is facilitated with respect to the consideration of exceptional circumstances at the leave to apply stage, as well as on the wider application.

Therefore, following the introduction of these highly technical proposed amendments, any new applications for substitute consent which are made directly to An Bord Pleanála must demonstrate exceptional circumstances and, in turn, the board must be satisfied that such circumstances exist, while also complying with the existing public participation requirements of sections 177K and 177H of the Planning Act and prescribed by regulations under section 177N.

Section 177K of the Act, which relates to the decision of the board on substitute consent, will also be amended to provide for additional public participation where required on exceptional circumstances and on the wider application where an application for substitute consent is currently pending before the board. This legislation will deal not only with new applications but applications currently before the board upon the enactment of these amendments. This is to ensure that applications for substitute consent which have already been submitted to the board but not yet decided are subject to a requirement to satisfy that exceptional circumstances exist so that applicants are given the opportunity to provide any further information to this effect and so that the public, prescribed bodies and those who have already made submissions on the application are notified of, and can make submissions on, the application, including on whether exceptional circumstances exist in this regard.

The introduction of these technical amendments to existing substitute consent provisions is a matter of urgency, noting that these provisions will facilitate the earlier resolution of the terms of the EU Court of Justice judgment in case C-261/18, the Commission v.Ireland, which found against Ireland. This case followed on from case C-215/06, also known as the Derrybrien Wind Farm case. In this regard, it is noted that the power of An Bord Pleanála to issue a decision on the Derrybrien Wind Farm substitute consent application currently before it has been called into question following the Supreme Court judgment. It is further noted that the State must pay fines of €15,000 per day to the European Commission as a result of the judgment in case C-261/18, which effectively is the follow-on Derrybrien case, which judgment was published in November 2019, until the terms of that judgment are met. For information, since the judgment was issued the State has paid a lump sum fine of €5 million to the Commission in respect of this case, as well as a further €2.745 million in daily fines relating the first six month period since the judgment date.

The introduction of these technical amendments to substitute consent provisions is a matter of urgency for the planning system in general and is not just to do with Derrybrien as it as a vital element of a functioning economy which needs to have measures in place as soon as possible that are legally compliant with the EIA directive to facilitate applications to seek to regularise the planning status of large scale developments, which are subject to EIA, in exceptional circumstances, if required.

Mr. Paul Hogan and I will endeavour to answer any questions that the Chairman or committee members might have with respect to the three planning elements of the proposed Bill and Mr. Paul Lemass will endeavour to answer questions on the residential tenancies element of the Bill.