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

Amendments Nos. 176 and 180. They relate to section 23, which deals with the national planning statement. The first thing to put on the record is that the national planning statement is one of the very substantial innovations in this Bill. Whereas a great deal of what is in the Bill, as we have discussed, comprises carryovers or modest amendments to previous legislation, this is something completely new. When discussing this, it is important to understand that and also the strengths and risks involved. The latter are central to understanding the amendments.

If I understand the logic behind the national planning statements properly, there has been a long-standing desire on the part of central government and the Department, dating back many decades, to ensure that there is a standardised approach across our local authorities to key planning policy and decision-making. The Government would say that it is a question of consistency and in some cases I agree with that. However, in other cases, it is more about imposing central government's view on local government in respect of both the determination of plans and planning consents.

The former Minister, Deputy Kelly, introduced legislation in the dying days of the Fine Gael-Labour Party Government which gave the Minister extraordinary powers to introduce what were called section 28 mandatory ministerial guidelines. I have always loved that phrase. How can a guideline be mandatory? It is quite an Orwellian phrase but that is the one that was used. In many cases the guidelines that have been issued are very straightforward, uncontentious or are highly technical in nature and are not objectionable. However, on a number of occasions, mandatory ministerial guidelines were introduced, particularly on building heights and design standards for apartments, that were hugely controversial, very retrograde and did untold damage to our planning system. They led to enormous increases in litigation of residential developments, clogged up the courts and led to the legal costs to An Bord Pleanála mushrooming from €2 million or €3 million per year to €10 million in lost legal fees. We are still living with the consequences of some of that. In fact, far too often people misunderstand all of that quagmire in the High Court as something to do with strategic housing developments. While that was the context in which it happened, it was actually the controversial mandatory ministerial guidelines issued by former Minister Eoghan Murphy that were the central point of contention between local authorities and the Department, developers and An Bord Pleanála.

The courts took the view in most cases that the mandatory ministerial guidelines, particularly on design standards and building heights, were not legally secure so what the Government is trying to do in this Bill is reintroduce the same proposition but in a more legally robust manner. That is probably the best way to describe it. I want to be very clear that I am of the view that central government should absolutely have the right to set national policy, particularly in terms of how we ensure our local authorities map out their plan-led approach in their development plans. I am not against national planning policy statements, rules or legislation. My concern is the way in which this is being done because not unlike the national planning framework, these things have the force of law. These things are effectively another form of legislation. Just like we used mandatory ministerial guidelines in the 2016 Act, we are now using national planning statements, which include national policies and guidance. Of course, they are not policy statements. They have the force of law and we should call them what they are, which is legally binding planning requirements.

Amendment No. 176 is straightforward. It says that these should be approved by the Oireachtas. It would give far greater democratic legitimacy and would allow for far greater public, media and political scrutiny. It would also lead to far greater public acceptance once they become law in that manner. Given that what the Government is trying to do is avoid future litigation where An Bord Pleanála loses at the rate it lost under the previous set of mandatory ministerial guidelines, I also suggest that approval by the Oireachtas would be the most robust way to introduce national policy statements. I suspect the reason there will not be a vote of the Oireachtas - and I presume the Minister of State's response to this will be the same as his response to the last amendment - is that some of these are very contentious. For example, we know that in regard to rural planning guidelines, particularly with respect to how we permit one-off rural homes, that the regulations were completed some time ago. I suspect they have not been published for public consultation because there would be a furore among backbenchers from Fianna Fáil and Fine Gael, and possibly from my party in some quarters, about the content of those regulations. If, therefore, the Government wants to make changes, it thinks it will be easier to do if it does not give the Oireachtas, including its own Members, the right to vote on these things. That would be a very cowardly thing to do if that were the case, but I am sure the Minister of State has another view on that.

Amendment No. 180 relates to situations where the Minister is going to revoke or amend planning statements. Not only should there be a democratic process and a democratic vote of the Oireachtas when policy statements which are, in effect, forms of planning law, are enacted but if they are to be amended or revoked, I am fundamentally of the view that it is better for everybody if those decisions are made in a public, transparent and mandated way by the Oireachtas.

These sections in Chapter 3, particularly those relating to the national planning statements and the retrospective and expedited procedures for amending development plans, urban area plans and priority area plans on foot of new policy statements, are probably the most controversial aspects of the Bill. It is unfortunate, and maybe we were remiss in our own deliberations during pre-legislative scrutiny, that we did not shine enough light on this. There are so many dangers in this. The potential for conflict, litigation and enormous delay in much-needed in wind and solar energy efficiency projects, residential developments, and key water and wastewater infrastructure is just enormous. I suspect the overwhelming majority of planning experts, if asked their view on this, would probably say something not too far away from what I am saying.

I am making the case as to why, with specific reference to the approval of the policy statements and their amendment or revocation, it should be a decision of the Oireachtas. I am also appealing to the Minister of State not go down the road that is outlined in this Bill with respect to this matter because he will regret doing so.

I was a much less experienced Deputy in 2016 and 2017 when we dealt with the strategic housing development legislation that the Minister of State's party colleague the Minister, Deputy Coveney, introduced. I had far less understanding of the planning system and planning legislation at that stage but I could see, as could others in opposition, that the strategic housing development idea was a bad one. We warned that it would not work and would lead to delay, conflict and litigation. Unfortunately, we were right. The propositions that we put at that stage, as amendments, for statutory timelines at all stages of the process in the local authorities and An Bord Pleanála have subsequently come to pass and I welcomed that, with some minor concerns. If the Government had listened to us - and I was not the only one on this side of the House saying it - in 2016 and 2017 on SHDs, we would not have had the dramatic escalation in judicial reviews, delays and, in some cases, in very poor quality, residential apart-hotel and co-living developments. I am urging the Government to listen to us, to planning experts who have spoken about this and to eminent judges and legal figures who are saying that this is the ticking time bomb at the heart of this legislation.

It is far more controversial than anything else. They are saying that if we sign up to this, ignore their amendments, either in word or spirit, and they are proven to be right, they will come back to remind us of that at every available opportunity. It has the potential to do untold damage to our planning system and create untold delay to urgently needed infrastructure, renewable energy projects and residential development. That is the very opposite of what the Minister of State is saying the Bill will do.