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

It is never the Department that is the problem, Chair, but we will deal with that another day. I agree with Ms Buckley's point on timelines. I am a strong advocate of timelines but they have to make sense and be appropriate to the decision that is made. They also have to be properly resourced. I appreciate that An Bord Pleanála is engaging with the Department, but ultimately it is the Oireachtas that is going to make the decision. If there is information which her organisation has provided to the Department regarding discussions with it that we do not have access to, it is much more difficult for us to judge whether the timelines that will be in the final Bill introduced are appropriate. If she is in a position to give us more information either at this stage or by way of correspondence to the committee, it would helpful. Some timelines could be shorter than 18 weeks but I agree with Ms Buckley that there are very complex decisions that need more a appropriate amount of time. I am interested in that.

The following is not a criticism of the board. I understand its representatives will be before the committee at a later stage and we can deal with criticisms and queries at that point. Regarding the 30% mark that was mentioned, what is important about that is twofold. It should not be our aspiration with the Bill. If we take on board the comments around resourcing, a 30% miss rate would not be great. It is not just the 30% but also how long decisions take within that 30%. For us to have a better sense of that either here or in correspondence, will Ms Buckley share more information? Of that 30%, how many slightly miss the target? How many are much longer?

I welcome the comment Ms Buckley made in the opening remarks around learning from court decisions. Will she tell us more about that? Her organisation, because it is subject to judicial reviews, will have views about the rightness or wrongness of the case and decision. When the court decides, whether one likes it or not, it is important that we do not continue to repeat the types of decisions that fell afoul of the court or the individual judge. That is an important part of avoiding some of the difficulties the board has had in recent times. I think Ms Buckley moves into some difficult territory when she talks about moving the goalposts because, in some senses, particularly with residential development, there was virtually no history of judicial review until recently for very specific reasons. Everybody was therefore trying to grapple with a significant change in terms of the strategic housing development, SHD, process and, more importantly, the mandatory ministerial guidelines and specific planning policy requirements, SPPRs, etc. and how they interacted with strategic development zones, SDZs, and development plans. Ms Buckley commented about changes that need to be made throughout the Bill. Will she provide more information about that if possible?

Mr. Cussen keeps saying it is a policy matter for the Department but I am going to try to drag him back to his independent role as the regulator. He is no longer in the Department and he has wider scope to go beyond what may or may not be. I agree with him that Part 3 and Part 6 are probably the two most important parts of the Bill. That is not to say I do not have significant concerns about the changes to judicial review, but if we get Part 3 and Part 6 right, the rest works itself out. I often think in our debate about judicial reviews that there is public confusion. Judicial reviews arise when there are conflicts in law. There have been two sets of conflicts in law, the more traditional one between strategic infrastructure developments, SIDs, and large developments and EU environmental directives, our climate action plan and our climate action obligations. That is going to continue. If we do not get Part 6 right and the related elements, we will still be in trouble. With respect to residential developments, it was the conflict between the section 28 matters, ministerial guidelines, SPPRs and developments plans. I appreciate the process has changed with the role of the OPR.

My worry is that while the development plans on approval will be more consistent, given the development plan timelines are now a decade after this round of development plans, that, for example, section 62 provides for a procedure for expedited retrospective amendments, and that section 120(2)(c) allows the board to make material contravention decisions on the basis of alignment with the national policy statements, as they are called, that is going to increase a new level of litigation. Mr. Cussen will be aware of, and I am not asking him to comment on them, the difficulties in his home county regarding some of these things. The question is not whether there should be an alignment; there should. If we do not get that alignment correct and if the central government imposition of its will on local government is too heavy-handed, which is my fear, especially with these sections, we could end up with another set of problems. I read those elements of Part 3, chapter 3 and the others, as an attempt to clean up issues Mr. Cussen and I dealt with when he was in a previous role and we went through previous legislation. They may clean that up. Is the regulator looking adequately at whether it creates another series of problems and potential litigation with respect to residential developments and strategic infrastructure developments vis-à-vis their environmental requirements and climate obligations? We could be getting ourselves into a new area of trouble.