Oireachtas Joint and Select Committees
Tuesday, 7 March 2023
Joint Oireachtas Committee on Housing, Planning and Local Government
General Scheme of the Planning and Development Bill 2022: Discussion (Resumed)
Steven Matthews (Wicklow, Green Party) | Oireachtas source
We are resuming our pre-legislative scrutiny of the draft planning and development Bill 2022. We are joined by Mr. Robin Mandal and Ms Pauline Cadell, Dublin Democratic Planning Alliance; Mr. Brendan Heneghan, Terenure West Residents' Association; and Ms Pauline Foster, Recorders Residents' Association. I welcome them and thank them for giving their time to assist us in getting this legislation right.
I will read a quick note on privilege before we start. I remind members of the constitutional requirement that they must be physically present within the confines of the place where the Parliament has chosen to sit, namely, Leinster House, to participate in public meetings. Witnesses attending in the committee room are protected by absolute privilege in respect of their contributions to today's meeting. This means they have an absolute defence against any defamation action for anything they say at the meeting. Both members and witnesses are expected not to abuse the privilege they enjoy and it is my duty as Chair to ensure that this privilege is not abused. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks and it is imperative they comply with any such direction. Members and witnesses are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.
I will call Mr. Mandal, followed by Mr. Heneghan and Ms Foster. After their opening statements we will have seven-minute segments for members to ask questions and for the witnesses to answer. We will probably have time for a second round. This is the second last meeting dealing with pre-legislative scrutiny of the draft Bill. We were of the view that we would bring in representatives of the residents' associations later in the process to give them time to absorb such a large and complex document. After our concluding meeting with the departmental officials on Thursday, the secretariat will be tasked with preparing a report. It will be a difficult report to put together given all the information and submissions we have received. We hope to have the report completed by the end of March to present to the Minister based on our observations of these sessions.
I invite Mr. Mandal to make his opening statement
Mr. Robin Mandal:
The Dublin Democratic Planning Alliance, DDPA, is grateful for the opportunity to discuss this important legislation with the committee today. It will shape our future. The legislators' input is crucial for ensuring it is fit for purpose. We hope we can be of some assistance to bring the perspective of ordinary people who live with results of planning decisions. I am accompanied by Ms Pauline Cadell, an active participant Dublin's north inner city and Clíona Kimber who contributes on climate and biodiversity. She is a lawyer and will not be here until after the courts finish work. Ms Cadell is looking after a rescue dog and will need to leave about an hour after Ms Kimber arrives.
The executive selected me to appear both as chair of the DDPA and as an architect engaged with the planning systems from the 1993 Act up to the 2000 Act with all the amendments and accompanying statutory instruments from 1964 onwards. I have worked on these for nearly half a century and hope to bring some level of insight into how this might help. We have provided a briefing document with appendices that address all the issues we raised in our submission. We hope this is of help to the committee.
The Dublin Democratic Planning Alliance is an alliance of civic groups such as the Rathmines Planning Initiative and District 7. We have more than 75 residents’ associations, planning and housing specialists, architects, statisticians, academics and ordinary citizens. We seek to ensure that citizens are at the centre of planning and that their voices are heard and listened to on the bedrock of subsidiarity, as is the norm in Europe. Since 2015, this has not been the case in Ireland. In recent years, we have been working to counteract the loss of trust in the planning system and to promote sustainable development, democratic planning and affordable housing. Our collaborative workshop of November last shows how engagement can work. It forms part of our appendices.
The DDPA welcomes the Bill, which aims to consolidate planning legislation into a clear, concise code. We had hoped for simplicity, but do not see that yet. We welcome the Bill where it strengthens the certainty, consistency and efficient timelines of outcomes in planning decisions for all. Failure to produce these results has led to many of the real and perceived problems with our planning system. We reserve our welcome to the top-down policy-driven agenda until we are certain that a corresponding bottom-up agenda is integrated into the Bill.
We would like to see the balance between policy-givers and policy-takers recalibrated so that local government might be re-empowered. As an aside, local government has served this country well both as a voice for the citizen and as a nursery ground for our public and national representatives. These things matter. The DDPA has concerns that the Bill will have unintended consequences from unthought-out or ill-considered changes that diminish the power of individuals, local representatives, and local authorities through more centralisation. There is little explanation as to the rationale for these changes; and there appears to be no analyses of any empiric data to drive them.
We also have concerns that the planning process has failed due to the adversarial nature of planning as it has developed in the past few years. We hope that the Bill will signal a move towards a consensual approach to planning and development control that is primarily driven by the needs of the citizens. Unfortunately, we see the further exclusion of the citizen combined with the strengthening of centralised power as a threat not just to the rule of law and the separation of powers but also to democracy itself, which we feel could lead to social instability. We are also concerned about the false narratives driving some of the Bill's provisions, such as the idea that objections stop development, which is not supported by any evidence whatsoever. As the members all know, observations are part of the planning system and have no impact on local authority timelines. Appeals to An Bord Pleanála do add time, but nobody is suggesting that this right be withdrawn as it was in respect of strategic housing development, SHD, with predictable results. However, even within the An Bord Pleanála process, observations also have no impact on timelines. Some would say they have no impact at all one way or the other but I disagree with that.
I will move on to the issue of judicial review, on which I do not want to spend very much time. It is important to say that while judicial review may delay a decision, the solution is not to restrict rights of access but to make robust decisions based on agreed development plans. While devastating for the individual developer, the extent of judicial review has to be put into perspective. Of the 265,000 planning decisions made in the past decade, a total of 490 An Bord Pleanála decisions have been taken to judicial review. These do not even come up in my pie graphs as data as all. It is a very small number. I accept that they are very important for those against whom they are taken. Nearly half of these have been in the past three years, due to SHD and material contraventions directed by ministerial specific planning policy requirements, SPPRs. We fear the continuation of that method.
The SHD figures themselves are illuminating. In spite of the 12,000 homes currently under review and the 11,000 quashed or conceded, there are still 54,000 homes with granted permissions. There are a further 32,000 homes submitted under fast-track SHD long overdue for decision by An Bord Pleanála. Similarly, the notion that planning is holding up the delivery of housing is untrue; it never was. At present in the Dublin area alone, there are unused permissions for more than 49,000 homes.
We are also concerned that the roles of the Office of the Planning Regulator, OPR, An Bord Pleanála and the future commission as independent entities will not survive this Bill. Ministerial diktat has undermined them already. We are somewhat concerned at what we see as mission creep in the OPR, compared to the core recommendations in the Mahon tribunal report, particularly those on page 2,563.
Finally, the DDPA hopes that the Bill will provide clarity, certainty, transparency, accessibility, and consistency. In this, the citizen, the planner, the developer, the architect and the State are all on the same page. As it stands, the Bill in front of us will provide none of these. It is up to the Deputies and Senators to craft it so that it does.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
I thank Mr. Mandal and invite Mr. Heneghan to make his opening statement.
Ms Pauline Foster:
I am grateful for the invitation to contribute the views of residents' associations to the debate. We represent the Recorders and Terenure West residents' associations in south-west Dublin. We are well placed to speak for the sector on the Bill given the significant co-ordination in our part of the city between 40 residents' associations on transport matters. Residents' associations are vital players in the planning system, often paying a professional to make a submission. In other cases, the person preparing the submission is likely to have some planning expertise gained from experience. Furthermore, a residents' association frequently has much better knowledge of local issues than either the planning authority or the developer. They are core to putting the other side of the story.
Residents' associations are frequent contributors to consultation processes on development plans. We have no sectoral position on the proposal for ten-year development plans. Enormous effort is invested into putting in submissions, but it seems rare that any account is taken by a public body of those comments. Plans by their nature are complex. Inadequate time is given for comments to be submitted. As plans are not unduly time-sensitive, more time needs to be given for comment. Third, we believe that timescales for plans including those of the National Transport Authority, NTA, are not synched correctly.
We are concerned regarding the erroneous allegation in the media that residents' groups are in some way responsible for huge hold-ups in the planning system. The core difficulty is the excessive time taken by An Bord Pleanála to make decisions and the level of procedural errors by that body in coming to those decisions, largely caused by huge under-resourcing at a staff level. In recent decisions, we find it difficult to find any substantive decision made within the supposed 18-week timescale, with the bulk of current decisions relating to 2021 appeals. This is the core issue our legislators need to address. If an appeal is made to the courts, we understand this is not related to the merits of an issue on planning grounds, but will be grounded on procedural issues. It is not the case, as is often asserted, that the courts are deciding planning matters; rather, their decisions are invariably critical of the process employed by An Bord Pleanála.
We wholly reject any suggestion that residents' associations be barred from seeking judicial review. This is akin to taking away David’s sling in his battle with Goliath. We wholly reject the impractical requirement for a residents' association to have to list all its members in order to appeal to An Bord Pleanála. The law should expressly permit residents' associations to appeal to the courts. The planning Bill should recognise that the standard legal format for incorporated residents and environmental bodies is a company limited by guarantee, CLG. Residents' associations can spring into life when controversial planning arises, so longevity tests are not appropriate. The Aarhus Convention suggests that access to courts should not be prohibitively expensive. It is not correct to assert that it is in some way easy-peasy to mount an appeal. It is an extremely stressful situation for those involved and requires a concerted fundraising effort. There is a case for the law to state that no costs award will be made against a non-governmental appellant in the absence of frivolity.
The Bill contains provisions for pre-consultation between developers and planning authorities but no provision whatsoever for anyone to talk to residents groups. We think the Bill should include this. The timescale for comment is too short, particularly for complex applications. It should run from the date all documents are put up on the planning authority’s website. Each authority should be required to put every document up by the next working day following receipt. An Bord Pleanála frequently makes decisions without an opinion on issues raised by the local authority. We think An Bord Pleanála should be obliged to deal with the grounds cited in the local authority decision.
On enforcement, a neighbour having to report a discrepancy between plans agreed and the actual build is totally unacceptable.
Enforcement is one of the most understaffed areas in councils yet we believe it to be essential. On inspections, the practice of issuing a certificate of compliance at each stage of a build used to be paramount. This necessity should be reinstated. Problems with non-compliance with fire regulations or pyrites would not have occurred if these controls had been in place.
We thank the committee for the opportunity to have some representatives of the residents' sector heard. Mr. Heneghan and I are happy to take questions.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
As a committee, we all agree that public participation is a vital and critical part of the planning process. It would not be possible for the committee to meet representatives of every residents' association. However, in our view, given the complexities and challenges experienced by the Recorders Residents Association and Terenure West Residents Association, which is comprised of 40 residents' associations, and the Dublin Democratic Planning Alliance, which represents 75 residents’ associations, specialists, etc., the speakers are broadly representative of the challenges faced by residents up and down the country, whether that is in Cork or Galway or rural or urban areas. We are proceeding on that basis.
Mary Fitzpatrick (Fianna Fail) | Oireachtas source
I thank everyone for their presentations. It is lovely to welcome a neighbour from Dublin Central and I welcome everyone. As a public representative and resident, I value the work of residents' associations. They do incredibly valuable work which is done voluntarily. It is an enormous effort for people to take time out of their busy lives and run associations. I thank the witnesses and the residents' associations they represent.
On the Bill, as the Chair explained, it is difficult for us to get representative groups. Would it be fair for the committee us to assume that residents' associations are largely made up of homeowners and do not generally represent renters or homeless persons?
Mr. Brendan Heneghan:
The list of objectors which we submitted features an awful lot of management companies. I suspect that in many cases management company objectors represent owners of apartments more than tenants. I suspect that tenants frequently do not take much of an interest in this matter. The Senator is correct that residents' associations are predominantly made up of owners.
Mary Fitzpatrick (Fianna Fail) | Oireachtas source
I thought Mr. Heneghan would confirm that. Ms Foster stated it is wholly impractical for a residents' association to list all its members in an appeal to An Bord Pleanála. I ask the witnesses to talk us through the impracticalities of doing that.
Mr. Brendan Heneghan:
I am the treasurer of my residents' association. We are trying increasingly to get people to pay their subscriptions directly to the bank. Members will be aware that the banks allow 16 characters. What we want to know is that the resident of 88 Parkmore Drive is the member, as far as we are concerned, rather than Mr. Brendan Heneghan. The bank can only capture an address.
There are loads of practical difficulties. If I submitted a list of 200 members of my residents' association and someone dies, the developer could well say the person is dead and cannot be a member, so we end up in the High Court or Supreme Court. The same would happen if we were to mistranscribe an envelope or did not list someone and somebody else were to figure that out. I have about 300 members in my association if partners are included. I do not see what the use of having a list of 300 people would be. It is a major problem for me to put the list together and the large number would get in the way of working online. Undoubtedly, people would be horrified that their names would appear in planning appeals. If we told members of the association that this had to happen, they would probably say they no longer wanted to be a member of the residents' association. I believe it is a stupid provision and Ms Foster will probably confirm what I am saying.
Ms Pauline Cadell:
I live in the cottages just off Blessington Street, which is in the north inner city. There are about 150 residences. Prior to Covid, a lot of the rental properties would change tenants every six or nine months. Keeping up with the changes took considerable work. We now have more renters than we do homeowners as old people have died off and their cottages have been sold but there is still an instability. People who are renting are not as keen on getting involved in submissions as homeowners are. In addition, we had an incident where one of our people who had worked for An Taisce made a submission against a local landlord who reapplied to Dublin City Council for permission to do something the council had previously turned down as over-development of the site. He did that a few years afterwards and our member who had worked for An Taisce did a submission to Dublin City Council, which turned it down. All the post came to my house as the co-ordinator. The man in question ended up in court because he attempted to assault me as he found out where I-----
Mr. Robin Mandal:
I thank the Senator for her extremely good questions, particularly her question about renters. The DDPA has been trying to engage because renters do not have a voice and represents at least one third of the population. I do not know what the solution is. We have reached out to the Community Action Tenants Union, CATU. It is very difficult to get engagement. It is a real challenge and very important. I appreciate that the Senator has made that point.
On names, the easiest answer is that, as with companies, associations or whatever, there is safety in a group. The minute people have to put down their name and address without the security of that group behind them, they get intimidated. That is the worry.
Mary Fitzpatrick (Fianna Fail) | Oireachtas source
I presume all the associations welcome the abolition of the strategic housing development, SHD, process, and build-to-rent and co-living developments. The development plan, which is our strategic planning, was mentioned. The frustration the witnesses expressed is very real because they make submissions and engage in a very lengthy process, yet none of their proposals are reflected in the final document. The public officials were mentioned. What can be done to improve engagement by residents, citizens and renters in the development plan process? The city councillors and county councillors own the plan. Is that where the disconnect lies? Is it between residents and tenants and councillors or is it somewhere else?
Mary Fitzpatrick (Fianna Fail) | Oireachtas source
I appreciate that my question on the development plan is a big one because the witnesses mentioned the time involved. One proposal is for a ten-year plan but the objective of doing that is to improve the quality of strategic planning. Perhaps we can come back to this issue in the next round of questions.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
We can come back to it given that development plans and various other plans have been replaced and this is an important aspect.
Eoin Ó Broin (Dublin Mid West, Sinn Fein) | Oireachtas source
I thank the witnesses for their submissions. I will direct my questions to Mr. Mandal in the first round and to Ms Foster and Mr. Heneghan in the second round to ensure there is adequate time to respond.
I am conscious that Mr. Mandal represents the Dublin Democratic Planning Alliance and also has enormous experience working through the planning system under two different sets of laws and is now bringing his experience to bear on this Bill. He spoke about the Bill not being there yet and used the phrases "ill-considered changes that diminish the power", "strengthening of centralised power" and "the further exclusion of the citizen".
I would like to give the witnesses as much time as possible to tease out those matters, particularly with regard to the ministerial policy statements or what are called national policy statements in the Bill and those other mechanisms. Will they also pick up on the question about the change to a ten-year development plan and those types of issues?
Mr. Robin Mandal:
We do not have enough time for me to go through all of them. They are in the submission. I am utterly mystified by some of them. An example is the change to what is currently section 5 that will be section 8 in the new Bill. The right of a third party to seek a declaration has disappeared, in my view without any evidence that there is any problem with that. Included in our paper is a reference number for one of the cases I came across in practice where a neighbour sought a declaration, the local authority made a decision and the neighbour appealed it to the board. The board made a decision that was the opposite of that of the local authority, so these things matter. I do not know why that has been taken out. As far as I was aware, in my practice it was something we did not use very often but it never seemed to create any problems. I would like to hear from the board because presumably it is the board issue that is taking away the third party on the local authorities.
Another issue that mystifies me is the removal of the process we used to know as outline planning permission. I accept that in practice, this had effectively gone because planning got more and more complicated, which should not have happened. Outline planning permission can now only be obtained for developments of fewer than four houses. Why have it at all? There is no explanation.
We came to this Bill with huge hope that it would do what it said on the tin. We were devastated on reading section 1A, which should not be part of the Bill. There is no explanatory memorandum and no description of why these changes are happening. Obviously, the most shocking one to us is Part 9, which is the assault on judicial review. We understand that and where that is coming from but there are no data and no thinking behind what will happen. The reason I referred to section 1A as one of the bits that mystifies me is that each of those items will contradict other elements of the Bill and they will lead to continual flows of legal actions. You could not make it up.
Another issue concerns section 4 of the current Act. It is section 7 so now all the power for exempted development is through ministerial order. It is through regulation. Section 4 of the current Act has a list of things that are exempted development, including the famous section 4(1)(h), which allowed for a lot of reduction of workload in the planning authorities. That is gone so we are giving all of the power to the Minister for something as simple as exempted development. That ticks the one of the boxes of where I see centralisation.
Regarding section 22 versus specific planning policy requirements, SPPRs, the committee knows my view that SPPRs are a disaster. I hear from previous sessions that mandatory guidelines are staying. I do not read that in the Bill. As far as I can see, the Bill does not say that these will be mandatory. It says that due regard shall be taken. That is not mandatory so either something strange is happening or somebody does not understand what they are saying. The definition of a national planning policy guidance is referred to as the definition in section 22. It is not defined. You are referred to another section. When you go to that section, you find that the definition is not there. That is ill thought-out.
Eoin Ó Broin (Dublin Mid West, Sinn Fein) | Oireachtas source
What will be the consequence of that level of confusion between the different sections of the Bill in planning applications and decisions?
Mr. Robin Mandal:
As a practitioner, one of the biggest challenges is getting consistency through the system - through the local authorities and the board. Those kinds of inconsistencies are guaranteed within the Bill to lead to different decisions being made in different areas in different positions so instead of getting clarity, we are getting the opposite. It behoves all of us to make sure this does not happen and the Bill is crafted so that this is all simplified. I have probably said enough on that.
Eoin Ó Broin (Dublin Mid West, Sinn Fein) | Oireachtas source
Regarding the development plan because we will be talking about the ministerial guidelines and the policy statements, how does Mr. Mandal see that interacting with the development plan as outlined in the Bill?
Mr. Robin Mandal:
Therein lies the solution. If we have good development plans that are not torn up at every opportunity by central government, our planning system would work because we would all know what to expect - the applicant, the citizen, the development, the authority, the Government and the State. We would all know. That is what we are looking for. The concern I have is that in terms of that being the rule book, it has to have a certain flexibility. It has to allow for certain central government intervention. It has to have a degree of flexibility but the development plan should be the core decision-making system. Everything else should be subsidiary to it.
Going back to Senator Fitzpatrick's point, one of the challenges is getting that public engagement at development plan-making time. That is a real challenge but that is where the solutions are and therein doing all the hard work up front at the development plan stage and not throwing floodgates of alternative decision making open to applicants and their teams of advisers.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
If Mr. Mandal gets two or three questions, I do not want him to have to rush two or three answers because we will get time as we go through. We are here until 6 p.m. I just need to keep to seven-minute slots because I do not know how many people will come to ask questions but we can come back to the issue of the development plan.
Emer Higgins (Dublin Mid West, Fine Gael) | Oireachtas source
Mr. Heneghan outlined very concisely why names and addresses are an issue for residents' associations. My understanding is that this comes from situations in the past where groups were established purporting to be on behalf of the people when they are not necessarily on behalf of more than one or two people. That is probably what they are trying to establish through transparency. Is there any way we can do that to make sure people's names and addresses are not necessarily being handed over or put in the public domain, as happened in the case of Ms Foster, but we satisfy the planning authority that this is a residents' group and is associated with 20 or more people or something like that? I would be really interested in hearing the witnesses' ideas around that.
I hear what the witnesses are saying in respect of judicial review and the right of access. Part of it comes down to what Ms Foster and Mr. Heneghan outlined in their submissions, namely, the lack of meaningful consultation where a county council might be going out to public consultation, be it on a public project or planning permission or application, and gets in how many submissions but does not necessarily take those submissions on board when it is making a decision. A situation arose in Lucan village in my area where I understand about 7,000 submissions were received on something and the recommendation from the manager was to proceed as is, even though a huge proportion of those submissions recommended changes. I would be an advocate for meaningful consultation where when things are put out there, they are responded to. During the development plan process, I do not think it is published but it is quite clear to councillors and local representatives that when somebody makes a submission on the draft development plan, the point is actually taken and responded to.
I do not believe that happens enough in our consultations. At least then the point was addressed, maybe not adequately from the perspective of everybody involved but at least it was heard, taken on board and at least there is a reply to it. Should we bake something like that in here?
In regard to the timelines, certainty seems to the main requirement around timelines. We have heard from other witnesses before us including An Bord Pleanála that they would like those timelines extended. Would that be okay if there were still certain timelines?
In regard to comments about development plans being torn up by central government. Are they torn up by the courts or by ministerial orders after the Office of the Planning Regulator makes a decision? I will start with Mr. Heneghan and Ms Cadell in regard to the names and addresses in the consultation. We will get to the other points afterwards.
Mr. Brendan Heneghan:
Deputy Higgins asked about six different questions in there. On the residents' groups, in the case of my group, which is big, it would be impractical to have to list everybody. Half the people would have a complete conniption if their names were put into a formal planning appeal. This Bill, in my view, is saying that residents' associations cannot appeal beyond the basic local authority because they are putting in a completely impractical requirement. It could be required to list the names of the committee. Many residents’ associations register with the councils. The councils probably have some sense of which residents’ associations are permanently there. I have submitted the list, which is on the committee's records, of people who have appealed in the past year. I strongly suspect that the vast majority of those groups are representative of a number of underlying people. I do not think there is any substance to the suggestion that this is just two cranks who are just obstructing every planning decision. I have looked at the underlying documentation on a random sample of these. Certainly the planning file suggests that many objections have gone into the planning authority. I doubt there is an issue in residents’ groups about a couple of people, who just object to everything, throwing in objections. All of the objections that I have listed relate to something that is immediately next door and on the face of it, out of legitimate interest.
Furthermore, it beats me why those people would not be allowed to go to court if the planning authority makes a mess of it or if An Bord Pleanála makes a mess of process. They are possible suggestions for deleting that new sentence about listing the names of the residents and trying to figure out some way to show there is substance.
John Cummins (Fine Gael) | Oireachtas source
I have one point and then I want to allow Senator Seery Kearney to take the second and third slots. On the outline planning permission, Mr. Mandal said that he did not see the need for it. I would put it to him that in a rural context, the ability to get outline planning permission for a one-off house and not have to go to the extent of expending a huge amount of money on detailed design for the planning permission is actually a useful tool. That is why it is in the Bill. Has Mr. Mandal anything to say in response to that?
Mr. Robin Mandal:
In the current Act, it is there for any application. Any application can be made for outline planning permission. To restrict it effectively to one-off housing, which is not a good thing in environmental terms, seems pointless. If it is there, and I believe it should be there, it should be for all applications because, just as the Senator said, it is instead of going to the expense of a full application. That should be there for everyone.
John Cummins (Fine Gael) | Oireachtas source
Is Mr. Mandal actually proposing that outline planning permission should be allowed for all developments, as currently?
Steven Matthews (Wicklow, Green Party) | Oireachtas source
I thank Senator Cummins. I will take the next slot. We can come back to Deputy Higgins's questions that were unanswered. On the proposed amendments to section 5, we did not hear any evidence from anybody that came in from planning representatives, local authorities, anybody at all, that section 5 was problematic in its current form in the current Act. As a committee, I will not speak on behalf of everybody else, but I will be suggesting that section 5 retains the provision that not just a third party but a member of the public will be able to do it.
For the practicalities of people listening in and watching, how does Mr. Heneghan ensure, when putting in a planning observation, that it is representative of the 50 or the 100 residents living on the road?
Mr. Brendan Heneghan:
The way we operate, and we are a big residents' association, is that the committee basically has delegated powers to deal with it. That is the way most residents' associations operate. We have a ten-member committee. We generally would not make observations on something unless those people, broadly, who are living near to the particular issue, are putting pressure on us.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
I will expand on that question. Most residents' associations have a chair, a treasurer and probably a secretary, probably those three positions filled. If they were to be the named persons on the observation, would that satisfy the difficulty of having to go around and collect all the names, knocking on doors like a census collector and not finding people in? We know the difficulties associated with that. Would that satisfy that situation? They are named. They are executive positions.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
A very strong point was made that unincorporated associations have existed in many forms, for example the GAA was listed and voluntary sports clubs and so on. I am not sure that it is even necessary to put the three names on it, but if it was a requirement, the term "legal personality" was used, not in relation to an observation or a submission, that was in regard to a judicial review, but I wonder would that be a fix? It would be impractical to try to collect all the names and addresses of everybody.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
In Mr. Heneghan's experience, why do people worry about putting their names on planning observations?
Steven Matthews (Wicklow, Green Party) | Oireachtas source
That would probably be fuelled by the narrative that we see out there such as the phrases "not in my back yard, NIMBY," and the phrase "residents are blocking everything and object to everything". In fact, a submission or an observation is merely that, an observation on a planning application. An observation cannot stop a planning application. A person can go to the board or go to judicial review but for people to be able to participate in how their area is going to grow, I wonder why they feel intimidated and do not want to put their names on it. Would it be to do with that?
Mr. Brendan Heneghan:
One thing we think is a significant practical issue about getting involved in the system is the €20 and €50 fees and the bureaucracy around them. For example, take the metro application. A great many people put in observations on that but there are only 320 observations, half of which are by corporates and public bodies. Clearly the €50 and the bureaucracy put people off. There are people who just do not want to put their names on it. There are people who do not want to be members of residents’ associations.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
Then there is the difficulty of collecting the 100 names and some people will not be contactable, they are away and there is a timeline on it, or they just do not want to be in the spotlight. Using the names of the chair, the secretary and the treasurer might overcome that difficulty.
Ms Pauline Cadell:
People do not necessarily want their names and addresses in the public domain. When you go to Dublin City Council you cannot ask for your address to be taken off. It will say no, there is a legal requirement for the address to be visible. Initially when it was put online the addresses were taken off but the name of the person remained. However, the fact that you can find out where everybody lives, in this time of social media, people do not feel absolutely confident that they are safe in putting that into the public domain.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
I have never put in a planning submission as part of a residents' association because I am not in one, but it is also my experience that some people feel slightly intimidated and do not want to be seen making trouble. It is your right; it is your area. You should have an input, as you do through electing councillors who craft the plan on which the decisions are made, and the ability to make an appeal.
Mr. Robin Mandal:
Unincorporated bodies, which many residents' associations are, are by their nature quite fluid. Prior to the financial crash in 2008, we had regular meetings in the scout hall to debate developments going on in our area. We supported many and opposed few. That was how it worked. Come the recession, followed by Covid-19, it is really hard to have incorporeal meetings. Actually contacting people is difficult. In 2008, we transferred everything to electronic. It is all done through a Gmail account, everything is circulated to everybody and we collate everything back. That is the best we can do. We have always signed any submission. I am speaking with the hat of the chair of my residents' association at the moment. It is always signed either by the chairman or the secretary, generally by the secretary. There is a named person and an address. Even though we are unincorporated, we have a bank account, we have been there for 35 years. We have a legal presence. The reason we tend not to have many signatures is because we feel it undermines our message, that it is suddenly a kind of round robin that everybody has signed and nobody has thought of. We think it diminishes the impact.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
The other side of that question is, how do you ensure it is representative? I have been to public meetings before which were attended by residents of an area about something like trying to build a pedestrian permeability link to estates for easier access and walking to school, etc. The general tone in the room is, we do not want this, absolutely no way. That would be the general tone in the room. When I speak to individuals in that area and tell them they will be able to walk to the shops, their children can play with the children from the estate and there is easy access through, they say they are in favour of it but generally most people are against it, so they did not want to say it. We have to make sure there is a balance if a submission goes in on behalf of a residents' association. I do not think it is reasonable to get everybody's name, it is impractical. How do you ensure it is representative, however? As was said, if you turn up at somebody's door with a petition, they will sign it, mostly to get rid of you, and not even read it. It is important to consider that carefully and ensure there is the right balance in the public participation aspect.
Victor Boyhan (Independent) | Oireachtas source
I welcome our guests today. They gave very informative presentations. I wish to follow up on what the Cathaoirleach said. He asked how we ensure it is representative. I am not really interested in whether it is representative or not. If it is an observation or an objection, the planning application or observation should be assessed on the merits of proper planning and sustainable development. It does not matter who writes it, who says it or whatever it does. That is why we need a very robust system. Regardless if Mickey Mouse signs it, if it can justify and make a strong case that it is not proper sustainable planning development, it should be refused. We should not get hooked up on whether it is a famous celebrity on the top of the hill objecting versus somebody else. The assessment has to be on proper planning and sustainability. It is an important point in this discussion.
I wish to deal with Mr. Mandal's submission first. It is very significant, professional and exceptionally laid out. Clearly, he has a lot of experience in this area. I have met him before at public gatherings. I acknowledge his advocacy work in the area of proper planning and sustainable development. It is better than some of the documentation I have received in Leinster House. I like how he broke the whole thing down in terms of judicial reviews. He put facts in front of us. They are there anyway, but he pulled it all together and the data that surround all of his arguments. That is really important. I encourage people to look at this documentation and I encourage Mr. Mandal to circulate it widely to Oireachtas Members and people outside the Oireachtas. In a simple sentence, will Mr. Mandal confirm if the alliance was invited to partake in the planning advisory forum?
Victor Boyhan (Independent) | Oireachtas source
Mr. Mandal will be familiar with the term strategic lawsuit against public participation, SLAPP. What is his view of SLAPP and this Bill?
Mr. Robin Mandal:
I have major concerns to do with Part 9 and the replacement for section 50A, as it now is, which goes way beyond the housing and planning and development Bill of 2019, which sought to curtail judicial review. The idea that, as an alternative to being a company, a residents' association can apply for judicial review with the names and numbers of the people in it, but not as the residents' association, stinks a little bit of a different form of SLAPP, which is State legislation against public participation. It would terrify the living daylights out of anybody, going into a court and seeking leave for a judicial review, which is something people have never ever wanted to do in their entire lives, and they have the whole courts system ahead of them. Under this Bill, I find the whole cost issue deeply distressing. That is compounded with having to be the target, which I say advisedly, given our advice at the beginning. I know of cases in which people have been intimidated in terms of taking judicial reviews and people have withdrawn from them. If there is no protection from being part of a residents' association, that is really bad.
Victor Boyhan (Independent) | Oireachtas source
Regarding Mr. Mandal's letter accompanying his submission, in the second-last paragraph, two points jumped off the page. Mr. Mandal said they are concerned about the roles of both the Office of the Planning Regulator, OPR, and An Bord Pleanála as independent entities. They are also concerned about mission creep in the OPR. Will Mr. Mandal explain that to the committee?
Mr. Robin Mandal:
It is an issue we have to tread very lightly on because the whole notion of the independence of the board and, I hope, of the commission, and the regulator underpin citizens' belief in the system. That belief, as the Senator knows, has been grossly challenged through the board. All that trust has sort of disappeared. I will give an example of mission creep. The Mahon tribunal, which led to the institution of the Office of the Planning Regulator, was primarily against corruption. It was also primarily addressing the issues of ministerial power and influence. That has been somewhat lost in the establishment of the Office of the Planning Regulator. I will cite one example, which is done and dusted, so nothing I say will make any difference. As a practising architect, it used to drive me mad. In Dún Laoghaire-Rathdown, there was zero-zero zoning, which meant you could not put anything new in that area. The Vico Road was zero-zero. That meant there could be no more houses. The regulator decided that was not in accordance with national policy.
He wrote to the planning authority demanding that it remove it. It refused to remove it and it went into the development plan. The regulator then wrote to the Minister and got a directive to have it removed. That is completely irrelevant to proper planning and sustainable development. It is completely irrelevant to managing the planning system the way Flood and Mahon would have seen it. It is not necessarily bad mission creep but it is mission creep. It is making it more difficult for people to engage with the system. That is a very small one.
There is another case in Dún Laoghaire and there are judicial reviews going on in Dublin led by developers around the issue of build-to-rent, the proportion of build-to-rent and all that sort of stuff. There seems to be no acceptance within the Department that there are differences in different areas. Vico Road is unique in the world. Let them have their zero-zero zoning, even if it drives people like me mad and drives the developer mad. It is important that these local differences are there. That is where I see the mission creep. I feel very uncomfortable talking about institutions in this fashion but somebody has to.
Cian O'Callaghan (Dublin Bay North, Social Democrats) | Oireachtas source
To follow up on that, the Mahon tribunal report, which Mr. Mandal referenced, states, "The Tribunal is concerned at the extent of the Minister’s powers in the planning system as a whole" and lists concerns about the Minister being heavily involved in the national development plan, the national spatial strategy, regional policy guidelines, development plans and so forth. Obviously, the tribunal report was looking at planning corruption in its totality. I do not think there were any concerns levelled at any Minister or anything like that. What is the significance of that issue around concentration of power in the Minister's hands in planning?
Mr. Robin Mandal:
You have to tread quite carefully around this. You have to come to the table on the premise that nobody is acting in any ultra viresfashion and that everybody is working with the best intention. I think we have seen the danger. The danger is that the Minister makes a decision, on whose advice I am not exactly sure. I was in a position at one point where there was an issue about Dublin City Council having apartment sizes that were too large and too highly specified for the industry to be able to build. That brought in the first specific planning policy requirement, SPPR. It is those SPPRs that we now see as being failures. The co-living build-to-rent has gone, thank goodness. That is where the Minister begins to undermine the planning system through centralised power. That is where the issue is. It is not that the Minister is doing it to annoy everybody. It is not that the Minister is being bribed or has been overly influenced. It is that when power is centralised, it inevitably becomes harder to control, which is what Mahon saw very clearly. There has to be a balance. I do not have any easy answers.
Cian O'Callaghan (Dublin Bay North, Social Democrats) | Oireachtas source
I thank Mr. Mandal for the answer. I do not want him to identify any individuals or go into any specifics but he said earlier that people might be intimidated out of taking a judicial review. Can he give us some insight into that? When he talks about intimidation, what are we talking about? What types of intimidation is it or what sort of form does that take?
Cian O'Callaghan (Dublin Bay North, Social Democrats) | Oireachtas source
I do not think we should get into specifics. I just want to talk about this generally with regard to the legislation.
Cian O'Callaghan (Dublin Bay North, Social Democrats) | Oireachtas source
Could Mr. Mandal explain in general terms how that arises in respect of planning and judicial reviews?
Ms Cl?ona Kimber:
I apologise; I was delayed until now. I thank the committee for allowing me to speak at this juncture. There does not have to be much substance to defamation proceedings but there can be a threat. The threat is that what the person is saying is not correct and is ruining the developer's reputation. The person might be putting leaflets out in the local neighbourhood about this particular development saying X, Y and Z about it and the developer takes the view that this is defamatory. The classic saying is, "Paper doesn't refuse ink". Anybody can bring proceedings against anybody and a person is obliged to defend themselves. It is not until the end of a court case that this defence becomes vindicated. In the meantime, there is a person in a house at the end result of a court case by a large developer. Many people will simply say they do not want the hassle, it is too scary or they do not have the people to go into court to defend this.
Cian O'Callaghan (Dublin Bay North, Social Democrats) | Oireachtas source
In his opening statement, Mr. Mandal said, "We see the further exclusion of the citizen combined with the strengthening of centralised power as a threat not just to the rule of law and the separation of powers but also to democracy itself, which we feel could lead to social instability." That is a very strong statement. We are rightly very quick in this Oireachtas to criticise issues around rule of law in other countries and to point out where there are very serious issues. Could he expand on why he thinks this is an issue of rule of law?
Mr. Robin Mandal:
Ms Kimber might answer that but I will give my take on it. It is a very simple one, primarily to do with Part 9. According to section 50A of the current Act, where the procedures for the courts are set out for a judicial review, the court is the one that decides. Under this Bill, a lot of that discretion would be taken away. That is interference. That is attacking the separation of powers.
Ms Cl?ona Kimber:
To put it very simply, what is rule of law? Rule of law means that there are checks and balances and that power does not centrifuge into the middle in our system. In Ireland, like in a lot of western democracies, we have the Oireachtas, the Government and the courts. Any one of those is like a watchdog for the others. The whole point of a judicial review is that a judge reviews the exercise of power by a body to make sure that body is operating according to its rules. To take a GAA match as an example, the referee is given the rules and a review of that would look into whether the referee was sticking to the rules or had gone off on a frolic of their own. That is what a judicial review is. Judges are allowed to look at the power being exercised to see whether the person with the power has stuck to the rules. We have seen this with the very public difficulties of An Bord Pleanála where the board and the people on it did not stick to the rules. They did not declare conflicts of interest, they did not make decisions they should have made and they went outside the rules. A court can review that and say that power is not being exercised properly. That is when we talk about the rule of law. Perhaps I am oversimplifying it but in a sense that is what we mean.
The whole point of a planning Bill is that we are putting rules out into the universe that will be there for 10, 15 or 20 years when we are no longer in power or doing our day jobs and somebody else will be interpreting them and using them. The people in these bodies are only human. If we make it so that power is exercised inside a black box and nobody can get a judge to look at whether it is being exercised incorrectly, that is where we would be concerned about the rule of law.
I am not calling out anybody's individual motives at this particular time and place but when legislators are creating legislation they are putting something out there that will be on the Statute Book for up to 20 years.
Mary Seery Kearney (Fine Gael) | Oireachtas source
I thank the witnesses for their presentations and their opening statements. I intend to be here until 6 p.m., so we will get back again in another round. In the witnesses' submissions, and within my own views and concerns, the naming of people as part of a residents' association is an exposure, which we are touching on delicately, but which we are touching on nonetheless. It is a fact that, at the end of the day, residents living in an area who are going to be affected by a particular development will need, at the beginning of the process, to look down the process and say, "We need to take all of the right steps here to ensure that if we ever need to get to a place of judicial review, or otherwise, that we have done all of the right things along the way." Residents must also consider that there will be a developer who may be incredibly well resourced. In a number of developments we can see the same names and the same entities coming up and putting in applications for intensive and high-density developments, particularly in urban areas. They appear to be well resourced and are ready to go all the way to the High Court, if needs be. There is an inequality of arms from day one with regard to the people who are living in the area. I can think of recent developments on which I, and perhaps Mr. Heneghan, submitted observations, and where for example only one third of the units were to have parking facilities. This meant that parking would have spilled out onto all of the surrounding roads. There are loads of challenges within that type of application.
There are a couple of things I can see with this aspect. First, let us consider whether the legislation provided for an unincorporated entity to go all the way to a judicial review. All the entity would have to do is prove that it had held a public meeting and a meeting with members, and that it had been mandated from that meeting to put in a submission, and particularly if this was the entity that was going to go on for the judicial review. In this situation, one would not be naming individual members but there will be minutes somewhere of who was at that meeting. Would this be a solution that would give cover to individual people? We need to not ignore the fact that during that process anybody who is a resident on that road who may disagree with the submission is perfectly entitled to put his or her own submission into the process. This first point would overcome the issues around identification of members.
I will come back to the judicial review element shortly, but the second point is the cost. I can think of groups of residents I know, and whom Ms Foster will know, who face an uphill struggle to anticipate having the money in the bank for any sort of a review, if that is needed. The sheer stress of this is horrific. There have been some throwaway casual remarks made about cake sales and so on, but it is a very heavy burden on people who perhaps are already challenged in this cost-of-living crisis, in having to try to do this or anticipate costs when trying to preserve the quality-of-life in their little community. They must have huge resources in the bank. That is a fact of the uphill struggle. I am thinking in particular of the Carlisle development. Does this Bill address that, how does it address it, and what are its shortcomings?
Mr. Brendan Heneghan:
Perhaps I could address the Senator's point about the residents having a meeting of the residents' association. The timescales are completely impractical for doing that. We have made the point that frequently the planning authority will not even let us see the documents until two weeks before the submission date. The other practical problem about having public meetings is if there is a controversial development, and I, as the residents' association planning person, take it upon myself to organise a meeting, there is an amount of brickbats coming through the air at me for having decided that. Some of these meetings can be incredibly hostile. It is not really a practical idea but it is mainly a timeline problem. We only have four weeks on the initial submission, which is not enough time to do the logistics of a meeting. We do not know, until the planning authorities have made a decision, if we must do an appeal and then there would be four weeks. Perhaps the committee would be happy to look at the practicality of a ten-week timescale on submissions. I do not believe that some of those meetings have been practical in the timelines we had. Ms Foster may be better placed to talk about the stress of the judicial review process.
Ms Pauline Foster:
It is extremely stressful. To a large extent, people are putting their own homes and families at risk. They are trying to work and raise small children, and the whole thing becomes unbelievably complicated. Initially the drive from residents is very strong and the money comes in, but then there comes a point when they think, "Oh Christ, what can we do here. We are going to be stuck. Have we done the right thing and so on?"
I believe that a lot of hysteria has built up in planning because of SHDs. I thank God that the SHDs have gone. That process has set everybody against each other in a huge way that is unacceptable. I hope that the new large-scale residential developments, LRDs, rules will go some way to adjusting this back to some form of good democracy.
On the meetings side of things, the timescales could be increased and perhaps six weeks would be better. By the time we get our notice from the council of planning we then have to decide whether we are going to do something as a committee. Then we have to convene a public meeting. Then we must get down to writing a submission. We are all working as well, so this timeline is very restrictive. From that point of view, longer timescales and less bureaucratic tying of our hands behind our backs would be much better appreciated.
Mr. Robin Mandal:
All of these issues have been raised because of the Part IX legislation. There is nothing wrong with the current section 15A in my view. It deals with all of this stuff. Again, there has been no justification, unlike the failed housing and planning development Bill in 2019. There has been no explanation as to why any of this is being done. That is really not a good thing.
Thomas Gould (Cork North Central, Sinn Fein) | Oireachtas source
I thank the witnesses. It has been interesting to listen to the points they have made and to hear their submissions. I have a brief question first. Are any of the residents' associations or the community associations represented on the planning advisory forum?
Thomas Gould (Cork North Central, Sinn Fein) | Oireachtas source
In my constituency there is a residents' association on Magazine Road, Cork. For the past few years, and especially during Covid, they have been highlighting the whole issue of planning in respect of student accommodation and the consequences of not having the development zoned for student accommodation, and the effects this development has on the community who are living among it. We see student accommodation as vital. Cork is a big university city with two brilliant universities. However, we have seen no plan for the development of student accommodation tied in with the universities. What we then have is planning for developments, such as that passed by Cork City Council in the past couple of weeks, which involves a tall development. One of the roofs will have a garden on it.
One of the rules for this being built was that people cannot use it after, I think, 8 p.m. on weekdays, 4 p.m. on a Saturday and not at all on a Sunday. Can one imagine this big, massive student accommodation and telling the students that they will not be able to use it at night or at the weekends? How can a planning decision be made with something like that?
A number of years ago when I was in Cork City Council, we looked at getting a designation for planning for student accommodation so it would be sustainable and work with communities, but work with the colleges. As residents associations and from the planning point of view, is there a missed opportunity in this Bill? I see Ms Kimber is agreeing.
Ms Cl?ona Kimber:
I am nodding vigorously. I agree with the Deputy on working with the community. I agree that there is an opportunity missed. Regarding many planning issues, I firmly believe that if there was some method at the outset of getting people to agree, work together and understand, there might not be all these challenges, lack of permissions and reviews. Perhaps there could be an opportunity in the Bill for, at an early stage, some sort of mediation or arbitration. For example, workers' disputes all go off to the Labour Relations Commission and they figure out something. Perhaps something like that. Would that help for communities? I agree with the Deputy and that is why I am nodding my head.
Ms Pauline Cadell:
I wish to pick up on that. I live in the north inner city. We have had a massive concentration of student accommodation. The last census showed us to be 40% transient and 60% stable residents. That is at a tipping point. If there is too much transient accommodation, communities lack stability. When we were inundated with student accommodation, we were very much for it. I was teaching at Trinity at the time and I could see what was happening. I knew how desperate the students were for places to live. We had an enormous amount of student accommodation built in the north inner city. It is now all aparthotels. None of our students can afford the student accommodation; it is far too expensive. Therefore, now we are getting tourist accommodation. We worked out the difference between what they would make from student accommodation and what they were charging on their website for tourist accommodation. They were making about four times the amount of money in a year from tourist accommodation – aparthotels. Most of our student accommodation is not accommodating our students; it is aparthotels. We objected not to the principle of student accommodation, but to the volume the north inner city was being asked to bear.
Thomas Gould (Cork North Central, Sinn Fein) | Oireachtas source
Was it a planning failure that allowed that to happen, where developers were allowed to come in, say it was student accommodation and then set it at such a price afterwards that they were not actually housing students? The students lost out on the student accommodation. Would that be fair to say?
Ms Pauline Cadell:
I think the planning authority did not look across the situation to see where the student accommodation might be needed. It was like, “Well, the inner city can accommodate quite a lot because it is cheaper to buy land there.” There was also a big tax break, of course, for people building student accommodation. Quite frequently, if students could afford it, they were travelling from the city centre to University College Dublin, UCD. There was not much built out towards UCD. Now we have three universities fairly close to the city centre, which is a huge number. The accommodation needs to be shared across the board.
Thomas Gould (Cork North Central, Sinn Fein) | Oireachtas source
I have a final question. I am conscious of the time. In the submissions, there were serious concerns about excluding citizens from engaging in the planning process with this new Bill. Residents associations do fabulous work but I think the point was touched on earlier. When it comes to people who are renting and people from big social housing developments, many of them do not have residents associations or, if they do, they do not have the same expertise or numbers. I am worried this Bill makes it harder for citizens to put in submissions. There might be some residents associations that have strong associations and might have a fighting chance. However, my worry with the new regulations is that renters or people in social housing would not have the depth and strength of associations or the ability to have their voices heard in the planning process.
Mr. Brendan Heneghan:
I wish to comment briefly on that. I had a look at a planning application in a completely different part of Dublin recently. There might have been 200 objections. By far, the better put together objections came from people who lived in social housing, whereas from the middle-class people beside it, it was NIMBY sort of stuff. It is not the case that less affluent areas do not have many people who know what they are about.
There is a problem inherent in the bus project in Dublin where many of the less affluent communities were never properly briefed on things. It is noticeable in that all of the objections are coming from the middle-class areas. That is a failure by a public body to keep people informed. It is my experience that there are working-class communities that are very clued in and often come up with better submissions that are more in planning-speak.
Thomas Gould (Cork North Central, Sinn Fein) | Oireachtas source
There is one on Blarney Street, which is around the corner for me. There are great groups but I see an imbalance in the number of community associations in, let us say, social housing compared with private housing. However, where they are organised, they are very organised.
I will make one last point. We had an issue where there was a prison built in the Glen in Cork. The only way to take it on was to get €120,000 together to take it to judicial review. The people in the Glen could not raise €120,000 and the prison was built.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
I will move on. I do not know whether Deputy McAuliffe is online or in the Chamber. I can skip over him and bring him in next. That would make the next slot the second Green Party slot.
We spoke much about the conflict in planning, where we have objections to what is proposed or applied for. Ms Foster said that there is no consultation with residents and the developers seem to get a much better choice of it. However, where land is zoned, a long consultation process goes on. There is an indication that something will be built upon. Mr. Mandal will say they will come in and far exceed in a planning application what the councillors for the area had deemed to be appropriate zoning or density on the site. However, there is that process where it is the local councillors who craft a plan. They have to follow closely – they have a little bit of room to manoeuvre – regional and national planning, so there is that.
I have a question for our five guests. How do we take the conflict from the site notice part, from where people ask how is this happening, to them saying this is happening because there was a democratic process way back where this was decided. One of the objectives of this was to take the conflict out of the application stage - but not put the conflict at the forward planning stage. How do we engage more people? How do we get that development plan or local area plan until we replace it? How do we get better engagement, understanding and agreement in communities so they say, “We know this will go in and as long as it roughly aligns with what was proposed in the development plan, we do not have an objection to it.” How will we achieve that?
Ms Pauline Cadell:
We have somebody in our Dublin 7 alliance who is actually from the Netherlands. The Netherlands has a development plan process that we have looked at and it is really worth looking at. All the stuff about planning is laid out in quite a lot of detail in the initial consultation for the local authority plan. If you want to know anything one can look at it and whole sections and everything is laid out in detail, such as height, size of apartments, where they can be built and cannot be built. He said there is so much detail there and the detail is put in during the consultation over the equivalent of our development plan. When it comes to someone submitting for a build, people know straight away that it either fits in or it does not.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
Is it like strategic development zones, where one knew what they were, within reason?
Ms Pauline Cadell:
Yes and they also lay out things like the volume of certain types of building that can be built in places so there is a balance, as we were talking about. Student accommodation kind of came from nothing in our area and our area is very heavy with hostels and other kinds of things as well ,so it was a big issue. However the balance of development is also laid out quite clearly in the development plan. Everything is laid out.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
As a matter of interest, does the Netherlands have the third-party appeals process and then observations and appeals?
Steven Matthews (Wicklow, Green Party) | Oireachtas source
That will bring certainty to everybody in the process, the residents, the applicants, and the developers. Does Mr. Mandal want to come in?
Mr. Robin Mandal:
I was just going to cite an example. In Tokyo, where the new building for the Irish Embassy is currently being built, a competition was held for that. It was an extraordinary brief because it gave you a three-dimensional outline of the site and you could not exceed that volume. Interestingly enough in that competition, the one that is being built looks pretty similar to the other five that were premiated. Three-dimensional planning is actually the answer and I know my colleagues of the other side of this debate, the developers, and Property Industry Ireland, PII, believe that too. The issue is that we cannot get the resources to do it. Actually we can; it is really easy. In every architectural practice one goes into, every single scheme is designed in three dimensions, 3D. It can be dropped into Google Earth. There used to be a huge model in the Civic Offices of Dublin City Council. Just drop the models in and if every development plan were a strategic development plan, in a strategic development zone, SDZ, we would not have this argument. The judicial reviews would be taken by the developers as they were, so certainty is what everyone wants.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
Deputy Ó Broin raised this in one of the previous sessions with the Royal Institute of the Architects of Ireland, RIAI, and they talked about 3D. A lot of people will look at a development plan map and cannot picture in their mind what a purple, yellow or pink zone is, or what 20 or 40 to the hectare might mean. People cannot visualise that and I think that is why we then have the conflict when the application goes in. I do not know how we would transition to that but my guess is it would come back to resources issue. A lot of the difficulties we have had and also have discussed with the legal teams here also is resources within the judicial system to deal with these in the timeframe. Planning authorities are quite good in meeting their statutory decision times. Obviously we know the difficulties and the backlog the board had. Again, I imagine if we want to do it like that, and it seems a sensible way to do it, we need to ensure local authorities are fully resourced to do that.
Mr. Brendan Heneghan:
I could test the premise of the Cathaoirleach's question. We do not think the development plan is very consultative. It does not give enough time and we made the point in our presentation that whatever about planning applications, we do not think it should be possible to give residents' groups three months at the start of a development plan. They are far too complicated and furthermore, I do not bother making submissions to development plans because I have done it twice and everything I said was ignored. We have talked to a number of residents' groups and everybody had the same experience. They spent a huge about of time and were not listened to. The officials just seem to want to do what they want to do and if what one says melds in with it, that is fine.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
I have often heard it said that the development plan is a land use plan and not a delivery plan. There can be some confusion around that as well on submissions that I have seen where it is not really about the land use of the optimum or best way but it is about actually delivering some piece of infrastructure, which is outside the local authority's remit.
Ms Pauline Foster:
My view is that would really work and that is how I thought it should be planned, at development plan stage and that there should be much greater consultation at that. One issue with the development plan being reviewed or changed every five years means that nothing is set in stone. What is a green belt in one development plan is suddenly washed away in the next one. We need more consistency in the overall planning and laying out a future for the city in a much more cohesive way.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
Without risking a load of emails from councillors, it is councillors who make those decisions. The plans presented by the planners to the executive and they make those decisions and councillors are elected by the residents as well. I sometimes think we are in danger of undermining the democracy we do have in our planning system because of focusing on the points of conflict. I am just out of time.
Ms Cl?ona Kimber:
I have a very short remark. Planning is not just about houses and developers; it is also a rural issue if someone takes down a hedge, builds a barn etc. It is much wider. The whole Bill and talk is premised on a house in Dublin and a developer but it is a much wider issue. This Bill has to be seen in the context that it will set down rules that will cover rural people and developments which are not housing.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
There is the climate challenge that presents as well I suppose.
Mary Seery Kearney (Fine Gael) | Oireachtas source
In recent times, we have seen decisions by An Bord Pleanála that have ignored its own inspectors' reports and that have completely ignored the development plan. When An Bord Pleanála has been before the committee in the past, I have raised that and the issues that Ms Cadell made around the proliferation of student accommodation and the change of use, the response was that the decisions about each development are made on their own merits. This is instead of what I would have expected, that the development plan sets out the plan for an area and should include the infrastructure that will support any development or housing and that there is a measured planning for living within that area that also includes transport. How does this Bill change that, specifically from a residents' perspective and are the witnesses satisfied there will be a better forward planning position if this Bill is enacted as it stands at the moment?
Mr. Brendan Heneghan:
I understand the question. In the past week, I spent a bit of time looking at all of the court cases and it seems to me that where something is contrary to the development plan and An Bord Pleanála then ignores its inspectors, that does appear to be quite a common feature in a lot of the court cases. I am not sure if the Bill says anything particularly one way or the other about An Bord Pleanála. It should be able to ignore its inspector because at the end of the day it is the party that is taking the decision, not the inspector. In a lot of cases, however, An Bord Pleanála's reasoning has proven to be inadequate when it hits the High Court but I do not know if the Bill can necessarily address something decided by An Bord Pleanála that contravenes a development plan or what an inspector says.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
There is something in it but I cannot put my finger on the section right now.
Mr. Robin Mandal:
The question about what the Bill can do about it is important. We have been quite critical of the Bill, which consider to be part of the job, but there are elements in it that are very good. In our opening statement, we say we withhold or delay our welcome to the top-down policy agenda until we see the corresponding bottom-up agenda integrated. The top-down agenda is good in the Bill given the place of the regional assemblies, the regional spatial and economic strategies, RSES, and the national policy generally. My issue with national policy is that it is generally very good but it is interpreted in a fashion that completely undermines it. I will not cite any instances as it will take me too long. There are bits in this Bill that are good. Regarding the issue of ten-year development plans, part of us says that we absolutely want longer-term planning. In Oslo, they plan 20 years ahead. Yes, let us do that. Our concern is that the review process in the middle has no place for the members or for the voice of the citizen; it is all through the executive. That could be tweaked. There are elements in this Bill that are promising. The biggest criticism I have of the Bill is one that can be looked at - it is not a question of tearing the Bill up - is these unvalidated changes that seem to be addressing issues that do not exist.
Mary Seery Kearney (Fine Gael) | Oireachtas source
One of the issues that Mr. Mandal clearly explained and for which he provided the statistics, as has the Recorders Residents' Association in Terenure, is this idea of the nimby accusation. Let us explore that. It is very easy in media terms to turn around and accuse everyone of nimbyism when in when if someone goes into the depth of objections or observations, there are valid quality-of-life reasons for them from local communities. Part of me sees an agenda within this Bill that goes to say that those who are not affected should not be getting a say because there are serial objectors out there. Let us explore that and dispel those myths and accusations against residents, which are quite appalling.
Mr. Robin Mandal:
I will give a short answer to that. Instead of thinking of the whole concept of nimbyism, the impact need to be worked out. As we have said in our paper, the impact of objections is simply that they are sifted through in the process and they do not delay anything at local authority level, or indeed at board level. They are presented to the assessors and are either accepted or they are not. They are not stopping anything. With my residents' association hat on, what drives us is not that we want to protect what we have; it is that we want to ensure our children have better than what we have. That is what drives most people to say, "No, we do not want this here. It is not good enough". It is not that they do not want that here because it makes things worse for us; it is that it is not good enough. That should be encouraged. That whole narrative of nimbyism has no effect on any decisions at the end of the day. In our residents' association, we assess stuff as it comes in and we either support it or we do not. In the 30 years I have been there, we have taken three appeals; two of them in the past three years. I am not going to put a tooth in this. We have made these problems by letting the Minister of the day be influenced by people who have, in their own interest, shifted an agenda that nobody ever thought out and that is why we are in such a bad position in now with the loss of trust. Planning should not be as complicated as we have made it. It should be a doddle, particularly with robust development plans.
Mary Seery Kearney (Fine Gael) | Oireachtas source
Maybe this would be the case if you had that pre-application engagement, that Ms Cadell has described. I can think of one development recently that was all build-to-rent in the middle of a community where people were desperate to downsize, or rightsize which is more appropriate, but did not want to have to move outside of their community. The development was way too densely planned anyway but if people had an opportunity to buy, there would have been fewer objections. One of the main drivers of objections was people saying they wanted to live in the community they had lived in for the previous 40 years since they got married, moved in, reared their children, and sell their property, but they could not because the development was build-to-rent and there were thoughts that maybe a deal had already been done with a multinational. They were not going to have an opportunity to access them. If that engagement was there prior to application stage, the need in the local community, the demands and what would work, could be looked at. However, it is driven by other factors such as finance and taxation.
Mr. Robin Mandal:
If I can monopolise the conversation for a second, the Senator is absolutely right. We have always tried to engage not through the municipality but through our local community with development that is ongoing. We have a very good team of public representatives. I am lucky to live in a constituency that is gifted. Through that engagement, we tend to get development that is really good and everybody makes their money out of it. The real problem that has driven the fracture in planning is that when we had the great financial crash, there was no money. The only way we could build anything was through assetisation. That is the problem. The developer probably had no choice but to do the build-to-rent properties. You have to have everybody working on it together and understand everybody. If in that situation, even 10% of the units had been for sale, something could have come of it. There are so many pressures on everybody, including the developers, that it is really hard to control where it goes. It would be wonderful if we could.
Victor Boyhan (Independent) | Oireachtas source
I want to go back to Ms Foster and Mr. Heneghan first but then to Mr. Mandal and Ms Cadell. At the very heart of their conversation, the witnesses have been talking today about the voice of the members - I presume that is the members of the council - the voice of the citizen, and subsidiarity. What is a city and county development plan but a contract with the people. It sets out a sense of certainly about how one's community, county or city is going to progress in terms of proper planning and sustainable development.
I keep going back to one issue. I find the idea of serial objectors offensive. Clearly, if the planning system is robust enough, it should screen out anything that does not relate to proper planning and sustainable development. It does not matter who the objectors are. If they are coming from County Mayo or from anywhere else, people have a right. We live in a community, a culture and an environment and people should have the right to articulate their views about the proper planning and sustainable development in any part of Ireland, quite frankly. As someone who has been involved in such cases, and has been to the High Court in respect planning, and made many objections and been successful, despite being called a serial objector or a pain in the arse - excuse the French - it is important we allow citizens to engage. We live in beautiful parts of this country and we should be entitled to defend those communities. We should be able to mobilise. We have the right to meet and to organise in a structured way. We have constitutional rights anyway around engagement and we should not be frustrated by the Legislature.
That is my view and I fully support that. I do not believe there is such a thing as serial objectors. There may be people who continuously object but they should be weeded out through a proper, robust planning system. The planning system, initially through the local authority or the planning authority, should clearly screen these out and give reasons why it either refuses permission, amends an application or grants full permission or permission with conditions. When it goes to the board it should do likewise. Sometimes the problem with decisions is that we do not get that sort of granular detail of explanation which I think we should all have. On either side of the debate, everyone should have that.
As someone who was a councillor for many years and had three county development plans through my hands, I am conscious of the importance of engagement with citizens. I live out in Dún Laoghaire Rathdown and I know Dublin City and most of the Dublin local authorities would have huge engagement with their country development plan process. Our guests would work very closely with city and county councillors themselves. Will they share their take on what public representatives at local level are saying about the Bill? On the one hand, local authorities are connected with political parties here and none but I get a sense they are exceptionally disappointed across all parties. They talk about not having the party do anything about it. But our guests engage with them and they rightly talk about how they interact with them.
Will Ms Foster say, for instance, how she sees it and what her experience is and what she is hearing from her local councils on this legislation?
Ms Pauline Foster:
We have very good interaction with our local councillors. Very often they report to us that their hands are tied and that they cannot do very much because the matter is fixed in stone and that is it. It is not really answering the Senator’s question in one sense, but if developments in areas were put in in a way that was designed to suit an area there would be no NIMBYism. There would be no complaints. People would be pleased to see housing just as we are. We know there is a need for housing in our area but what has been foisted into it is totally and grossly unacceptable and changes the whole character of our neighbourhood.
Mr. Robin Mandal:
As I said, we are gifted in that we have extremely good public representatives at all levels. They are very engaged across the parties. Because there has been so little time to analyse this we have not been able to engage with them to warn them that they are about to be further disempowered but we intend to do that. We hope they will be part of that bottom-up balance to the top-down. They are so important to the way our society works and I say this as someone who has fought with them for many, many years. I will not give the Senator a history lesson because he knows all this stuff anyway but it goes back to when we stopped rates and started to take back everything. Ms Foster spoke about Sebastian Vencken, the guy from the Netherlands who is on our executive committee. He is our statistician. I will probably get the figures wrong, but he says that mostly in Europe, around 40% of state expenditure is in municipalities, that is raised and spent. In Ireland it is something like 5% or 10%. So just follow the money. There is no power. Once they lost their base of raising money the power began to diminish. One of the things that concerns me in this Bill is that there is no replacement for section 48 of the 2000 Act that so they do not seem to have the right to impose the levies anymore. The board does but why should the board and not the local authority? There are so many bits of the Bill that just do not add up. Having said that, one thing I very strongly approve of in the Bill is the restriction on the material contraventions. There is an out for the board but it is a small one. I am desperately trying to be positive as well as picking out the bits of the Bill.
Ms Cl?ona Kimber:
Just because people object does not mean they are wrong. Not three or four streets over from us here we have one of the longest Georgian stretches in Dublin which is marred by the fact that half of it was knocked down to build the ESB premises. There were a lot of objectors then. History will tell us who was on the right side of that.
I fully agree with Senator Boyhan. Just because people object does not mean they are wrong. It is a democratic right for citizens to put forward their views. It may ultimately result in a better decision.
Mr. Brendan Heneghan:
We have not had time to talk to councillors about this. The only thing I have heard back from two of them is that they are somewhat perturbed that a bunch of councillors will be elected in 2029 that will not have any say whatever and they will be five years carrying out a development plan having had no say in it. On balance, I think the ten years is probably a good idea but that is all I have heard.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
For the record, we did have two of the councillor representative groups in here with the local authority executive representatives and the regional assemblies. We did try to include that part of the process. I am into the third round now. If anyone wants to come in please raise their hand.
Eoin Ó Broin (Dublin Mid West, Sinn Fein) | Oireachtas source
Again, I thank everyone for their contributions today. I will make a couple of comments and then ask a general question to everyone. Much of our discussion is centred around urban residential development but actually the issues at hand are as pertinent to all kinds of development. We have had folks in on precisely those environmental issues like hedgerows and biodiversity but we have also had discussions around wind farms, onshore and offshore, and quarries, etc. In some sense, the process is the process. If the process is designed well, you get less conflict and better outcomes. If it is designed badly, it does not matter if it is an urban or rural setting, it causes difficulties.
I would just remove the word objections from our vocabulary. In all of my experience in two different jurisdictions, the overwhelming majority of those who engage with the planning process want to change something. There is always a small minority who do not want anything anywhere but the majority of submissions I have read and the small number I have submitted are about improving a development, amending it or changing it and therefore they are observations and proposals for improvement, whether one agrees or not as opposed to people saying, “Nothing here whatever.” That is important to stress.
One thing that many people have been saying, and it is coming out in this discussion today, is that if you have got problems downstream, you need to try to find where in the stream the problems originate and then fix them as far upstream as possible. That goes to public consultation and public participation. But the really important thing is that you can only participate if you understand the rules of the game. Going back to Mr. Heneghan’s point, most sitting county councillors have exactly the same frustration with the development plan process, particularly when they have done the first one. Senator Boyhan’s experience is having done three and he understands it better. When we went through our most recent development plan – and obviously my role was as a TD so it is not a statutory one – it was the most restrictive development plan process ever. It was not because the officials in the council wanted to restrict it but because the changes that have been made at state-wide Government policy have made it increasingly difficult even for managers, let alone elected members, to have much flexibility. That is part of the difficulty with it. That leads to the question I have: if we are all saying we want more participation whether it is in preplanning applications, local area plans, development plans or central government policy and we are all saying it is really hard to engage in the process because it is technical, technocratic and it feels obstructive, what could we usefully recommend in our prelegislative scrutiny report to the Minister to help everybody get involved as early, or as upstream, as possible to fix those problems?
I ask Mr. Henaghan and Ms Foster how it would be easier for them and for their members to participate? What could the State do or the legislation recommend to facilitate that? That is my first question.
The second is that beyond just naming things like preplanning, I ask that they go into as much detail in the time that we have because a couple of good recommendations in our report from this discussion could be very helpful. The more we can get our witnesses involved upstream, the less we will be talking about judicial reviews, legal challenges or whatever, and the more we will be talking about good quality plan-led development, whether it is urban or rural.
Mr. Brendan Heneghan:
There are three things that would be useful. My experience with the start of the development plan is that it sets out 26 issues for discussion and they seem to make it very clear that they do not want you to raise issues 27 and 28, which is to cut the debate down at the start.
The second one, which we have laboured, is that the timescale is not that sensitive on a ten-year development plan, where they should give us three months.
The third issue is where, quite frankly, our residents' association do not make submissions because they will pay no attention to them. There needs to be much greater give on the part of officials.
To sum up the topic, there are five bus corridors where 150 to 200 submissions went in. There were reports on all of them and not a single item in any submission has been accepted. It is just not credible that 200 people across Dublin could not collectively have a single idea of anything that is wrong with five bus corridors, some of which I believe are in the Deputy’s constituency.
Public officials are just not open to hearing what people have to say.
Eoin Ó Broin (Dublin Mid West, Sinn Fein) | Oireachtas source
This is a question, I suppose, about understanding rules because on some occasions the issue is, whether one agrees or disagrees, for example, with quality bus corridors and we can have a separate debate on that, but central government policy constrains what a development plan can or cannot do. I know this from my own experience where I have tabled amendments to a development plan at an early stage but they were in clear contravention of a settlement plan or of national Government policy. Again, we can ask and decide whether that is right or wrong but on that basis they cannot be accepted. I am just wondering if there is something else we need to do to ensure that people actually understand what this process is and is not capable of doing in order that people do not engage, get slapped back and wonder then what the point was, which is even more disempowering?
Ms Pauline Foster:
On one front, there is the shift towards everything being online, which is an issue, particularly in my area where there is a very significant swathe of residents who do not even own a computer. That is an immediate shutter drawn down for them. Whenever there are consultations, the council does not come to us, we have to go to it. That could be addressed in a local way. It is only a small point but it would engage people a little bit more and they would feel more empowered to have a say.
Eoin Ó Broin (Dublin Mid West, Sinn Fein) | Oireachtas source
One of the conversations we are having on another Bill is around the co-creation of marine protected areas, where there has been a very useful discussion on that. The idea, in fact, came from one of the witnesses, Tasman Crowe, one of the country’s leading marine biologists who has played a key role in bringing different sectors together in developing a strategy for protecting our marine biodiversity, where he was saying that rather than thinking of consultation as being where someone puts a proposal and one has to say yes or no to it, you have an earlier stage. This goes a little bit back to some of the Chair’s discussions around local area plans, LAPs, and strategic development zones because I am a fan of such strategic development zones where they work. If we could get people involved even earlier, which is not to ask if they like a particular proposal, but to ask what are we going to do here. Can we get more involved in co-creation at a plan-led level?
This is a question for Mr. Mandal. The Government is telling us that that is in this Bill and that this is a much more plan-led approach. Does he see that and if not what needs to go into the Bill from the point of view of our recommendations to achieve that plan-led approach?
Mr. Robin Mandal:
That is the bit about head 1A that very much upsets me because it sets out what this Bill should be doing but then it contradicts it. The notion that national policy overrides local is one that needs to be attenuated a little bit. Perhaps “attenuated” is not the correct word. There needs to be much more grey in respect of policy and much more black-and-white in respect of development control.
As I said earlier, the national planning framework, which I do not have to remind the committee did not go to the Dáil, is there and the national policy objectives are very good. It is like American motherhood and apple pie. They are certainly good but they are not carried out in reality on the ground.
I could cite particular ones but there is no point in doing that. The issue is that we see more and more power going towards the centre, which is national policy, which can be good if modulated where we need to have that policy-led structure going down the rungs. Without the stuff coming back up, however, it is autocratic and one loses everybody and it does not foster good decision-making. All one has to do is to look at those top-down diktats and the impact they have had. They have not been good outcomes.
In my entire career, I never, ever, heard about a judicial review. After I was thrown out of my practice, or retired, depending on which way one says it, I heard more than I ever want to hear. That is because centralisation is not working, I am afraid.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
I believe we will have time for another run-around on this issue, when we can come back to it. I will now take the next slot and I want to go back again to this development plan because I believe this is the key to it.
From my experience, one tends to have more people engaged with local area plans, LAPs, because, in the first instance, one is just in with the local councillors. For the councillor based in the south or north of the constituency, they may not have the knowledge or interest in that area on a county basis with regard to half of the stuff going into the county development plan. I find that the local area plan process is much more engaging, where there are many more people involved in that. Do our witnesses believe that with the doing away with of the LAPs, and where we will be bringing in these urban area plans, priority area plans and these joint area plans across two boundaries, we will have the opportunity then to get good involvement in the planning process? Is there anything in the Bill that would give our guests any comfort in that area? There is not much description of what those plans are.
Mr. Robin Mandal:
No, there is not and that is the problem where these urban development zones, UDZs, are not described anywhere that I can find. In principle, that further emphasis on the local comprises some of the brighter things in the Bill. This is somewhat countermanded by the further emphasis on the central also.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
Planning structure has to follow the hierarchy or else you would be going off at all angles. I have heard it being described at local authority meetings as it being our plan, where we can do what we want with it. You can, to a certain extent. It is like saying this is my car and I will drive it whatever way I want. There are rules which you have to stick to.
Mr. Robin Mandal:
Can I pick up on that whole national thing for a minute? Because we are Dublin-based, this is to a great extent about housing and about Dublin but the real power in the Bill is dealing with national issues, infrastructure and all of the stuff we need for the future. It would be nice if we could concentrate a little bit more on that and to take away some of the shibboleths which surround that. This whole thing about strategic infrastructure development was illustrated where one of the bodies which works with us is the Dublin Port Company. It is a master in dealing with that. It has been very good for it and for the country. The whole issue of wind energy and all of that stuff is really important and it would be nice to focus out a little bit.
I would say two things which again go back to the issues of objections, delays and this, that and the other. One of our biggest pieces of infrastructure is the north runway at Dublin Airport. That did not have an strategic housing development, SHD, large-scale residential development, LRD, or anything. It went through the planning process through the local authority, went to the board and was granted permission - and I would bet that nobody present would remember this - in October 2007. It was finished and opened in the past year. That was the delay which had nothing to do with the planning, the objections, or anything like that. The next major project is metro north, where we will be hearing all about the delays.
Metro north got permission in 2010 and was never built. The permission has gone; it has ceased. The delays are not caused by people making observations, they are caused by a whole load of other things. Unless we address those delays, we will not get the infrastructure or energy supply we need and all that stuff for the future. It would be nice to pick some of that out of the Bill too. The Bill is trying. I am trying to be positive. The Bill is trying.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
I think someone mentioned national planning statements from the Minister, in other words, national planning policy in the form of a statement. I think there should be scope for that and it is necessary. Would it be beneficial, in terms of democracy, if the national planning statement was put before the Oireachtas committee to debate, to examine the rationale and provide a democratic, elected members' input? Would that be helpful to the process, to give more democracy to it?
Steven Matthews (Wicklow, Green Party) | Oireachtas source
Mr. Heneghan is nodding his head. I see Mr. Mandal has some counter-thought on that. What is it?
Steven Matthews (Wicklow, Green Party) | Oireachtas source
To clarify, I am not saying we would put it to a vote. The national planning statement is issued and then local authorities have to change the development plan so it matches the hierarchy of planning, which is only correct. The plans below have to comply with the above. That is fine. It would be beneficial if we could bring it in to the committee for even one meeting to establish why are we doing this, what do we hope to achieve by it and what is the rationale behind it. That would be helpful for the entire Oireachtas, if it were to happen. I am not saying it would be brought in for votes. Not everything has to be voted on. Sometimes, if you can understand the rationale and good reasoning is given, you can agree it by consensus as well.
Ms Cl?ona Kimber:
I agree with Mr. Mandal that there is a lot more in the Bill about the wind farms, strategic things and energy. It is not all about housing and residential, which I think I said already. When we examine these bigger items, we must accept that Ireland is going to have to undergo huge changes. Things will have to be done. There will be disputes. People have different visions of things. The Bill is missing that there needs to be a method of efficient and speedy resolution of disputes. There will be disputes. How do we solve them and solve them quickly? In the context of judicial review and those sorts of matters, the Bill seems to focus on stopping anybody from bringing these disputes forward to be adjudicated on. There will be disputes. How are we going to solve them cheaply, quickly, at the lowest possible level and keep everybody out of the High Court? The Bill is perhaps a missed opportunity to think about how we are going to resolve the inevitable issues like Shell to Sea, wind farms, rural communities and so on. How is that going to be resolved? I do not see a mechanism for doing that in the Bill at the moment.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
Does Ms Kimber mean something beyond appeal but before the judicial process?
Ms Cl?ona Kimber:
Yes. Australia has a land planning and environmental court, I think, in New South Wales. That operates what they call a multi-door system designed to resolve disputes, which it does in various ways, ranging from top-of-the-range High Court matters to the more mundane. It might involve coming into a room like this with the associated parties and reaching a resolution on some of the big items, such as Shell to Sea, and moving forward on that. If there are very hard disputes and people are strenuously aggrieved and they do not have an avenue in the courts, they are going to be on the streets. That is what happened with Shell to Sea. If a wind farm or a strategic energy structure is put up in a rural community and they have no way in to having the dispute resolved by a democratic process, they are going to be out on the streets protesting and demonstrating. They will be knocking on the doors of their Deputies and there will be endless fuss. Disputes will be there, the question is how to resolve them. How can we resolve them at a lower level, outside of a judicial review process. There may be scope for something creative to be introduced into the Bill to deal with disputes. That may involve giving additional functionality to an coimisiún pleanála. The Labour Relations Commission, LRC, model was created to deal with industrial disputes, rather than having people out on strike. How do we get everybody into a room talking to each other? It might be useful if an coimisiún pleanála had that functionality, to introduce something of that nature.
Victor Boyhan (Independent) | Oireachtas source
I thank the witnesses. As someone who has been involved in the planning process, it is one of the many things that politicised me. I was exceptionally active in the area. I am reminded of the very successful Central Body for Residents Associations, ACRA. They mobilised. I think it is time for another mobilisation of the citizens in planning. The local elections are next year. I actively encourage and unashamedly tell citizens to engage in the planning process. I ask the witnesses to do likewise and consider their contacts in their residents' associations. I am doing that because I believe the political system in many ways has failed the citizens. I am a citizen and the witnesses are citizens. We are all citizens. This is a real opportunity. I believe in political leverage. We need to shake the very foundations of our local government structures. Really good people have come into local government because they have lived the life of a citizen, they know what affects them in terms of libraries, community facilities, planning, property tax and all those issues. I am not suggesting that I am against property tax, but it should be spent properly and retained fully. That is another debate for another day. It is a good time for our citizens to look at how planning, proper planning and sustainable development are being dealt with in their communities. Let us mobilise, put it to our citizens what they think and take the political journey. I will crank that up in the next few weeks and months.
Ms Kimber made a good point, perhaps one of the best I have heard in all of our deliberations, about dispute resolution. Be it a private person, a community group, a registered company or whatever, nobody wants to engage in or risk losing a load of money on litigation. It is a very expensive process. I would like to tease that out more. Perhaps not today, but perhaps Ms Kimber could send the committee some of the issues. I would like the committee to examine the model across the European Union and outside to see how it works. It is an important point. Nobody wants to stop proper, sustainable development. We have an economy, jobs, job creation and many other things to do. We have to build houses. We want to build houses, sustain our communities and address rural housing; that is not for our witnesses today. We need to address that and revitalise our rural communities, some of which are now on the fringes of Dublin. Housing along transport corridors needs to be enhanced and we must examine how we can link them to the cities and nodes. We should examine how we can decentralise. Then there is IT. We can embrace all of that. I also note what Ms Foster said about IT and online. I am familiar with the difficulties of that. I recently had people from Dublin City Council tell me they could not view conservation reports for protected structures because they had no coloured scanners. Citizens wanted to engage but they could not. We must be careful when talking about IT. I am a great supporter of IT in planning but we also must be conscious of other people. We need to assist people in our one-stop-shops in planning offices.
This committee will have to write a report, at the end of which we will have to include recommendations. I ask each of the witnesses, if they were to choose one recommendation or one thing missing from the Bill, what would that be? I ask them to do so in a sentence or two, perhaps starting with Ms Kimber.
Victor Boyhan (Independent) | Oireachtas source
I thank Ms Kimber for her concise and sharp responses, which I will review in the Official Report. I will put the same question to Mr. Mandal.
Mr. Robin Mandal:
Similarly, I have concerns about Part 9. I would simply drop it and retain section 50 until such time it needs to be renewed. I believe that section 50 works fine in the current Act.
In terms of a recommendation, it will add to the time but time spent before is much better than time spent after. I would really try to get into the Bill somewhere some form of pre-planning consultation for the citizen as well as for the developer. I know that would pile more work onto the local authorities, so I apologise to all my planning friends.
Mr. Brendan Heneghan:
I agree with what the two speakers have said. It would be simple to make it mandatory for all local authorities, and particularly An Bord Pleanála, to put everything up online very promptly. I made an application to widen my drive. It is all available online but it is ridiculous that I cannot easily see serious stuff which is dealt with by An Bord Pleanála. An Bord Pleanála particularly needs to gets its online act together.
Victor Boyhan (Independent) | Oireachtas source
We appreciate our guests coming in. All the work they do to represent their own communities is really special. I know that the work is not a paid position and there are not too many people jumping up and down to take these jobs, but I say "well done" to them and thank them for their meaningful engagement with us today.
Mary Seery Kearney (Fine Gael) | Oireachtas source
An important point that we do not emphasise highly enough is that a judicial review does not solve the issue and is never the end. It is merely a way to go back and start again, or not as the case may be. A judicial review is procedural and administrative but does not deal with the substantive issue. It makes absolute sense to have a place like the WRC - post An Bord Pleanála and pre-judicial review - where the matter could be resolved and a decision made. Part of arriving at a resolution would involve having reasoned and transparent decision-making along the way. Our guests have made the point that we do not have enough detail in the decisions that are made and they are not transparent enough. What would you like to see and at what level?
Mr. Robin Mandal:
I can understand that from the decision maker’s point of view, the fewer words he or she writes, the safer it is. However, it would be nice if there were something like parliamentary privilege where decision makers could say what they thought and not be drawn over the coals. If people understood why decisions were made, it would defuse 90% of the disputes. It is difficult for a decision maker to write that down.
Mr. Brendan Heneghan:
We have made the point that there is a tendency for local councils to design something based on reasons A and B, which are usually substantive issues, after which the design goes off to An Bord Pleanála, which decides the matter based on C, D and E but does not comment on A and B in any way. If An Bord Pleanála did comment on A and B, it would create a greater knowledge base on the issues that the council has identified.
I have an example in mind. It is becoming common that there is not a car-parking space for every unit. Obviously, that throws a great deal of parking onto adjacent streets. This arose in a recent decision, where a proposal was thrown out by the council for this reason but An Bord Pleanála did not see fit to comment on it at all. I understand why decision makers are as terse in what they say as they can be, as they would otherwise be opening themselves to challenge, but it would be helpful to have a greater sense of what An Bord Pleanála thinks about core issues. It has the final say on anything that is complex. What the local authority says does not seem to matter much if a proposal is appealed to An Bord Pleanála.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
A guidance document on planning conditions was issued recently. Is anyone familiar with that? I am pretty sure I read it and did not just dream it.
Mr. Robin Mandal:
I am glad the Chair raised that. He will have to google this, but something that worked successfully for years was what was known as the “yellow book”, which was issued by the Department to local authorities telling them what they should and should not do. It was a wonderful piece of work and absolutely clear. We should have more of those. It died a death somewhat. It was republished approximately 15 years ago but then disappeared. It provided good guidance.
On the issue of decision making, if the committee reads An Bord Pleanála’s inspectors’ reports, particularly those reports on section 5 references, the language is superb. If extracts of those could somehow be brought into the minutes of the meeting of the board or if some other crossover was possible, it would be useful. After years of dealing with it, I know how the board works. Decisions can be made on the hoof - sometimes, they have to be – and you do not want that recorded.
Ms Pauline Foster:
One of the things that spring to mind is the number of times we have appealed a decision to An Bord Pleanála and the inspector has concurred completely with our view but the board has revoked that. We get the word that the board has decided to ignore or disregard the inspector's report - I cannot recall the word used by the board. We should get an explanation as to how the difference came about and how the board decided otherwise. The inspector is out on the ground and sees the realities we face, so what was it that the board saw?
Mr. Robin Mandal:
I wish to pick up one other thing regarding that point, the point made by Mr. Heneghan and the point made by Ms Kimber. There may be an interim stage or an interim process within the new commission. At the moment, An Bord Pleanála has to take every appeal de novoas if no planning application had been made. It is a hell of a lot of work. It would be really nice if there were a halfway house for non-contentious appeals. To everybody, there is no such thing as a non-contentious appeal.
Mr. Robin Mandal:
It is on a different scale. In the same way that the first party - the developer, in the planning sense - can take an appeal on particular bits of the decision, it would be good if there were some way of providing in the Bill that a third party could assist or the board could look at things in a way that is not de novo. The board should be able to point out what it accepts from the planning authority, to identify the bit that is in dispute and concentrate on that. Such an approach would be really helpful. Again, it is to do with escalation - the less you can escalate and the more you can de-escalate conflict, the better.
Mary Seery Kearney (Fine Gael) | Oireachtas source
Ms Foster referred to there being no planning inspections. Would she like to elaborate on that? I am aware that we have not got to that.
Ms Pauline Foster:
I just know that years ago we built an extension and at every stage of the development somebody from the council came out and granted a certificate. In one case, the foundations were not dug deep enough below the frost level. The builders were asked to redo them. That sort of thing is not happening.
Mary Seery Kearney (Fine Gael) | Oireachtas source
Perhaps Mr. Mandal can lend his expertise to this question. Is that happening such that each developer, builder or architect overseeing a project takes photographs at all stages in order that there may be some recourse afterwards? Is it happening in a different way?
Mary Seery Kearney (Fine Gael) | Oireachtas source
If we had building inspections, we would not have the building defects and the horrific experiences of people in the likes of Park West at the moment. What is the halfway house on this? What is the practice?
Mr. Robin Mandal:
If I may try to address that for the Senator, at the moment building control is done through the building control management system. It is a system that came in in 2014 or 2015. It is basically a system of ongoing checks within the team doing the design, construction and so on. A certain number of buildings are meant to be randomly inspected by the local authority building control unit. I think that at the time the system was set up they hoped to get approximately 10% of buildings inspected. I am not sure what the figures are - I have not done the inspection - but it was meant to be a system of random inspections. The difficulty, from the planning authority's point of view and the State's point of view, is to do with liability. In a way it is academic because the State ends up carrying the can anyway, as we see, but there is an understandable reluctance on the part of a State official to pass something when it may not be correct, and then the liability rests back on the State. It is quite complicated. Even in the UK, where they did not change that system and where they have the system of municipal inspection, they semi-privatised part of it, so there are non-municipal building inspectors. It did not stop Grenfell. All these things, if not to do with the planning Bill, would be to do with regulations but-----
Steven Matthews (Wicklow, Green Party) | Oireachtas source
They are more to do with building standards and control than the planning system.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
Deputy Gould and I will wrap up the discussion.
I wish to ask the witnesses about standing and the position in that regard. We have heard reports that residents' associations would not be able to take judicial reviews before Christmas. Do the witnesses have a clear understanding of the issues in the draft Bill in respect of standing? Could they give us their view on it at this point?
Steven Matthews (Wicklow, Green Party) | Oireachtas source
I am talking about this in the context of a judicial review-----
Mr. Brendan Heneghan:
Yes, but I do not think they can even take a planning appeal as it stands. As for judicial review, a 13-page guideline was produced by the Department, which asserts that they can take an appeal, effectively, provided they are a corporate, which I do not think is what the Bill says at all. Certainly, the bar has been upped quite considerably on issues such as material interest. In addition, because this section on corporates has been put in, one would have to say there is an inference that if a corporate does not comply with the five tests, in some way its standing might be impaired. Some of these tests do not make a lot of sense. One of the limbs of the corporate test is that a body has pursued the objects for a period of not less than one year. If a company is set up to front a residents' association and has not been active for two years because there have been no contentious planning applications, has that been pursuing those objects for a period of not less than one year? It is not standard that companies have ten members; most companies have a single member. Assuming that the issue I am concerned about, that of making an appeal to An Bord Pleanála in the first place, goes away, it is still possible for a residents' association to thread itself through some of this stuff, but the bar has definitely been raised quite a bit. If somebody wants to appeal infrastructure projects in particular, showing a material interest might be quite a challenge.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
A similar point was raised at a previous meeting.
Ms Cl?ona Kimber:
As for the standing for judicial review, there is a significant change. Two types of "entity" - I use that word very loosely - would be able to bring a judicial review, that is, a physical person and a corporation. Physical persons would have to bring it themselves in their own name. Apart from that, there would have to be a corporation, that is, something registered under the Companies Acts. A residents' association is neither of those and would not have a standing to bring a judicial review, so it would have to be either a person, that is, Clíona Kimber, quaClíona Kimber, bringing a judicial review or a registered company within the definition of the Companies Acts. Even then the registered company has to pass a resolution of its members. Those are the changes in section 249 of the Bill, as I understand them. It is a huge restriction. I think it is also-----
Steven Matthews (Wicklow, Green Party) | Oireachtas source
Sorry, Ms Kimber. Could I ask for some clarity? The draft Bill states "A person", not an applicant. Is that correct?
Steven Matthews (Wicklow, Green Party) | Oireachtas source
Your reading of this, then, is that for the residents' association to be able to do what it has always been able to do up to this point, that is, to seek a judicial review, it would now have to be "friends of wherever", but Ms Kimber, Mr. Mandal and Mr. Heneghan are the three names listed on it. Is that the difference?
Steven Matthews (Wicklow, Green Party) | Oireachtas source
The Terenure West Residents' Association up to this point, and still at this point, can seek a judicial review under the name Terenure West Residents' Association.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
If what is proposed here goes through, it can be the Terenure West Residents' Association, in the names of Mr. Heneghan, Ms Cadell-----
Ms Cl?ona Kimber:
Not Mr. Heneghan, Ms Cadell and Mr. Mandal - one person. That is the way our legal system works. It is one person, one case - one - and that person will then be liable if there are any cost implications. At present each side bears its own costs, but it is one person, his or her case, and his or her name is on it. We do not have class actions in Ireland. Everybody will be familiar with the US system whereby 300 people bring a case. We do not have that here.
Mr. Robin Mandal:
If I may pick up a little further on that, I had hoped our presentation would be less to do with judicial review, but the issue of standing is completely undermined by this Bill. We did a straw poll of our 75 residents' associations. Less than half of them are companies, so more than half the people who are part of our alliance would not be able to take a judicial review under this Bill if it were to become an Act.
While we are on it, the issue of ex parteand on motion is of huge concern to us because, again, as an individual, going to the court ex parte, you know what your costs will be.
Once it is on motion, you have everybody else who might be affected by it who could claim costs from you. It is all designed to make sure you do not do it - to take away your right to review judicially the actions of power. That is really not a good thing. In the context of costs, at the moment, you carry your own costs. The Bill is silent as to what is going to happen. How could any parliamentary draftsperson put that down - such a critical bit - not fill it out and then publish it. It is a disgrace.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
I tend to agree with Mr. Mandal that section 50B serves a purpose and serves it relatively well.
Ms Cl?ona Kimber:
To clarify, when we talk about a company, we are talking about a company within the meaning of the Companies Act. Moreover, it must be a company that has been in existence for one year, have pursued environmental objectives for one year and have passed a resolution to take judicial review proceedings. Most companies under company law, which goes back to the 1880s in the UK, have to send out a notice of an EGM to pass a resolution etc. They cannot just do it on the spin of a coin. If you are not prepared to put your own name on the case going to court, you have to be a company within the meaning of the Companies Act with directors, memorandum of association etc. You have to send out your resolution to the members - whatever is in your memorandum and articles of association. You have to convene everybody, have an AGM and pass the resolution. The hoops are so tight and narrow, it is almost impossible to think of how any company would be able to jump through those hoops within the time allowed.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
To clarify, where Ms Kimber talks about a person, she is talking about where "A person shall not question the validity of any decision". That is the opening line in head 249. Regarding the granting of an application for leave, it refers to an applicant. Is it Ms Kimber's understanding that the word "applicant" refers to an individual rather than-----
Steven Matthews (Wicklow, Green Party) | Oireachtas source
So Terenure West Residents Association is not a company.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
It is an unincorporated body. Would it not be the applicant?
Steven Matthews (Wicklow, Green Party) | Oireachtas source
Could Ms Kimber point out to me where it says that only a person or a company shall have standing?
Mary Seery Kearney (Fine Gael) | Oireachtas source
It is in section 97. I found my way through the Bar Council and Law Society last week.
Mary Seery Kearney (Fine Gael) | Oireachtas source
We went down a route where they said that if you had not made an application but they clearly had not considered it because they had considered a million other things and they were going to come back on it.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
So this was to have entered into the original process; that you would put in a submission.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
It is really important to clarify whether an "applicant" is an individual or whether Terenure West Residents Association be considered one.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
But it does not say a person with a material interest. It says "the applicant".
Steven Matthews (Wicklow, Green Party) | Oireachtas source
So there is a definition that the applicant is a person. I think it is important to clarify that. Where is that?
Thomas Gould (Cork North Central, Sinn Fein) | Oireachtas source
I recall that we went through that two weeks ago and that it is a person or a company. That company then-----
Steven Matthews (Wicklow, Green Party) | Oireachtas source
Who was that with? This is a really important point to clarify to clear up confusion.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
Even in this discussion, we can see that it is not clear to everybody.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
I understand that. For me, it is not acceptable to in any way raise the bar so that a residents' association cannot apply for this.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
That involves questioning the validity of it except by judicial review.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
It does not say "company". It says "person" but a company can still seek a judicial review.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
But it does not say that in section 249(1). It says a person shall not question the validity except by the process of judicial review.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
That is not my understanding of it. This throws light on the fact that it is not entirely clear what is trying to be done here.
Mr. Brendan Heneghan:
There is a current High Court case. The point seems to be taken and I think it has been referred to Europe under the Aarhus Convention that there is in any event a legal doubt about the status of unincorporated bodies. The question has been referred to Europe as to whether, under the Aarhus Convention, an unincorporated body should have that right. I am fairly sure it involves a quarry in Louth. I saw the decision and I am sure I noted it down but I cannot see it in my notes.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
It would be very helpful. An explanatory memorandum was mentioned. What are we trying to achieve by this section or head or why the change? It would be very helpful if there was a very clear explanation here of who exactly has standing, what the changes to standing are, the rationale and whether it is compliant with the Aarhus Convention. They would be the questions I would have to ask on that.
Thomas Gould (Cork North Central, Sinn Fein) | Oireachtas source
A very important point was raised here on which we need clarity. In its submission, the DDPA raised concerns about unintended consequences due to the uninformed changes regarding individuals, local representatives and local authorities. Ms Kimber touched on it there. We could be in an impossible situation if we do not have clarity and if we exclude people from the planning process. I see Ms Kimber looking through her notes. To be fair, we do not expect her to provide that kind of detail because the submission was very detailed.
Witnesses referenced the OPR. We often hear criticism that it has not teeth and is limited in its ability. What role should the OPR take? When it finds on compliance, what should it be able to do?
Ms Cl?ona Kimber:
I have actually found where the part is. I am looking at section 249(10)(a)(iv), which states that "an applicant shall be regarded as having a sufficient interest in any ground that relates to matters raised by the applicant in submissions before the relevant decision-maker provided that the applicant has legal capacity to bring proceedings". The only people who have legal capacity are human beings or companies. A residents' association does not have legal capacity.
Thomas Gould (Cork North Central, Sinn Fein) | Oireachtas source
Those companies must have been established for more than one year and there are other rules companies must follow to take an appeal.
To return to the OPR, when it finds on compliance, what do the witnesses think it should be able to do?
Mr. Robin Mandal:
I will have a bash at answering that. I feel very uncomfortable telling other people what their jobs should be, so I ask for forgiveness now. What I understand both the Flood and Mahon tribunals to have meant was that the regulator would be the equivalent of An Bord Pleanála in the sense of being the supreme court in administering how the planning system works. Had the regulator taken a more nuanced view of what that meant, it would not mean being the Minister's hit person against local authorities. It could have taken a nuanced view of what the interpretation of national policy meant at local level. I will cite an example, which has been driving other people to insist the national planning policy guidance is mandatory. This would be something like the size of back gardens. They ask why a back garden should be a different size in Drogheda than in Dundalk, or Dublin 6 or Dublin 9. The answer is because they are different. However, ministerial directives do not allow that. On one hand, therefore, the directive is saying that everyone's garden has to be the same size. One cannot say what should or should not be built, or what proportion of build-to-rent can be in a particular area. One must do this or one must do that. That is all coming from ministerial direction. They might consider saying they understand that, and in the enforcement of those directives take the view that not everywhere is the same. All of our main streets do not have to look like Hounslow town centre. All of our suburbs do not have to look like Croydon. There are nuances. That is where the real strength lies. That is where I believe both the Flood and Mahon tribunals were directing us. It was to mediate the power of the Minister. Instead, they have become the hit man.
Thomas Gould (Cork North Central, Sinn Fein) | Oireachtas source
I have another question for both groups on the work done by individuals, residents' associations, community and civic groups. This work could be on planning, in particular, related to the making of submissions. That work is often overlooked. There is a lot of work and time spent on comparing and contrasting development plans, imagining the impact applications would have, and ultimately writing submissions. I imagine it must be frustrating to do that, to see the planning granted with conditions, and then see that planning never acted upon. We are looking at approximately 50,000 planning permissions that have been granted permission but have never been developed, after all of the work done by individuals, groups and local representatives. We are in the middle of a housing crisis. Depending on who one listens to, there are either 40,000, 50,000 or 60,000 planning permissions that have not been delivered. What impact do the witnesses think this has on communities and on getting communities to continue engaging with the planning process?
Ms Pauline Foster:
That is difficult because people would just lose heart immediately. It is hard enough, in the normal way of things, but when people see those sort of things come at them they just give up. There is no point. I am asked so many times what is the point, and who is going to listen, and why should they bother? It is very sad.
Mr. Brendan Heneghan:
A frustration I have, and which is pertinent to the Deputy's point, is that it is a massive amount of work and one is on a tight timescale. One of the frustrations is that developers keep coming back to tweak something. They get permission to do one thing, and then decide they want a bit more. They come back in and one is at the same old stuff. There are developers having two or three bites of the cherry, and one is permanently engaged putting in objections and planning appeals etc. It is in the nature of being a planning officer on a residents' association in an area where there is a lot of active development.
Ms Pauline Foster:
That has reminded me of one incident. We had an infill development, which saw a vast number of houses applied for. The planning authority reduced the amount of housing. However, bit by bit, every one of those houses ultimately went in. We might as well have put our pens in our pockets and done nothing. Another thing with that development is that an environmental impact statement, EIS, study was done. There were beautiful hedgerows and lots of wildlife. Certain hedgerows were designated to be left. Were they left? No. I have that same EIS study. It is 20-years-old. I was going to throw it in the bin but I thought some day I would use it as evidence against them.
Mr. Robin Mandal:
I will add one thing. At the start of my statement I purposely stated that the DDPA is an unincorporated alliance. If this Bill is passed, we are banned from ever making a judicial review on anything under the planning Act. Not that we would ever want to, or would ever hope to. However, we have been disenfranchised, full stop. That should be said. The other point we have missed in this is that one of proposed changes is that during an appeal a developer can submit to the board a different scheme from the one refused by the local authority. It is in our submissions and we can highlight the relevant sections if necessary. That really takes a huge bite out of the rights of the third party who took that appeal, if it is a third party. It could be a second party. I have listed it here, and it should be taken out. The board has the authority, under the same part, to impose conditions. Those conditions can do exactly what the developer might have wanted. However, the developer should not be entitled, without any public input, to make a change to a scheme that is being appealed. That is really important. I once again apologise to everybody, but one of the things that concerns me about this Bill is that it is so badly written it is a festival of dispute. I know where it came from, and I know what drove it. It should not be there. It should never have been allowed in.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
Mr. Mandal is not the first person to suggest that what is being presented here may cause further litigation and delays, and further judicial reviews. It has been suggested already. I say again that it is a first draft and the witnesses' attendance today, their observations and written submissions will assist us in getting the next draft of this right. It will ultimately provide a planning Act that includes everything in the Aarhus Convention - access to information, justice and participation. This can be useful as well. We need a planning Act, given the amount that needs to be done over the next decade in terms of energy development, transport, housing, apartments, infill, higher densities and so on. It is in all of our interests to get this right. I thank the witnesses for their attendance. Our final meeting is with the Department this coming Thursday. We will get an opportunity to put, if not all, most of the questions that have arisen in the past nine meetings. We will try to organise things so we get most of those questions to the Department and the officials.
Steven Matthews (Wicklow, Green Party) | Oireachtas source
I thank the witnesses. As they say themselves, a lot of work goes into organising residents associations. It is all voluntary and they try to bring people together. It all tends to fall on the same few people. We see that in voluntary groups. We are conscious that they gave up their time to be here with us and to assist us. We are very grateful to them for that. We will certainly include their observations when we set out a report. We will issue the witnesses with a copy of that report when we finalise it.