Darragh O'Brien (Dublin Fingal, Fianna Fail) | Oireachtas source

I want to put this in context and answer some of the questions. Regarding the article, all I will say is that the IPI was part of the planning advisory forum. I have met with it and addressed conferences. Its input has been considered. Local authority planners have been involved so there has been wide consultation. They have presented to this committee as well during pre-legislative scrutiny. We are in the process of going through the Bill. As I said at the outset, we need to update our planning legislation. We need to do this because we need new planning legislation that underpins what the State needs. We need to refine it and ensure we bring about consistency, clarity and certainty of approach. I respect that people have views, but the process has not concluded. When the Bill passes, as I expect it will, there will be transitionary measures relating to its enactment. I will not go any further on a newspaper article or an opinion piece.

These sections re-enact with substantial modification section 5 of the 2000 Act. We know that the principal changes are that only the owner-occupier of a land or a person with his or her consent may apply for such a declaration, that a declaration given is not binding on persons who are not involved in the application and that the procedure may be used as a means of confirming whether any particular works are within the scope of the grant application. The idea that people would be locked out of anything is incorrect. We have received very strong legal advice from the Attorney General against retaining this section as it is. We are looking at the wording and will come back to see whether there can be refinements. I know An Cathaoirleach, the Deputy and others have been interested in that. Section 5 of the current Act has been heavily criticised in the courts and there is legal uncertainty around it. We are trying to address this uncertainty. That is the very clear view of the Attorney General. It is about needing to balance the rights of third-party involvement with the rights of the owner. The Attorney General's advice is that as it currently stands, it is not Aarhus-compliant. Regarding participation and access to information in particular for the owner, he or she does not have to have any role in the process, which is a deficiency. Taking on board what Deputy O'Callaghan said, we are looking at the language to try to balance third-party rights and the rights of the owner where the owner of a property does not have be consulted in any way, shape or form. From an Aarhus perspective, a consultation perspective and, most importantly, a participation perspective, this is deficient and has been heavily criticised in the courts. Changes need to be made.

I will go through some of the amendments put forward by the Deputy to give some of the rationale. Amendments Nos. 66 to 71, inclusive, 73, 79, 83, and 91 to 94, inclusive, relate to the question of who can request a section 10 declaration on development. This matter was discussed at length during pre-legislative scrutiny where it was one of the minority of issues that was not changed on foot of pre-legislative scrutiny recommendations on that matter. There are significant legal and policy imperatives for the changes in the parameter of a section 10 declaration as contained in the Bill. Currently, any person may make a request for an exempted development declaration under section 5 of the current Act. The Bill will provide that only the relevant person may request such a declaration. A relevant person is either the owner-occupier of the land or a person who has his or her consent. The original intention of section 5 of the 2000 Act was to function as a relatively simple mechanism regarding the question of whether a proposal is a development or an exempted development. A challenge has arisen over time because an increasing number of third parties seek section 5 declarations from planning authorities. I have already mentioned that a problem arises there because the owner-occupier of the land might be completely unaware that a section 5 declaration has been sought in respect of his or her land and he or she is the landowner and we must have regard and respect for that. The planning authority's consideration of the section 5 declaration is limited to the information put before it by the third party so no other information needs to be sought as it currently stands. Deputy O'Callaghan could seek one on behalf of anyone else and there would be no requirement for the landowner to be consulted in any way about that. Consideration of the declaration could involve incomplete information as well or just a viewpoint so there are weaknesses in the current operation of it, how it was constructed in 2000 and what it is doing now. Therefore, it needs to be changed.

Two significant challenges arise from the use of "any person" as requested in the proposed amendments from the Deputy. The wider use of the section by any person would enable a form of enforcement by proxy. The Deputy outlined one example of enforcement procedures that he read into the record. It is open to anyone to make a complaint to the enforcement section of a planning authority. This is done regularly. However, section 5 declarations are being used in a way that was not intended back in 2000 and the legal advice has been very strong in that regard.

I mentioned the legal effect of third-party action on the property rights of the owner. Having considered both amendments and the legal advice on the matter, I oppose the amendments and propose that the Bill retains the provision for the relevant person rather than "any person". Having said that, there have been detailed discussions with the Attorney General to see whether we can find a better way of balancing that. For example, does it involve an environmental group? Could we define what third parties could be? We are working through that.

I do not think anyone is arguing that its current operation and the status quoshould be retained as is. I think Deputy O'Callaghan did; if he did not, I apologise. There are very serious issues with how it is currently constructed in the 2000 Act and changes need to be made. We have heavily engaged with the Office of the Attorney General to see if we can further define it and come back on Report Stage with that definition. I have committed to that. I have spoken to the Chair on this as well. There is no question of anyone wanting to close the door on public participation. We have probably the most transparent planning system across any of the EU countries and our nearest neighbour. Third-party observations are central to our planning system and that will be retained. We absolutely must have regard to and be compliant with Aarhus. Our advice is that the manner in which section 5 declarations are constructed under the current Act is not compliant. It has been heavily criticised in the courts. Changes need to be made. We are working through how we can further define that with the Attorney General. I intend to come back to the committee on that in advance of Report Stage.