Oireachtas Joint and Select Committees
Tuesday, 13 December 2016
Select Committee on Housing, Planning, Community and Local Government
Planning and Development (Housing) and Residential Tenancies Bill 2016: Committee Stage (Resumed)
I move amendment No. 10:
In page 7, to delete lines 15 to 17 and substitute the following:"(iii) be so made only where the applicant for permission has fulfilled the requirements set out in section 8,
(iv) be in such form and contain such information as is prescribed, and
(v) be accompanied by the appropriate fee,".
This amendment provides for payment to the board of a fee for a strategic housing application as part of the making of the actual application to the board under section 4 of the Bill. There already exists a provision under section 144(1A)(b) of the Planning and Development Act 2000, as amended, for the board to determine fees for an application for any strategic infrastructure development, and this amendment extends that provision to strategic housing development applications. Of course, it should be remembered this is not a money-making exercise on behalf of An Bord Pleanála, rather it is a concerted effort to ameliorate the current housing emergency throughout the country. Therefore, any fees charges under this provision will be subject, as is currently the case, to ministerial approval, and in this context I would expect the fees charges by the board to be commensurate with the work undertaken in progressing applications strategic housing developments.
Amendments Nos. 11 and 12 are similar to amendments previously tabled in the Seanad. These amendments effectively propose that a developer who has not commenced building on foot of a planning permission for more than 100 housing units on one site, be it in the same local authority area or in an adjoining local authority area, should be prevented from seeking planning permission for a strategic housing development on another site. As we indicated in the Seanad deliberations, there may be a number of valid reasons and circumstances why a developer may not have commenced work on a housing scheme for which planning permission has previously been granted. Such reasons could include poor market conditions, changing demand for housing in the area concerned, changed demand for particular house types or delays in the provision of infrastructure. It is also often the case that large-scale developers will have a number of projects in the pipeline at various stages of development. In addition, a developer may have a number of projects for which planning permission has been secured but that may be scheduled for development at sequential times. In effect, the planning system should be sufficiently flexible to take account of these different types of scenarios while still ensuring that necessary large-scale housing developments can be brought forward in the right locations where people most urgently need them having regard to market conditions.
In this regard, following the Seanad discussions I tabled an amendment which is now incorporated in the latest text, which provides that an extension of duration of permission in respect of strategic housing developments will only be possible where substantial works on a development have been carried out during the original planning permission period. This type of approach is much more effective in my view and will have the positive effect of incentivising developers to act on planning permissions and not to sit on, and hoard, the sites in question. This approach provides a better overall balance, contrary to the approach in these particular amendments which, as I have indicated, are aimed at preventing planning applications from being made in the first instance. Consequently, for all of these reasons, I must oppose amendments Nos. 11 and 12.
With regard to amendment No. 10, an issue raised in the Seanad was the loss of revenue to local authorities from the loss of the fees. Is there a plan in the regulations for local authorities to be compensated from the overall fees?
Some of the fees will be portioned out. They will get their fair share. It will be in the regulations. In case there is any doubt, because there is some confusion about the levies, they automatically belong to the local authorities.
With regard to amendments Nos. 11 and 12, if I am a developer and I have a live planning approval in my local authority area or an adjoining area for 100 units, I do not see how any of the justifications the Minister of State has given would warrant me wanting a separate planning application to be fast tracked. Poor market conditions would affect my existing planning permission as it would new one. If there is a change in the type of units required, an amendment can be made to an existing application, which would be quicker than a strategic planning application. I find it hard to understand why, if the purpose of this is to assist developers to get planning applications more quickly than the current 88 week process, if someone has a planning application of that size in that local authority area would we even entertain them while they were not actually actively building. I cannot understand the opposition to these amendments.
Amendments Nos. 13 to 15, inclusive, relate to the review that would be conducted from 2019. With these amendments what we are trying to ensure that not only would the Minister have to lay before the Dáil a review report, but there would be some level of public consultation on the outcome of the review, there would be full disclosure of all of the documentation in this regard and, before any of this could be extended, there would have to be a decision of both Houses of the Oireachtas. The amendments would have no material impact on the stated intention of the Bill, which is to fast-track large planning applications between now and 2019. I am quite hopeful the Minister of State will be willing to accept amendments Nos. 13 to 15, inclusive, as they stand, or consider looking at them to bring them back on Report Stage.
It is about introducing greater public involvement in that review process and greater involvement of the Oireachtas in any decision to renew this set of proposals if such a thing arises.
In respect of a site not being used, there are different reasons why a site might be brought forward. In some cases, it is their own choice but in others, a site could be impeded by infrastructure and frozen out. Members are suggesting here that even a second site could be frozen out outside of the fast-track system. What we are trying to do here is to encourage people to bring forward sites and activate them. The Deputy's amendment could do the opposite and prevent somebody from coming in. I understand what he is trying to do but there are different reasons why sites might not be activated, some of which I outlined. The key reason is probably infrastructure because that might be outside the control of the person in question.
It would sort out some of it. There is a process to pick the sites and, hopefully, there will be a good return of housing on those sites as well.
Matters relating to amendments Nos. 13 and 15 were discussed in the Seanad. There was already much discussion on these extension provisions in the Seanad deliberations which resulted in the insertion of an explicit review mechanism before any extension period could be activated. However, I would add that it was inherent in the provisions in the Bill as originally published that coming to the end of the initial three-year period, the operation of the fast-track procedures would be reviewed. We always had that intention but we have strengthened that.
The three amendments tabled propose that any review of the provisions shall include a four-week public consultation phase, shall require the inclusion of a summary of the public consultation in the report laid by the Minister of the day before both Houses of the Oireachtas, and that before an order can be signed by the Minister extending the provisions beyond the end of 2019, the order must be approved by both Houses of the Oireachtas but not before a further public consultation exercise is conducted, this time on the report provided by the Minister. It is a double whammy and is too long. I made it very clear in the Seanad, and I am conscious that members were not there, so I will say again that through the action plan for housing and the various actions, the Department is constantly reviewing and engaging with stakeholders. I said previously that Departments carry out reviews quite well. This is what we will do and it will be discussed in this committee, the Dáil and the Seanad. It is not a case of trying to hide any success or failure of the scheme. It is an open book so we think it is an unnecessary amendment. Having been through the other action plan process, I can say that the committee has a major role in the scrutiny of all the actions. That will serve the purpose of the action plan for housing quite well. The Department and I do not think we need to table this amendment and I hope the committee understands why.
The only person being discriminated against is somebody who already has a permission in that area. That person may be unable to proceed for good infrastructural reasons. Perhaps the road promised by the local authority has not been delivered, the water or electricity supply cannot come through that area or for whatever reason, they could not work so it would be discriminatory to act against somebody who may have a valid reason. I think the amendment should be withdrawn. It does not make sense to me.
I move amendment No. 11:
In page 7, between lines 21 and 22, to insert the following:"(2) An application for a strategic housing development under this section, other than for the alteration of an existing planning permission granted under section 34 of the Act of 2000, may not be made by a prospective applicant who holds a planning permission for over 100 housing units in the same local authority area or in an adjoining local authority area for which a commencement notice has not been submitted to the relevant planning authority.".
I move amendment No. 12:
In page 7, between lines 21 and 22, to insert the following:"(2) An application for a strategic housing development under this section, other than for the alteration of an existing planning permission granted under section 34 of the Act of 2000, may not be made by a prospective applicant who holds a planning permission for over 100 housing units in the same local authority area for which a commencement notice has not been submitted to the relevant planning authority.".
I move amendment No. 15:
In page 7, between lines 29 and 30, to insert the following:"(ii) no such order shall be made by the Minister unless it is approved by both houses of the Oireachtas, and following a further period of review and public consultation on the report provided by the Minister,".
I move amendment No. 17:
In page 8, line 8, to delete "as amended." and substitute the following:"as amended and also further to the following additional requirements:
(a) a new screening for Environmental Impact Assessment in accordance with section 176B of the Act of 2000, in relation to the class of development under reconsideration, and/or any element of the development either individually or
(b) the screening for appropriate assessment in relation to the class of development under re-consideration, and/or any element of the development individually or collectively;
(c) the preparation and submission of an environmental impact statement and natura impact statement as appropriate, or where an environmental impact assessment and/or appropriate assessment was required to be undertaken as part of the
original consent – the preparation and submission of an associated updated environmental impact statement and natura impact statement as appropriate;
(d) publication of a notice in respect of any such extension conforming to normal site notification requirements specified under the relevant parts of the Act of 2000 as if the development was seeking permission in the first instance, but clearly
indicating the current proposal is to seek an extension to the duration of the original permission;
(e) facilitation of a public participation in the environmental decision making associated with the extension of duration of the original permission in accordance with the provisions of the Act of 2000 as if the development was seeking
permission for the first time;
(f) stipulation that any observations made in respect of the extension of duration shall not require the payment of any fee;
(g) a full reconsideration of the application in accordance with the Act of 2000, as if the decision was to be made in the first instance, but with the benefit and consideration of—(i) the changed environmental circumstances,(h) notification that any decision relating to the extension by the planning authority can be appealed to An Bord Pleanála, as if the decision had been made on the development for the first time under section 34 or Part X of the Act of 2000, and
(ii) other developments,
(iii) the objectives and policies of the current County Development Plan, and
(iv) any other considerations relevant to the proper planning and sustainable development of the area, and compliance with wider environmental obligations;
that the decisions on screenings can be referred to the Board under section 176C of the Act of 2000, together with stipulation of the timeframes involved for any such appeal or referral, and where practical information on the process and fees involved can be found in order to recognise—(i) the changed environmental context now pertaining,
(ii) public participation obligations arising from the Aarhus Convention and normal standards of consultation provided for in the Act of 2000 in the planning process for new applications.".".
I have a series of amendments throughout this section. I will not go into a detailed explanation of each of them. What I am essentially trying to introduce are greater levels of public involvement in the decision-making process at an earlier stage. That is what this rather lengthy amendment would do. The argument, which relates to amendment No. 1 and the introduction of the Aarhus Convention into the definitions at the start of the Bill, is that we have legal obligations to give interested parties, including environmental NGOs and citizens, fair, early and meaningful access to the deliberative process. That is what this amendment is trying to do.
It is a rowing back of an entitlement by virtue of the fact that there is a single process rather than a dual process in respect of the planning authority and An Bord Pleanála. There is every chance that there could be a process to challenge this by virtue of the fact that it rows back on something to which we signed up. The Aarhus Convention includes the planning process. The planning process has been altered from the public's perspective. I support this amendment or group of amendments. Is the Chairman taking the group of amendments together? The list mentions amendments Nos. 16, 17, 114, 118 and 127, inclusive. Is that the way it is proceeding?
This additionally is exclusive to 100 houses and over. Is it the hundredth house that brings it all into play or does plenty of legislation already deal with all of these issues? Would it be a significant expense?
I presume it has to be an area that is zoned for housing and would have to meet additionally requirements in that zoning.
The Aarhus Convention does not have direct application in Ireland. Rather, it is implemented at EU level by a number of EU directives, namely, the Directive 2003/35/EC which deals with public participation and access to justice in certain environmental matters and Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment and commonly referred to as the environmental impact assessment EIA directive. These directives have been transposed into Irish legislation and are fully reflected in the planning code. The requirements and principles of the above mentioned EU directives are already fully reflected in the planning code. It is fair to say that is not going to change with this Bill going through.
Amendments Nos. 17, 114, 115, 121, 125, 126 and 127 from Deputy Ó Broin propose to amend sections 4 and 22 to provide that an application for an extension of duration of a planning permission will be treated as a new application for permission, involving environmental impact assessment and appropriate assessment in particular cases, full public participation, a right of refusal even where all statutory requirements are met, appeal to the board and extensive revision of existing conditions and the addition of new conditions. I oppose these amendments as they would completely negate the purpose of extensions of duration, which is to allow extra time for existing permissions, the building out of which has been prevented or slowed down by unforeseen circumstances, to be carried out or completed in accordance with the terms of the original permission. The Deputy's proposal could create a situation where a site with planning permission granted for 200 houses, and with substantial movement on the site with maybe 150 houses completed, may need to go back through all of this process for the last 50 houses. It seems a little unnecessary when we are trying to bring the supply of housing up and to finish it out. We have taken amendments already and there has to be substantial work on the site and major progress. If these amendments were accepted that is what could happen and the development would need to go through all the process with the associated delays. We believe it is excessive with regard to that aspect also.
Similarly, I oppose amendment No. 118 from Deputy Murphy, which on the face of it appears to apply to all types of development and not just housing development. Planning permissions for development do not specify the phases in which development must be carried out and do not provide that the authority will take each phase in charge according as it is completed. I do not believe that requirements of this nature, proposed in this amendment, are reasonable conditions to attach to extensions of duration of permissions. The proposed requirement that all work is completed within five years would appear to preclude a developer who does not finish the approved work within the extended period from applying for a new planning permission to complete the development..
The amendment also proposes that the term of any bond or security that is conditioned under the original permission would be extended as part of the extension of duration of the permission. The terms of any such bond or security are set out in agreements negotiated between developers and financial institutions without any direct involvement by planning authorities and I do not think any statutory provision can automatically change the terms of such agreements. There are, however, a number of Government amendments in this grouping I propose to move, a number of which are of a technical drafting nature. These are amendments Nos. 119, 120, 123 and 124. Amendment No. 119 is in essence a technical amendment, correcting a reference in the Bill. Subsection (4) of section 42 of the Planning and Development Act 2000, as amended, currently provides that a decision to extend the appropriate period of a planning permission shall be made once and once only under this section. As subsection (1A) now proposed to be inserted into section 42 provides for a second extension of the appropriate period of a planning permission for a certain class of development, the “notwithstanding” provision of subsection (1A) must apply to subsection (4) of section 42, as well as subsection (1) of that section.
I did not refer to amendment No. 118. It was not clear that this was being taken here, but the Minister of State has responded to it. My intention with the amendment was around the provisions of Section 180 of the Planning and Development Act 2000 which covers the taking in charge of housing estates. It says that where the local authority has not taken an estate in charge seven years after the planning permission has expired, the residents of the housing estate can petition to have the estate taken in charge. That is a five year planning permission and a seven year duration after. That is 12 years. With the proposed extension of duration another seven years is added to that 12 years and the possibility of a further extension in certain circumstances. The problem is that I can point the Minister of State to a small number of locations where people are living on a permanent building site. The purpose of my amendment is to provide for a requirement for the developer to at least phase the development and have it taken in charge. I know a place where the development is 15 years old and it does not even have street lights. That is totally unfair. It is an effort to look at it from the point of view of the people who are living in this area and existing on the site. It is the developer's site and it is far too long to permit a situation where the people cannot even petition to have the estate taken in charge.
That is fair enough. With regard to Deputy Catherine Murphy's comment, there is provision currently in section 180 of the Planning and Development Act to allow for estates to be taken in charge, section by section. We are going to try to strengthen that. The other Bill is currently going through Committee Stage and there would be an opportunity for Deputy Murphy to table her amendment in that Bill as it might be better suited to streamline the provisions around that section 118. If the Deputy is prepared to wait we could have a discussion about it at that stage.
Yes. I did not finish speaking on the amendments, as I wanted to address Deputy Ó Broin's amendment. However, there are a few more technical amendments we should address and I can run through them briefly. I refer to amendments Nos. 119, 120, 123 and 124.
Amendment No. 119 is in essence a technical amendment correcting a reference in the new Bill.
I move amendment No. 22:
In page 8, between lines 23 and 24, to insert the following:“(3) (a) Any such application for consultation to the Planning Authority shall include in written and electronic format all the information which is required to be provided to the Board under subsection (4) and in the formats stipulated therein.
(b) The Minister may make regulations under this part to further specify requirements in respect of this initial consultation with the planning authority, including requirements in relation to—(i) additional documentation and studies required,(c) The planning authority shall ensure the public is effectively notified and consulted also in respect of this application, and shall make available for inspection, including the making available over the internet of electronic copies of all the particulars submitted to it, and shall take due account of any observations made on the application in any comments or subsequent submissions it makes in respect of the development to the Board under section 6 of this Chapter.”.
(ii) the fees involved for such consultation,
(iii) additional procedural requirements for the consultation provisions for the extending of the time-periods stipulated for the consultation.
I will speak on the grouping. These are a series of very straightforward amendments, which are about ensuring that information is provided in both written and electronic form at various stages of the process. I will not go through each one individually as they are self-explanatory.
Section 5 of the Bill provides that a developer shall - before submitting a planning application in respect of a strategic housing development to the board – make a request to the board to enter into pre-application consultations in respect of a proposed development. It further provides that before making a request to the board to enter into pre-application consultations in relation to a proposed development, the developer shall have held initial consultations with the relevant local authority regarding the proposed development in accordance with section 247 of the Planning and Development Act.
Amendment No. 22 in the name of Deputy Ó Broin would have the effect of requiring a developer to submit specified detailed documentation to a planning authority when seeking an initial consultation on a proposed development when the plans for the development may only be at an early stage. The amendment would also require the planning authority to notify the public of the proposed development and to make the documentation submitted with the request for an initial consultation available for inspection on the Internet. The amendment further proposes that the Minister may make regulations on further specifying the requirements to be met regarding such initial consultations.
As I have indicated, the primary purpose of the initial consultation meeting between the developer and the planning authority is to assist and advise the developer with regard to the further development of his or her proposals when they are an early stage. It is only when the developer has further progressed his or her plans for a proposed housing development on foot of the initial consultation with the planning authority that he or she will be in a position to submit the detailed documentation required for the purpose of the pre-application consultations with the board. In effect, the requirements that would be imposed by amendment No. 22 go beyond the intention of the initial consultations between a developer and the local planning authority and consequently I must oppose it.
Amendment No. 24 is in the name of Deputy Ó Broin. Section 5(4) of the Bill outlines the documentation that a developer must submit to the board when making a request for a pre-application consultation on a proposed development – the name and address of applicant, a site location map, a brief description of the nature and purpose of the development, a draft layout plan of the proposal including house types, density, vehicular access etc., as well as details of the initial consultations on the proposed development with the local planning authority. Deputy Ó Broin’s amendment proposes to require the submission of additional detailed documentation to the board with a request for pre-application consultations on a proposed development, that is, details on the availability of public transport to service the proposed development, as well as details on a range of other infrastructure and services including crèches, hospitals, shopping and other services to support the development.
In this regard, a developer - at the stage when devising his or her proposals for a proposed development - will not have details of many of the services to support the development when it is eventually completed. Some of these services - for instance bus transport services, crèches, shopping etc. - may only start to be planned simultaneously to the granting of permission for, and construction of, a development. It is considered premature and overly prescriptive to require details of many of the services to support a proposed development as are outlined in amendment No. 24 and accordingly I must oppose it on grounds of practicality. However I am open to certain aspects of the amendment, specifically the introduction of some requirement for the consideration of public transport provision in the decision-making process on applications for strategic housing developments. The provision of public transport, particularly rail links, at the early stages of the Adamstown strategic development zone was particularly successful and I would like to see more of this forward planning in respect of the provision of public transport links in the future.
Again, the local authorities will raise it at their planning discussions with An Bord Pleanála as well.
Accordingly, we will give a commitment to Deputy Ó Broin that this matter will be further examined by my officials and if we are unable to bring forward an amendment in this regard in the current Bill due to the time constraints, we will make every effort to include provision along these lines in the other planning Bill before the Oireachtas at present. The Government agrees with some, but not all of what the Deputy has proposed, if that is all right in terms of process.
The aforementioned other planning Bill, namely, the Planning and Development (Amendment) Bill 2016 contains enabling provision for the introduction of arrangements relating to e-planning or electronic planning, the online submission of planning applications and appeals.
The wording of the provisions that are the subject of amendments Nos.25 to 28, inclusive, as tabled by Deputy Ó Broin have been framed in this context. Once the Planning and Development (Amendment) Bill 2016 is enacted - which we hope will happen in early 2017 - the detailed provisions concerning all matters relating to the submission of electronic copies of documents to planning authorities , including An Bord Pleanála, will be provided for in regulations made under that Act.
Accordingly, we must oppose amendments Nos. 25 to 28, inclusive, as they are premature. The substance of the amendments will in any event be addressed and clarified in regulations to be made subsequently to the other planning Bill which is now on Second Stage in the Dáil. We will consult the Deputy to ensure he is satisfied with the proposed wording.
I am also opposing Amendment No. 32as the additional wording proposed to be inserted in Section 5(7)(h) making specific reference to protected species is already broadly covered by the existing provisions referring to “any aspect of the proposed development likely to have significant effects on the environment” and therefore it is an unnecessary amendment.
At this stage I wish to discuss Government amendments Nos. 29 to 31, inclusive. These amendments relate to the provisions of section 5 of the Bill, which set out the requirements for a prospective applicant for a strategic housing development to undertake in consulting with An Bord Pleanála to ensure that as complete an application as possible can be submitted to the board.
Section 5(7) of the Bill provides for regulations to be made which would set out matters to be included in a submission to the board by a prospective applicant for a consultation. Amendment No. 29 is required because all the matters listed in section 5(7) of the Bill as ones that may be the subject of regulations under legislation relate to housing developments and there is no reference to student accommodation, which is also defined under section 3 of the Bill to come within the definition of “strategic housing development”.
Similarly amendment No. 30 is required because not all of the housing-related aspects of matters referred to in paragraph (b) of section 5(7) may be relevant in all cases to student accommodation, for example, play facilities and parking provision.
Amendment No. 31 is required because Part V of the Planning and Development Act 2000, which relates to housing supply, does not relate to the provision of student accommodation units and in this context, the insertion of “where relevant” clarifies the proposed position in respect of student accommodation units.
My understanding of our obligations in both Houses and other related legal obligations is that we need to provide people with opportunities as early as possible to be involved in the planning process. One of the difficulties with this Bill is because of the nature of the changes, it reduces their involvement. It is disappointing that the Minister of State was not open to embracing the spirit of amendment No. 22, if not exactly the wording of it.
What is really crucial is that we all know from our constituencies, especially those who represent people in large housing estates that would have been built during the boom, is that very significant private sector developments do not have adequate infrastructure because the mentality at that time was to build the units and the infrastructure would come afterwards.
It is welcome that the Minister of State is willing to consider the spirit of amendment No. 24 to see if there is a way of returning to it. However, if he does not table an amendment on Report Stage - I realise time is short and that the officials are already under significant strain - I may come back with an alternative wording as this is a very important issue.
I agree with the principle of what Deputy Eoin Ó Broin is trying to do. As I said, the local authorities will raise the issue in their conversations with An Bord Pleanála. To get it right, it might be better to leave it until the next planning Bill, the Planning and Development (Amendment) Bill 2016, is introduced. We are in agreement with the logic of the amendment. It would work well with the designation of strategic development zones and local area plans. We have stressed to the proposers of planning applications that they deal with all issues before coming to An Bord Pleanála in order to enhance the chances of a good outcome. This new procedure does not guarantee that they will receive a "yes" to their planning applications; it only guarantees a timeline.
On notifying the public earlier, I agree with the spirit of what the Deputy is trying to do, but it would not be practical because this is in the very early stages of a conversation and a developer might choose not to progress it further. It is expensive to hire professionals to produce documents. Very often in the case of large-scale developments applicants who desire to be successful and win over the public produce a great deal of documentation at a very early stage and present their plans to the public. We encourage them to do so. However, accepting the amendment would be a step too far.
I move amendment No. 23:
In page 8, between lines 33 and 34, to insert the following:“(4) The failure by a planning authority to comply with the requirement to hold a consultation meeting for the purposes of section 247 of the Act of 2000 by virtue of subsection (3) within the time limits provided for by that subsection shall not prevent the Board from proceeding under this section to deal with the application concerned.”.
The proposed legislation and the inherent rationale for fast-tracking applications are underpinned by a constituent number of timelines throughout the decision-making process. In this context, we recognise that it may be the case that, from pre-application consultation stage to final decision stage, there is the potential for slippage in meeting the component deadlines in progressing planning applications. To this end, I wish to ensure the overall process will not be derailed and that the validity of any step or decision taken by the An Bord Pleanála outside the stated timelines will not prevent an - even one or a small number - strategic housing development planning application from proceeding.The amendments are similar to existing provisions in the Planning and Development Act 2000, as amended. Under sections 12(16) and 13(10) of that Act, the validity of the making of or varying, respectively, a development plan cannot be questioned by a person solely on the basis that the relevant procedures were not completed in the time required.
Similarlyamendments Nos. 58 and 74 are minor technical amendments related to the requirements of the application process under section 8(3)(a) and the decision-making process under section 9(4). They provide for uniformity in the provisions of the Bill to allow An Bord Pleanála to decide on the adequacy and completeness of an environmental impact assessment or a Natura impact statement and also the decision to grant planning permission.
If the applicant is refused planning permission later, could he or she mount a case against An Bord Pleanála? Is the Minister ensuring that that will not be able to happen? While it is important, it is not critical that a meeting take place. Is that the case?
It is mainly to bring the Bill into line with the standard provision in planning law that one cannot question the end decision because it might have been one day late. It is in existing planning legislation.
I move amendment No. 29:
In page 9, line 35, to delete “proposed house types and design” and substitute “proposed types of houses or student accommodation units, or both, as appropriate, and their design”.
I move amendment No. 33:
In page 10, to delete lines 31 and 32.
There are three elements to this group of amendments. The first amendment is amendment No. 33 and refers to the provision in the Bill that where An Bord Pleanála refuses an application then any fee received from the prospective applicant for the purposes of this section would be returned. I have two problems with this. First, all of the effort and work of An Bord Pleanála, the local authority and others on the application, would not be recompensed with regard to the fees provided. Also, in the same way that the Minister, Deputy Coveney, earlier defended the penalty that An Bord Pleanála would have to pay for late decisions, not returning this fee would be an equally fair penalty for an applicant and would discourage the making of a bad application. It is all the better that the sums of money involved in fees could be quite significant because the bigger the sum of money the better the application will be if the applicant knows they will not get the fee back. I feel strongly about this.
The next eight amendments are all of a similar nature and they are about providing greater access to information or giving slightly longer periods of time for public consultation throughout the process. With regard to amendment No. 43, if a person feels that their only course of action is to seek a judicial review, there is a huge amount of confusion as to whether the point at which they seek a judicial review is the legally appropriate point. This applies to ordinary planning applications as well as in this case. I am not trying to encourage or champion the applications for judicial reviews but if there was clarity on the matter it would assist everybody. It would ensure that people would not apply for judicial reviews when it is not legally appropriate, and where people felt compelled - for whatever reason - to apply or felt it was their only course of action at least they would know when to do it. There are three different sets of issues in the amendments.
I endorse the point made about not returning the fees. The mind boggles on this. If a person lodges an objection to a planning application in the normal planning application process at the local authority level, and if the application is withdrawn, the person who paid €20 of their hard earned cash for their objection does not get that back. The Construction Industry Federation is written all over this. It is offensive. It costs money to process these applications and the benefit on the other side is generally to the developer. I find it strange and unacceptable.
I am glad that on this occasion, on amendment No. 33, we are in agreement, not the exact wording but in the principle of it. I am open to this amendment as I believe that there should be an onus on developers wishing to avail of the fast-track procedures to get things right. When this was first mooted in July the Minister, Deputy Coveney was always very clear that the applications were to be right, and we would encourage that. It was not to give people an easy or quick decision. It was to make sure they submit quality applications which could then be appropriately judged. Applicants should at least submit all the required documentation for the purposes of a pre-application consultation request. Where incomplete documentation is submitted to An Bord Pleanála, which will have to conduct validation checks on the documentation submitted, I am open to the notion of withholding the fee submitted. I can accept this amendment in principle subject to drafting, which will require the submission of a revised wording on Report Stage. We will link up with the Deputy on that.
Amendments Nos. 34 to 36, inclusive, are interesting in that they make proposals aimed at enhancing the awareness of the public of developments that are under consideration by developers, and also at providing further local information to An Bord Pleanála that might assist it in the pre-application consultations on a proposed development. While I cannot accept all of the three amendments as drafted, there are certain aspects of them which have merit and which could perhaps be taken on board either in the Bill or in subsequent regulations made under the Bill. I see some merit in requiring developers who are in the process of submitting a request to An Bord Pleanála for pre-application consultations on a proposed development to place an advertisement in approved newspapers circulating in the area of their intention in this regard. This notion is referred to in amendments Nos. 34 and 36. This would have the effect of providing advance notice to the local public of the likelihood of a planning application being submitted in respect of a particular strategic housing development and would facilitate their engagement in the planning process on the development. I have already given a commitment in the Seanad deliberations on the Bill that we were open to the idea of requiring developers who are submitting a request for pre-application consultations on a proposed development to place a site notice of their intentions. I indicated to Senator Boyhan that this site notice requirement would most appropriately be addressed in regulations to be made following the enactment of the Bill. Deputy Ó Broin’s idea that developers should place an advertisement in local newspapers on a proposed strategic housing development at pre-application consultation stage is a similar idea and consequently, I am open to requiring developers to erect a site notice and to place a press advertisement in advance of submitting a request to An Bord Pleanála for pre-application consultations on a proposed development.
With a view to further enhancing transparency in regard to strategic housing developments, I would also be open to the second part of amendment No. 36 requiring planning authorities to record in their weekly planning register that they have made a submission to An Bord Pleanála in regard to a proposed strategic housing development on foot of An Bord Pleanála receiving a request for a pre-application consultation on a development.
To continue on, we would also be amenable to accepting, subject to further consideration and some redrafting, the second part of amendment No. 35 requiring a planning authority to submit to the board details of housing on which permission has already been granted, details on the quantum under development and the quantums not yet commenced. This type of information is likely to be of assistance to the board in its consideration of any new proposed strategic housing developments and determining whether a proposed development will assist in meeting local housing demand or give rise to excess supply in the area concerned. Accordingly, as I have indicated, there are certain aspects of these amendments which we are open to accepting but which are probably most appropriately provided for in regulations made subsequent to the enactment of the Bill.
I also must oppose amendment No. 38 which proposed to increase the time period from three weeks to six weeks, within which the board would give its opinion on the proposed development following consultation meeting under section 6. I consider that eight weeks is sufficient time to allow the board to make that determination. In addition, the increase in time would also have a negative impact by serving to delay the process unduly.
I am opposed to amendment No. 39, which provides for public participation at the stage of pre-application consultations with the board. Public participation is provided for in respect of the substantive application for permission for a proposed strategic housing development and the board is required to have regard to all submissions duly received relating to the effects of the development on the proper planning and sustainable development of the area and on the environment. In light of this, I do not see the point of having a separate public participation process for a stage in the planning process that precedes the planning application process.
Amendments Nos. 40 and 42 require the board to publish on its website its post-consultation opinion on the proposed development and a record of its pre-application consultations with the developer. I agree with the intent of these amendments but they are not necessary as I intend to make regulations under section 12 of the Bill requiring that relevant documents relating to the complete consent process for a proposed strategic housing development be accessible to all to view on a website. I would ask the Deputy, therefore, to withdraw these two amendments.
I oppose amendment No. 43 which requires the Minister to prescribe certain matters relating to judicial review under section 50 of the Planning and Development Act 2000. As regards specific elements of the amendment, a general time limit of eight weeks after the decision or act concerned for applying for leave to apply for judicial review is already set down in section 50 of the Act. The question of the point at which a person may question the validity of a relevant decision or acts by judicial review is currently before the courts and I do not propose to amend the law in this regard until we consider whatever ruling is made in this matter in due course. Finally, planning law currently requires all relevant decisions or acts to be publicised in an appropriate fashion and the current Bill proposes to do the same for strategic housing developments and EIA screenings also.
Amendment No. 37 relates to the consultation meeting held between the board and the prospective applicant. The amendment will enable the prospective applicant and one or more persons nominated by him or her to attend the pre-application consultation meeting with the board and the planning authority. This is an expansion on the previously drafted provision whereby the meeting could be attended by one or more persons on behalf of the prospective applicant, as opposed to with the applicant.
Amendment No. 41 is a technical amendment replacing the correct word “of” for the incorrect word “or”.
I move amendment No. 34:
In page 11, between lines 8 and 9, to insert the following:“(iii) that for the consultation to proceed the Board requires the applicant to cause to be published in local and national newspapers approved for planning notifications in the area of the public authority or authorities concerned, a notification to the public informing them of the Board's decision stating where it can be found, and informing them that observations can be made directly to the Board on the matter and stating the timeframes for such submissions, and including such other information as may be prescribed by regulation.”.
I move amendment No. 35:
In page 11, between lines 19 and 20, to insert the following:“(iii) copies of all submissions or observations received in respect of the application for consultation, and
(iv) details on the amount of housing in the area of the Planning Authority on which permission has already been granted together with details on the quantum under development, and the quantums not yet commenced,”.
I move amendment No. 36:
In page 11, line 21, after “submitted” to insert the following:“and shall—
(I) promptly publish the records and opinions submitted on its website,
(II) require a notification of this submission to be recorded in the weekly planning register, and
(III) require notification of the submission to be published by the applicant in local and national newspapers approved for planning notices in the area or areas concerned.”.
I move amendment No. 37:
In page 11, to delete lines 25 to 27 and substitute the following:“(b) to be attended by—(i) (I) the prospective applicant, or one or more persons on his or her behalf, or
(II) the prospective applicant and one or more persons nominated by him or her,
(ii) the Board, and
(iii) subject to subsection (6), each planning authority in whose area the proposed strategic housing development would be situated.”.
I move amendment No. 43:
In page 12, between lines 33 and 34, to insert the following:“(12) The Minister shall clarify in regulation at what point a person or party may question the validity of decisions and acts in this consultation process with the planning authorities and/or the Board by way of Judicial Review, under order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) in accordance with sections 50 and 50A of the Act of 2000, and shall require that notifications in respect of any such decisions in the process be published promptly following on from the decision, together with details on where practical information on the review mechanisms can be found, and stipulating the time periods pertaining to any such challenges.”.
I move amendment No. 44:
In page 12, between lines 33 and 34, to insert the following:“(12) A person shall not question the validity of any steps taken by the Board under this section by reason only that the procedures as set out in subsection (1), (2), (4), (5) or (7), as the case may be, were not completed within the time referred to in the subsection concerned.”.
I move amendment No. 45:
In page 12, to delete lines 39 and 40, and in page 13, to delete line 1 and substitute the following:“(I) where the development is of a class standing specified in Part 2 of Schedule 5 to the Planning and Development Regulations 2001 (S.I. No. 600 of 2001) that does not exceed the relevant quantity, area or other limit standing specified in that Part, whether it is likely to have significant effects on the environment;”.
Section 7(1)(a)(i)(I) of the Bill refers to a request for a determination as to whether a strategic housing development “of a class specified in regulations made under section 176 of the Act of 2000” is likely to have significant effects on the environment and, thus, require an environmental impact assessment, EIA. However, environmental impact assessment is mandatory in respect of development prescribed under Part 1 of Schedule 5 to the Planning and Development Regulations 2001 to 2015 so an environmental impact assessment screening is not required for them. In order to make this provision of the Bill more focussed and consistent, amendment No. 45 substitutes in clause (I) text that section 20 of the Bill proposes to include in a new section 176A(2)(a) of the 2000 Act, which deals with EIA screening in a different context.
Amendment No. 46 is required to bring the wording of section 7(1)(a)(i)(II) in respect of appropriate assessment into line with Article 6.3 of the 1992 Habitats Directive and also the wording of section 177U of the 2000 Act, which deals with appropriate assessment screening in a different context.
Amendment No. 48 requires a person making a request to An Bord Pleanála under section 7(1) of the Bill to pay the appropriate fee for the request, which relates to a screening for environmental impact assessment or appropriate assessment of a proposed strategic housing development or a scoping request as to what should be contained in an environmental impact statement or Natura impact statement, depending on whether an environmental impact statement or appropriate assessment, or both, is required.
Section 18 of the Bill makes provision for the board to charge a fee for providing an opinion on what information should be included in an environmental impact statement and, under section 144 of the Planning and Development Act 2000, the fee for an environmental impact statement screening in respect of a proposed strategic housing development will be determined by the board, subject to the Minister’s approval.
I also intend to move amendments Nos. 45, 46 and 48. Opposition amendments Nos. 47, 49 to 51, inclusive, and 53 relate to section 7, which sets out the provisions and timelines whereby a prospective applicant may, following a consultation meeting, request the board to determine within eight weeks if the proposed strategic housing development will require an environmental impact assessment or an appropriate assessment or both and, if so, the prospective applicant may also request the board to give an opinion, within 16 weeks, as to what should be contained in the environmental impact statement, EIS, or the Natura impact statement, NIS, or both.
I thank Deputy Eoin Ó Broin for tabling amendment No. 47. This proposes the insertion of a new subsection (2) in section 7 to provide that where a screening request is made to the board under this section, an applicant does not need to submit the request to the planning authority under the new section 176A(2) proposed under section 20. I accept the principle behind the amendment, which is to bring clarity to this process in respect of screening requests. Therefore, in accordance with established practice, I ask the Deputy to withdraw amendment No. 47 on the basis that I will examine the legal and drafting aspects of the proposed amendment and table an amendment to the same effect on Report Stage.
However, I must oppose amendments Nos. 49 to 51, inclusive, and 53. Amendment No. 49 proposes to make the board’s determination and opinion subject to public consultation. The process under section 7 is essentially a screening process, in other words, the board, on request, confirms if an environmental impact assessment or appropriate assessment is required for the proposed development and, if so, what the environmental impact statement or Natura impact statement or both should contain. It is not a consent process in itself. Under the EIA directive, there is no requirement for public participation in such a screening process. It is not necessary. Public participation is provided, however, at a later stage when the application for a proposed strategic housing development is made, to be accompanied by an EIS or NIS or both, if required.
Amendment No. 50 proposes to increase the time period, from eight weeks to ten weeks, within which the board is required to make a determination on a request under section 7. I consider that eight weeks is sufficient time to allow the board to make that determination. In addition, the increase in time would have a negative impact by serving to delay the process unduly.
Amendment No. 51 proposes that once the board makes a determination or gives an opinion under this section, it should be published on the board’s website within three days. The Bill already requires that such determinations or opinions should be maintained by the board and associated with the relevant planning application, which application will be available to the public during the public consultation. I consider this is sufficient provision in this regard.
Amendment No. 53 proposes the insertion of a new subsection (3) in section 7 to provide that a decision or opinion given by the board under this section shall not prejudice the board in its consideration of any EIS or NIS or both submitted as a result, or its ability to revisit the matter at a later date or to seek further information during the planning process. The principle in the first part of the proposal regarding not prejudicing the board is inherent in the planning process and such a specific provision is unnecessary. Separately, regarding the latter part of the proposal, it should be noted that under these new streamlined planning procedures, there is no provision for seeking further information on an application. Therefore, in these cases the onus is squarely on the applicant to ensure he or she has provided the full information required by the board to enable it to make a decision on the proposed application.
For these reasons, I must oppose amendment Nos. 49 to 51, inclusive, and 53.
I am more than happy not to move amendment No. 47 on the basis of the commitments given by the Minister. On amendment No. 49, I will not repeat the arguments I made, other than to note that the purpose of this amendment, and other amendments, is to increase the level of public involvement at an earlier stage. I believe this would be appropriate but the Minister clearly does not agree with me. Likewise, with regard to the proposal to extend the period within which the board must make a determination from eight to ten weeks, if people are to engage meaningfully with the process, they must have an adequate period in which to digest the information, particularly where it is of a highly technical nature. For this reason, the proposal to extend the timeframe for decisions by two weeks is not unreasonable.
The key issue in respect of amendment No. 51 is to ensure that information is provided to persons for whom it is relevant at the earliest possible stage.
With respect to amendment No. 53, the greater the level of clarity we can provide for people, the better the final planning outcomes will be in this process. I will press all the amendments, with the exception of amendment No. 47.
I move amendment No. 52.
In page 13, between lines 26 and 27, to insert the following:“(3) A person shall not question the validity of a determination by, or opinion of, the Board under this section by reason only that the procedures as set out in subsection (2) were not completed within the time referred to in that subsection.”.
I move amendment No. 53.
In page 13, between lines 26 and 27, to insert the following:“(3) No decision or opinion made under this section shall prejudice the Board in its entitlement to revisit the screening decisions made, or in the further consideration on the scope and set of information required in either an environmental impact statement or natura impact statement, or in its entitlement to seek further information if it so requires as the application for development proceeds through the planning process.”.
I move amendment No. 54:
In page 14, to delete line 5 and substitute the following:“(II) the period of 5 weeks from the receipt by the Board of the application,”.
Amendments Nos. 54, 59 and 61 to 68, inclusive, are primarily technical in nature. Section 8(1)(a) relates to requirements relating to the application for permission for strategic housing development and, inter alia, provides that the applicant for permission shall, in the public notice of the application specify "the period, not being less than 5 weeks" during which a copy of the application and any EIS or NIS or both may be inspected. This period is specified in section 8(1)(a)(vii) to be the period during which submissions or observations may be made to the board on the application. This approach is in line with the standard provision for strategic infrastructure developments in the 2000 Act.
I am aware, nonetheless, that as previously drafted under section 8(1)(a)(iii)(II) of the Bill, the developer could specify an inspection period of, say, eight weeks, which would cause difficulties for the overall process as the planning authority is required, within eight weeks of the receipt by the board of the application, to submit its report on the application to the board, including a summary of the submissions or observations received by the board with respect to the application. As it was always the intention that the approach in Part 2 of the Bill generally was to set specific time limits for particular activities and to remove the decision as to the duration of the inspections period from the developer, amendment No. 54 provides that five weeks is the period specified in section 8(1)(a)(iii)(II), during which submissions or observations may be made to the board with respect to the planning application.
Amendment No. 59 is a technical amendment in respect of section 8 and corrects text in paragraph (b) of subsection (3) to refer to the "applicant" rather than the "prospective applicant", to the actual application made and documents that accompanied the application and in respect of a decision by the board to refuse to consider the "application" rather than the "request".
Amendments Nos. 61 and 62 are technical amendments and correct errors of terminology within the existing text of section 8(3)(c).
Amendment No. 63 is required to make it clear that it is the members of the area committee or committees for the area or areas in which the proposed strategic housing development is located who should be notified of the making of an application under chapter 1 of Part 2 of the Bill and subsequently informed of the details of the application, etc.
Amendments Nos. 64 and 65 are technical and are required to correct the references in the existing text of section 8(4) to the elected members of the municipal district or districts in which the proposed strategic housing development is located.
Amendments Nos. 66 to 68, inclusive, are tosection 8(5) of the Bill and are required in order to ensure that, when formulating its views on the effects of a proposed strategic housing development on the proper planning and sustainable development of its area and on the environment, the local planning authority has sight of, and regard to, all submissions and observations duly received by An Bord Pleanála in regard to an application for permission for a proposed strategic housing development.
Under the Bill as it stands, the planning authority has sight of, and regard to, submissions and observations duly received by An Bord Pleanála in response to the developer’s public notice of the application. However, under these amendments, I am providing that the authority will also have sight of, and regard to, submission or observations from prescribed authorities and stemming from transboundary consultations, when formulating its views on the application for conveying to An Bord Pleanála.
The Opposition amendments Nos. 55 to 57, inclusive, and 60 relate to the provisions of section 8 which sets out the requirements relating to the making of an application for a strategic housing development.
I will address amendment Nos. 55 and 57 first. Amendment No. 55 proposes that an application for strategic housing development and related environmental impact statement, EIS and the Natura impact statement, NIS, as required, be available for inspection by the public from a website. I accept the principle behind the amendment proposed and it is my intention to deal with this by way of regulations. Section 12 of the Bill provides for a regulation making power under this Part to deal with procedural and administrative matters, and specifically to provide for making applications available for inspection in electronic form. Therefore, I request the Deputy to withdraw the amendment on the basis that this will be provided for by way of regulations.
In regard to amendment No. 57, again I wish to indicate that I am in full agreement with what is proposed and, indeed, I have publicly indicated on a number of occasions, as has the Minister, Deputy Coveney, that we will ensure that the fee for a member of the public to make a submission or observation to An Bord Pleanála in regard to an application for strategic housing development will be no greater than if he or she were making such a submission or observation to their local planning authority.
Under section 144 of the 2000 Act, the fee for a submission or an observation on a proposed strategic housing development will be determined by An Bord Pleanála, subject to my approval. Therefore, I again request the Deputy to withdraw the amendment on the basis that this is dealt with under the section 144 provisions.
I cannot accept amendment No. 56, which proposes to increase the public consultation period from five weeks to eight weeks where an application is accompanied by an EIS or a NIS. I consider that five weeks is sufficient time to allow members of the public to make their submissions or observations and is consistent with the time period provided for submissions or observations in respect of an planning application to a local planning authority. In addition, increasing the time period will also impact on the overall period of time of 16 weeks for the completion of the application process. This runs contrary to the purpose of the provisions, which is to reach a final decision in a shorter period of time.
I cannot accept amendment No. 60 as it proposes that should An Bord Pleanála refuse to deal with an application, on the basis that it considers it inadequate or incomplete, it should retain the application fee paid by the applicant on the lodgement of the application. While I accepted this principle in an earlier amendment, regarding the retention of the fee paid for the consultation process, that is associated to a relatively minor cost for the applicant, however, at this stage more significant costs are involved and I think it would be overly punitive not to refund the fee paid in this particular case.
I am happy to withdraw amendment No. 55 in my name on the basis of the Minister of State's commitment to deal with its intent to provide a greater level of information to encourage public participation by way of regulations. That is welcome.
In order for people to be able to engage adequately with the process they need to be given sufficient time. These are quite detailed matters with detailed documentation. It is also important that the public not only has adequate time but is able to engage on any matter or less restricted matters than the relevant section. I will be pressing my amendment No. 56.
If my understanding of the Minister of State's response is correct, the first part of my amendment No. 57 is included in section 144 of the 2000 Act, but I did not hear him comment on electronic payments, which is covered in the second part of the amendment. Will he clarify that point?
Amendment No. 60 covers exactly the same point. The costs are greater because the scale of works submitted is greater, which means the level of responsibility of An Bord Pleanála is greater. The Minister of State accepted a similar amendment at an earlier stage, albeit at a lower level of cost implication, so I do not see the reason that he cannot accept this amendment. I will press amendment No. 60.
Will the Minister of State clarify his position on amendment No. 57?
I move amendment No. 55
In page 14, line 10, after “copy),” to insert the following:“and indicate the website where the application, and as appropriate the environmental impact statement and/or the Natura impact statement can be viewed electronically and downloaded for free,”.
I move amendment No. 56:
In page 14, to delete lines 25 to 27 and substitute the following:“(vii) inviting the making of submissions and observations to the Board, including from the public, in accordance with the following circumstances and timeframes:(I) in circumstances where no environmental impact assessment is required for the development, during the period referred to for the purposes of subparagraph (iii);(viii) such submissions may relate to any matter of concern to the public or body being consulted arising from the proposed development and also may include observations relating to—”.
(II) in circumstances where an environmental impact assessment is required for the development, during a period which shall be no less than 8 weeks,
I move amendment No. 57:
In page 14, between lines 32 and 33, to insert the following:“(viii) stating any fee required to be made in respect of any submission or observation on the development proposed, where that fee shall—(I) not be greater than the observation fee applicable if the application had been made directly to the planning authority instead of the Board, and
(II) be payable by either cash, card, cheque and other internet-based electronic payment method to the Board which shall be specified in regulations,”.
I move amendment No. 59:
In page 15, to delete lines 35 to 41, and in page 16, to delete lines 1 to 3 and substitute the following:“(i) return to the applicant concerned—(I) subject to paragraph (c), the originals of any documents or digital devices containing the information prescribed for the purposes of subsection (1)(a)(iv) of section 4, any environmental impact statement or Natura impact statement, or both of those statements, as the case may be, and any information prescribed under section 12 to accompany the application, and(ii) give reasons to the applicant for the Board’s decision to refuse to consider the application.”.
(II) any fee received from the applicant for the purposes of section 4(1)(a)(v),
I move amendment No. 66:
In page 17, lines 11 and 12, to delete “submissions or observations received as a consequence of subsection (1)(a)(vii)” and substitute “submissions and observations duly received by the Board in relation to the application”.
I move amendment No. 68:
In page 17, lines 24 and 25, to delete “submissions and observations received by the Board as a consequence of subsection (1)(a)(vii)” and substitute “submissions and observations duly received by the Board in relation to the application”.
I move amendment No. 69:
In page 18, between lines 7 and 8, to insert the following:“(7) A person shall not question the validity of a decision of the Board under this section by reason only that the procedures as set out in subsection (3) were not completed within the time referred to in that subsection.”.
Amendment No. 70 is in the name of Deputy Ó Broin. Amendments Nos. 70, 71, 73, 75 to 77, inclusive, are related. Amendment No. 77 is a physical alternative to amendment No. 76. Amendments Nos. 70, 71, 73, 75 to 77, inclusive, will be discussed together.
I move amendment No. 70:
In page 18, line 20, after “information” to insert the following:“but only where such other relevant information has been part of the published set of information made available with the original application, or where received subsequent to the application where it has been the subject of a further published public notification in respect of the application, and made reasonably available to the public to comment upon without the public having to incur any fee for any further observation being made”.
In my amendments Nos. 70, 73, and 75, I am trying to increase the clarity and the provision of greater level of information. This is the same point I have been making in a series of earlier amendments. In amendment No. 76, the key point refers to the fee to be paid by the applicant to An Bord Pleanála in respect of his or her application permission of €10,000 to be returned. Again, this is a similar concern that I raised on previous amendments.
Amendment No. 70, if adopted, would make the system unworkable on the basis of submissions from prescribed bodies had to be made publicly available, and if I have interpreted it correctly, this information would then have to be subject to a further round of public consultation.
It would lead to numerous cycles of public consultations which would have serious impact on the timeframes for decision making on development proposals as provided for in the Bill. That is if we have read the amendment correctly. If we have not, the Deputy can let us know and we can revert to him. Clarity would help.
It is important to note that the board's power and mandate are to make decisions on the applications before it. It cannot increase or augment an application by recommending an increase in the number of houses in a development. Conversely, in its final decision it may restrict the scale or scope of a proposed development. Even if an applicant is granted full planning permission, the decision cannot go beyond the parameters of the development originally proposed, full details of which would have been made available for public inspection and consultation. Therefore, we oppose the amendment.
Amendment No. 71 proposes to amend the two core considerations of the board in any proposed development - the likely consequence for proper planning and sustainable development of the area of the proposed development and the likely effects on the environment or a European site of the proposed development – by including a reference to an assessment of housing needs of disabled persons. This would not be an appropriate reference in this instance. We are not sure of the intention behind the amendment or what it aims to ensure. Such an assessment is for the housing authority to conduct or consider, with reference to those on its housing lists who may have a disability and need to be accommodated accordingly. In addition, any social housing, including the specific needs of those with a disability, would more appropriately be addressed by a housing authority through the Part V processes and agreements reached with developers. Perhaps there is an issue with the wording of the amendment that we need to discuss.
Amendment No. 73 is unnecessary. It states the board "shall be bound by the EIA and AA requirements of the 2000 Act, as set out in Parts X and XAB, respectively, of that Act". That is already the case.
Amendment No. 76 proposes to delete, in part or in full, section 9(13) which provides for the application of a penalty clause where the board fails to make a decision on a proposed strategic housing development within the statutory period of 16 weeks. In doing so, the amendment would remove the provision in subsection (13)(a) which provides that, even though the 16-week period may have expired, the board can still proceed to make a decision on the application. Accordingly, I cannot accept the inclusion of the amendment, as it would prevent the making of decisions on planning applications beyond the 16-week period.
By way of an alternative approach, amendment No. 77 proposes only to delete the penalty clause. However, I must oppose the amendment. The inclusion of this clause sends a clear message to developers of our absolute determination and that of the board to ensure housing is delivered within specified timeframes and, where decisions are not made within the timeframes proposed, penalty clause provisions may be applied. Therefore, I oppose this amendment also.
I accept the principle of amendment No. 75 which proposes that the Minister may, by way of regulations, only extend the statutory 16-week period set down for the board to make a decision on application and, consequently, that he may not reduce that period below 16 weeks. Therefore, in accordance with established practice, I will ask the Deputy to withdraw amendment No. 75 on the basis that we will examine the legal and drafting aspects of the proposed amendments with a view to tabling amendments to the same effect on Report Stage.
I move amendment No. 73:
In page 19, between lines 18 and 19, to insert the following:“(4) For the avoidance of doubt, the Board shall be bound by the provisions of Part X and Part XAB of the Act of 2000 in respect of requirement to conduct an environmental impact assessment and appropriate assessment where appropriate to the application for development under consideration, and consistent with the Board’s policies in relation to same, and to record and evidence those assessments as part of any decision made pursuant to provisions of this Chapter.”.
I move amendment No. 78:
In page 21, between lines 22 and 23, to insert the following:“(15) A person shall not question the validity of a decision of the Board under this section by reason only that the procedures as set out in subsection (9) were not completed within the time provided for by that subsection.
(16) The failure by the planning authority concerned to comply with the requirement to prepare and submit to the Board a report, under subsection (5) of section 8, within the time limits provided for by that subsection shall not prevent the Board from proceeding to make its decision under this section.”.
I move amendment No. 79:
In page 21, to delete line 37 and substitute the following:“(a) the main reasons and considerations on which the decision is based,
(b) where the Board grants a permission in accordance with section 9(6)(a), the main reasons and considerations for contravening materially the development plan or local area plan, as the case may be, and”.
I am proposing this amendment in order to require the board, where it grants planning permission for a proposed development that is in material contravention of the development plan or local area plan, to give the reasons for doing so in its decision. This provision will further strengthen the transparency in the decision-making process of the board in respect of strategic housing development applications and contribute to greater confidence in the overall approach being taken in attempting to expedite applications. The decision in question could be on phasing or master plans. It does not relate to the principle of material contraventions of land that has not been zoned already.
I will be opposing amendment No. 80. It relates to section 10 which provides for supplementary provisions regarding the board's decisions. The amendment proposes to insert a new paragraph in subsection (3) to provide that the board's decision should state or include a copy of any EIA, AA or EIA or AA screening undertaken. However, subsection (3)(a) already provides that the board's decision should state the main reasons and considerations on which the decision is based, which would include reasons and considerations relating to any environmental impact or appropriate assessments. Therefore, this is an unnecessary amendment which I will oppose on that basis.
I move amendment No. 80:
In page 21, between lines 37 and 38, to insert the following:“(b) a copy of the environmental impact assessment and appropriate assessment where undertaken for the development, and screening decisions for environmental impact assessment and appropriate assessment where undertaken for the development, and”.
I move amendment No. 81:
In page 22, line 17, to delete “subject to subsections (8) and (9)” and substitute “subject to subsections (8), (9) and (10)”.
This amendment relates to section 11(3) which provides that a new strategic housing division of the board shall deal with applications for permission for strategic housing developments. Under the current drafting, the operation of the strategic housing division is subject to subsection (8) which relates to the quorum for a meeting of the division being set at three board members, while subsection (9) provides for the transfer of a case of particular complexity or significance from an individual member to a meeting of all available members of the board. I am providing that subsection (3) is also subject to subsection (10) of the section which relates to the future dissolution of the division as work on strategic housing developments declines after the end of the timeframe for the fast-track procedures, that the strategic housing division will continue until dissolution and, most importantly, that any unresolved matter falling to be decided by the strategic housing division will, following its dissolution, be performed by the board or a relevant division of the board.
I move amendment No. 82:
In page 23, between lines 32 and 33, to insert the following:“(b) the proportion of the fee payable to the Board under section 144(1A)(b) of the Act of 2000 in respect of an application under section 4 that shall, on the making a decision under section 9 on the application, be paid by the Board to the planning authority or authorities concerned, as the case may be;”.
As the Bill passed through the Seanad and into this House, there was some debate on the apportionment of fees between the board and the relevant planning authority in which a strategic housing development application will be located.
I am fully aware that while the Bill proposes a new approach to dealing with large-scale housing developments, the process will still require a significant input both from executive and reserve members of the local government sector. In this context, an amendment is required to enable me to prescribe, by way of regulations, the proportion of the planning application fee paid to the board in respect of an application for a strategic housing development that will be transferred to the local planning authority concerned. This is a fairer way of ensuring a planning authority will be recouped for some part of its costs in assessing a proposal and a planning application for a strategic housing development. I propose to bring forward an amendment to section 12 on Report Stage. It will follow on from amendment No. 82 relating to the proportioning of the planning application fee between the board and the planning authority. That will bring clarity to the matter on Report Stage.
I move amendment No. 83:
In page 25, between lines 21 and 22, to insert the following:“Construction of section 125 (appeals, referrals and applications with which the Board is concerned) of Act of 2000 during specified period
17. Section 125 of the Act of 2000 has effect during the specified period as if the following were substituted for paragraph (b):“(b) (i) to the extent provided, to applications made to the Board under section 37E or section 37L,
(ii) except where otherwise provided for by the Planning and Development (Housing) and Residential Tenancies Act 2016, to applications made to the Board under section 4 of that Act, and
(iii) to any other matter with which the Board may be concerned,”.”.
Amendment No. 83 is required to apply the appeal procedures in Chapter 3 of Part VI of the Planning and Development Act 2000 to strategic housing development applications in the same way as they have been applied to strategic infrastructure developments generally.
Amendment No. 88 is required to include strategic housing developments in the definition of “proposed development” for EIA purposes in section 172 of the 2000 Act for the specified period.
Amendment No. 89 is required to include strategic housing developments in the definition of “proposed development” for appropriate assessment purposes in section 177R of the 2000 Act for the specified period.
I am proposing amendment No. 90 to permit the payment of compensation under section 190 of the 2000 Act where the value of a person’s interest in land is reduced by the refusal of the board to grant permission for a strategic housing development on that land. The present right to compensation is limited to refusals of planning applications on appeal. Thus, there is no right to compensation in the case of strategic infrastructure developments. However, strategic housing developments are different in that they are on land zoned for that purpose and fundamentally different in nature from major once-off SID projects that often are not on land specifically zoned for that purpose. I can see no reason a refusal of permission for a strategic housing development could not qualify for compensation when refusal of permission for the same development by way of an appeal against refusal of a planning application could qualify for compensation.
Amendment No. 91 provides that the inadequacy or incompleteness of an environmental impact statement or a Natura impact statement submitted with an application for permission for a strategic housing development is a non-compensatable reason for refusing permission for the project. This issue does not arise in the case of appeals to the board. Where the environmental impact statement or Natura impact statement is inadequate or incomplete, the board requests further information and, if it is not supplied, it either determines the appeal or dismisses it under section 133 of the 2000 Act, as amended. Therefore, in order to speed up the approval process for strategic housing developments, I am not giving the board the power to request further information on planning applications for such developments. However, it must be enabled to refuse an application on the grounds that the environmental impact statement or Natura impact statement is inadequate or incomplete, without opening up the possibility of compensation being paid in respect of that refusal.
I move amendment No. 84:
In page 25, line 39, after “hearing.” to insert the following:“In determining whether there is ‘a compelling case’ to conduct an oral hearing the Board shall include consideration of—(I) the complexity of technical or environmental considerations associated with the development and how an oral hearing might assist the environmental decision-making process,
(II) local and context specific considerations,
(III) the public interest to be served through the conduct of an oral hearing, and
(IV) the interests of natural justice.”.
The purpose of the amendment is to broaden the grounds on which an oral hearing may be granted and to increase the levels of transparency and public involvement. It is self-explanatory.
Under section 134 of the Planning Act 2000, the board has absolute discretion to decide whether it should hold an oral hearing on an appeal before it. On oral hearings, the Bill provides that, in the case of a strategic housing development, the board must have regard to the exceptional circumstances which require the urgent delivery of housing as set out in the action plan for housing and homelessness and the particular circumstances of the application. The amendment proposed would take away from the board’s absolute discretion in this matter by requiring it to have regard to specific criteria. The inclusion of these specific criteria in the Bill would have the effect of giving them primacy over other considerations that may be of central importance in determining whether to hold an oral hearing on a particular case. None of the criteria is of such unique and special importance as to warrant individual mention in the Bill in the context of the application by the board of its discretion in this matter. Accordingly, I must oppose the amendment. The board has discretion and can still take the matter on board.
I move amendment No. 85:
In page 26, between lines 28 and 29, to insert the following:“Construction of section 144 (fees payable to Board) of Act of 2000 during specified period
18. Subsection (1A) of section 144 of the Act of 2000 has effect during the specified period—(a) as if in paragraph (b) “or for any strategic housing development (within the meaning of section 3 of the Planning and Development (Housing) and Residential Tenancies Act 2016)” were inserted after “for any strategic infrastructure development”,
(b) as if in paragraph (c) “or a request for a consultation under section 5 of the Planning and Development (Housing) and Residential Tenancies Act 2016” were inserted after “the Act of 2001”,
(c) as if there were inserted the following after paragraph (d):“(da) a request for a determination under section 7(1)(a) of the Planning and Development (Housing) and Residential Tenancies Act 2016;”,(d) as if in paragraph (e) “or under section 7(1)(b) of the Planning and Development (Housing) and Residential Tenancies Act 2016,” were inserted after “section 173(3),”,
(e) as if there were inserted the following after paragraph (e):“(ea) a request for an opinion in writing on what information will be required to be contained in a Natura impact statement under section 7(1)(b) of the Planning and Development (Housing) and Residential Tenancies Act 2016;”, and(f) as if in paragraph (j) “section 8 of the Planning and Development (Housing) and Residential Tenancies Act 2016,” were inserted after “or 226,”.”.
Amendment No. 85 substitutes a new section 18 for the existing section 18 in the Bill which amends section 144 of the Planning and Development Act 2000 which deals with the payment of fees to the board. I am proposing the substitution in order to present as clearly as possible in the Bill a number of amendments and additional elements in section 18. Within the amendment is a new paragraph (a) which corrects an erroneous section reference in the existing text of section 18. The definition of “strategic housing development” is contained in section 3 of the Bill and not section 4 as stated in the Bill, as published. It is, therefore, a technical amendment. Furthermore, the new paragraph (b) inserts a reference to a request for consultation under section 5of the Bill, in contrast to section 144 of the 2000 Act which refers to an application for a pre-application consultation.
I am also providing in the new paragraph (c) that the board can charge a fee for making a determination under the section on whether an environmental impact assessment is required for a particular proposed strategic housing development.
Under section 144 of the 2000 Act, the fee for an EIA screening in respect of a proposed strategic housing development will be determined by the board subject to the approval of the Minister. Similarly, the new paragraph (e) empowers An Bord Pleanála to charge a fee for a scoping request as to what should be contained in a Natura impact statement for AA purposes in respect of a particular proposed strategic housing development, as provided for under section 7(1)(b) of the Bill. Again, under section 144 of the 2000 Act, the fee for an AA scoping request in respect of a proposed strategic housing development will be determined by the board, subject to the Minister's approval. The amendment simply seeks to correct previous language. It is nothing more than that.
I move amendment No. 88:
In page 27, between lines 2 and 3, to insert the following:“Construction of section 172 (requirement for environmental impact statement) of Act of 2000 during specified period
19. Subsection (1A) of section 172 of the Act of 2000 has effect during the specified period as if in paragraph (a) there were inserted the following after subparagraph (III):“(IIIA) development to which Chapter 1 of Part 2 of the Planning and Development (Housing) and Residential Tenancies Act 2016 relates;”.”.
I move amendment No. 89:
In page 27, between lines 7 and 8, to insert the following:“Construction of section 177R (interpretation) of Act of 2000 during specified period
20. Subsection (1) of section 177R of the Act of 2000 has effect during the specified period as if in paragraph (a) of the definition of “proposed development” there were inserted the following after subparagraph (iii):“(iiia) development to which Chapter 1 of Part 2 of the Planning and Development (Housing) and Residential Tenancies Act 2016 relates;”.”.
I move amendment No. 90:
In page 27, between lines 7 and 8, to insert the following:“Construction of section 191 (right to compensation) of Act of 2000 during specified period
20. Section 190 of the Act of 2000 has effect during the specified period as if in subsection (1) “or an application for permission under section 4 of the Planning and Development (Housing) and Residential Tenancies Act 2016” were inserted after “under Part III”.”.
I move amendment No. 91:
In page 27, between lines 7 and 8, to insert the following:“Construction of the Fourth Schedule (reasons for the refusal of permission which exclude compensation) to Act of 2000 during specified period
20. The Fourth Schedule to the Act of 2000 has effect during the specified period as if the following were inserted after paragraph 18:“18A. In the case of a proposed strategic housing development (within the meaning of Chapter 1 of the Planning and Development (Housing) and Residential Tenancies Act 2016), the environmental impact statement or Natura impact statement, or both, submitted with the application for permission under section 4 of that Act is or are inadequate or incomplete.”.”.
I move amendment No. 92:
In page 27, line 24, to delete “a class specified” and substitute “a class standing specified”.
Amendments Nos. 92 and 93 are technical in nature. They are required to make it clear that the requirement to carry out a screening EIA for a proposed development in respect of prescribed classes of development will apply to whatever class of development are prescribed at the relevant time, and not just to the classes of development prescribed at the time section 20 of the Bill regarding screening for EIA comes into force.
I propose amendment No. 94 in order make it clear that classes of development will be prescribed under section 176 of the 2000 Act for the purposes of the proposed section 176A(2)(a) of that Act, that is, requiring a person proposing to undertake a development of a class prescribed under section 176 to apply to a planning authority for an EIA screening in respect of the proposed development. Certain classes of development are already prescribed under section 176 for the purpose of requiring that an EIA be carried out. Other classes of development are also prescribed under that section for the purpose of requiring an EIA if it is determined that the proposed development would be likely to have a significant effect on the environment.
Amendment No. 102 is required to ensure that the fee paid to the planning authority by an applicant for an EIA screening should be repaid to him or her if the planning authority fails to carry out a screening within the allotted time.
Amendment No. 107 provides for additional text to be inserted in subsection (6)(b) of proposed section 176C of the 2000 Act in order to enable the board to specify the period within which the additional information must be provided. The additional text also refers to “within 4 weeks of the due receipt of the further information” so that the period for the board to determine a determination review of an application referral commences on the expiry of the period given for the receipt of additional information.
Under amendment No. 109, if the board asks a person to supply further information in respect of the determination review or application referral, the board is required to notify that person of its determination.
Amendment No. 116 is a technical amendment. I tabled the amendment because the proposed paragraph to be inserted does not fit in with the text of section 144(1A) of the Planning and Development Act 2000, as amended, that provides for the matters for which the board may determine fees.
Amendment No. 117 provides thatthe ministerial regulations, to be issued in respect of the environmental impact assessment directive, will include matters covered by sections 176A, 176B and 176C on environmental impact assessment screening, that are proposed to be inserted into the Planning and Development Act 2000, as amended.
Section 20 deals with EIA screening. I intend to bring forward a small technical amendment to section 20 on Report Stage. I am not sure what it will be yet but I wish to flag my intention to do so. It will be on Thursday, Friday or whenever.
I shall speak to my amendments in this grouping. I made the point on Second Stage that I supported section 20. I accept the Minister's outline on Second Stage that the provision is necessary for the overall planning process but I have two concerns. First, I did not believe there were adequate opportunities for all relevant stakeholders, including all of the NGOs and members of the public, to engage in the screening process. I know that the groups that are not on the prescribed list by the Minister would have an opportunity to engage in the planning process post-screening and when a planning application is submitted. I believe there should be some mechanism to include the groups that were not on the Minister's prescribed list at the earlier stage.
I shall deal with a package of amendments as a whole. They range from Nos. 96 to 115 and are consistent with my amendments to an earlier chapter. The aim of the amendments is to provide greater levels of information flow, thus ensuring people have information at the earliest stage possible. I shall not talk to each of the amendments separately but I have outlined what I am trying to do. Is the Minister supportive of the intention behind what I am trying to do but not of my amendments? Is it something to which he could return, not on Report Stage but at a later legislative point? Unless he is open to such consideration, I shall press my amendments.
Exactly, in the first instance. I also am unclear about a further point, having read the Bill.
I am unclear as to what opportunities groups not included on the list prescribed by the Minister but who were consulted in the screening process would have to influence a decision once made, other than during the course of the formal planning process. In other words, if a local authority takes a decision during the initial screening process that an environmental impact assessment, EIA, is not required it would be highly unlikely it would reverse its own decision in the formal planning process. Is there some mechanism which would provide for greater public and NGO consultation before a decision is made? I am open to withdrawing my amendment if the Minister commits to further consideration of this matter.
The Deputy will be aware that this provision deals primarily with flood relief infrastructure. We are providing that when a reasonable judgment is made that there is not a need for a lengthy delay to facilitate an environmental impact assessment the process can be moved on quickly. There have been extraordinary delays in some cases linked to survey work, assessments and so on. If the Deputy wishes I can list a number of towns where that has happened. However, that said, I take the Deputy's point that we should not ignore the element highlighted by him. As I understand it, when a judgment is being made during the screening process there is a list of recognised bodies that must be part of the process. That list can be changed by way of regulation rather than primary legislation. In other words, we can add to it organisations that believe they should be on it, if they are credible, sensible and so on. The danger is that if we open up the screening process to everybody it could potentially be delayed by one individual or organisation. It is important we get consensus on what requires screening and what does not, and in a transparent and open manner that is supported by credible environmental bodies. If the process was open to everybody it could be slowed down by an individual or organisation whose only aim is to block it.
In the fisheries area, we have named organisations that are involved in the discussions around conservation and so on. I will consider the point made by the Deputy with a view to seeing if we can accommodate it in some way. Is a list of organisations that broadly represent environmental interests as part of the screening process in terms of input not sufficient?
I support this part of the Bill and I accept the logic for it. However, what is provided for in it will be available to a larger range of potential applicants than those whose requirements provoked the original proposals before us. Not all of the NGOs are on the current prescribed list of relevant organisations. I accept that the criteria under which other organisations can be included is open for discussion but there must be some way of balancing the need for broader public consultation without lengthening the process unreasonably.
If the Deputy is asking that we come up with a way of providing the necessary transparency such that people can see what is going on during the screening process, such as the raising of a red flag in relation to issues arising, I am prepared to look at that. The point I am making is that what the Deputy is seeking to achieve may already be provided for. The NGOs, particularly environmental NGOs, generally tend to work collectively. They often elect members to particular bodies and so on that represent the interests across a broad spectrum of NGOs. I would be surprised if the environmental NGOs named on the prescribed list were not reflective of the broader consensus in that area.
To be helpful and in recognition of what the Minister said, I will withdraw the block of amendments in my name. As we will be returning to address these issues in the context of our consideration of the changes to the Planning and Development Act by way of the Planning and Development (Amendment) Bill, perhaps I could make a written submission on the matter to the officials for consideration by them in advance of Committee Stage with a view to it being addressed then by way of amendment.
I will happily facilitate that as long as what is agreed allows for a streamlined system in terms of the time it takes to make a sensible screening decision. That is the issue for me. I have no problem with the inclusion of more people or bodies as long as that does not delay the process. This issue was brought to my attention by the Minister of State, Deputy Canney. He has asked me to address the issue via this legislation which most people view as emergency legislation in terms of our attempts to have it enacted before the end of the year. I am happy to agree to further consideration of this issue in the context of our discussions on the broader planning and development Bill.
I move amendment No. 102:
In page 30, to delete lines 32 to 41 and, in page 31, to delete line 1 and substitute the following:
"(2) Without prejudice to section 176B, where an application was made under section 176A and no screening determination for environmental impact assessment (within the meaning of section 176A(1)) has been issued by a planning authority within the appropriate period of time provided for by section 176B(2), then—
(a) the person who made the application may—(i) within the period of 3 weeks after the latest date by which that determination was due to be issued under section 176B(2), and
(ii) on payment to the Board of the appropriate fee, refer the application in question to the Board (which act is in this section referred to as an ‘application referral’) for determination, and(b) the authority concerned shall repay to the applicant the fee paid to the authority in accordance with section 176A(3).".
I move amendment No. 107:
In page 31, lines 33 and 34, to delete ", within 4 weeks of the receipt of the further information" and substitute "and specifies the period within which the information or views concerned are required to be received by the Board, within 4 weeks of the due receipt of the further information".
I move amendment No. 109:
In page 32, to delete lines 4 to 6 and substitute the following:“(c) any person or body consulted under section 176A(4),
(d) where section 176A(5) applies, either or both the owner and the occupier, as appropriate in the circumstances, and
(e) any other person, requested by the Board under subsection (6)(b) to provide further information with regard to the determination review or application referral,”.
I move amendment No. 117:
In page 33, between lines 7 and 8, to insert the following:
"(c) in subsection (2) of section 176 by inserting the following after paragraph (d):
“(da) the carrying out of a screening for environmental impact assessment (within the meaning of section 176A), or a determination review or application referral (within the meaning of section 176C);",".
I move amendment No. 119:
In page 33, line 24, to delete "subsection (1)" and substitute "subsection (1) or (4)".
Section 22 provides that a further extension of duration of permission may be granted by a planning authority in case of a housing development comprising 20 or more houses where the authority considers that a further extension is necessary to enable the development to be completed. This would remove the requirement to go through the planning process again and, importantly, would expedite the completion of the housing development in question. Section 22 amends section 42 of the 2000 Act relating to the extension of duration of certain planning permissions for the duration of the specific period provided for in sections 3 and 4 of the Bill. This is an essential part of the strategic housing development provisions and follows a commitment in the Rebuilding Ireland document. For the benefit of colleagues, we made a change in the Seanad to make sure that extensions do not apply to decisions made under the new streamlined planning system involving more than 100 houses because if people get the benefit of an early decision, we want people to move and start building. We are not going to streamline a planning process and get planning permissions for people only for them to sit on them indefinitely. After a five-year planning period, there will be no renewal in the case of the new streamlined planning process about which we spoke earlier but for existing planning permissions that are running out and that may have had one renewal, this effectively allows for a second renewal and gives the chief executive of a local authority the powers to do that. Some estates that are half finished or that went bust may have run out of planning permission and would have to go through the planning process all over again. This allows a local authority to renew the planning application so the estate can be built.
An applicant must make an application for a renewal to the local authority but there is no obligation to put up planning notices. This is essentially the judgment of a chief executive to allow for estates that are nearly finished or give them more time if there is good reason why an estate has not moved ahead.
The point that people should know whether it is renewed is a fair one so we could look at requiring a chief executive to put the information up on the local authority website. We will bring clarity on that on Report Stage.
I move amendment No. 120:
In page 33, to delete lines 26 to 28 and substitute the following:"(i) as regards a particular permission in respect of a development of the type referred to in subsection (1)(a)(i) that relates to 20 or more houses and in respect of which an environmental impact assessment or an appropriate assessment, or both of those
assessments, were not required before the permission was granted, and".
I move amendment No. 121:
In page 33, line 30, to delete "further" and substitute "make a determination on whether to".
I shall speak to amendments Nos. 121, 122 and 125. Again, the purpose is not to oppose or delay the extension of planning permission. If a ten-year planning permission has been granted but has not been used and there is an application for extension, there could be changes in circumstances, environment, the built environment or context that would require a revised environmental impact assessment, EIA, screening process, particularly in terms of the cumulative impact of other developments or environmental changes. What these three amendments would do is recognise the fact that there may be changes which require additional EIA screening at the point of extension to create the opportunity for that to take place.That is the logic behind the three amendments.
Amendments Nos. 17, 114, 115, 121 and 125 to 127, inclusive, propose to amend both sections 4 and 22 of the Bill to provide essentially that an application for an extension of duration of a planning permission will be treated as a new application for permission involving environmental impact assessment and appropriate assessment in particular cases, full public participation, a right of refusal even where all statutory requirements are met, appeal to the board and extensive revision of existing conditions and the addition of new conditions. I oppose these amendments as they would completely negate the purpose of extensions of duration, which is to allow extra time for existing permissions, the building out of which has been prevented or slowed down by unforeseen circumstances, to be carried out or completed in accordance with the terms of the original permission. Does that answer the Deputy's question?
I move amendment No. 123:
In page 34, line 6, to delete "the date of the commencement of this section" and substitute "the day preceding the day that section 22of the Planning and Development (Housing) and Residential Tenancies Act 2016comes into operation".
I move amendment No. 124:
In page 34, line 10, to delete "commencement of this section" and substitute "the commencement of section 22of the Planning and Development (Housing) and Residential Tenancies Act 2016".
I move amendment No. 125:
In page 34, between lines 13 and 14, to insert the following:"(V) has undertaken a new screening for environmental impact assessment in accordance with section 176B of the Act of 2000, in relation to the class of development under re-consideration, and/or any element of the development either individually or
collectively, further to receipt of the necessary information to make such an assessment from the applicant,
(VI) has undertaken a screening for appropriate assessment in relation to the class of development under re-consideration, and/or any element of the development individually or collectively, further to receipt of the necessary information to make such an
assessment from the applicant,
(VII) has required the preparation and submission of an environmental impact statement and natura impact statement as appropriate, or where an environmental impact assessment and/or appropriate assessment was required to be undertaken as part
of the original consent – the preparation and submission of an associated updated environmental impact statement and natura impact statement as appropriate,
(VIII) has required publication of a notice in respect of any such extension conforming to normal site notification requirements specified under section 34 or Part X or other relevant parts of the Act of 2000, and as if the development was seeking
permission in the first instance, but clearly indicating the current proposal is to seek an extension to the duration of the original permission and stipulating no fee is payable in respect of any observation or submission being made in respect of the
application for the extension of duration of the permission,
(IX) has facilitated public participation in the environmental decision making associated with the extension of duration of the original permission in accordance with the provisions of the Act of 2000 as if the development was seeking permission for the first time,
(X) has undertaken a full reconsideration of the application in accordance with the Act of 2000, as if the decision was to be made in the first instance, but with the benefit and consideration of—(A) the changed environmental circumstances,
(B) other developments,
(C) the objectives and policies of the current County Development Plan, and
(D) any other considerations relevant to the proper planning and sustainable development of the area, and compliance with wider environmental obligations in order to recognise—(1) the changed environmental context now pertaining, and
(2) public participation obligations arising from the Aarhus Convention and normal standards of consultation provided for in the Act of 2000 in the planning process for new applications.",".
I move amendment No. 127:
In page 34, between lines 17 and 18, to insert the following:“(2) In making a decision under this section the planning authority shall promptly notify the applicant, prescribed bodies consulted and any parties making submissions or observations of the decision, and shall indicate that any decision relating to the extension by the planning authority may be appealed to An Bord Pleanála, under section 37 of the Act of 2000, or as if the decision had been made on the development for the first time under section 34 or Part X of the Act of 2000, and indicating that decisions on screenings can also be referred to the Board under section 176C, and stipulating the timeframes for making such an appeal and/or referrals, and where practical information on the processes can be found.”.
If amendment No. 128 is agreed then amendments Nos. 129 to 131, inclusive, cannot be moved. Amendments Nos. 128 to 131, inclusive, are related and may be discussed together. Amendments Nos. 129 to 131, inclusive, are physical alternatives to amendment No. 128.
I will give the courtesy of an answer. These amendments relate to the changes proposed in the Bill regarding the Part VIII process for the approval of local authority own development proposals, including social housing. The Bill proposes a number of key changes to the existing local authority own development approval processes in section 179 of the Planning and Development Act 2000.
The first change is that at the end of the public consultation period for a proposed local authority own development, the local authority chief executive will have eight weeks to issue a report to the elected council members on the public consultation on the proposed development. No such timeline is incorporated in the current Part VIII approval procedures. The second change is that after the public consultation on a proposed development, the elected council members will have six weeks to consider the proposal and, by resolution, to vary, modify or decide not to proceed with the proposed development. The third change proposes that a council resolution in relation to a Part VIII proposal will require the support of a majority of the elected members of the local authority concerned. The fourth change is that a resolution not to proceed with the development must state the reasons for this decision.
The primary purpose of these changes is to streamline the timelines for decision making on local authority development proposals, providing certainty around the time frames for the Part VIII process. Under the revised procedures in the Bill, the maximum timeframe for the determination of local authority own development proposals will now be 20 weeks from the date of issue of the proposals for public consultation. Under the current procedures, there is no maximum timeframe for the completion of the Part VIII process which delays the delivery of local authority own development projects, including social housing proposals. The amendments proposed in relation to the Part VIII procedures seek to dilute the intentions of the proposals in the Bill.
Many local authorities do a very good job on Part VIII planning applications but there are also some applications that take an eternity to get across the line. We are trying to put timelines on councillors and chief executives to make sure the process moves through the stages. We have a massive social housing build programme, that is going to be funded over the next five years and we must get the Part VIII applications through the system. Some of the local authorities are great at that but others take a long time to make decisions and sometimes do not make decisions at all because issues get put off and put off. We are trying to put timeline sand some certainty in to the decision-making process regarding the period of time involved. We are not taking away the powers of the councillors to make the determination in the end. This is what we had initially looked at, but having spoken to many people and to the councillors about it we came back from that position and looked at a slightly speedier process while making sure it remained a democratic decision at the end of the day.
I wish to speak against amendment No.128 and in favour of my own amendment No. 130. I fully support the Minister here. While I was on South Dublin County Council we always took our housing Part VIII applications very quickly. I remember the first Part VIII I was involved in was a cycle path, the application for which had been dragging on completely unnecessarily for two years because councillors did not want to take a decision. Putting a timeline of six weeks on councillors to take decisions is very welcome. My concern is a wording issue where it says that the resolution has to be adopted by a majority of the members of the local authority. My worry is whether that would be interpreted as meaning a majority of all the members of the local authority rather then the members of the local authority who are present at the meeting, which clearly is not an intended consequence of the wording. I am not suggesting that my amendment fixes that-----
I have some sympathy for that view and it was raised yesterday, or whenever I was there, at Fingal County Council. It was also raised in the Seanad. If the council had a meeting in August or September and maybe councillors were away on holidays then the council may not be able to get a majority of the members into the chamber, but there may be a majority at the meeting who want to make a determination.
I understand the current requirement for Part VIII decision is not for a majority of members of the council, it is to have a majority of members at the current meeting of the council. It appears that the wording is unintentionally raising the bar.
We are trying to ensure that it is a fully democratic decision also. The recommendation that came to us from some of the local authorities was that if a Part VIII planning decision is to be made and the council cannot get a majority of the local authority to do that, then it must be asked if there is an issue there.
-----that in many cases councillors from outside the area are less connected. For example, a completely non-controversial Part VIII may be agreed upon by all elected members on the area committee. There is a disincentive for other councillors from outside the area to come to that particular meeting or be at that section of the meeting.
Sometimes the opposite happens too where some people want to strategically vote against a Part VIII because it is in their area but the council as a whole recognises that it should be passed. I know that sounds cynical to anybody listening, but in my experience that does happen. I take the Deputy's point that if an issue is being debated in the council then a majority at the end of the debate, councillors who have taken part in the debate, should be the people to make the decision.
Otherwise reserves are being brought in to make a decision who really have had nothing to do with it. On balance, I will accept the thrust of the amendment and we will accept the wording of it if we can check it first with the legal advisers if that is okay. We will accept the Deputy's wording on Report Stage. If it is not suitable we will bring forward a similar wording. The issue has been raised with me a couple of times now.
I move amendment No. 132:
In page 34, between lines 31 and 32, to insert the following:“24.Section 28 of the Act of 2000 (as amended by section 2 of the Act of 2015) is amended by the deletion of subsection (1C).”.
This amendment relates to section 28 of the Planning and Development Act 2000. Section 28 provides that planning authorities shall have regard to guidelines issued by the Minister in the performance of their planning functions, that is, in the determination of planning applications and in the adoption of development plans, etc. Section 28 was amended in 2015 by the insertion of a new subsection (1C) which elaborated on the original provisions by introducing a new power whereby the Minister may, within section 28 guidelines, expressly state specific planning policy requirements to be applied by planning authorities, or the board, as appropriate, in the exercise of their functions.
However section 28 was amended in 2015 by the insertion of a new subsection (1C) which elaborated on the original provisions by introducing a new power whereby the Minister may, within section 28 guidelines, expressly state specific planning policy requirements to be applied by planning authorities, or by An Bord Pleanála, as appropriate, in the exercise of their functions. This provision enables, in terms of the content of guidelines, to distinguish between advisory or general commentary, on the one hand, and specific requirements that have to be mandatorily applied by planning authorities in the performance of their planning functions.
This provision was critical in underpinning the revisions to the 2007 apartment standard guidelines which issued in early 2016 and contains specific new requirements that must be applied by planning authorities in respect of minimum apartment sizes, the number of lifts per number of apartments, car parking provision, floor to ceiling heights and the provision of dual aspect apartments, etc., and ensure their consistent application. These new revised apartment standard guidelines represented a change in national planning policy which must now be implemented by planning authorities in the determination of planning applications and the adoption of development plans.
The inclusion of the relatively new subsection (1C) in section 28 of the 2000 Act enables future revisions to existing planning guidelines, or new planning guidelines, to be expressed and applied in a clearer manner and will improve consistency and certainty in the planning process generally by distinguishing, in policy terms, between matters to be determined locally by planning authorities and by national policy set by the Minister of the day.Amendment No. 132 proposes to remove the provision relating to the incorporation of specific planning policy requirements in ministerial planning guidelines as introduced in 2015 and therefore, I cannot accept it.
That is a long answer to a short question.
I thank the Minister for his response. We have had a debate in the past number of months over increasing the supply of social housing, rental properties and private sector houses. It is important that in the course of the debate we do not lose sight of building standards or quality of living standards for the people who will occupy those units. While it is slightly opportunistic of me to table this amendment at this point, it was in a Bill that I had tabled earlier on First Stage.
When the Minister's predecessor introduced this legislation, I was one of a number of Deputies who felt it was a very controversial measure for two reasons. First, the sizes are wrong. That will have a negative impact on the quality of life for people, particularly vulnerable sections of society who could end up living in apartments of those smaller sizes. I have spent a considerable period living in local authority high rise accommodation in London and in Belfast. Size really matters, particularly over certain heights. I do not believe it is the responsibility of the Minister to introduce these types of detailed restrictions. That is the function of local elected members and the county or city development plan process. On those grounds, I will put this amendment to a formal vote.
This Bill presents a good opportunity to do the right thing and reverse what was a bad decision, albeit by the Minister's predecessor.
There are two issues, the policy decision that was made a number of years ago which was to ensure that national guidelines were being applied in Dublin. It is important to note that these are much more generous than the UK guidelines, including Northern Ireland. We are not talking about small boxy apartments. From memory, it was agreed to apply the national guidelines which we had previously to everywhere in the country, whereas Dublin had decided to increase space. The problem with that, of course, is that it pushes up the cost of building apartments. I believe we compare well internationally. Many of the developers who are coming to Ireland from abroad, make the case that the guidelines are far more demanding and far more costly in Ireland than they are elsewhere. I do not make any apologies for that because we want decent quality apartment accommodation in Dublin and elsewhere but I think the principle of a Minister being able to set clear national guidelines that local authorities must abide by is important. Otherwise it may be impossible for a national decision to be made in response to a national emergency of some type or take some significant policy initiative to be able to do that. The local authorities could ignore that ruling or a Minister might not be able to do it.
The issue is a delegation of powers in terms of whether the Minister with responsibility for planning has the capacity to introduce something that local authorities must take note of. We could argue sizes at length but the issue is the principle of a Minister being able to use his powers, as the then previous minister, Deputy Kelly did. At the time we debated that issue for a long time in Cabinet but I can understand why he made that decision.
I do not propose to accept the amendment for those reasons.
This is a very important point. A change to reduce standards is significant. The quality of life for families is very difficult in many apartments, particularly if they go above a certain number of floors. My key point is that the physical environment in which the apartments are located is one aspect but the recreational and other amenities nearby are another. Many European cities have more open space and places for activities adjacent to high rise buildings. Quality of life is a significant issue and is affected by the quality of the built environment. It goes back to a point I made earlier, and I do not think anybody present disagreed with it, as Deputy Ó Broin proposes that open space and indoor recreation space and facilities lead to the quality of the environment and that is important in determining the quality of life.
It is the Minister's prerogative to make the decision.
I do not disagree with any of the points, but what is at issue is to have consistency across the country, or do we allow local authorities to do their own thing, whereby the size, restrictions and guidelines in Cork are different from those in Limerick, Dublin, Waterford or Galway? This happens if there is no ministerial policy in terms of the clarity on the guidelines for everything from size, aspect, space and so on. It is the responsibility of the Minister to ensure we have proper standards, good quality planning across the country and that we have an inspection systems to determine that it is right. The danger is that if we do not have the capacity for ministerial planning guidelines, as introduced in 2015, the local authorities can decide to do their own thing, which potentially would lead to many problems if there were inconsistencies between different counties and cities.
I do not want to repeat anything, but I wish to make two points. It is appropriate for central Government to set minimum standards across a whole range of areas, however, the elected members of the local authorities may believe it is in the best interest of citizens to go beyond or above the standards in their city or county development plan.
That is something that not only should be considered in various areas of Government policy but already is in some areas. We have a considerable degree of flexibility for local authorities in other aspects of housing policy. I fully agree with the Minister that one does not want consistency in a situation where local authorities are going below whatever is the central Government standard.
They may do. Or one may have local authorities that have environmental, passive house or quality of life standards for tenants, which try to provide an even better quality of outcome than central Government policy would do. Within the context of the democratically elected members in a county development plan, that is an important function of our democracy. However, specifically concerning the legislative change that the Minister's predecessor introduced, the Cabinet gave current and future Ministers an even greater level of power than they had previously by the amendment to the Act. I am concerned about how that could be used by future Ministers. We are clearly not going to agree on it but there is a logic in allowing for a degree of upward flexibility in standards. In real terms, this comes into play in higher-density and higher-level apartment accommodation living. That only affects a small number of local authorities, which is why I think they should have a bit more flexibility in improving the standards if such a thing is possible.
Amendments Nos. 133, 145 to 156, inclusive, 158 to 169, inclusive, and 174 to 177, inclusive, are related and may be discussed together. Amendment No. 163 is a physical alternative to amendment No. 162. Amendments Nos. 165 to 169, inclusive, are physical alternatives to amendment No. 164.
I move amendment No. 133:
In page 34, between lines 33 and 34, to insert the following:
“24. Dáil Éireann formally declares that a housing emergency exists in the State and while this emergency continues the right of any person to remain in the dwelling in which the person currently resides will take precedence over any property right of any other person—(a) accordingly no court or other authority shall order the removal of the current occupant of a dwelling, or by its decisions enable such removal notwithstanding the provisions of any Act currently in force including the provisions of the Land and Conveyancing Law Reform Act 2013,
(b) the housing emergency declared in this section can only be terminated by a vote of Dáil Éireann, and the Government including any Minister of the Government are precluded from annulling the housing emergency without approval in such a vote,
(c) in view of the housing emergency declared here, the power of any Minister of Government to raise the market value threshold of €75,000 for single or multiple dwellings for consideration of possession of dwellings cases by the Circuit Court by activating or commencing sections of existing Acts without approval by a vote of Dáil Éireann, is cancelled.”.
My amendments are amendments Nos. 133 and 148. The first relates to the formal declaration of a housing emergency and the second, amendment No. 148, is one recommended by Focus Ireland, the homeless charity. The effect of this amendment would be to ensure that families living in buy-to-let properties which are being sold would remain in those properties. Focus Ireland has said that a significant number of families who are currently becoming homeless come from private rented accommodation, effectively, buy-to-let properties where the landlord is being forced to sell the property by banks, leading to the families being evicted. Some 20 families a month are so affected and these include approximately 40 children. The situation has been dealt with in other jurisdictions and it is not allowed in the North. It is time we took the same decision down here so that families in buy-to-let properties can remain in those properties in all circumstances.
Amendment No. 133 proposes a formal declaration by Dáil Éireann of a housing emergency. The first sentence reads, "Dáil Éireann formally declares that a housing emergency exists in the State and while this emergency continues the right of any person to remain in the dwelling in which the person currently resides will take precedence over any property right of any other person". The effect of this amendment would be that the common good in housing matters would supersede property rights. We have a housing emergency in the State, which the Minister acknowledged publicly in the Irish Examinera number of months ago, as have other Ministers. We are effectively adding to the emergency every day and figures from earlier this week show that 420 families have lost their homes by various methods, whether by repossessions, evictions or just handing back keys and abandoning their properties under pressure from banks. Four families per day are losing their homes so we should not add to the emergency but should deal with evictions, security of tenure and rent certainty. We also have to deal with the EU on funding for local authority and public housing. The Taoiseach wrote to the EU some time ago requesting flexibility in relation to additional funding but as the State has not declared a housing emergency, the EU obviously is going to take his request with a pinch of salt.
A declaration of an emergency is not unusual. The financial emergency has been in place for a number of years and was extended again on 30 June this year so it is not unprecedented. The financial emergency ensures that pay and pension cuts are continued. Pensions are private property and have been declared as such by the courts. There is a huge emergency, which the Minister has acknowledged, and to stop adding to it a declaration that one exists is required so that the common good and the right of families to homes and a roof over their head come before property rights, specifically in the case of evictions. There are 6,800 homeless people, of whom 2,500 are children, and we simply cannot continue to accept this situation.
I support the spirit of amendment No. 133. I realise that we will come back to these matters on Report Stage and in the new year when we see the outworkings of the Minister's rental strategy, which was launched today.
Obviously we will come back to some of this material on Report Stage. I presume that in the new year we will see the outworkings of the Minister's rental strategy, which was launched today. I am firmly of the view, however, that we need to move at a speedier rate to tenancies of a more definite duration than the Minister outlined today. He clearly outlined the move from four to six as a first step, and while that is fine, it depends on when we get to take the second and third steps. On that basis I am still going to press amendment No. 145.
I wish to support Deputy Seamus Healy. We had a very important and detailed presentation by Focus Ireland in the AV room a couple of weeks ago. They have done a fair amount of research on the last secure tenancy of many of the families they are working with who are currently in emergency accommodation. They found that the last secure tenancy of a significant majority of those families was in private rental accommodation. Some of them may have been transitioned through to family accommodation for a short period, or sofa surfing, before ending up in emergency accommodation. The difficulty that Focus Ireland identified is that unless there is a greater level of protection for those kind of families we will see them continuing into homeless at some rate. Focus Ireland's research showed that in most cases those families were in properties owned by a single landlord. They were either served notice to quit because of repossession proceedings or the sale of a property.
In this amendment - which is a more sophisticated than the one I drafted - Focus Ireland is trying to find ways of excluding certain categories of landlord without drawing the net too widely. In particular, this concerns those whose mortgages were funded by buy-to-let mortgages or by availing of section 23 tax reliefs. There is enormous merit in what Focus Ireland has tried to do. It speaks more directly to some of the concerns the Minister has articulated regarding his nervousness in intervening in a way that causes difficulties for landlords with one or two properties. My own amendments draw the net much wider than that.
The Minister should consider amendment No. 148 and while I am not expecting him to accept it, it is one that he should examine with a view to tabling further amendments on Report Stage. If we cannot provide this minimum set of protections that Focus Ireland is requesting, we will not be able to stem the flow of families into emergency accommodation.
I know the Minister will not accept amendment No. 149 but at some point we will have to move to a situation whereby residential rental properties are treated similarly to commercial ones. When an individual decides to rent, they are not just renting temporary accommodation for a short period but are renting a home. I know the Minister's views on this and it is my intention to press the amendment. The amendment aims to remove the sale of property as a grounds for notice to quit. I know that sounds harsh, particularly in some categories of accidental landlords, but one must balance that. We hear the Minister talking quite a lot about this in his approach to the rental strategy balance between investors and tenants. However, we also need a balance between accidental landlords and tenants who, in the kind of cases we are concerned about, are effectively rendered homeless and go into emergency accommodation. That is something that needs to be addressed.
My amendment No. 150 is a clumsier attempt to do what Focus Ireland did, so I am more than happy to withdraw it in favour of theirs. They did a much better job on the amendment, but mine attempts to do the same thing.
Amendment No. 163 generated considerable debate in the Seanad. On Second Stage the Minister outlined that he was keen to draw the threshold back from five to ten. There is simply no value in giving a minority of tenants this valuable protection - whether it concerns landlords with 20, ten or five - when the vast majority of tenants will not get that protection, particularly those most vulnerable due to the financial insecurity of their own landlords. I do not expect the Minister to support the amendment because he is seeking to move it in the other direction. As I said on Second Stage, however, this will create two classes of tenant protections. For example, a tenant - whether it is five or ten - will get a protection when that property is repossessed and there is an attempt to sell it on, versus the poor unfortunate who is in the property of an accidental landlord. I do not see how that can be justified given the impact on the tenant and the need for equity in the protection of tenants' rights.
I will discuss amendments Nos. 164, 167 and 168 together. These try to remove or limit the Minister's proposed exemptions for landlords who will be caught in the threshold, albeit five at the moment or ten if the Minister manages to get it changed on Report Stage. Given the impact on families who could end up homeless and the cost to the Exchequer of people having to be in emergency accommodation for 12, 16 or 24 months - particularly in the Dublin region - I cannot see how those exceptions are justified.
I support the thrust of what my colleagues have said. I agree that we do have a housing emergency and this legislation is specifically dealing with it. I welcome the principle of what the Minister is doing. Later on, we will have a debate on the rental changes the Minister is making which, from what I have read, I very much welcome.
There are 198,000 vacant homes in the State, not including holiday homes, of which 36,000 are in Dublin. That is a huge number. Notwithstanding all the excellent work we are doing, including encouragements for landlords to put more properties on the market, it is time to introduce a tax on vacant homes, such as happens in the United Kingdom. In England, local authorities have flexibility to do it. They may or may not do so but they have the requisite powers. If a home is vacant for two years or more they can double the council tax on it. I agree with Deputy Seamus Healy that if there is an emergency then families should come first. We must ensure that where houses are vacant for two years or more then property tax on them should be increased. That would encourage the owner or landlord to let such houses. Many people might not like such a proposal, but many others would welcome it. It is the only way one can meet current demand because it will take three or four years to build the required number of houses. I appreciate that it is "all systems go" in that regard, but by the time we reach that phase our population will have grown again and there will be a consequent increase in demand for accommodation.
We have to go after those vacant homes and encourage their letting, which the Minister is doing. There must be a penalty if people are holding on to homes while their value appreciates. There are many reasons why they do so, but if it is good enough for England then it is good enough for Ireland also. An increase in property tax would encourage people to let empty homes which are not required for their owners' personal accommodation. It is a no-brainer to me. That proposal goes to the heart of the problem and it is the only way we can get a few thousand homes released for letting, which are badly needed. Local authorities have not done their job in this respect.
In the greater Dublin area the local authorities were offered at least 800 homes under favourable circumstances which they did not let to families on their housing list.
I was approached by a family who were in court last week and given seven weeks to vacate the family home. This family were very successful business people - equally they could have lost their jobs - having built up a business for their whole lives that went bust. These people in their late 60s have gone bust and they have nowhere to go. Their children are grown up so they will not get priority on the local authority housing list. I rang the bank involved but they are not for budging. We need to have more respect for people who have paid their way all their lives and find themselves in this situation, as do people who have their employment. I am not making a distinction between them. We need to do a lot more in that area.
It makes me sick when I listen to advertisements on the radio where a lady says, "My son was born homeless, I am living in a hotel tonight" because that is the result of the mismanagement of our economy by a previous Government. We have to act now. I accept, acknowledge and support all the actions we are taking. We need to go a step further.
I will deal with amendment No. 133. I appreciate the sentiment behind Deputy Healy’s amendment but I am afraid that I cannot accept a blanket ban, essentially, on all court orders removing people from a property. I do not accept that such a provision is in place in Northern Ireland, the idea that nobody can be removed from a premises in Northern Ireland. I do not think that is the case. However, the amendment tabled by Deputy Healy does not take account of the fact that the Government has and will be putting in place a number of measures to assist homeowners to remain in their homes where possible. In particular, I draw the Deputy’s attention to the new, innovative mortgage arrears resolution service - Abhaile - which the Tánaiste and Minister for Justice and Equality and the Minister for Social Protection officially launched recently. The new nationwide service marks a departure in State assistance by providing free, independent expert advice and support on financial and legal issues.
In addition, action 4 of the rental strategy, published today, commits to engagement with the banking sector to encourage banks and landlords in arrears to agree sustainable solutions which may include retaining the use of the property for rental uses – for example under HAP or rent supplement. The key is to prevent these cases from ever reaching the courts where possible. Furthermore, action 5 of the strategy commits to the establishment of a working group made up of the key public sector bodies involved, including my own Department, the Departments of Justice and Equality, Finance and Jobs, Enterprise and Innovation. This group will examine the scope for the obligations of landlords to transfer to receivers and will report by the end of the first quarter of next year. We are looking to revamp the mortgage to rent scheme to try to give people an option to effectively move from being in real difficulty from a mortgage arrears perspective to being able to rent the properties that they have been living in from local authorities or approved housing bodies. That scheme has not been the success that it could or should have been so we are looking to redesign it.
Amendments Nos. 145, 146, 159, 174 and 175 propose to amend Part 4 of the Residential Tenancies Act 2004 to provide for tenancies of indefinite duration. There are some very significant provisions included in this Bill in relation to security of tenure; both the Tryellstown amendment and the repeal of section 42 make important changes in regard to security of tenure for tenants. However, this Bill includes only the early action measures set out in Rebuilding Ireland.
The Bill does not resolve all of the problems in the rented sector and it was not intended that it would do so. To legislate for the problems in the rented sector in advance of having a strategic plan for that sector risks exacerbating the very problems that the Government is trying to solve. That is why the action plan committed to the publication of a strategy, by the end of the year, which was launched today. I presume some members have read the strategy already. It is relatively short. There is a commitment to move towards tenancies of indefinite duration but we are not making that jump just now. My judgment is that the so-called accidental landlords and those who invested in rental property for capital appreciation are essentially stuck with properties. We do not want to make decisions that spook landlords and result in people getting out of the market altogether. We have taken a step in the right direction by proposing going from four to six years with an intention that we are trying to create much longer tenancies. We also have a proposal for unfurnished properties under ten year tenancies. Again, we are looking for longer term tenancies, much more certainty and a clearer commitment from both landlords and tenants for longer term rental relationships. This is movement in the direction that Deputy Ó Broin and I want in terms of moving towards tenancies of indefinite duration, with reasonable break clauses that are available to both tenants and landlord. We will bring forward an amendment to that effect on Report Stage so we will have an opportunity to discuss it again.
Amendment No. 147 provides that the four year period would be changed to a “period agreed between the landlord and tenant”. I do not believe this is advisable. The four year period is a minimum right for all tenants at present and I intend to increase this to six years. By allowing the period to be determined by agreement between the landlord and the tenant runs the risk that the tenant, in a weaker bargaining position, would lose the right to remain for four or six years. Therefore, I do not propose to accept amendment No. 147.
Amendments Nos. 148 to 155, inclusive, all relate to the termination of a tenancy on the ground that the landlord wishes to sell the dwelling.Amendments Nos. 148, 150, 151 and 153 all prohibit a landlord from terminating a tenancy on the ground of sale where the dwelling concerned is an investment property, a buy-to-let or a section 23 dwelling. Amendments Nos. 149, 152 and 155 prohibit terminating a tenancy on theground of sale in all cases and amendment No. 163 reduces the number of dwellings that the Tyrrelstown amendment would apply to from five to one dwelling, which would have a similar effect.
The Bill includes two significant provisions in regard to security of tenure. Section 30 provides that a landlord may not terminate a tenancy on the grounds that he or she wishes to sell a dwelling in circumstances where he or she is selling more than five dwellings, at the same time, in the same development. This amendment arises from a commitment in the strategy Rebuilding Ireland - Action Plan for Housing and Homelessness to deal with terminations in very specific circumstances, that is, where large numbers of tenants in a single development are served with termination notices at the same time. The original figure was 20 dwellings and this was amended to five on Report Stage in the Seanad. On foot of legal advice, I will bring an amendment on Report Stage to increase this number to ten dwellings and we will debate that then. In drafting the Tyrrelstown amendment, the Department was very aware that restricting the use of the grounds of sale to terminate a tenancy could be regarded as an interference with constitutionally protected property rights. Therefore, the amendment was drafted so as to ensure that this interference was both proportionate and justified. I believe that taken together with the measures in the strategy – including the increase in the length of the Part 4 tenancy from four to six years and the provisions to provide for rent stability – that the Government has provided a proportionate and balanced improvement in security of tenure for tenants and I do not propose to accept these amendments.
For similar reasons, I do not propose to accept that part of amendment No. 154 which also prohibits a landlord from terminating a tenancy on the ground that a dwelling is unsuitable having regard to overcrowding and that the dwelling is required for a family member.
Amendment No. 156 proposes that where a landlord terminates a tenancy because the dwelling is required by the landlord or a member of the landlord's family, the landlord will pay six months' rent as compensation to the tenant. The payment of six months' rent as compensation is neither proportionate nor balanced and I do not propose to accept this amendment.
A tenant acquires the protection of a Part 4 tenancy after six months' continuous occupation. Amendment No. 158 provides that the protection of a Part 4 tenancy should arise after two months. The purpose of the six-month period was to provide for a type of probationary tenancy whereby the landlord and tenant could ensure they were ready to enter into a long-term four-year tenancy. The six-month period is reasonable and provides for a balance in the Act and I do not propose to accept this amendment.
Amendments Nos. 160 to 169, inclusive, all relate to the Tyrrelstown amendment. I note the section is opposed and I have addressed this already.
Amendments Nos. 160 to 162, inclusive, 164 to 166, inclusive, 168 and 169 relate to the exemptions to the Tyrrelstown amendment. As I discussed earlier, the Department was aware that restricting the use of the ground of sale to terminate a tenancy could be regarded as an interference with constitutionally protected property rights. Therefore, the exemption to the amendment was drafted to ensure this interference was both proportionate and justified, while also taking account of cases of genuine hardship. These amendments were strengthened by Opposition amendments on Report Stage in the Seanad. I do not intend to undo these changes other than to provide for a consequential amendment to section 29 on Report Stage. The amendment, as drafted, addresses the concerns raised in the Seanad and I do not propose to go further.
Amendment No. 167 proposes to increase the figure of 20% to 40% in subsection 30(3)(a). High levels of landlord indebtedness are leading in many cases to insolvency and repossession. A breakdown of buy-to-let accounts for June 2016 found that more than 20% of these accounts were in arrears and that, of these accounts, more than 10% were in arrears for more than two years. The figure of 20% is proportionate and balanced. Not alone must there be a loss of 20% but the landlord must also be able to show hardship or that the effect of the provision is unduly onerous. For this reason, I will not accept the amendment.
Amendment No. 176 provides that a landlord may not terminate a tenancy for non-payment of rent unless the landlord has engaged in a rent arrears resolution process to be established by ministerial order. When terminating a tenancy for non-payment of rent, a landlord must first serve a 14-day warning letter to the tenant. If the tenant does not comply with this letter, the landlord may only then serve a 28-day notice of termination. Where the tenant believes that the notice is invalid, he or she may take a case to the Residential Tenancies Board and a termination of the tenancy may not be effected during that time. It is clear that while tenants have rights, they also have obligations and there is an obligation under the Act on a tenant to pay the rent. The protections provided for in the Act where a tenancy is terminated for non-payment of rent are fair and appropriate.
Amendment No. 177 proposes that the Minister report within three months on measures needed to ensure security of tenure and protections for sub-letters and licensees. The protections for sub-letters are set out in the Schedule to the 2004 Act and are detailed and robust. The Act does not apply to licensees.
In publishing the Rebuilding Ireland action plan and now in the rental strategy under pillar 4 of the action plan, the Government has set out a practical and readily implementable set of actions to create a functioning and sustainable housing system. Taken together and vigorously implemented, the proposals in the action plan and, more specifically, the strategy will deliver a strong, viable and attractive rental sector that delivers affordable and high quality accommodation. I hope I did justice to the officials who wrote these notes by reading them out accurately.
While I do not wish to prolong the debate, I have a number of specific questions. On Second Stage, I asked two questions on the amendments to section 42, which I welcomed. Approved housing body tenancies now come under the terms of the Residential Tenancies Act, which is a welcome change. In the case of a person who has been a long-term tenant of an approved housing body, one of the anomalies of including such tenancies within the scope of the Act is that a six-month probationary period will apply. Many tenants have asked whether this will result in a diminution of their rights. In the round, the rights of such tenants are greatly strengthened by the decision to include their tenancies within the scope of the Residential Tenants Act and Residential Tenancies Board. Nevertheless, this remains a genuine concern of many tenants. I asked in my Second Stage contribution that the Minister respond to this specific query either on Committee Stage or a subsequent Stage of the Bill.
Another issue arose in respect of the removal of six-month probationary periods from subsequent four-year tenancies under Part 4, which is obviously a positive step. Does this provision give rise to any loopholes? Did officials examine whether the removal of the second six-month probationary period at the start of a second four-year period under a Part 4 tenancy will cause difficulties in terms of a rent review? While this is a very good change, one of the questions that has been asked is whether it will have any unintended consequences for rent reviews. While I do not believe that will be the case, I raise the issue because it is important.
I acknowledged that the move from four-year to six-year tenancies is welcome. On the issue of moving to indefinite duration, is there a notional timescale for moving beyond six-year tenancies? Will new arrangements be phased in over a number of years?
My final point is a question rather than a rhetorical comment. On Article 43 and the possibility that constitutional issues could arise in respect of interference with constitutional property rights where a landlord was prevented from issuing a notice to quit on the ground that a property was to be sold, I have two specific questions. The Minister cannot or will not share the legal advice received from the Attorney General on this matter. If there is no constitutional difficulty in placing such a restriction on a landlord who has ten properties, on what basis would such a constitutional protection apply in the case of a landlord with five properties or one property on whom the Minister imposes a restriction given that landlords must all enjoy the same constitutional rights? Likewise, we do not require commercial landlords to evict tenants in the event of a property's sale. In fact, the norm in commercial practice is to sell on commercial properties with the tenant in situ. Why is this not constitutionally possible in the residential rental sector when it is constitutionally possible in the commercial rental sector? These are genuine questions.
My understanding in respect of the Deputy's final question is that there is a legal view that interference with someone's property rights, in other words, the right to sell a property unencumbered, must be both proportionate and justified, irrespective of whether it applies to an individual or a fund which owns large numbers of properties. In other words, if the owner of 30 properties in one development chooses to sell all his or her properties, the question is whether it would be proportionate and justified to allow the landlord to kick everybody out to sell the properties. The reason we are introducing the Tyrrelstown amendment is that we do not believe it would be proportionate or justified for the landlord to do so. The scenario is different, however, in the case of someone who owns one property, which may be a family home or similar, and wants to sell the property. As a result of selling the property with a tenant in residence, the value of the property will be significantly less. In such circumstances, the question is whether it is proportionate and justified to prevent the landlord from selling his or her asset unencumbered. That is a genuine issue. This is not a bluff by us to try to have a figure of five or ten properties. A genuine legal issue arises where somebody is essentially told that, as a result of a change in the law, a property cannot be sold vacant and, therefore, the owner must accept a lesser value for the property because a tenancy will continue through the sales process. Is this proportionate and justified in respect of the constitutional rights of a person as regards his or her assets or property?
There is a grey area there and we had to make a judgment call in the case of Tyrrelstown as to whether that was justified and proportionate to ensure it could not happen again. In my view it is and I would defend that in court any day. How low should we go with the number before moving into that grey area of property rights versus the obligation on the State to reasonably protect tenants in situ? That is where the figure of five or ten is under discussion. That is my understanding of the judgment.
I cannot give an exact timeline on the indefinite duration issue. We looked at going straight to indefinite duration. I tested it with many stakeholders and got considerable negative feedback that people were not quite ready for it. So we are going from four to six and we will discuss in the future when we can take the next step. However, I do not want to give an exact date for it now, as that would create more uncertainty.
Tenants of approved housing bodies, AHBs, have more rights now than they previously had. I think the Deputy acknowledges that. There certainly is no diminution of rights as far as I know. I can check that again.
Obviously the basket of rights they get under the Residential Tenancies Act, RTA, is greater. However, is there any diminution in the first six months of their first Part 4 tenancy as they now come under the Act? I cannot see it.
The discussion we have had emphasises the need for the declaration of a housing emergency as proposed in amendment No. 133. The effect would be to ensure there could not be a constitutional challenge. Because we have a housing emergency, we need constitutional protection. The way to put that constitutional protection in place is through the declaration of a housing emergency. This is not new. There is already an emergency in place regarding another area, which also affects private property.
The Chairman has told me that already.
I move amendment No. 134:
In page 35, between lines 7 and 8, to insert the following:
“Amendment of section 19 of the Act of 2004
27. Section 19(2)(b) of the Act of 2004 is hereby repealed.”.
I will not rehearse the very lengthy debates we have had on rent certainty. I will not open up that part of the debate.
I listened carefully at the press conference today. Obviously, because we have been in Committee all day, we did not have the time to read the detail of the report. I went to the launch to get as much of the detail as possible. I would like to hear the Minister's response to two things in light of what he said today. He talked about the balance between the ability of the investor to make a reasonable return and the tenant to have some predictability of rent, as he now calls it.
My concern is twofold. Yields on rental properties are at a very high level - some estimates have them at around 7% meaning that rent rolls are very high. There are many smaller landlords for whom even at the current high rents they are not meeting the mortgage payments on the properties. We accept that and there is research to back it up. However, for the institutional investors the Minister is looking to attract in as part of his overall Rebuilding Ireland strategy, the yields are already significant - not only higher than they have historically been in this State but higher than in other EU member states. When the Minister gave an explanation for picking the 4% annually for the three years, if I understood it right, he said that on the basis the kinds of reasonable returns that ISIL expects for its investors of somewhere in the region of 4% annually.
When I break my own rules on acronyms, it always goes wrong. I meant the Ireland Strategic Investment Fund. A 4% annual return is reasonable. From what I can see, the Minister has not provided for 4% annual return. It is 4% in the first year, effectively 8% from base point in the second year and 12% in the third year. So it is a significantly higher level once a landlord passes that third year. This assumes that landlords in Dublin and Cork do as we expect them to do, which is to take the full 4%.
In a market where the landlords and in particular the investors are already getting a healthy return, they are getting a further rate of return well above what other investors in other areas of activity would get. I do not understand the logic for that and I ask the Minister to explain it to me.
In addition a significant portion of renters simply cannot afford more rent. While on paper 4% sounds better than 8%, or 12% over three years is better than the 26% over two years that Davy estimated, if the Minister is going to facilitate that additional cost, it has a big financial implication for families. For example, a family renting the average family home in Dublin at €1,500, would have to pay an extra €4,500 over the three years.
In arguing against using the consumer price index, the Minister said that part of the problem is that it would not allow any rent increases. That is precisely the point. These families cannot take any extra rent increase. At a time when the market is already providing healthy yields, I do not understand. In the Second Stage debate I heard the general argument. However, based on the detail of what the Minister announced today, I do not accept the logic of it. I do not see evidence that a more constraining approach to rent inflation would have any negative impact on either existing levels of stock in the rental sector or future levels of investment.
I am also very concerned that by starting with Dublin city and county, and Cork, significant portions of the State are left out. I know the Minister has a mechanism in there, but for those other geographical areas to qualify for the scheme, their rents will have to increase to the rates in Dublin and Cork, which means that those people will have to suffer the more dramatic rent increases that people in Dublin and Cork have experienced in recent years and then be hit with a further 12% in three years.
I am expressing frustration. I know it is Fine Gael and that party does not like intervention in the market. If Deputy Noonan were not Minister for Finance, I am sure the Minister, Deputy Coveney, could get a better deal than the one he got.
However, based on the Minister's figures, this is a really bad deal for struggling renters and a really good deal for institutional investors. I will, therefore, press the amendment, although I do not want to get into the detail because we have already had that discussion. If the consumer price index is not the right index, that is fine, but this is not the right mechanism either. It will not provide the relief for struggling renting families or individuals that the Minister claimed today at the press conference.
I do not agree. Much of the response from the organisations referred to by Deputy Ó Broin, such as Focus Ireland, the Simon Community and the Peter McVerry Trust, has been welcoming of what was introduced today. I am sure some people would have liked us to have gone further, but we are talking about something that has never happened before. It certainly has not happened in recent political history anyway. The State has decided to put a limit on rental increases and a pretty modest one too.
I took a lot of soundings and advice before settling on a figure. This was not a horse trading session with the Department of Finance. We considered the possibility of the CPI plus 3%, the CPI plus 2% and a figure of medium term economic growth, which is about 3.25%. We considered what is seen as a reasonable and modest rate of return for the Ireland Strategic Investment Fund, which is 4%. We considered the European Central Bank's target for inflation, which is 2%, plus a 2% yield on top of that, which is also 4%. We also examined what is happening in other countries and cities where there is intervention in the rental market. Berlin, for example, has a cumulative limit over three years of no more than 20%, which is significantly higher than 4% or 5%. We are trying to signal to investors that it makes sense to invest in rental property in Ireland and that there is opportunity for growth, but that it is limited and modest. The current extraordinary rates of rental inflation must end within the rent pressure zones. Tenants in Cork city or Dublin who have a rent review coming up in January or February will be relieved as they know they could probably have anticipated an increase of 15%, 16% or 20%, depending on location, but now the maximum increase will be 4%.
The other thing I keep hearing people say today is that this is a 12% increase over three years. That is not necessarily the case. All tenancies are now restricted to two-year rent review periods. There cannot be a review except after 24 months. Many people, including those in rent pressure zones, will not have a rent review until possibly the middle of next year. It might be 18 months away. The rent review that will then be applied will be subject to a maximum increase of 4%. For many, it will be nowhere near 12% over the next three years. It might be less than 8%. It will depend on where they are in the cycle of reviews. The two-year rent review restriction will continue to apply until the rent review comes up and, if they are in a rent pressure zone, after that there is an annual ceiling allowed of 4%. As stated, from what I can see this compares pretty well with what is seen as a reasonable but modest level of rental inflation in other jurisdictions.
I have spoken about this balance repeatedly. There are far more tenants than there are landlords. Therefore, the campaign for many tenants who are under genuine and serious pressure is significant politically, but we will not have a functioning market if more landlords do not come into the market and existing landlords do not want to stay. We want to provide for some growth and rental appreciation, or modest increases, over the designated period for the rent pressure zones. At the same time, we want to provide a total change in terms of the expectation for tenants as regards the level of rental increases.
A fair point has been made about the areas outside the four Dublin areas and Cork. In the next three months or so, the Residential Tenancies Board will be able to give me information and recommendations on the basis of local electoral areas - in other words, local wards within local authority areas. We will be able to have a much more granular and accurate assessment of areas. This may result in some areas in Dublin falling outside of the rent pressure zone, but it will result in some areas outside of Dublin and Cork - perhaps parts of counties Galway, Meath and Kildare - coming within it. Fianna Fáil has raised the issue this evening, but the way the system is designed allows designation to be granted. We want it to start with a big bang, if one likes, in the two big cities - Dublin and Cork. If we did not do that, the market would not take this as seriously as it is intended.
We asked what we needed to do in terms of a trigger threshold to bring in the whole of Dublin and the whole of Cork. The Residential Tenancies Board can apply that threshold to other areas and if they qualify they qualify. In effect, what is required is a sustained period of time where annual rental increases are above 7% and the average rent in the area above the national average. Those are the two criteria. We predict that other areas will meet the criteria. The whole of County Meath probably does not qualify at the moment, but if broken into local electoral areas certain parts probably will qualify. It is likewise for other counties and cities. There is method in what we are proposing today. This is about targeting areas that have genuine and real pressure for a sustained period so that we can give families that are renting some certainty and predictability on their next rent review. At the same time, it will allow for a modest level of rental increase over the next three years after the designation is made. For me, that is a reasonable balance.
We had almost 500 written submissions, including very detailed submissions from Fianna Fáil and Sinn Féin. If one were to look at a matrix of all the things Sinn Féin and Fianna Fáil had sought in key areas, a lot of those boxes have been ticked. However, it is not good for Ireland if we go below 4% in terms of a ceiling. That would have a severe negative impact on supply, which is not a good thing. We are seeing a dramatic growth in the private rental market and we need to continue to facilitate it with a lot of increased supply. I am, therefore, concerned by requests to reduce the figure of 4% and do not want to go there. There are many other things we can do. In terms of designations, we can instruct the Residential Tenancies Board to examine areas outside Dublin and Cork more quickly.
If we start reducing the figure of 4%, however, we fundamentally undermine the core issue that has to be dealt with, which is the lack of supply. Even though new properties coming onto the market are not affected, in terms of the appetite for investment, investors will look at the long-term impact of the rent pressure zones model on their investment. I must advocate for a balanced approach that will deliver supply and ensure that landlords can make reasonable margins so that they stay in the sector and that tenants who are under pressure can sleep at night in the build up to rent reviews, knowing that nothing dramatic will be coming down the tracks, whether it is in 18 months time or eight weeks time.
This is an important debate. When we have the Minister's full proposals and amendments, which are coming in this Bill, we will be able to debate them more fully. Landlords are paid well enough. The rents for those who are receiving the increased HAP supports in Drogheda have shot up in the past couple of years.
There has been a significant increase in Drogheda. The national increase in housing assistance payment, HAP, indicates that the system has recognised where rent increases have occurred.
I welcome what the Minister is doing and I understand his comments about the Residential Tenancies Board, RTB, but the people in the Drogheda-east Meath area who vote for me are being screwed to the wall by landlords. People are in fear and are desperate, particularly families with young children. I accept the limits that the Minister is putting in place and his argument was strong, but I have read - the Minister might correct me if I am wrong - that rents in Dublin have increased by so much that they have tailed off because people are moving out of the city. Notwithstanding the fact that they work here, they cannot afford to live here anymore. People from my community - I will not say their names - are getting out of the city. Some are being forced out.
I understand that. I have been putting some thought into one of the main issues. A group of young men with whom I spoke told me that their landlord was putting them out of the house, not because they were not paying but because if he switches to Airbnb, he will make much more money. Their rent has increased by 35%. They cannot pay it, so they must leave. The landlord will make a killing by putting them out and moving to Airbnb. Airbnb accommodation advertises at 30% or 40% above rental prices. I can give the Minister the website addresses for those in Dublin.
I did not see it in what I had read so far. That is excellent. Given the statistics that I have been reading, approximately 1,200 homes in Dublin that are not owner-occupied are listed on Airbnb. There is a website-----
I know that the overall number on Airbnb is higher nationally and in Dublin, but I am referring to the ones in Dublin that are not owner-occupied. Those statistics are provided on a website. I believe they are accurate, although I hope to be corrected.
It is wrong that landlords can make an excessive profit off people. In particular, many young people cannot live in Dublin anymore. They do not have the money. They are earning less than €30,000 per year. Perhaps three or four of them are living together, but they have to get out. This will place pressure on commuter zones. As such, I welcome the Minister's comments on Airbnb and I will return to this matter in the debate when I will bring more facts and more of the research that I have done in my small way to inform the debate. Were the Minister to restrict Airbnb lettings in Dublin to owner-occupied homes only, it would release approximately 1,200 homes. I have examined cities like Berlin and New York, which have moved on this issue because it is negatively affecting the letting market, especially for families. I am sure that the Department has this information already, but I will share it with the Minister.
I move amendment No. 135:
In page 35, between lines 7 and 8, to insert the following:“Insertion of section 19A in the Act of 200427. The Act of 2004 is amended by the insertion, after section 19, of the following new section:“19A. Any subsequent setting of the rent under the tenancy by way of a review of that rent shall not be greater or less than the level of inflation as indicated in the Consumer Price Index as calculated by the Central Statistics Office at the time of the rent review.”.”.
I move amendment No. 136:
In page 35, between lines 7 and 8, to insert the following:“27. The Act of 2004 is amended by the insertion, after section 19, of the following new section:“19A.Any subsequent setting of the rent under the tenancy by way of a review of that rent shall not be greater or less than an index as decided by the Minister through regulation.”.”.
Amendments Nos. 137, 157 and 170 to 173, inclusive, are related. Amendments Nos. 171 and 172 are physical alternatives to amendment No. 170. Amendments Nos. 137, 157 and 170 to 173, inclusive, may be discussed together.
I move amendment No. 137:
In page 35, between lines 7 and 8, to insert the following:“27. Section 5(1) of the Act of 2004 is amended by deleting the definition of “landlord” and substituting the following:“ ‘landlord’ means the person for the time being entitled to receive (otherwise than as agent for another person, excepting where that person is acting as receiver) the rent paid in respect of a dwelling by the tenant thereof and, where the context so admits, includes a person who has ceased to be so entitled by reason of the termination of the tenancy;”.”.
Amendments Nos. 137, 157, and 170 provide that, where a receiver is appointed to a rented dwelling, that receiver will take on the responsibilities of the landlord. We are examining this matter and there is a strong section on it in the rental strategy. It is more legally complex than I had believed. We wanted to transfer the responsibilities in terms of tenancy protections and so on that would normally have been a landlord's to a receiver, but it turned out not to be as simple as that when we started looking into it. We have agreed to set up a working group with the Department of Justice and Equality to go as far as we can. There are obvious things that a receiver cannot be asked to do, for example, repay a deposit because the receiver would not have got the deposit in the first place. I cannot accept the amendments as proposed, but members can expect some progress in this area.
I move amendment No. 138:
In page 35, between lines 7 and 8, to insert the following:“27. That the Minister, within 3 months of the passing of this Bill into law, shall bring a report to the Dáil on the options available for implementing rent controls, bringing rents to affordable levels and providing security of tenure for tenants.”.
I move amendment No. 141:
In page 35, between lines 7 and 8, to insert the following:“Amendment of section 19 of the Act of 2004 to introduce emergency rent controls linked to the Consumer Price Index for all existing rental dwellings, both between and within tenancies27. The Act of 2004 is amended by the substitution of the following for section 19:“19. (1) In setting the rent under a tenancy for a dwelling that has previously been the subject of a tenancy, an amount of rent shall not be provided for that is greater than the amount of rent last set for that dwelling, whether under that tenancy or a previous tenancy, plus the rate of inflation since the rent was last set, as indicated in the latest Consumer Price Index calculated by the Central Statistics Office.
(2) In setting the rent under a tenancy for a dwelling that has not previously been the subject of a tenancy, an amount of rent shall not be provided for that is greater than the amount of rent currently charged for 3 dwellings of similar size, type and character, and situated in a comparable area, as notified to the Residential Tenancies Board.
(3) In this section, ‘the rent last set for that dwelling’ is a reference to the rent last notified in respect of the dwelling in question to the Residential Tenancies Board.”.”.
I move amendment No. 142:
In page 35, between lines 7 and 8, to insert the following:“Report on a permanent system of rent controls and the massive expansion of social and affordable housing needed to reduce rents to affordable levels27. The Minister for Housing, Planning, Community and Local Government is to report within three months of the enactment of the Planning and Development (Housing) and Residential Tenancies Act 2016 on the measures needed to establish a permanent system of rent controls that in combination with a massive increase in direct build and acquisition of social and affordable housing by the State would permanently reduce rents from their current unaffordable levels.”.
I move amendment No. 143:
In page 35, between lines 7 and 8, to insert the following:“Amendment of section 22(2) of the Act of 2004 to extend the notice period for new rents to 180 days27. Section 22(2) of the Act of 2004 is amended by substituting “180 days” for “90 days”.”.
I move amendment No. 145:
In page 35, between lines 10 and 11, to insert the following:“Amendment of section 28 of Act of 2004
28. The Act of 2004 is amended in section 28(2)(a) by the substitution of “for an indefinite period from” for “for the period of 4 years from”.”.
I move amendment No. 148:
In page 35, between lines 13 and 14, to insert the following:“Restriction on termination of tenancies of buy-to-let dwellings
29. The Residential Tenancies Act 2004 is amended by inserting the following section after section 34:“Restriction on termination of tenancies of buy-to-let dwellings
34A. (1) A Part 4 tenancy may not be terminated by the landlord on the ground specified in paragraph 3 of the Table to section 34 where the property to which the tenancy agreement relates is the subject of an existing investment mortgage.
(2) Subsection (1) applies to all tenancies, including a tenancy created before the coming into operation of this section.
(3) Where, immediately before the coming into operation of this section, a notice of termination has been served on a tenant in reliance upon a ground provided for in paragraph 3 of the Table to section 34, section 34 shall continue to apply to that notice as if this section had not been enacted.
(4) In this section, ‘investment mortgage’ means a mortgage which has been taken out as security in respect of a residential property that was not at the time of its purchase intended to serve as the principal private residence of the mortgagee, and is subsequently the subject of a tenancy agreement.”.”.
I move amendment No. 149:
149.In page 35, between lines 13 and 14, to insert the following:“Amendment of section 34(b) Table 3 of the Act of 2004
29. The Act of 2004 is amended by the deletion of “3. The landlord intends, within 3 months after the termination of the tenancy under this section, to enter into an enforceable agreement for the transfer to another, for full consideration, of the whole of his or her interest in the dwelling or the property containing the dwelling.” from section 28(2)(a) of the Act of 2004.”.
I move amendment No. 153:
In page 35, between lines 13 and 14, to insert the following:“29. (1) Section 34(b) of the Act of 2004 is repealed.(2) The Act of 2004 is amended by inserting the following sections after section 34:“Restriction on termination of tenancies of buy-to-let dwellings
34A. (1) A Part 4 tenancy may not be terminated by the landlord on the ground specified in paragraph 3 of the Table to section 34 where the property to which the tenancy agreement relates is the subject of an existing investment mortgage.(2) Subsection (1) applies to all tenancies, including a tenancy created before the coming into operation of this section.34B. (1) A Part 4 tenancy may not be terminated by the landlord on the grounds specified in paragraphs 3, 4, 5 and 6 of the Table to section 34 in areas designated by Ministerial order and for a period specified by Ministerial order to regulate the exercise of private property rights by the principles of social justice and to reconcile the exercise of those rights with the exigencies of the common good in order to prevent homelessness and economic evictions.”.”.
(3) In this section, ‘investment mortgage’ means a mortgage which has been taken out as security in respect of a residential property that was not at the time of its purchase intended to serve as the principal private residence of the mortgagee, and is subsequently the subject of a tenancy agreement.
I move amendment No. 155:
In page 35, between lines 13 and 14, to insert the following:“29. (1) The Act of 2004 is amended by the deletion of paragraph 3 of the Table to section 34.(2) Paragraph 4(b)(ii) of the Table to section 34 is amended by the substitution of “the ground specified in paragraph 1, 2 or 6 of this Table” for “the ground specified in paragraph 1, 2, 3 or 6 of this Table”.
(3) Section 56(c)(i) is hereby repealed.
(4) The Act of 2004 is amended by the deletion of paragraph c(i) of the Table to section 56.”.
I move amendment No. 156:
In page 35, between lines 13 and 14, to insert the following:“Amendment of section 34 of the Act of 2004 to require landlords terminating a tenancy on the ground of needing the dwelling for occupation by the landlord or a by a member of the landlord’s family to pay compensation to the tenant
29. (1) The Act of 2004 is amended in paragraph 4 of the Table to section 34 by the insertion after “his or her family” of “and has paid the tenant an amount equivalent to six months’ rent in respect of the tenancy as compensation for the termination of the tenancy”.(2) The Act of 2004 is amended in paragraph 4 of the Table to section 34 by the insertion of the following subparagraph after subparagraph (b):“(c) and that the landlord is obliged to pay the tenant an amount equivalent to six months’ rent in respect of the tenancy as compensation for the termination of the tenancy.”.”.
I move amendment No. 157:
In page 35, between lines 13 and 14, to insert the following:“Amendment of section 5 (“relevant date”, “landlord”, “tenant”, “lease”, etc.) of the Act of 2004
29. Section 5(1) of the Act of 2004 is amended by deleting the definition of “landlord” and substituting the following:“ ‘landlord’ means the person for the time being entitled to receive (otherwise than as agent for another person, excepting where that person is acting as receiver) the rent paid in respect of a dwelling by the tenant thereof and, where the context so admits, includes a person who has ceased to be so entitled by reason of the termination of the tenancy. For the avoidance of doubt, ‘landlord’ also means any lender, financial institution, equity fund or investment fund that has taken possession of a dwelling that is the subject of an existing tenancy but where no receiver has been appointed.”.”.
I move amendment No. 158:
In page 35, between lines 13 and 14, to insert the following:“Amendment of sections 27, 28(1) and 28(3) of the Act of 2004 to extend Part 4 protections to all tenancies over two months in duration
29. (1) Section 27 of the Act of 2004 is amended by the substitution of—(a) “continuous period of 2 months” for “continuous period of 6 months”, and(2) Section 28(1) of the Act of 2004 is amended by the substitution of “continuous period of 2 months” for “continuous period of 6 months”.
(b) by the substitution of “continuous period of 2 months” for “continuous period of 6 months”.
(3) Section 28(3) of the Act of 2004 is amended by the substitution of “expiry of the period of 2 months” for “expiry of the period of 6 months”.
(4) Section 50(3) of the Act of 2004 is amended by the substitution of—(a) “continuous period of 2 months” for “continuous period of 6 months”, and
(b) by the substitution of “expiry of that period of 2 months” for “expiry of that period of 6 months”.”.
I move amendment No. 159:
In page 35, between lines 13 and 14, to insert the following:“Amendment of section 28(2)(a) and section 34 of the Act of 2004 to make Part 4 tenancies indefinite
29. (1) Section 28(2)(a) of the Act of 2004 is amended by the substitution of “for an indefinite period from” for “for the period of 4 years from”.(2) Section 34(b) of the Act of 2004 is hereby repealed.
(3) Chapter 4 of the Act of 2004 is hereby repealed.
(4) Chapter 5 of the Act of 2004 is hereby repealed.
(5) Section 55(1) is amended by the deletion of “or a further Part 4 tenancy”.
(6) Section 55(2) is amended by—(a) the deletion of “Neither—” and “nor”,(7) Section 56(1)(a) is amended by the deletion of “, or under a further Part 4 tenancy,”.
(b) the deletion of section 55(2)(b), and
(c) the substitution of “shall not be regarded” for “shall be regarded”.
(8) Section 57(b) is amended by the deletion of “or a further Part 4 tenancy”.”.
In order to be helpful, I should say that this is the receivership amendment and we are taking legal advice on section 31. We may need to table an amendment on Report Stage to delete section 31. I do not know whether that impacts on Deputy Cowen's interest in pressing the amendment, but we are checking legal issues before Report Stage.
I move amendment No. 174:
In page 37, between lines 11 and 12, to insert the following:
“Amendment of section 28 (Statutory Protection – “Part 4 Tenancy”) of Act of 2004
32. The Act of 2004 is amended in section 28(2)—(a) in paragraph (a), by the substitution of “for an indefinite period from” for “for the period of 4 years from”, and
(b) by the insertion of the following new paragraph after paragraph (b):“(c) where a further Part 4 tenancy has commenced on or before the commencement of this section (as amended), then subsection (2)(a) shall continue to apply to that tenancy as if subsection (1) had not been enacted.’’.”.
I move amendment No. 175:
In page 37, between lines 14 and 15, to insert the following:“(2) Subsection (1) applies to all tenancies, including a tenancy created before the coming into operation of this section.
(3) A landlord may not terminate a tenancy at the end of each four year period of a Part 4 tenancy other than by mutual agreement with the tenant or under the grounds listed in the Table to section 34.”.
I move amendment No. 176:
In page 37, between lines 26 and 27, to insert the following:
“Amendment of section 67 (Period of notice for termination by landlord where tenant in default) of Act of 2004
34. Section 67 of the Act of 2004 is amended—(a) in subsection (2)(b)(ii) by the deletion of “and the condition specified in subsection (3) is satisfied” and the substitution of “and the conditions specified in subsections (3) and (4) are satisfied”, and
(b) by the insertion of the following:“(4) The landlord has engaged in a rent arrears resolution process with the Residential Tenancies Board, if the tenant has so requested.
(5) The ‘rent arrears resolution process’ referred to in subsection (4) in this section is to be established by ministerial order following consultation with the Residential Tenancies Board and tenants’ representatives not later than 6 months after the enactment of the Planning and Development (Housing) and Residential Tenancies Act 2016.”.”.
I move amendment No. 177:
In page 37, between lines 26 and 27, to insert the following:
“Report on measures needed to ensure security of tenure for sub-letters and licensees
34. The Minister for Housing, Planning, Community and Local Government is to report within three months of the enactment of the Planning and Development (Housing) and Residential Tenancies Act 2016 on the measures needed to ensure security of tenure for sub-letters and licensees.”.
I ask the committee to note that I will be bringing a consequential amendment to section 39 on Report Stage. The section was an Opposition amendment inserted on Report Stage in the Seanad and the changes are in the nature of drafting only.
This relates to the transfer of funds from the local government fund to the Exchequer. I intend to bring forward a Report Stage amendment to the section. The purpose of the amendment is primarily technical, to provide that the section will be commenced on the day after enactment and that the payment may be made in January 2017, should there be any unforeseen delay in the enactment for any administrative reason.