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

The Minister's response to the official public position of the IPI is unfortunate. When representatives of the IPI presented to the joint committee during pre-legislative scrutiny, they were extremely critical of the consultation process that the Minister outlined. In fact, one of the comments they made was that there was an enormous difference between what was discussed at the planning forum and the actual content of the Bill when it was published in draft form last year. They indicated that there was significant surprise with regard to certain sections, including this one, and that much of the Bill, in their view, was unclear and problematic.

In its submission to the joint committee on the issue we are discussing, the IPI said that this change is an entirely retrograde step which makes a fundamental change to the current planning system. It went on to say that the current section 5 provision is not, as erroneously suggested by the Department to the joint committee on 7 February 2023, "to allow owners or people with a relevant interest to ask the planning authority that question and to get an answer in a reasonably quick timeframe". Its point was that since the 1963 legislation, the section 5 provision has allowed any person to ask such a question, but the Bill now seeks to exclude the public from that system.

Here is the problem. The issue that the Minister raised around Aarhus compliance and the involvement of consultation cuts both ways. I have some sympathy with the point he made on that, but it applies equally to third parties, residents, community organisations and others when the owner or developer applies for a section 5 exempted development declaration currently. There is a very straightforward solution to this problem: regardless of who is making that request - the owner, the developer or indeed a third party - there is a requirement for a public notification and some participative process. If it is a third party requesting the declaration, the owner is notified through public notification as with the regular planning process and can engage in that by setting out a contrary view. In such circumstances, the decision that the planning authority makes is made in full cognisance of the information from the owner. Likewise, where an owner or developer lodges an application, there is a public notification and interested third parties can be notified.

Essentially, the Minister is saying that in order to address the concerns of the Attorney General and the courts with respect to third-party declaration requests and the lack of involvement of the owner-developer, third parties should simply be excluded. However, that still will not deal with the core issue raised by the Minister, which is that when the owner-developer puts in their request, third parties are not included in the same way. Therefore, it seems to me that there is a real problem in the way this has been framed in the legislation. I think our amendments provide the solution. They provide the solution by allowing any person, as originally intended in the 1963 legislation, to make the request and by simply making sure, regardless of who puts in the request, that there is public notification and some opportunity to consider and participate. Then - this is where I agree with the Minister - the planning authority can make a reasoned decision. Why is that important? In a funny sense, a section 5 declaration is kind of like a planning permission. Am I right? For example, once it is provided for and subject to appeal at the board, that is the end of the matter. I know it is not the same as a planning permission and is a different process, but it needs to be addressed.

Also on enforcement, it is one of the challenges, because when we raised this with the Minister's officials during the course of PLS and in the private briefings they were saying if somebody is concerned a development is unauthorised they should put in planning enforcement. My experience of planning enforcement, based on having quite a level of involvement in a local authority I believe is a good local authority, is incredibly problematic. It is slow. It is cumbersome. It is resource-intensive for the local authority and very often pragmatic calls are made by the local authority not to pursue matters to court in a way that can leave residents living with the most appalling planning breaches. I do not just mean somebody being unhappy with an extension next door. I am thinking of examples in the Dublin Mountains in the hinterland where we have dispersed rural communities and people engage in illegal commercial activity. There is completely unauthorised development affecting small groups of residents in very significant ways and planning enforcement could be ongoing for years because the developers are especially adept at being able to break the rules. Likewise, I can think of a significant number of planning enforcement cases where a rogue landlord puts a shed, which is inadequate accommodation, in their back garden or that of a rental property and rents it out at a very high price to people who are desperate. If planning enforcement is pursued and the landlord evicts that tenant, the landlord can give it a couple of months and put another tenant in. This cat-and-mouse game can go on for years. This, therefore, is a really valuable part of the Planning and Development Act. There is a much better way of addressing the issue the Minister is raising. He is throwing the baby out with the bath water and I see no reason he should not rethink this.

To return to the Irish Planning Institute, the test of consultation is whether the Minister makes any substantive changes. The Irish Planning Institute has made it very clear it believes substantive changes are needed to this Bill, including in this section. It is not good enough for any of us to say we have met with, listened to or considered. If the Bill as it stands - and this section is one of the litmus tests for me - does not accommodate the genuine professional opinions of the professional body that represents planners in the local authority, semi-State and private sectors then the consultation is kind of meaningless. I really believe this is one aspect the Minister needs to rethink. He needs to consider our amendments and reverse what I agree with the planning institute is a very retrograde step in the context of planning changes. Significant litigation could result from the exclusion of third parties from a process that has in the main worked very well, notwithstanding some of the legal challenges the Minister has mentioned, for which there is a much better solution than what is being proposed.