Mr. Paul Hogan:

I am the acting assistant secretary responsible for the planning division. I am joined by Ms Mary Jones, principal officer with responsibility for the planning legislation review unit, Mr. Eugene Waters, assistant principal officer, also of the planning legislation review unit, and Ms Claragh Mulhern, acting principal adviser.

I begin by thanking committee members for their commitment to this draft Bill, as demonstrated by the considerable time and scope of scrutiny undertaken since we last met at the beginning of February. The Department has listened with intent and openness to the discussions. As noted by the Chair, the fact that we are in the unusual position of scrutinising a draft Bill, as opposed to a general scheme, is not without its challenges, but also presents the opportunity to see the detail and intent of the proposed Bill in much greater granularity than would normally be afforded and, importantly, has provided visibility of the draft to a wide audience. We welcome that diversity of input as we now refine this draft in readiness for publication of the final Bill.

It is important to remind ourselves, as has been acknowledged almost universally by all parties over the past month, that the current Act, although functioning well in many parts, is widely considered to have become impractical to operate and impenetrable even to those with expertise in planning. It was therefore heartening to hear that many have found their initial reading of this draft Bill to be clearer and more coherent in its layout and usability, as this was one of the key aims in undertaking the review.

We must also remind ourselves at all times when legislating that we are putting in place a system to be future-proof insofar as possible, rather than bound solely by the limitations or challenges of the present. It is natural for interest groups to consider proposed changes in the context of the status quo. Some concerns have been expressed to this committee with regard to resourcing the proposed changes, and in relation to the level of management of transitional arrangements required to move from the current Act, over time, to the future Act. While neither are inconsiderable challenges, transitional arrangements are routinely managed by Departments and resources are always considered in the context of implementation of the legislation, rather than as part of the legislation itself. We are working to put measures in place to address these issues, which we do not consider to be insurmountable.

It is also essential to note, particularly in the context of the significant environmental challenges facing this and future generations, that we are increasingly asking citizens and communities to change their behaviour and do more in many respects: to engage in the circular economy; utilise renewable sources of energy; maintain biodiversity; change traditional forms of settlement and patterns of work and travel, all while we seek to accommodate a rapidly growing population and enhance living standards. This requires a careful balance of considerations in the context of the common good. It also requires a planning system that can mediate a multiplicity of complex factors and is robust. We must consider changes in terms of their cumulative effect on the outcomes that will be facilitated by the planning system and not, as can sometimes happen, lose sight of the bigger picture.

The Government’s Planning Policy Statement 2015 states:

Planning has a critical balancing role to play when competing interests put forward differing views on future development options. By focusing on the interests of the common good for proper planning and long-term sustainable development, the planning system can arrive at equitable, balanced and transparent decisions on the best way forward.

As stated earlier, the Department values the input of each of the various interest groups that have given their time before this committee and through the Planning Advisory Forum. Indeed, from the outset of the Attorney General’s review, engagement has been an integral component of the iterative process of policy formulation. The 30 members of the advisory forum represent membership groups running to thousands of members from a diverse range of communities and specialisms. Likewise, bilateral meetings with Departments, such as the Departments of Justice and the Environment, Climate and Communications, have provided valuable insights, as have meetings with those with on the ground with practitioner experience, such as the local authority senior planners group, facilitated by the County and City Management Association, CCMA. To this end, we have demonstrated an openness throughout to listen to all views, and we reaffirm that commitment today in relation to this ongoing process.

The Department’s role, as ever, is to consider the widest variety of input in the context of the implementation of Government policy and to utilise this experience towards delivering the best possible planning legislation, taking account of differing views. By way of example, in early February, departmental officials undertook lengthy in-person engagement with environmental NGOs, facilitated by our colleagues in the Department of the Environment, Climate and Communications. Where issues arose that could be practically resolved, such as provisions requiring organisations to pass a resolution in order to undertake a judicial review, the Department undertook to seek a remedy to these challenges by re-examining the wording of such provisions. Conversely, other policies, such as the introduction of a cost protection scheme, have been agreed by the whole of the Government in order to enhance access to justice through the reduction of costs for citizens in a reliable and predictable manner. These decisions come on foot of High Court judgments and long-running criticism of section 50B, which - as noted by some witnesses - relies on a "no win, no fee" model and has been subject to criticism in terms of access to justice as cost recovery occurs only at the end of the process and depends on finding representation that is willing to take the case on that basis. Therefore, the Government’s decision to put in place a model that is transparent and consistent for all, rather than relying upon a system that has been arrived at over many decades in an ad hocmanner, is appropriate and should not be waylaid due to concerns over the details of a cost protection scheme, which will be developed and administered by the Department of the Environment, Climate and Communications in the same collaborative manner that this review has been undertaken.

As noted in our previous session with the committee in February, adherence to the spirit and intent of important European environmental directives, as well as the Aarhus Convention, have been a central component of the review undertaken by the Office of the Attorney General. There is no tension between the aims of the three pillars of the convention - access to information; public participation; and access to justice - with the principles of good planning as outlined in section 1A of the draft Bill, which commits to sustainable development and the protection and improvement of the quality of the environment. Throughout the draft Bill, opportunities for such access and participation are consistently layered in key processes.

The proposed replacement of section 50B of the current Act, with a provision for costs protection for judicial review cases, provides that there will not be any order for costs in such proceedings. This is intended to reflect the recent Supreme Court ruling in the Heather Hill case, which found that all of the grounds in the proceedings challenging the validity of decisions to grant development consent should benefit from costs protection. Applicants will, therefore, continue to be protected from the risk of paying the costs of the defendants or notice party. Provision has also been made to bring forward an administrative scheme to protect appellants from incurring judicial review costs from the outset in respect of their own legal costs. This Government decision has been framed by a desire to ensure Ireland is improving its access to justice in a legal system that has been identified as having exclusionary high costs.

It has been said in numerous meetings of this committee over the past few weeks that the opportunity to amend and improve the planning system in such a comprehensive and meaningful manner does not come around often. Planning is by its nature complex and nuanced. Planning judgment is a form of mediation that relies on an ability to weigh up often competing demands in a clear, fair and proportionate manner before delivering a balanced and transparent decision, while taking account of all relevant matters and the available evidence and information. Reflecting this reality, there is an element of complexity to planning legislation. However, by increasing confidence in timelines, in addition to greater coherence to the overall legislative text for users and clarity on how an integrated, hierarchical plan-led system should function, we can take a significant step forward with this legislation. It is an opportunity we do not wish to temper by lack of ambition or constraints that can be overcome.

The draft Bill before this committee is not a series of separate minor amendments to the Act of two decades ago, but rather a coherent new Bill that is sufficiently robust to meet future challenges by reimagining a more plan-led system, framed in the context of the common good, while fully respecting individual rights related to the environment. We look forward to receiving the recommendations of the Oireachtas Joint Committee on Housing, Local Government and Heritage, as well as the many detailed submissions referenced by stakeholders over the past month. All of them will be evaluated and considered. We have no doubt that the shared aim of everyone who has given their time to this process is to deliver the best possible planning system for Ireland.