Eoin Ó Broin (Dublin Mid West, Sinn Fein) | Oireachtas source

I thank Ms Graham for the presentation. If we want to fix a problem, it is important to understand what the problem is. One of the great concerns a number of us in the committee have relates to the fact the premise of this review of the Planning and Development Act is starting from the wrong place. If we have a bit of discussion about that, it might help inform at least the working group and the Department's view of the likely concerns some committee members may have if and when the legislation comes to us. It is often said, predominantly by large investors and developers, that the planning system is holding back the delivery of homes but that is just not true. There are 80,000 or 90,000 extant unit planning permissions and the overwhelming majority have not been commenced for decades. Flawed and all as our traditional planning process was, planning permission was granted and homes were delivered and sold at very affordable prices. The kinds of problems we often hear being levelled at our current planning system are misplaced.

Where we did start to have a serious problem was where some of Ms Graham's predecessors designed very flawed changes to the planning code under the previous Government, such as the strategic housing developments, SHDs. Senator Boyhan and I were members of this committee at the time and we warned people over and over again not to go down that route. We warned them about what would happen and we were, unfortunately, correct. Many of the alternative proposals we put on the table in 2016 and 2017 have now been worked into the replacement legislation, which we supported. If people think the replacement of the SHDs with the large-scale residential development process is going to fix some of the problems we have had in recent years, they misunderstand the problems because the dramatic escalation in the number of judicial reviews of large residential developments, something that would never have happened previously, arises from the conflicts created between the mandatory ministerial guidelines and city and county development plans. Almost all the judicial reviews, JRs, of residential developments have related to material contraventions of city and county development plans and the vast majority of them have been successful.

I am not saying that to give anybody a hard time but we have to understand that was the central problem. While those mandatory ministerial guidelines are still on the Statute Book and while conflicts of interest potentially could continue to exist or unfold between policy recommendations of the national planning framework and the new county development plans, we could be stuck in this cycle of legal challenges to developments, which would not happen if the developments were designed properly and in accordance with good planning principles. I think some of that needs to be part of this review. There needs to be a little bit of humility from those people who advocated some of the interventions that were made in the planning legislation in the last few years, as to why we are in the mess that we are currently in.

The Department's timelines are concerning. I think that in the back of her mind, when Ms Graham mentioned September, she knew herself that she will coming back to us in September. It is unlikely that a bill is going to be ready by September. I think too much pressure is being put on officials in the Department to deliver legislation within impossible timelines. It is a good thing that the Planning and Development Act 2000 is being reviewed. Modernising that legislation will be great but it is a huge ask. Even if it is delivered by September, the idea that we could have proper scrutiny and decision in that regard between September and December with all of the other legislation that is outstanding from the Department, is overly ambitious. It is a point we should make to the Minister,rather than the witnesses. I think that if we are going to do this right, we must take the appropriate amount of time to ensure proper scrutiny, both within and outside the House, and proper decisions.

On the judicial reviews, I want to lay down a very clear warning. If this review ends up recommending the kinds of changes that were in the general scheme, not only will it cause substantial opposition from our side of the House, but it will end up in the courts and it will go all the way to the European Court of Justice. I want to be very clear about that. If anything further undermines public participation and our legal obligations under the environmental impact assessment, EIA, directive or the Aarhus Convention, it is going to create a huge problem. Just as we said the strategic housing developments, SHDs, would end up clogging up the courts, the Department could actually end up clogging up its own legislation in a lengthy legal battle by some environmental NGO or perhaps even a Member of this House challenging it. I warn the Department against that approach. A much better approach - and I hope it is under consideration - is exactly as has been stated, namely, getting the public and the environmental and other sectoral organisations involved at the earliest possible stage. If we design out all those problems downstream, we will not have the difficulties upstream. Likewise, the environmental court is key. People have a right to justice. Whether I agree with somebody taking a judicial review or not, they should have that right under international and European law. The crucial thing is ensuring that when judicial reviews are taken, they are speedily dealt with by judges who have full competence in the increasing complexities of environmental and planning law with adequate staffing. Rather than trying to restrict access to justice, which was the clear intention of the last general scheme, both in terms of who could take cases and the cost risks, it must be fixed with good quality place-making, exactly as Ms Graham has outlined. The environmental court must also be put in place in parallel in order that judicial reviews do not become a problem.

I wish to raise a few additional points. To respond directly to Ms Graham's question about things that we would like to see in the review, the big weakness of our planning system has always been public participation, because exactly as Ms Graham stated, it is after the advanced nature of the planning application is designed. I think we have to get much more innovative about public participation in terms of real decision-making about place-making in a way that we have never really fully got to grips with. If the Department moves in that direction, it will certainly have the support of Sinn Féin.

We have to revisit the issue around the local autonomy of our local authorities and the elected members to go beyond the minimum standards that are set in Government legislation and planning laws.

On the issue of the board, we have to implement the 2016 review fully. Almost all of the outstanding elements of that are within the purview of the Government and the Department. The one thing industry representatives said to us very loudly during our session earlier in the week is that there have to be clear statutory timelines for all board decisions and they have to be appropriate. I think that is something that needs to be looked at.

The last point I wish to raise concerns Travellers, because the subject is not in the review. We had an expert group on the future of Traveller accommodation. It made a number of very important recommendations that got cross-party support in the last Oireachtas around changes to planning law as emergency measures, in terms of Part 8 planning applications and section 183 land disposals, to ensure that the Dickensian 19th century conditions that our Travelling community live in could be addressed. It would be a real shame if that is not included in this piece of legislation. If it is not in this legislation, it is never going to happen.

I wish to ask two quick questions, which perhaps the witnesses can answer in the second round. I am concerned about the relationship between the Attorney General's working group and the sectoral group, or whatever it is called, that it is feeding into. I ask the witnesses to explain how that is going to work. I am not so sure that I would have a bunch of lawyers redesigning the planning system. I have more faith in our planners and environmental legal experts.

Second, on the documentation, Ms Graham used an interesting word when she talked about the paper that the Department had given us. She did not say that it was the paper that the working groups is looking at. She said it mirrors it. I always get worried when I hear language like that. I ask for a commitment that all of the documentation that comes from the working group and the engagement with the sectoral groups will be made available to this committee. Like the Chairman, I would like to see subsequent engagements. I think we should have access to the same documentation in real time. We want to play a constructive role in this. We might have different views. I think that would be really helpful to ensure that the exercise is fully transparent and accountable, particularly to the committee.