Cian O'Callaghan (Dublin Bay North, Social Democrats) | Oireachtas source

I am speaking on my amendments Nos. 66, 67, 69, 71, 91, 93, 94, 96, 101 and 103. The last ones are slightly different as they talk about a relevant declaration. Essentially, these amendments are well grouped. Almost all of them simply seek to keep the provisions in the Planning and Development Act 2000. The Government is proposing to take out a small number of words, but they are significant. They provide that any person may seek a declaration on whether a development is an exempted development.

This issue came up quite often during the prelegislative scrutiny. It got a lot of attention and focus and there were strong recommendations on it in our prelegislative scrutiny report that have not been taken on board. I will read a short quote from an opening statement during our prelegislative scrutiny of this Bill. It is the opening statement of Tom Flynn who is vice-chairperson of the Planning, Environmental and Local Government Bar Association. In relation to declarations under section 5 of the 2000 Act, which we are talking about under Head 10, he stated "the loss of such an inexpensive procedure which had the benefit of obtaining clarity could be considered a regressive step which is worthy of further consideration". Legal practitioners who work in this area are talking about how it could be regressive. The point has been well- made and it was made during our prelegislative scrutiny, that the provision in head 10 of this Bill on the section 5 declarations, which were open to anyone to use until this Bill, provided a way that members of the public could get a decision on whether something is an exempted development and significantly, as we were told by a number of sources during prelegislative scrutiny, the absence of it will simply lead to more conflict, more court cases and more expensive ways to get decisions as people will not have other options.

Throughout much of the discussion of this Bill, not so much so far on Committee Stage but in the public discourse, we have been consistently told that one aim of this Bill is to speed up the planning process and reduce delays and costs arising from delays, litigation and so forth. This measure will clearly create additional costs and court cases by removing an inexpensive and efficient way for people to get a declaration on whether a development is exempted development. In my experience it is not used very often, but when it is used, it can be used effectively and it can be a helpful measure for resolving conflicts about whether a development is an exempted development, which can flare up in local communities. From what I have seen of its use, the section 5 declaration has been a useful way of resolving those disputes and conflicts. The section 5 declarations do not always give people the answer they are looking for, but they can give clarity and finality which is useful. Removing that, so that only the landowner has access to it, is a highly regressive step.

Section 5 declarations, which will become section 10 under the new Bill, are an important safeguard. It is a mechanism for accountability. It means local authorities can be held to account through an appeal of their formal decision to An Bord Pleanála. Removing the public from this, removes that as a route to holding local authorities to account for their decisions on exempted developments. It allows a member of the public, if the local authority says a development is exempted and therefore it is not taking any enforcement action on it and there is nothing it can do, to get a section 5 declaration ensuring the local authority needs to formally make that decision. If members of the public are not happy with the decision they can appeal it to An Bord Pleanála and there is some finality in the process. Removing this eliminates a measure members of the public can use to ensure some level of accountability of local authorities regarding exempted development and potential lack of enforcement.

A good planning system needs good public confidence in what is and is not exempted development and the local authorities' processes around this. Removing this undermines the capacity of the public to get that clarity and will reduce the level of public confidence in the local authorities' roles in deciding what is exempted development. That is regressive.

I will read correspondence from someone who interacted with a local authority regarding exempted development and what that person says about the proposed change. I have that person's permission to read it. It is relevant to the points I am making.

I believe this change in relation to Declarations will undermine the rights and entitlements of ordinary people in Ireland in the context of planning and development, especially in relation to unauthorised development.

I myself have had cause to seek a Declaration about unauthorised development carried out by the owner of a property next to my home after the planning enforcement section of my local planning authority stated the development in question was exempted development.

My ability as "...any person" to obtain a Declaration enabled me to prove the development in question was not in fact exempted development, thereby requiring the planning enforcement section of my local planning authority to take appropriate action. Had relevant legislation at the time allowed "...only the owner or occupier of land or a person with their consent" to seek a Declaration then it would not have been possible for me to prove the development was not exempted development and to require the planning enforcement section to take action.

I regret that, based on my personal experience, I have little confidence in planning enforcement in Ireland

I was told by a planning enforcement officer...that the relevant authority does not like to take planning enforcement action because it does not want to have to pay associated legal fees; and, secondly, that when I complained to the Ombudsman about this case the Ombudsman found that the planning enforcement section had been responsible for maladministration.

I have certainly seen local authorities be reluctant to take planning enforcement action and I have seen people in local communities exercise section 5 declarations to ensure the planning enforcement section carries out its job and legal obligations. I have also been told about people in local authorities being very reluctant to take planning enforcement action and other actions that may lead to legal cases and costs. At least this route is one route. It is a difficult route for people to take as it is quite complex but there is a route for people to take if they feel the enforcement section of their planning authority is not taking enforcement action or has made the wrong decision about what is exempted development. Taking this out is highly regressive. I would like the Minister to put on record his rationale for this because the rationales we have been given to date do not stack up. I strongly urge the Minister to accept our amendments, to maintain the status quoand not to introduce these changes that leave rights relating to section 5 declarations solely with the landowners and property owners and lock out neighbours and other members of the public who are also affected by what is and is not exempted development.