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

For example, there was a recent section 5 declaration request to my local authority from a commercial property owner in an industrial estate to determine if a change of use was exempted development. It is interesting because if the owner of the development is going to proceed with the change of use it is obviously going to be financially very significant for them with regard to what they do with the building. The level of documentation they submitted to the local authority was quite significant. It was not detailed plans and it was not like a planning application, but there was a significant amount of documentation. The local authority published that on its website. There was no public notice, so unless you are like me and you are somebody who goes looking at your local authority's planning website you would not have noticed. The local authority then took its decision and provided the section 5 declaration. That, therefore, is happening in some local authorities already. The same goes, for example, for somebody considering an extension or some other works.

It is in the interests of the property owner or potential developer that there be some kind of process. Otherwise they risk spending a significant amount of money, whether it is a homeowner with an extension, or a commercial operator, and finding they are not exempt. The kind of process that I have outlined is one that is protective of the property owner or developer. Good property owners and developers are already doing this. By way of regulation, we should have to set out what some of that looks like. That would be easily done. The example I have given of South Dublin County Council outlines that.

There is a conflation. The Attorney General gives advice on what is legally problematic. The Attorney General does not say that this is the only policy solution to that problem. It is up to the expertise in the Department and the people the Minister consults with to say, from a policy point of view, how to fix that legal problem. The Attorney General has identified a first-party rights issue, that one is not notified when the section 5 declaration goes in and that is a problem. There is no disagreement. I put it to the Minister that it is not up to the Attorney General in the first instance to come up with the best policy solution. A policy solution has then to be run through the Attorney General's office. The Irish Planning Institute, IPI, has offered a much better and more sensible way of doing this which fixes the legal problem that we all accept but without excluding third parties from engaging in a process which, since the 1963 legislation, they were always allowed to do.

I invite the Minister to respond to the fact that while his proposal deals with first-party rights, it does not deal with third-party rights in any meaningful way as is the case, for example, in the exempted development declaration application. In my constituency, third parties, people who were materially impacted, were not notified. In the case in question the property owner had done everything in accordance with the rules and with planning regulations and got the exempted development declaration. However, that might not always be the case. There might be third-party observations that could be materially relevant to the decision of the planning authority. I was told recently about a true case. I will not name the local authorities for fear of embarrassing one or the other. A section 5 declaration request went in simultaneously to two local authorities because the development in question straddled the border of two local authorities. One exempted the development and the other did not. What that highlights is that if there was a process by which third parties were able to be involved, it might provide information and that would help the planning authorities to make a more rounded and correct decision. It seems the Minister is fixing one problem in a bad way and creating another problem which we are bringing to his attention clearly now, and he is ignoring the advice of planning professionals.

On that topic, it is completely acceptable for the Minister or indeed for officials to disagree with the views of professional bodies. We all disagree with the views of professional bodies all the time. That is completely reasonable. I am not challenging that. However, when not just one professional body but a number of them come to this committee and raise legitimate concerns about the process by which this legislation was produced, including that forum, they should be listened to. Heed should be taken of the significant concern that was raised with this committee over that process and the big difference that many organisations articulated here, on the record, between what was discussed at the planning advisory forum - one individual talked about it as being high level theoretical - and the legislation itself. Consultation processes can always be improved. I fully believe that the consultation process that was followed was designed in good faith. There was a good deal of engagement with us. However, when many professional bodies, people who will have to work daily with this legislation, whether they be planners, lawyers or others, are telling us that it did not work, rather than saying that is not accepted, we should respond that there may be something in that. Maybe we should listen. If they are now saying that further consultation is required between now and the passage of the Bill, the Minister needs to listen to them. That is not to say that the Minister has to accept everything everybody says. We all disagree with expert and professional opinion and we are entitled to do that. I worry that, given the profundity of this Bill, that there is almost a dismissive attitude towards legitimate concerns that people have raised with process.

This is not either the only or the most important issue that the IPI raised with us. We will get on to planning policy statements and a range of other issues with some of the really profound changes in this Bill. We had robust exchanges with Minister of State, Deputy Kieran O'Donnell, yesterday. Hopefully, we will have some discussion with the Minister directly on those because that is one of the big innovations. Whether one agrees with it or not, it needs to be threshed out.

There are two questions. Does the Minister accept that while it is the role of the Attorney General to highlight legal problems, it is the policy process that comes up with those solutions? How would the Minister address the Aarhus Convention and public participation consequences of his proposal in section 10 for third parties who are going to be effectively completely excluded from the process?