Oireachtas Joint and Select Committees
Wednesday, 27 January 2016
Joint Oireachtas Committee on Environment, Culture and the Gaeltacht
Planning and Development (Amendment) Regulations 2016: Motion
I welcome the Minister of State at the Department of the Environment, Community and Local Government with special responsibility for housing, planning and co-ordination of the Construction 2020 strategy, Deputy Coffey, and his officials to this meeting. I now call on him to make his opening statement on the referral motion on regulations before members.
First, I thank the Cathaoirleach and the committee for facilitating what is an important discussion on and consideration of this business. As the title suggests, these draft regulations relate to provisions concerning development that is exempt from the requirement to obtain planning permission. Under section 262(4) of the Planning and Development Act 2000, as amended, each House of the Oireachtas is required to approve draft regulations relating to exempted development by way of positive resolution before they can be made by the Minister. The draft amending regulations make changes to the exempted development provisions set out in the Planning and Development Regulations 2001 to 2015, which are the principal regulations. These changes relate primarily to the provision of a number of exemptions for development undertaken by Irish Water in the provision of essential water services. The amendments also provide for the clarification of limitations or conditions on certain existing exemptions relating to electricity service transmission and grid connections, the removal of exemptions for portable waste disposal compactors, the insertion and amendment of some definitions, together with a number of minor technical amendments to the principal regulations generally. In this context, my Department is continually engaged in reviewing and considering ways of streamlining the planning framework and, in the context of the exempted development regulations, whether it is appropriate to exempt further development from the requirement to obtain planning permission.
The primary basis for exempted development is section 4(2) of the 2000 Act, which permits development to be exempted which, by reason of its size, nature or limited effect would not offend against the principles of proper planning and sustainable development. As already indicated, the main focus of the draft regulations is to provide for exemptions for certain development works undertaken by Irish Water. In this connection, the draft regulations insert a new class of exemptions, class 58, in Part 1 of Schedule 2 to the principal regulations for certain works undertaken by Irish Water. These exemptions will permit Irish Water to undertake works relating to normal day-to-day activities without the need to obtain planning permission from the relevant planning authority. Previously, the provision of water services and related works was undertaken by the local authorities with broad exemptions under which they could operate. As Irish Water now has taken over the water services functions of local authorities and cannot avail of these exemptions available to local authorities, it is now appropriate that Irish Water should have similar exemptions to those previously given to the local authorities, as well as those given to other statutory utility providers involved in the provision of electricity, gas and telecommunications services.
The proposed exemptions for Irish Water in the draft regulations include works relating to the maintenance and repair of existing water services, pipes and water mains and associated apparatus, the installation of new pipes and associated apparatus, such as kiosks and service connections with certain restrictions, the provision of below-ground pumping or booster stations and holding tanks with restrictions. The exemptions also include the provision of telemetry and telecommunications apparatus on water service sites with restrictions, the provision of structures on water service sites for sampling and testing of water with restrictions, the carrying out of remedial works in compliance with a licence issued by the Environmental Protection Agency, EPA, under the Wastewater Discharge (Authorisation) Regulations of 2007, the maintenance, repair or upgrading of water structures on a water services site with restrictions, the installation of plant or equipment on a water services site, as necessary, to avert risk to public health or critical failure of infrastructure, the carrying out of emergency works to ensure the continued supply of essential water services for households and businesses, the provision of fences and gates etc. on water services sites with restrictions, as well as the undertaking of test drilling for public water supplies. Allied to these amendments is the insertion of a technical definition of the term "accessories", which is referred to in the exemptions with regard to pipes, water mains and such apparatus, and as provided for in section 2 of the Water Services Act 2007.
I point out in particular that these draft regulations do not provide blanket exemptions for development works by Irish Water. The proposed exemptions are subject to both general and specific restrictions and any works proposed by Irish Water that are not specifically exempted will require full planning permission. In addition, Article 9 of the principal regulations provides for a range of restrictions on exemptions generally. For example, it provides that development listed in Schedule 2, which relates to exempted development, shall not be exempted development if it would contravene an objective of a development plan or a local area plan or such draft plans where such objectives may relate to the preservation or protection of the character of a landscape or a site of archaeological or historical interest. Restrictions also apply where development would endanger public safety or would obstruct a public right of way. Furthermore, any exemptions in the regulations are subject to compliance with any general restrictions on exemptions as set out in the Act. For example, section 4(4) of the Act provides that development shall not be exempted development if an environmental impact assessment, EIA, or an appropriate assessment, AA, of the development is required in accordance with relevant European Union directive requirements. In such scenarios, planning permission is required for any such proposed developments supported by the undertaking of an EIA or AA, or both, of the proposed development.
In effect, there is a comprehensive range of restrictions or limitations which can be applied to any exempted development works undertaken by Irish Water.
In the absence of Irish Water being given exemptions for the types of works proposed in these draft regulations, which I have already suggested could be generally regarded as routine day-to-day activities for example pipe repair or replacement to guarantee continuity of supply, it would have to apply for planning permission to undertake the necessary works, with associated delays leading to significant inconvenience for households and businesses in terms of the resumption of normal supply.
The regulations also propose the substitution of a revised definition of the term "protected person". This definition relates to recent exemptions given in the Planning and Development (Amendment) No. 4 Regulations 2015 to the change of use without the requirement of planning permission of certain premises such as hotels and hostels to provide accommodation or emergency reception and orientation centres for refugees and asylum seekers - protected persons.
As members are aware, Ireland is committed to accepting up to 4,000 people on resettlement or relocation into the country over the coming two years under the Government's refugee protection programme as the Irish contribution to the EU relocation programme for migrants. This amendment to the existing "protected person" definition is a technical amendment to remove the possibility of any confusion in the reading and interpretation of the regulations with reference to the Refugee Act 1996 and the subsidiary protection regulations 2013, thereby underpinning the refugee protection programme.
With regard to electricity services and grid connections, the draft regulations also propose the insertion of a new condition or limitation to the existing class 26 and class 27 in Schedule 2, Part 1 of the principal regulations. These classes currently provide exemptions for parties authorised to provide an electricity service to lay underground mains and cables, class 26, and to construct overhead transmission or distribution lines, conducting electricity not exceeding 20 kV, class 27.
The insertion of the proposed new condition to classes 26 and 27 will specifically restrict the application of these exemptions so that they will not apply to development which is for the purposes of connecting a project requiring an EIA or an AA to the national system for transmission of electricity, such as in the case of the connection of a wind farm development to the national electricity grid.
These changes will effectively provide, for example, that grid connections for wind farms requiring an EIA, an AA or both, will no longer be exempt from planning permission as they have up to now. They will now become de-exempted under these regulations. This will ensure that the grid connection element for EIA-scale proposed developments, such as wind energy development projects, should in the future be treated and assessed as part of the overall proposed wind farm development, in which case an EIA should be carried out for both the wind farm and the grid connection elements.
This approach is in line with the EU EIA directive requirements that the entirety of a proposed project should be assessed at planning permission stage and it further reflects a recent High Court judgment that found that connection to the national grid was an integral part of a wind farm development proposal and should, therefore, be assessed as part of an EIA for the entire project.
It is intended that my Department will issue guidance to planning authorities to provide greater clarity and advice on the assessment of applications for planning permission for such developments in order to ensure that such projects are assessed in their totality in line with the EIA directive requirements and also reflecting the High Court judgment in this regard. The draft regulations further propose to remove the existing exemption in class 42B regarding portable waste disposal compactors on business premises. Waste disposal compactors have a role to play in certain areas that have, for example, a transient population who are unlikely to sign up for a collection service - for example, an area with a large number of holiday homes or remote areas not served by kerbside waste collections.
However, there has been a significant increase in the use of such compactors in recent years, even in locations well served by kerbside collection services. In these areas, they are effectively in competition with kerbside collectors, thereby potentially undermining that service. Waste policy, as reflected in the regional waste management plans, recognises the importance and the primacy of kerbside collection in the management of waste. Consequently, it is proposed to remove the current exemption so that all proposed waste disposal compactors are subject to a requirement to obtain planning permission. This process will provide for such applications to be assessed in the context of national and regional waste policy to ensure that they play an appropriate role in the overall waste management infrastructure.
In addition, Articles 4 and 6 of the draft regulations make minor technical amendments to Article 193(2)(g) of the principal regulations and also to paragraph 16 of the directions for completing form No. 2, the planning application form, in Schedule 3 of the principal regulations, respectively. If the draft regulations are approved by positive resolution of both Houses of the Oireachtas they will come into force as soon as they are made by the Minister. I commend the draft regulations to the committee and I will endeavour to answer any questions members may have on their content.
Cuirim fáilte roimh an Aire Stáit inniu. These regulations are practical and, in the case of Irish Water, will allow that organisation to carry out its functions with more efficacy and clarity on the basis that it will enjoy the same exemptions enjoyed by the local authorities.
On the issue of local authorities' planning and development, and Irish Water, there are a number of estates that have not been taken in charge. In my constituency it has been stated that they are waiting to hear from Irish Water regarding the water services in estates. Since these estates have not been completed properly, they are on a list to be taken over. It now seems to have been pushed over and onto Irish Water, which is responsible for water services.
However, in cases where the bond has expired and there is no money to address any problems that are found in the wastewater or surface water drains, who will pay to bring these up to standard and allow the residents to have their estate taken into charge where they can ensure that lights, potholes and water services are properly attended to if they need repair or upgrading? They are in no man's land. There is a lacuna there whereby people are paying their property tax and everything else they are required to pay, including their water charges, and the local authority is passing this over to Irish Water even though it never ensured there was a bond or deposit in the first place.
Numerous people in these estates have asked me what will happen if it is found that the pipes under the ground have not been laid properly. The local authority has not made provision, as it ought to have when it granted the planning permission. Will Irish Water or the local authority pick up the tab? Who will be directed to sort this out for these people? There are many people in this situation.
I support Deputy Mulherin in that regard.
I have a question on the planning application for waste composters. Many local authorities now place composters in parks. Will the local authorities be exempt under Part 8 planning provisions? They do a very good job. I have seen where small bins in parks overflow. Where those are in use it takes ten times the volume on a weekend. These are badly needed, especially in urban areas.
On exemption from planning, usually the utilities get a licence for digging up roads or whatever from the local authority. It is a bugbear that none of the utilities co-ordinates with each other. One could dig up the road one week and another one do the same the following one. There should be co-ordination among utilities, including Irish Water.
----- so I presume he will not discriminate against me.
I will not dwell too much on the issue of unfinished estates, although I have brought it up. While I share the views of Deputy Michelle Mulherin, I am not as inclined to blame local authorities, as responsibility rests with the Department, as well as those who did not insist on bonds. They allowed builders to cash in their bonds or go away without finishing works. The issue needs to be tackled. We speak about homelessness and housing, yet there are many unfinished estates across the country. There are no lights or the lights have gone out and not been replaced. There are no water services and the roads are in an appalling state. This is something that needs to be addressed and we need to be more specific about it.
The other issue I wish to raise concerns the various groups and bodies which are exempt from participating in the planning process. That is fine, but I want to relate an experience with the ESB. Its staff come on to a farm to put up a power line and it will do what it likes. I know farmers who have been put out of business. On the wettest day of the year, its workers walk in - if they walked in, it would not be too bad, but they bring in heavy machinery - plough up the place, do untold damage to drainage infrastructure and put farmers out of business, not just for that year but a couple of years. The land is made useless. What safeguards are built into this legislation to protect people? If the Minister of State is prepared to give companies carte blancheand free rein to enter people's property, will he outline the protections available to them?
I note that Deputy Michelle Mulherin acknowledges the practicality of the regulations in the provision of vital services by Irish Water and other utilities. She has raised the issue of legacy estates that are either unfinished or have not been taken in charge. I can tell her that the Government initiated a scheme called the special resolution fund under which funding was provided for local authorities where they had identified estates that were unfinished or causing a hazard. The good news is that significant progress has been made on unfinished estates. I want to be clear and distinguish unfinished estates from estates that are almost finished and which just need to be taken in charge. Unfinished estates are estates that possibly were left vacant because builders went off site for one reason or another. The good news is that we have reduced the number of unfinished estates from approximately 3,000 nationwide to just over 600. We are down to the last few hundred, which will need to be looked at more closely by local authorities to draw up specific resolution plans to provide for their finalisation.
I acknowledge the point made about the taking in charge of estates. There was some confusion about roles and who was responsible for water services once responsibility transferred to Irish Water. My Department issued a detailed circular outlining a new protocol and procedures to be followed by both Irish Water and local authorities in the taking over of essential infrastructure, including water services. These are having an impact, as there is a clearer understanding and we expect more progress to be made. However, if the Deputy believes there is a specific local authority that does not understand the protocol, I assure her that we will look at it. We can also circulate a copy of the protocol to the committee for information purposes in order that it is fully informed. That should also prove helpful.
Deputy Noel Coonan referred to-----
I have asked the question already. I have encountered several cases in which Mayo County Council has not taken an estate in charge. If CCTV is used and problems are found with water pipes or surface water drains and there is no money available, either by way of a bond or a deposit, who will foot the bill to finalise the estate in order that it can be taken in charge?
I acknowledge that pertinent point, but I caution that we need to ensure the taxpayer is not taking on liabilities where there is an accountable person or builder to be pursued in the first instance. Local authorities have a responsibility to pursue the builder or persons responsible for an estate and have a number of measures and powers available to them. Deputy Noel Coonan mentioned the bonds and legislative powers available to them to pursue the people concerned. If all of this has taken place and there is still no one to hold to account and there are issues in taking an estate in charge in terms of water services, I can report that the Department and the Minister are examining the possibility of taking a new national initiative similar to the special resolution fund to provide limited funds for the purpose of the taking in charge of estates where there is no alternative or other resolution. This is being actively considered, but I caution that it would only apply as a last resort and where a local authority had pursued the responsible person or authority fully and, ultimately, there was nothing available to finish the estate. I wish to make it clear that this is another legacy of the boom-bust cycle and that there have been consequences for people living on such estates. The taxpayer is being required to clean up the mess. It is something that is being actively considered.
I hope the replies given are sufficient on the taking in charge of estates. The Deputy is right that local authorities have a responsibility and are accountable to the elected councillors. The Department will also monitor them.
Deputy Noel Coonan raised the issue of exemptions for utilities and mentioned, in particular, the ESB and the powers available to it. It has had them since 1926. Look at it in the round or at the bigger picture, it has had an excellent relationship with landowners and farmers, especially given the amount of development, including significant economic development, we have seen during the years. However, I acknowledge that there may be cases, as outlined by the Deputy, in which specific issues have arisen.
If it is, I urge the Deputy to take up the matter with ESB management. I know for a fact that, if there are particular problems, it does engage with customers and landowners. I know of cases in which land was destroyed and compensation paid, but that is essentially a matter for the ESB and the landowner involved. On exempted development, there are no specific legislative powers available.
Senator Cáit Keane referred to waste compactors. Local authorities can use their powers under Part 8 if they wish to locate compactors in specific areas. However, as mentioned in my opening statement, kerbside collection is preferred by constituents and consumers. However, the other option is available to local authorities under the Part 8 process.
On road opening licences, the same obligations apply to Irish Water under the regulations as apply to all other utilities and how local authorities manage them. This is another matter for the local authority.
The Minister of State states this is a practical measure intended simply to transfer exemptions enjoyed by local authorities to Irish Water. I put it to him that it points to the folly and impracticality of separating responsibility for water services provision from the local authorities. Notwithstanding his promises that Irish Water will not be privatised, as it stands, it is reported that 25 private companies, some of them multinational companies, are carrying out various works, maintenance and other operations for Irish Water.
How is it practical to move from having a single port of call - the local authority - for people who may be affected by works being carried out on water infrastructure to having no clear lines of accountability or contact? People will not know if they should contact the local authority, Irish Water or one of its private contractors. They are not removed from proper lines of accountability or contact when it comes to issues that arise when works are being carried out on water infrastructure.
Essentially, the regulations are required because Irish Water is a utility no different from other utilities that have been operating in the State for many decades. Deputy Boyd Barrett said the measure is impractical. I presume the case he is making relates to the subcontractors Irish Water uses. The ESB, for example, undertook a national network renewal programme over the past two decades and used many subcontractors but, ultimately, the ESB was accountable. In the same way, Irish Water is accountable for any works subcontractors may carry out. Essentially, what is involved is installing new pipework, fixing burst mains, installing water valves, installing conservation apparatus and whatever is required to enhance or improve the essential water network in this country. We wish to give the same exemptions to Irish Water as we do to other utilities so that it can access the network to carry out the investment and work that is so badly required.
Deputy Boyd Barrett said it is impractical. Does he think a system that allows leakage of 50% of treated water into the ground has worked well? I, for one, do not agree. Already, Irish Water, through the investment and work it is carrying out in terms of water conservation and quality and water treatment systems, has made a huge improvement in a very short time. The facts are on the record.
The regulator has an oversight role of Irish Water and there is an appeals mechanism to the regulator if a complaint has gone through the Irish Water complaints system. I assure Deputy Boyd Barrett that there is nothing cynical behind the measure. It is purely to allow Irish Water to do the work it was established to do, namely, to enhance and improve the water network in this country.
The proof of the pudding will be in the eating. I think the pudding might not taste good but we will see. We all want clean water so that is a red herring of an argument; it is just that we differ on how to deliver it.
In terms of the priority to deliver new council housing and social housing, one obstacle to that is the servicing of land and the provision of the necessary water infrastructure. Will that area be further complicated by all of this, because we now have two entities, if one likes, who will have to co-ordinate. Irish Water’s capital investment budget might limit its capacity to put in water infrastructure.
It is not mine. Irish Water’s capital budget and capital plan might be limited and Irish Water might not work in a co-ordinated way with the plans of local authorities to deliver social housing. That adds a further complication in terms of providing the infrastructure we need to deliver the social housing that is an urgent priority.
Deputy Boyd Barrett raised a valid point but I refer him to local area development plans, county and city development plans, regional development plans and national development plans because that is where the strategic approach to proposed development is outlined. The Deputy will agree that it was often the case in the past that we had development where services did not exist and, possibly, where developments should not have taken place. We will depend on focused and appropriate development plans being adopted by city and county councils which take account of national and strategic decisions in terms of infrastructure.
At present, we are developing a new national planning framework which will inform where much major infrastructure will be provided in terms of capacity and services. Local and regional development plans should follow that lead because if they deviate from it or are not aligned with the strategy then similar problems will arise to what we had in the past. Irish Water will have to prioritise where it invests and it will prioritise where demand is highest. It is a matter of local authorities liaising with regional authorities and all utilities and services, not just water.
Every development plan whether it is local, regional or national has a consultation phase where there is an invitation and commitment to deep engagement by all utilities in the making of the plans. All Irish Water capital investments must be consistent with county and city development plans. Alignment is key. It is important that there is engagement between utilities locally and nationally and local authorities with national strategic plans in terms of infrastructure. That is how services will be provided where demand is highest.
Under the planning Act from 2001 or 2002, if rogue developers did not finish an estate and a bond was not provided a facility was in place to ensure the developer would not be considered for planning permission again. Is there a list of what one would call rogue developers? If a developer does not finish an estate properly the council can take it in charge and put such developers on a blacklist. I accept we need developers but they must do the work properly.
With regard to the investment that must be made, it is correct that it is done in a way that is strategic, but one of the problems is that some very large developers are sitting on land that is zoned and that gives rise to difficulties when an investment is made and where there is capacity in the treatment plants, in particular in the capital, or where there is available water. If such development is not taken up, is there any sanction?
The point made by Senator Keane is something I included in planning legislation that was not opposed, but as happens when a proposal is made from the Opposition benches, there was, unfortunately, no further progress with the Bill. I fully concur with her point.
Both Senator Keane and Deputy Catherine Murphy are correct in that there is an element in the Act concerning what Senator Keane called rogue developers, those who are irresponsible and do not complete developments. However, it has been found to be very difficult to enforce that aspect of the legislation. Currently, the Department is looking at Committee Stage amendments to the planning and development Bill 2016 to see how we can hold to account people that are not responsible in terms of finishing estates and preventing them from getting sanction for future planning applications. That is currently being examined and we expect the Bill to go through the Oireachtas in the next few months. I accept there will possibly be changes in the meantime but the Committee Stage amendments to the Bill are currently being framed.
In reply to Deputy Murphy’s comment on developers sitting on zoned lands, is she referring to zoned land that is prioritised for infrastructure and then is not developed?
If there is no infrastructural impediment to developing the land and the developer is sitting on it while waiting for the value to increase, essentially there is a double cost in terms of the provision of infrastructure in that it must be provided elsewhere while there is existing capacity.
There was some consideration in the No. 1 planning Bill which we brought through before Christmas but there are concerns regarding property rights on zoned land to the effect that one could be open to a legal challenge if one impedes on property rights. We did address it to some degree with the introduction of the vacant site levy whereby if land is identified in a local authority where there is a high demand for housing or other economic need then a vacant site levy can apply to the property in order to stimulate activity.
I accept Deputy Catherine Murphy’s point about zoned lands. Local authorities have the power to dezone lands if they are not being utilised. It is a long process but it is a power local authorities have if they have strategic sites that are not being developed. If developers are not developing sites there is also an opportunity to put a vacant site levy on them. As the economy improves the number of houses being built is increasing year-on-year.
That is badly needed and we expect it will continue in the coming year. As demand rises and the economy recovers we expect to see that improve. We are considering a "use it or lose it" type of clause in planning legislation whereby a developer who does not use zoned land after a certain period could lose the zoning automatically. We have to be very cautious about how we frame that, not to impede anybody’s property rights but we are very conscious of it.