Professor Rob Kitchin:

I thank the joint committee for giving me the opportunity to present to it. I welcome the idea of managing in a co-ordinated way public land for the benefit of the public. It is vital to deliver the national planning framework and address some of the housing supply issues. However, the Bill seems to be premised on supporting the use of public land in conjunction with private actors on a commercial basis for profit. There is an underlying ethos of marketisation and the privatisation of public assets and using their value as a means for the private sector to deliver public housing and other building and infrastructural projects, as opposed to the public sector delivering them.

As currently formulated, the heads of the Bill are thin on specifics regarding the LDA's role and operation. It would seem more appropriate to call it the "Land Development Company" as opposed to the "Land Development Agency". To my mind, an agency is more of a public actor and facilitator and more about policy formulation, oversight, regulation and so on. The LDA, however, is very much set around a commercial basis and is effectively being set up as a semi-State company. The word "agency" seems a misnomer.

It is not clear where the liability falls if the LDA's schemes or groups fail. This matter does not seem to be covered in the heads of the Bill. If there is a large State investment in projects and those projects fail for whatever reason, I am unclear as to where the liabilities will lie.

It is also not clear how the LDA would work in practice with local authorities and other public landholders or which entity has priority or control of decision making. If land is held by a local authority, semi-State agency or State agency and the LDA is interested in using it as part of a development, who has power and control and who gets to say that the LDA will use that land or can a public body decide not to co-operate with the LDA? Since the power relationship is not set out, I am unsure as to how the LDA will perform its work in practice.

Most of my comments concern governance, oversight and open government issues. For example, there is no detail of how the board of the LDA should be appointed other than it should be appointed by the Minister. If this is a public agency, then it should be appointed through the State boards process and appointees should have skill sets appropriate to the work of the LDA. Ideally, there should be representatives from various sectors, including the public sector, industry, civil society and academia. It should not be loaded with developer interests.

The LDA will be exempt from the Freedom of Information Act. This seems problematic, given that the LDA will be given up to €1.25 billion. The public should have the right to know what work has been undertaken, supposedly for their benefit. The LDA should be available to answer FOI requests, with specific queries that have commercial sensitivity being assessed on a case-by-case basis as to whether information can be made available rather than a blanket exemption. A large amount of public funding and potentially a large level of public liabilities are involved.

I am not entirely certain who owns the LDA. For example, will 100% of its shares be held by the Government or will other interests be able to own shares? Under heads 24 and 25, it is certainly the case that the Government would be able to sell shares. This raises questions around a public agency that has some level of private ownership, given issues of a conflict of interest with other entities and of providing a private entity with access to public information, which would appear to give the entity a competitive advantage. Including a provision to privatise a public agency raises issues. In that context, to what extent would there be public accountability?

Head 36 concerns the review of the LDA's achievements. It is vague and essentially just states that the Minister will assess progress. Perhaps it would be more suitable to stipulate that an appropriate set of expectations, targets or benchmarks would be set by the Minister or the Department of Public Expenditure and Reform that the performance of the LDA would be assessed against over certain periods.

It is difficult to judge performance or hold a body accountable if there is no sense of what it is seeking to achieve and what satisfactory or successful outcomes would look like.

On Head 32, the national public lands register, in my view, given the demand for open government and the Government's commitment to it, the public lands register should be open data and it should be made available through data.gov.iein suitable formats and also as data layers in myplan.ie. This should be written into the heads of the Bill rather than hope it occurs voluntarily. I do not accept there is commercial sensitivity around identifying the location of public land, which agency owns or its current status. In my view, this information should already be public knowledge, as it is in other countries.

Do we really want to have in place an agency which would be allocated up to €1.25 billion of public money, in which there is no openness and transparency in terms of appointment of the board and the assets it manages, which is exempt from freedom of information and public scrutiny, which can be semi-privatised or fully privatised and which has no defined method of expectations, targets or benchmarks? In my view, the answer is "No" and I would encourage some review of the governance mechanisms around the new entity.