Oireachtas Joint and Select Committees

Thursday, 23 February 2023

Joint Oireachtas Committee on Housing, Planning and Local Government

General Scheme of the Planning and Development Bill 2022: Discussion (Resumed)

Mr. Philip Jones:

The difficulty is that the impression was given at one of the committee's earlier meetings that this is really only intended for landowners or people who want to carry out development. That is not actually the case. I was in the system for 41 years before I retired two years ago. Twenty years of that was in local authorities working under the 1963 Act and then I subsequently worked in another place in Marlborough Street for the remainder.

It has always been the case, right back to the 1963 Act, that any person - the phrase used was "any person" - may seek a declaration as to what is or is not exempted development. It could be something quite small like a person's neighbour building an extension and he or she might be concerned about whether that extension is exempt. That person would be able to go into the local authority and ask if that extension was exempt and it would give him or her a declaration. The legislation currently states "any person". If someone did that, the local authority would notify the owner to give its view. In the proposal, only the owner or somebody wishing to carry out development would do that. It is a very serious retrograde step.

The suggestion I would make to the committee is that it suggests to the Department that it should go back to the existing wording in the 2000 Act. In a recent court case known as Narconon Trust v. An Bord Pleanála, the judge actually mentioned that there was a lack of public participation. If a landowner went to a local authority to seek a declaration, that was not publicly advertised so the public would not know. It would go in the planning register. In theory, if people were watching the planning register, they could take a review to the board within the eight weeks. They were not notified, however.

The second thing would be to not only go back to the legislation as we have in section 5(1) of the Act but to bring in a very small additional provision whereby every time a planning authority makes a declaration, it puts a newspaper notice in a newspaper circulating in the area saying that it received a declaration on a certain date and made a decision on a certain date. The legislation could very simply say that within a period of four weeks from that date, any person may take it to the board for a final determination, which would seem to be very logical.

To answer the Chairman's question directly, it is not just extensions. There have been cases where quarries have gone far outside their area and the only possible course of action the people affected had was to get on to the local authority for enforcement.

Needless to say, the operator would immediately look to see whether it is exempt. Once that declaration had been made, everybody could see it. There is also a proposal in section 9 whereby the evidence of a declaration by a local authority cannot be used by anybody other than the local authority in taking action, so there will still be what is known as the planning injunction. It is currently under section 160 and it is now going to be under section 394. That declaration, however, will not be able to be used in evidence if the local authority were unwilling to take that enforcement.

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