Ms Maria Graham:

I thank the Chair and members for offering us the opportunity to talk to them about the general scheme of the planning and development and foreshore (amendment Bill) 2022. The Bill was approved by Government for priority drafting on 4 October. As the Chair mentioned, I am joined by Mr. Gallagher and Ms Murray, who are principal officers with responsibility in the Department for An Bord Pleanála and the foreshore regime, respectively, as well as Mr. Ryan who is senior planning advisor in the planning division. We will be happy to answer any questions members have.

I will set out some of the principles around the Bill. Its primary purpose is to replace the existing system of nominating bodies for appointments to the board of An Bord Pleanála along with certain other matters. It should be noted, as outlined in the October 2022 action plan for An Bord Pleanála, that it is intended to make further statutory changes to the structure and operation of the board as part of the ongoing review of the Planning and Development Act being led by the Attorney General and managed by the Department.

The marine planning legislative regime has undergone significant reform, as members will be aware, with the passage of the Maritime Planning Act in 2021. Work is advancing well in establishing the maritime area regulatory authority, MARA, and the preparation for An Bord Pleanála and coastal local authorities to assume their functions under the Act. In the interim, the foreshore regime continues to be in place for developments and activities within the 12 nautical miles. A number of technical issues have been identified, especially with site investigation applications, which have increased exponentially in recent years, and these are being addressed in Part 3 of this Bill pending the full operation of the new maritime regime.

I move to the main provisions of the Bill, which contains ten heads. Heads 1 to 3, inclusive, and 8 deal with normal introductory elements for the Bill relating to interpretation and regulations.

Head 4 amends section 104 of the Planning and Development Act 2000, as amended, which relates to the size of the An Bord Pleanála, which is currently limited to a chairperson and nine ordinary members. The Minister proposes in the light of the scale of increased activity of the board, the need to increase the quorum for decision-making, and having regard to some of the recommendations of the Office of the Planning Regulator, that the board be increased to at least 15 members, with potential for further increases to be effected by order in the light of the board's workload.

Head 5 amends section 106 of the Planning and Development Act 2000. This section currently sets out a process for the recruitment of ordinary members that is largely based on nomination from a series of panels.

The new head proposes that this should be replaced by the establishment of a committee of experts to make recommendations to the Minister. The committee would be made up of current or retired experts from the public service at senior level, including those with a background in planning, law or local government, with the potential to include persons from an academic background in the planning and environmental field. The committee can be supported by the Public Appointments Service, PAS, if so requested by the Minister. The general scheme sets out the range of skills and backgrounds from which ordinary members will be drawn. It is intended that board members collectively will have satisfactory experience and a mix of experience or knowledge of infrastructure delivery, housing, physical planning, sustainable development, architecture, heritage, community and social affairs and corporate governance.

Head 6 amends section 108 of the Planning and Development Act 2000, as amended, by removing the facility to have two member divisions of the board. This process was ceased by the chairperson of An Bord Pleanála in August 2022 and the board recently passed a resolution to cease the process. Its revocation is also recommended in recommendation 3 of the Office of the Planning Regulator, OPR, phase 1 report.

Head 7 amends section 110 of the Planning and Development Act 2000 by removing the requirement for the chairperson of An Bord Pleanála to form an opinion in relation to a complaint received ahead of investigation, instead providing clear instructions on the actions to be taken on receipt of a complaint or where the chairperson considers there may be issues to be investigated. Provision is also made for such an investigation to be instigated by the Minister.

In addition to the amendments related to An Bord Pleanála, Part 3 of the general scheme proposes amendments to the Foreshore Act 1933, as amended. Head 9 amends section 1 of the Act. The head amends the definition of foreshore to ensure that the body of water above the seabed is included and therefore provides the Minister with the appropriate vires to require marine users to apply for a lease under section 2 of the Act or a licence under section 3 of the Act in circumstances where they wish to occupy or use the foreshore in that way.

Head 10 amends section 3 of the Foreshore Act 1933, as amended. This head provides that applications made under sections 2 and 3 of the Act, which have already been made by the Minister under the Act in circumstances where the definition of "foreshore" was understood to include the subsoil below and the water column and airspace above the bed and shore, can continue to be assessed and regulated in accordance with amended definition of foreshore. The intention is that the Minister’s vires continue to accept, assess and decide, grant or refuse leases and applications in respect of the amended definition of foreshore is put beyond doubt.

It is the Minister’s intention that the general scheme be advanced in drafting to a published Bill as a priority, with a view to enactment as speedily as possible this year to allow board appointments to be made to An Bord Pleanála under this new system. In the interim, the Minister is initiating the process of appointing a new chairperson of An Bord Pleanála to replace the retiring chair and will also shortly appoint a deputy chairperson, as provided for under the Planning and Development Act 2000. The chairperson’s functions under section 110(1) of the Act may be performed by the deputy chairperson where the chairperson is not available or the office of chairperson is vacant. As members will be aware, the Office of the Director of Public Prosecutions has confirmed that proceedings have been instituted in relation to certain matters concerning An Bord Pleanála’s former deputy chairperson. In view of this, it would be inappropriate for me to comment further on these aspects or any related matters today.

In addition, a number of temporary appointments will shortly be made to the board in line with provisions of the current Act, which facilitates the appointment of established civil servants to serve on the board in a temporary capacity for up to a year. It is intended that these arrangements will be in place until new board members are recruited under the proposed statutory arrangements on the general scheme before the committee today. The Minister is also advancing the recruitment of a board member with environmental expertise under section 106(1)(e) of the Act, which does not involve nominating bodies.

Phase 2 of the Office of the Planning Regulator’s review of An Bord Pleanála’s systems and procedures is ongoing and is due to be published on 30 November 2022. The Minister has already published an action plan for An Bord Pleanála arising from the phase 1 recommendations. This action plan includes measures to address conflicts of interests, changes to the board's appointments system, strengthening the senior management team and the provision of further resources to the board. It also proposes a new structure for the board to clearly delineate decision-making and corporate governance functions. We are working to include these changes in the new planning and development Bill resulting from the planning legislative review being led by the Attorney General. Many aspects of the reforms of this legislative code have been the subject of previous engagement with the committee and there will be opportunities to discuss the details of these changes in the future.

I thank the Chair and members for offering us the opportunity to update the committee on the general scheme of the Bill. We are happy to clarify any of the issues involved.