Oireachtas Joint and Select Committees
Tuesday, 8 December 2020
Joint Oireachtas Committee on Housing, Planning and Local Government
Planning and Development Bill 2020: Department of Housing, Local Government and Heritage
From the Department of Housing, Local Government and Heritage, we are joined in person by Mr. Paul Lemass, assistant secretary, and Mr. Eamonn Kelly, principal officer. We are also joined remotely by Mr. Paul Hogan, principal planning adviser, and Mr. Liam Smyth, assistant principal planning adviser. Members have been circulated with the opening statements as well as briefing materials. I will first ask for the witnesses' opening statements and members will then be invited to ask questions. They should remember to confine their questions to five minutes, if possible.
Witnesses attending in the committee room are protected by absolute privilege in respect of the presentations they make to the committee. This means that they have an absolute defence against any defamation action for anything they say at the meeting. However, they are expected not to abuse this privilege and it is my duty as Chair to ensure this privilege is not abused. Therefore, if witnesses' statements are potentially defamatory in relation to an identifiable person or entity, therefore, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction.
For witnesses and members attending remotely, there are some limitations to parliamentary privilege and as such they may not benefit from the same level of immunity from legal proceedings as a person who is physically present. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons, or entity by name or in such a way as to make him, her or it identifiable. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against persons outside the House or an official either by name or in such a way as to make him or her identifiable.
The opening statements submitted to the committee will be published on the committee website following the meeting.
I now call Mr. Kelly to make his opening statement.
Mr. Eamonn Kelly:
I thank the Chairman and committee members for inviting the Department here and giving it the opportunity, at short notice, to further brief it on the proposed Committee Stage amendments to the Planning and Development Bill 2020. By way of introduction, I am a principal officer in the EU and international planning regulation section within the planning division of the Department. I am accompanied by my colleagues, Mr. Paul Lemass, assistant secretary of the housing policy legislation and governance division, and Mr. Paul Hogan, principal planning adviser in the Department, who is visible on the video link. Mr. Lemass will give a short opening statement on the proposed amendments relating to the Residential Tenancies Acts 2004 to 2020, and Mr. Hogan will also be available, if required, to answer questions on the practical operation of section 11(3)(b) provisions.
I will briefly outline the two main elements of the Planning and Development Bill 2020, as passed by the Seanad last week, as well as referencing the two further amendments to be introduced on Committee Stage. One of those relates to planning legislation and amendments to substitute consent provisions, which I will address, and the other relates to residential tenancy provisions, which will be addressed in Mr. Lemass’s opening statement. These amendments will also require a modification to the Long Title of the Bill.
As per the supplementary briefing note circulated to the committee, the Planning and Development Bill 2020 has been brought forward as a matter of urgency in light of the present Covid-19 pandemic to ensure the necessary protections are in place to safeguard the operation of the planning and building control systems. The purpose of the Planning and Development Bill 2020, as passed by Seanad Éireann, was twofold. First, it amended section 11(3)(b) of the Planning and Development Act 2000, which is the principal Act, in respect of the mandatory requirement to hold public meetings on a proposed development plan at the early issue stage. Second, the Bill allows the Government to make orders during the period of the Covid-19 pandemic to extend certain statutory periods applying under the Planning and Development Acts and Building Control Acts.
The Bill will amend section 11(3)(b) of the Planning and Development Act 2000 to replace the mandatory requirement to hold public meetings on a proposed development plan at the "issues stage" of the process, which is before any draft plan has been produced, with the positive obligation for planning authorities to consult with members of the public, in such manner as they consider appropriate, and to invite submissions in writing from members of the public on a proposed development plan. Following a Government Committee Stage amendment in the Seanad, which was made for the avoidance of doubt, this public consultation by the planning authority shall include the public holding of a meeting or an online public meeting. In other words, as part of a planning authority’s statutory obligation to consult with the public in respect of the commencement of the two-year draft development plan process, some format of public meeting will always be required under section 11(3)(b) at the initial pre-draft stage of the development plan process, by way of either a public meeting attended by the public in person or an online public meeting.
Once the Covid-19-related public meeting restrictions have passed, a planning authority could hold both an online meeting as well as an in-person meeting if it wished.
This amendment is immediately required to address present restrictions on public gatherings during the pandemic, which may impact on the progression of development plans during the pandemic. It is also in line with the modernisation agenda for the planning system, to improve accessibility and inclusiveness through increased online activity and to ensure continued flexibility in communicating with the public at the initial pre-draft stage of the development plan process, and will therefore be a permanent amendment.
I now move to emergency periods in section 3, as passed by the Seanad. The purpose of this provision is to allow the Government to make orders, during the period of the Covid-19 pandemic, which would extend certain statutory periods applying under the Planning and Development Acts and Building Control Acts. This contingency measure is urgently required so that public participation elements of the planning regime, and certain decision making and enforcement systems of the building control regime, are not compromised in the event that further waves of Covid-19 infections may necessitate a further period of stay at home travel restrictions, or indeed may critically impact on the operation of individual planning authorities.This measure broadly mirrors the recently expended section 251A of the Planning and Development Act 2000, as inserted by section 9 of the Emergency Measures in the Public Interest (Covid-19) Act 2020, which was in turn modelled on similar provisions in section 251 of the Planning and Development Act 2000 that covers the Christmas period. That extends the timelines of the planning Act from Christmas day through to new year’s day. That happens every year.
However, the present provision includes new flexibilities as follows. More than one extension period order may be made within the confined operative period for this general scheme, which is due to end on 9 June 2021, by virtue of it being linked to the operation of Part 3 of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020; extension orders can now be applied not only to the whole country, but to specific administrative areas as required; and the Government, at the request of the Minister, may choose which statutory periods, in which specific legislative provision, they require to extend rather than applying the extension to all periods under the Planning Acts and the specified provisions of the Building Control Acts.
In terms of which legislative periods might be extended, an order could, for example, apply to the Planning Acts and not the Building Control Acts, or vice versa, or, if required, an order might apply to specific periods within Acts, particularly those with public participation objectives, such as the public consultation periods in planning applications, planning appeals, or in the adoption of statutory plans, such as city or county development plans, local area plans or variations to those plans. That would have to be decided at the time a decision would be made, assuming the legislation is passed.
The recently expended section 251A of the Planning and Development Act 2000 introduced a similar disregard provision for statutory periods during the first lockdown earlier this year, in which case the Government Order made under section 251A lasted for 8 weeks, from the end of March until 23 May 2020 and applied to all relevant statutory periods in the Planning Acts as well as to specified provisions in the Building Control Act.
It is important to note that while this proposed legislation may never be used, it is still an essential temporary safeguard that is urgently needed for as long as the pandemic persists, to provide an agile and flexible process to ensure that the integrity of the planning and building control systems are maintained in the event of further waves of infection.
I will conclude on the proposed Committee Stage amendments relating to substitute consent provisions in the Planning and Development Acts. As I set out last week at a session with the committee online, in order to the comply with the findings of the Supreme Court judgment of 1 July 2020, it is necessary to amend the substitute consent provisions at Part XA of the Planning and Development Act 2000 to provide for “exceptional circumstances” to be considered in an application for substitute consent at section 177K of the Planning Act, along with the necessary ancillary provisions to ensure additional public participation, where required, is facilitated with respect to the consideration of exceptional circumstances at the leave to apply stage, as well as on the wider application.
Therefore, following the introduction of these highly technical proposed amendments, any new applications for substitute consent which are made directly to An Bord Pleanála must demonstrate exceptional circumstances and, in turn, the board must be satisfied that such circumstances exist, while also complying with the existing public participation requirements of sections 177K and 177H of the Planning Act and prescribed by regulations under section 177N.
Section 177K of the Act, which relates to the decision of the board on substitute consent, will also be amended to provide for additional public participation where required on exceptional circumstances and on the wider application where an application for substitute consent is currently pending before the board. This legislation will deal not only with new applications but applications currently before the board upon the enactment of these amendments. This is to ensure that applications for substitute consent which have already been submitted to the board but not yet decided are subject to a requirement to satisfy that exceptional circumstances exist so that applicants are given the opportunity to provide any further information to this effect and so that the public, prescribed bodies and those who have already made submissions on the application are notified of, and can make submissions on, the application, including on whether exceptional circumstances exist in this regard.
The introduction of these technical amendments to existing substitute consent provisions is a matter of urgency, noting that these provisions will facilitate the earlier resolution of the terms of the EU Court of Justice judgment in case C-261/18, the Commission v.Ireland, which found against Ireland. This case followed on from case C-215/06, also known as the Derrybrien Wind Farm case. In this regard, it is noted that the power of An Bord Pleanála to issue a decision on the Derrybrien Wind Farm substitute consent application currently before it has been called into question following the Supreme Court judgment. It is further noted that the State must pay fines of €15,000 per day to the European Commission as a result of the judgment in case C-261/18, which effectively is the follow-on Derrybrien case, which judgment was published in November 2019, until the terms of that judgment are met. For information, since the judgment was issued the State has paid a lump sum fine of €5 million to the Commission in respect of this case, as well as a further €2.745 million in daily fines relating the first six month period since the judgment date.
The introduction of these technical amendments to substitute consent provisions is a matter of urgency for the planning system in general and is not just to do with Derrybrien as it as a vital element of a functioning economy which needs to have measures in place as soon as possible that are legally compliant with the EIA directive to facilitate applications to seek to regularise the planning status of large scale developments, which are subject to EIA, in exceptional circumstances, if required.
Mr. Paul Hogan and I will endeavour to answer any questions that the Chairman or committee members might have with respect to the three planning elements of the proposed Bill and Mr. Paul Lemass will endeavour to answer questions on the residential tenancies element of the Bill.
Mr. Paul Lemass:
I thank the Chairman and the committee for this opportunity to further brief them on the proposed Dáil Committee Stage amendments to the Planning and Development Bill 2020 in relation to proposed additional protections under the Residential Tenancies Acts. I am accompanied by Mr. Liam Smyth, assistant principal, from the rental market policy unit, who is connecting remotely to this session. I would like also to recognise the tremendous support and forbearance that this committee, and its predecessor, has afforded the Department since March in introducing urgent, complex and significantly enhanced tenancy protections during the pandemic. This will be the fourth time in 2020 that the Oireachtas has been asked to make legislative changes relating to the Residential Tenancies Acts, namely, Part 2 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 in March providing a moratorium on evictions and rent increases during Covid-19 to 1 August; the Residential Tenancies and Valuation Act 2020 in July providing more targeted tenancy protections for those in rent arrears due to Covid-19 to 10 January - up to end November 2020 - 348 tenant declaration have been made to gain the protections under this Act; the Residential Tenancies Act 2020 in October to protect tenants from evictions when people’s movement is restricted to within 5 km of their homes; and the proposed Part 3 of the Planning and Development Bill 2020 in December to again, provide targeted tenancy protections, subject to certain conditions, for those in rent arrears due to Covid-19 to 12 April.
The proposed new provisions will operate, subject to certain conditions, from 11 January 2021 to 12 April 2021 to provide enhanced protections for those tenants who are facing rent arrears due to Covid-19 and, as a result, are at risk of losing their tenancy. Similar to the Residential Tenancies and Valuation Act 2020, if a tenant’s ability to pay rent has been impacted by Covid-19 and the tenant meets specific criteria, new procedures and protections apply under these new provisions. Tenants who follow these procedures cannot be required to vacate their rental accommodation before 13 April 2021 and are not required to pay any rent increase in respect of the period ending 12 April 2021. Where a tenant makes the required written declaration to the RTB and his or her landlord to avail of the enhanced tenancy protections from 11 January 2021 to 12 April 2021, he or she will be required at the same time to serve a notice on the RTB requesting it to assist him or her to obtain advice from the Money Advice and Budgeting Service, MABS; and within five days of making the declaration, the tenant will also be required to serve a notice on their landlord requesting a consultation to agree rent payment arrangements.
New conditions apply to these new tenancy protections that are designed to better balance the legal rights of tenants and landlords, taking account of the Constitution. The opportunity is being provided in this Bill to allow a landlord to make a counterdeclaration to disapply the new protections on foot of the financial hardship that they would cause for the landlord.
I thank the committee for facilitating this briefing and both Mr. Smyth and I will answer any questions that members might have.
I thank Mr. Lemass. I also thank the Department for facilitating the briefings both last week and today. There are a number of strands to this Bill and they are all quite complex, so we appreciate the witnesses' time on this. I will go to members now for questions, and if they keep their questions and the responses to them to five minutes, it will greatly assist us. I call Senator Fitzpatrick.
I thank the witnesses for their presentations and for the information they provided us in previous briefings. There is quite a lot going on in this Bill at this point. Talk about project creep. It is racing away from us a little, but we have had the benefit in the Seanad of having had the Bill come through, so I appreciate the time and support that the Department officials have given us in the Seanad.
I am concluding that, at heart, these amendments are looking to assert a couple of values for the public, one being the value of public participation, public information, and protecting their rights and participation in the planning process, which is all very valuable. On the requirement around the county and city development plans, it is important that the legislation would assert at a very early stage in the statutory process, in fact at the pre-draft stage in the process, the requirement on every local authority to have a public meeting to consult the public. The Bill, in this instance, reflects our evolving environment and asserts the facility of an online meeting. It is important that we recognise that a development plan process lasts two years. There is a pre-draft consultation and a report on that, there is a draft plan and consultation on that, and there is a plan and there is consultation on that. It is very important that we do not ignore all of the other elements of consultation that take place and that are conducted, both formally and informally, by the elected members with the support of the executive functions of the local authorities. The extension of the Covid periods for the planning and building regulations process is practical and valid.
On the third element, the substitute consent, this has gone on since July. Is it purely down to the fact that a Government had not been formed that this matter has not been dealt with? It is coming up to €10 million of a cost for the State. Will the witnesses clarify whether there was no earlier opportunity for the State to deal with this matter?
I support the contention that anybody applying for retrospective permission for a project that required an environmental impact assessment has acted with a level of disregard and negligence that needs to be criticised and called out. It is welcome that it will have to be demonstrated that there is an exceptional need and qualification for the project to be considered. Will the witnesses also talk through how the public will engage in having their say? In those instances the public good will have been largely ignored if the project has gone ahead without an environmental impact assessment that should have been a requirement.
In terms of the residential tenancies amendments, the extension to 3 April of the ban on evictions and the ban on rent increases is very welcome. It was mentioned that there had been 340 tenant declarations under the previous legislation. Is that the latest number to date? Will the witnesses confirm that for the tenants who are unfortunate enough to find themselves in these circumstances and who want or need to make a declaration, they will be able to do that via email using plain English and will not need to engage the services of a legal professional, be it a solicitor, public notary or anybody like that?
I thank the Senator. She raised an important point towards the end of her contribution, namely, that the process must not be significantly onerous. It is a stressful thing for anybody to go through. I invite Mr. Kelly and Mr. Lemass to respond to the Senator.
Mr. Eamonn Kelly:
On the Senator's first question, regarding whether there was no earlier opportunity for the State to deal with this issue, this is the highest priority for us to address. The judgment was issued by the Supreme Court in July. We engaged immediately with the Office of the Attorney General. We have been working with it in terms of drafting and getting legal advice and we continue to do so. Off the top of my head, 11, 12 or 13 other judicial reviews followed immediately after that case, so we were addressing those issues. As I mentioned, it had been our understanding from the Attorney General that because this was directly implementing the provisions of the environmental impact assessment, EIA, directive, we would be using a regulation under the 1972 Act to which I referred that is used to transpose directives. It was not until Thursday of the week before last that the Attorney General advised us to go into primary legislation. To answer the Senator's question, it was following much the same course. If it had gone through the 1972 regulations, it would have been done around now anyway. We are conscious of it every day that goes by in terms of fines we have to pay. I do not know whether that answers the Senator's question. In effect, it was moved into this legislative process on legal advice.
On the issue of how the public can engage in substitute consent generally, the best way of explaining it is that it is effectively a form of planning application, for want of a better comparison. It is where the developer has to put forward a remedial environmental impact assessment report which, in effect, takes into account what went before. The developer submits it to the competent authority, namely, An Bord Pleanála. It is like a normal application in that there are site notices and newspaper notices and members of the public get to engage. That is what we were building into the provisions.
It is very complicated to read, but even for applications that are currently in the system there are two steps or stages as it currently stands in the context of substitute consent. One is that there first has to be an assessment of whether the circumstances are exceptional. If the board agrees they are exceptional, it goes to the next stage, which is the substantive piece. We are now retrofitting back into the first step that there has to be public participation and it would bring it forward into the second step that there has to be consideration of exceptional circumstances. In effect, if a member of the public already submitted information on an application that is currently before the board, they will get a second chance when this legislation goes through. The best way of describing it is that it is like a normal planning application, for want of a better comparison, in terms of public participation rights and the fact that people can write to the board and the board must take account of their views. I hope that answers the question.
Mr. Paul Lemass:
On the protections which run to 12 April, we have had 348 notices to the end of November, so the figure is relatively up to date.
On the issue of how a tenant can make the declaration, email is provided for. The RTB provides a template which includes both the declaration and the request for further support from the RTB. A person does not have to fill in two separate pieces of paper; it will all be on one piece of paper. The person will have to sign to indicate that he or she wants both the declaration and the engagement with the Money Advice and Budgeting Service, but it will all be set out on the one piece of paper. That seems to have been working well thus far.
I thank Mr. Kelly and Mr. Lemass for their presentations. This is the fifth year in a row in which, in the final two weeks before the summer recess, very substantial planning and residential tenancies amendment legislation has been dropped into existing Bills that are before the Dáil. There are several problems with that. None of the points I will make are a criticism of either of the officials who are present. They are experiencing these problems in as acute a way as members of the committee are experiencing them. These are incredibly technical matters. The job of the committee is meant to be to scrutinise this legislation in the public interest to make sure it does what the witnesses are telling us it does and that it does not have unintended consequences.
The lesson of the Derrybrien case is that if proper scrutiny had been introduced when the original legislation was being passed by this House, we would not have paid possibly €10 million in fines so far. I will come to it in questions, but I expect that the fines will reach many multiples of that figure by the time the matter is resolved. In my view, it is really unacceptable for members of the committee to be given very detailed technical amendments. I have been told in an email that I have just received that we must submit our amendments to this Bill on Thursday of this week, and we are going to be asked to complete all Stages of the Bill - Second and Subsequent Stages - in a single day, on Wednesday of next week, which means that the guillotine procedure will be used and we will have a very small amount of time available to us. We have been denied the opportunity to carry out pre-legislative scrutiny or even time to inform ourselves by engaging with others, so I want to state my extreme dissatisfaction at this situation.
This may also be a lesson to us in respect of two Bills that we are currently considering, namely, the water environment (abstractions) Bill 2020 and the marine planning and development management Bill 2020, because with both of those Bills, sectoral opinion have raised significant concerns about potential non-compliance with the Environmental Impact Assessment Directive and the Water Framework Directive itself, and the issues are very similar to those we are dealing with here - public participation and compliance. We are being asked to assist in fixing a problem and we are being given a tiny amount of time to do it. If we make a mess of this, millions more euro of taxpayers' money will be paid out in fines on this or future cases, so the stakes are exceptionally high. My specific questions relate to substitute consent because my colleague, Deputy Gould, will deal with the other sections of the Bill.
I ask the witnesses to provide greater clarity as to why the Attorney General only suggested at the last moment that this needed to be done by way of primary legislation and not through a statutory instrument. Was the Attorney General consulted earlier, and was there originally Attorney General support for a statutory instrument and what changed? If we pass this Bill in the next two weeks, can the witnesses tell us when will the board be expected to make a decision on the Derrybrien case, and what is the anticipated total amount of fines that will be incurred by the State between last October when the fines kicked in at €15,000 per day, and when a decision is made? Can they tell us how many other substitute consent applications are currently in the process and will be affected by this? Also, what happens with the substitute consent applications that were approved under the old regime? Are they now open to legal challenge or in any way undermined because of the Supreme Court judgment?
I want to be very clear on the issue of public consultation. If this Bill is passed, does that mean that for all of the current pending substitute consent applications with the board, there will now be a new round of public consultation in all of those, and will all documentation and information that has been submitted, whether in public or private session today to the board, be available in respect of them?
I am still trying to understand the exceptionality test, therefore, I ask the witnesses to explain that to me in plain English. Is it now that there is public participation in the first phase, and will public participation continue in the second phase in the exceptionality test? I ask the witnesses to talk us through that in more detail.
Mr. Eamonn Kelly:
On the first question, concerning the decision to move from a statutory instrument to primary legislation, it was a decision of the Attorney General with whom we were engaging throughout on a daily and weekly basis. Our focus was on drafting, and my understanding is that a legal decision was made as a matter of prudence, to reduce the potential for future judicial reviews. The original legislation was introduced by way of primary legislation, so my understanding is that was the thinking behind the decision.
On the question of how long the Derrybrien case will take, as it currently stands, there are no specific timelines for An Bord Pleanála and there are no statutory timelines. There are statutory objective periods in all cases for An Bord Pleanála, generally of 18 weeks. Our Minister is prohibited from getting involved in any case under section 30, but in terms of information, my understanding is that in the Derrybrien case the application was lodged by a company owned by ESB in August, and An Bord Pleanála had indicated it on its website that it was due to decide on the case in January, so that is a timeframe of around about six months. It is not for me to anticipate how long the board is going to take, but given that there would have to be a further public participation element to it, one might extrapolate from that, that it might be the middle of next year before a decision is made.
As I set out in the briefing note there are in and around 15 applications that have not yet been decided at the leave stage, and there are some 20 applications that are pending in the second, substantive stage. If this legislation goes through then the new legislation will apply to all of those, requiring a further round of public participation, and certainly for those who have already gone through their own public participation stage in the substantive stage, if that makes sense.
Mr. Eamonn Kelly:
One could perhaps say €15 million. We have paid €5 million for the lump, and with the daily fines we have probably already accrued in the ballpark of about €5 million to €6 million, although I do not have it worked out. If it goes for another six months one could be adding another €2.75 million on top of that.
Mr. Eamonn Kelly:
My understanding is no. To be honest, that is a legal question to be answered. Effectively, under the Irish legal system and development there is an eight week period within which to take a judicial review. This legislation has been in existence for ten years and has operated well. There are not too many applicants that go through it. If something has already been through the process and is beyond the judicial review period it is my understanding that it is not possible to take a collateral attack to something that has been decided a number of years ago.
I just want to clarify public participation in the context of the last two questions. Is it in phase 1 and phase 2? Will it be all aspects of the existing cases, including documents and information concealed, and the exceptionality test?
Mr. Eamonn Kelly:
Yes. It is everything again. The first stage did not have public participation. It focused exclusively on the first step. The developer had to prove or show how it was exceptional. Assuming the developer got through that step, then it had to go to the public participation element. This is one of the faults that was found in the recent Supreme Court case where it was said that the members of the public were not given the opportunity to consider the issue of exceptionality in itself rather than the substance of the application. That is going to be reintroduced.
Notwithstanding cases already decided as being exceptional, we are mandating that the board does not take into account any decision it made previously and it will be accepting submissions from members of the public, which will now mention exceptionality. The board must make a further decision. Would the Deputy like me to go through the exceptionality and how and what it is?
I thank Mr. Kelly and Mr. Lemass. I do not want to rehash the debate from the Seanad on the public participation element, but it certainly is my belief that this Bill does not prevent in-person meetings. I see it as an addition to a pre-draft of the plan. In Waterford we had a very successful online consultation process as part of the pre-draft development plan, with 298 submissions. They engaged in webinars and videos. Importantly, they also offered the opportunity for in-person one-to-one meetings. It was not a case of either-or. I believe that local authorities would not use either-or. To engage our younger people in the planning process we do need to move with the times with technology, while also appreciating and recognising those people who are not tech savvy.
I will now turn to the last part of the briefing on the residential tenancy amendments.
I would like to tease out the implications of counterdeclaration on the part of the landlord. I appreciate that a balance must be struck between a tenant's rights and a landlord's rights. Who makes the determination, when is it determined and what happens in the intervening period? Under the previous legislation, the tenant was immediately protected when a declaration was made. Is the tenant still protected pending a counterdeclaration on the part of the landlord?
Mr. Paul Lemass:
I will respond to the question on residential tenancies. I think the matter relating to planning is clear.
There are two stand-alone processes. In a situation where a tenant makes a declaration and a landlord makes a counterdeclaration, the tenant has applied for certain protections and the landlord, who also claims to be suffering from hardship, wants to resist the granting of this protection. It does not go any further than that. The landlord can pursue an eviction through a separate process called a "notice of termination". The notice periods for that process are prescribed. If a landlord does not subsequently make a notice of termination, the tenancy is not terminated. The protection for the tenant, the notice periods and the ability to raise a dispute as part of a termination process continue to apply. If a declaration is made by a tenant and a counterdeclaration is made by a landlord, the landlord may then wish to pursue a notice of termination. He or she would then have to give the required notice period. If the tenant feels the landlord is not being fair, he or she can, for this or any other reason, raise a dispute relating to the notice of termination. That dispute then goes to arbitration through the Residential Tenancies Board, RTB, which has been hearing disputes on a range of matters for years. There is a safety net in place for a tenant whose landlord chooses to block any declaration. The dispute process also provides a safeguard for the landlord by determining whether a declaration has been made in the correct manner.
Mr. Lemass is essentially saying that this immediate protection still applies. The landlord can raise an objection to it, but the protection is still in place. The only way the landlord can take the matter further is through the eviction process.
I thank Mr. Kelly and Mr. Lemass for their briefings. I have a brief question on the proposed amendment concerning the mandatory holding of public meetings during the development and planning process. As the witnesses have noted, in-person public consultations will be possible again when Covid-19 restrictions are lifted. Does the wording of this amendment allow local authorities to choose between holding public meetings and continuing with the online option, thereby potentially ending in-person public consultations if a council executive wishes to do so?
While many of us have become familiar with online meetings some may not have, so this could preclude them from the process.
Mr. Eamonn Kelly:
It is our understanding that it does not prohibit both. This is the only provision in the entire planning Act where the phrase "public meeting" is mentioned. There are numerous other phases, as Senator Fitzpatrick mentioned earlier. There are numerous public meetings held and there are no provisions either preventing or requiring them and yet they happen. To answer the Deputy's question, it is our understanding that it can be both.
Mr. Eamonn Kelly:
Exactly. Just to be specific, this is the very initial stage. It is before the councillors are engaged in creating the actual draft. It is at the very start of the two-year period so there is an obligation to, effectively, publicise the launching of the development plan. I do not know if I have answered the Deputy's question.
Mr. Paul Hogan:
To clarify, this is at the very initial stage of the process where there is an element of blue sky thinking and no plan has been drafted or prepared. It is prior to even the direction stage. The improvement for the future is the fact that it can be either an in-person or an online format. Generally speaking, these things are discussed and negotiated at council level. The problem, as it stands, is that the only option is a public meeting and that format is not particularly suitable to a stage of the process where no proposals are being put forward. In addition, it tends to give rise to two groups of people. One group are people looking for something, typically landowners, who may wish to have a rezoning and that cannot even be considered at this stage of the process. Also, there tend to be people who may be engaged by a planning issue that may have nothing to do with the development plan and, again, they can be frustrated by this stage of the process too. The public meeting format does not necessarily focus on the issues at hand. As has been said, things like webinars and online interactive information, such as videos, that people can look at online in their own time, are often as effective and can engage people, particularly younger people or people who for whatever reason cannot make a particular meeting at a particular time.
We are due to issue updated guidelines on development plans very shortly. We will make it very clear in that guidance that it is expected that these matters will be discussed at council level with the elected members as to what the best format is. It will probably be combination where there are no constraints and restrictions. We do not want to box the process into a public meeting that is inappropriate at the very early stage.
That is very good. There are some people who have difficulty engaging online so to give the option to completely stop that physical thing is problematic as it gives people a choice. I am not 100% sure, but do the councillors make that call or is it the executive? It is the executive.
Mr. Eamonn Kelly:
We are not introducing a new provision as the provision already exists. This is the initial stage and it is for the council to engage. As it currently stands, this is not a reserved function and it is not for the councillors to call but that is not to say that councillors are not involved. It is an unusual provision in the sense that there is no mention of the term "public meeting" anywhere else in the development plan process and yet meetings happen.
Mr. Paul Hogan:
There could be a desire for a public meeting to be held in every parish in the county. A more practical arrangement would be that every municipal district or electoral area would host such a meeting. These matters are always discussed and negotiated locally. As I stated, we will be backing this up with clear guidance on the issue.
It will come as no surprise to my colleagues that this is the element on which I wish to concentrate. I have been involved in three county development plans. I am sure most of those present have been involved in a development plan at some point. I am very unhappy with this amendment. I will focus on section 2 of the Bill which relates to section 11 of the Planning and Development Act 2000 and the county development plans issue because although there has been reference today to this being done by consensus, these things do not happen by consensus. The reality of my experience tells me otherwise. One must remember this is the earliest stage of a development plan and is exclusively an executive function. It is not a reserved function at that point of a county development plan. There is no reserved function at that stage. I have engaged with councillors across the 31 councils in the past two weeks and I heard the same story from them.
I wish to acknowledge the enormous work of the Oireachtas Library and Research Service. It prepared an amazing digest of the Bill that clearly sets out and addresses this issue. I will be asking the officials to confirm that analysis. The Bill has not been passed through the Houses, so, as of today, it is obligatory to have a public meeting. One could call them town hall meetings for these purposes. I do not have any difficulty embracing technology, which is marvellous. I think we can have both. That is where we are losing this argument slightly. One can have the public town-hall type meetings. While I would argue that they are beneficial, this should be a matter of negotiation. That is what happened in the past on numerous occasions. The public arrive at meetings and the council officials go through the various plans and infographics and tease out the issues. That is good and positive. I think online meetings are also good. It is possible to have both. However, I am advised that the situation as of today is that under the currently operating legislation it is obligatory to have a public meeting. I ask the officials to confirm whether that is the case. Let us have no ambiguity about this issue.
Mr. Kelly made the valid point that nowhere else in the legislation is there reference to a public meeting. There is reference to it in this section, although I see that it relates to the reserved aspects of the matter in terms of the early stage of development. Could a reference to an obligatory public meeting be inserted elsewhere in the legislation, possibly that relating to another part of the development plan process? It is an important issue.
We want ownership of this plan and for people to engage with it. We do not want a situation whereby the decision to hold a public meeting is made at the discretion of the unelected chief executives of local authorities. Many committee members have spoken for years about giving greater powers to local people and local communities, yet this provision is going to be taken out of the legislation and that will make it the right solely of chief executives and their executive in each local authority to decide whether to hold a public meeting. I do not have a difficulty with any other aspect of the Bill. It is important that we have public participation and engagement and that people are encouraged to take part in the process.
I do not like terms such as "troublemakers" or "difficult people". There was a suggestion in the Seanad during the passage of the Bill through that House that some difficult people were turning up at public meetings. So what if they are? Most Oireachtas Members are difficult people. We were politicised by issues and we became difficult and challenged people and got ourselves in here. Are we going to shut it down now? I want to facilitate people in engagement. I am old enough to have been involved in the Wood Quay protests. People, particularly young people, mobilised on that issue, as did environmentalists. Why should people not be mobilised and have public rallies or robust debates about our towns, communities, future, the planning of our future, challenging environmental issues such as water, and all the diverse elements that form part of a county development plan?
I thank Mr. Lemass, Mr. Kelly and Mr. Hogan for their engagement. I feel strongly on this point. I am not hung up on the point in the process at which a public meeting is facilitated, but it should take place at a point when it is important that it be held.
There is no point having public meetings if people cannot effect change. They must be held according to a timeline where people can feed into it.
It has come to my attention that some of the sitting county managers lobbied strongly to have this element changed. I have prepared a series of detailed freedom of information requests which will go into the Department tomorrow. It is important to flush that out. It only makes me more concerned if chief executives have been lobbying for its removal. That is the kernel of the problem. There has to be shift to empower the elected members. I do not want it to be a choice between political members and the executive. It should be in legislation that there must be a public town hall type meeting. I am interested in the officials' response.
Mr. Paul Hogan:
The public meeting format is ineffective at this stage of the process. What is much more useful is what already happens, namely, the provision of information on what the issues for the future might be. People do not find that is something they can easily relate to in a public meeting format. It is much more effective as a one-to-one exhibition or engagement. That is what happens and is what is also used at later stages when there is a draft plan. When there is no draft to discuss and it is just issues and what might happen in the future, it can be very difficult to mobilise interest from the public over the course of different evenings or weekends, as must be the case when there is a sole reliance on public meetings. To catch as many people as possible, there must be quite a wide spread of times, formats and locations. It does not work as effectively as intended in the legislation. Having an element of choice is the way forward.
I am not aware of lobbying. That did not come to me. The matter was discussed in the context of engagement with the Local Government Management Agency, LGMA, over a response to Covid and the fact that the provision was effectively holding up progress on a plan which had a ticking timeline, where people could not gather to meet, and therefore this had to be addressed. It is an opportunity to widen the scope of the engagement at the early stage. I do not share the view that there is an "us and them" situation between the elected members and the county and city managers at this stage of the process. It is a very open and non-controversial stage in the process, or at least it should be, because people are just trying to understand the issues. It is in everyone's interest to get the information out there, both publicly and online, and that will continue.
I will leave some time to allow for an answer to Deputy Ó Broin's last question, where we had run out of time. Will the exceptional circumstances grounds be available to access electronically as part of public participation? It is one of my concerns. The officials have spoken of the benefits of online meetings, but the planning process is generally not online, particularly as it relates to An Bord Pleanála. I have other concerns around applications for strategic housing development, SHD, applications and websites being taken down, making it impossible to go back and trawl through things electronically.
Will the substitute consent be enough to satisfy the Commission? Is that the Attorney General's advice? Is that why we have decided to do this in primary legislation?
Returning to online public meetings, it is very clear in the Bill and the debate in the Seanad that the question is about the use of the word "or". It is not online and a public meeting, and the change is permanent. The Bill clearly says "or". I understand the issue around the early pre-draft stages of the issues paper when it comes to a development plan.
I am also concerned about how the witnesses are speaking about public meetings and the driver of this change. I was particularly concerned to hear the comment about cranks or people with vested interests attending public meetings. I am concerned about the motivation for this change as opposed to the operation of it.
At the pre-draft stage, new issues are allowed to be introduced as part of the public consultation. Executives and city and county managers are quick to quote legislation, the powers of same and what is required under that legislation. This legislation references the term "online or". I ask the witnesses to clarify if new issues can be introduced by people at the pre-draft stage of the development plan process. Most of my amendments to a development plan were ruled out of order because they had not been introduced at the pre-draft or issue stages. I would like clarification on that issue.
On the ban on evictions, my understanding from the witness's response to Senator Cummins's questions is that one disapplies the other in the case of a registration. This is not actually a ban on evictions. It is a dispute resolution mechanism to allow for address of disputes around arrears as opposed to it being a ban on evictions. If that is the case, we should probably stop using the language of "ending a ban on evictions".
Mr. Eamonn Kelly:
I thank Senator for her questions. I will begin by finishing my response to Deputy Ó Broin's question in terms of how exceptionality is considered. It is set out in the existing provisions at section 177D(2), which states that in considering whether exceptional circumstances exist, the board shall have regard to (a) whether regularisation of the development concerned would circumvent the purpose and objectives of the environmental impact assessment directive or the habitats directive; (b) whether the applicant had or could reasonably have had a belief that the development was not unauthorised, which goes to the intent of the applicant; (c) whether the ability to carry out an assessment of the environmental aspects of the development for the purpose of an environmental impact assessment or an appropriate assessment and to provide for public participation in such an assessment has been substantially impaired; (d) the actual or likely significant effects on the environment or adverse effects on the integrity of a European site resulting from the carrying out or continuation of the development; (e) the extent to which significant effects on the environment or adverse effects on the integrity of a European site can be remediated; (f) whether the applicant has complied with previous planning permissions granted or has previously carried out an unauthorised development; and (g) such matters as the board considers relevant. Those considerations have been in existence since this legislation was first introduced in 2011 and they will continue in operation.
I have had a look back at my notes and I think I may have given an incorrect response earlier in regard to Deputy Ó Broin's question on public participation. There is no public participation in the first stage. The key change is the introduction of the exceptionality at the second stage where there is public participation. It is important to make that clear.
On engagement with the Commission, we have been engaging with it on these changes. It is important to note that European law is implemented at national level. This change is further to a Supreme Court case and not a European Court of Justice case. This is about the Irish national Supreme Court judgment and that court's interpretation of this legislation. We are, through the Attorney General, responding to that judgment. We are very aware of where it arose from, namely, the original Derrybrien judgment. I am not sure if I have answered the Deputy's question. We are very aware of the genesis of this process. There have been numerous engagements with the Attorney General on this particular point.
Senator Moynihan asked if the substitute consent will be online. The answer is "Yes". It is addressed in one of the amendments we have proposed but I do not think it is referenced in the draft we sent last week. It is with the Office of the Parliamentary Counsel. In the version that comes through to the Dáil there will be a proposal to mandate that these proposals be available online in addition to being available at the offices of An Bord Pleanála. I think I have answered most of the questions. With regard to the substitute consent element, I will pass over to my colleague, Mr. Lemass to respond further if Senator Moynihan is satisfied that I have answered all of her questions.
Mr. Paul Hogan:
To cover the last bit of the question on issues, this stage of the process is for the general public to understand the process and make their views known at the outset. One of the reasons the public meeting format does not always work is because very often well engaged or well mobilised people who have an interest in land or a particular agenda may seek to dominate the process. It is very useful to have other outlets and avenues such as online, as we propose.
There is also the fact that it is not a stage of the process where elected members' views are sought because they have a very particular role at the direction stage, which is the stage after that. I do not see how raising or not raising any issues at this stage is relevant. To be honest, for members of the public, for whom this stage is targeted, any valid issue can be raised but it is explicit in the legislation that zoning matters cannot be considered. Unfortunately, that is not understood by a lot of people, including landowners who will often seek to pursue their aims at this stage.
At the post-draft stage elected members must submit amendments or suggestions on the basis that something has been discussed at the issues-based stage. It is clear that if they do not, if it has not been previously discussed or raised or raised by members, management rules it out of order. Can new issues be introduced at the issues stage? That is my understanding. I do not think that the officials understand or know that is a thing.
Mr. Paul Hogan:
At this stage of the process anything bar zoning can be introduced and discussed by members of the public. I cannot comment on a specific post-draft situation where a plan is already under way and is in a process. The elected members legislatively become involved in the process where they give direction to the executive but that happens after the report on public consultation. It is a fairly broad and general stage of the process so it is generally possible to bring most things to bear at that point.
Mr. Paul Lemass:
On the ban on evictions, the actual language in the text says that this part shall not apply to a tenant where a landlord serves a declaration except that in the absence of a declaration by the landlord the protection applies. Part of the informing of this consideration was the need to balance rights; the fact that there are landlords experiencing financial hardship; there are 16,000 buy-to-let mortgages in arrears; and, frankly, the fact that the bar for the declaration is as high as for a tenant. It is an offence for a landlord to make a false declaration and all of the same protections apply in that respect.
I agree with Deputy Ó Broin that we need sufficient time to consider the legislation in detail. We all have a lot of responsibilities but even if we did not the timeframe is insufficient for us. I appreciate the huge work that has gone into the legislation and appreciate the need for it.
On section 3 and code provisions, section 3(3) allows the Government very individual statutory prescribed timeframes and limits in something like the Planning Act. What safeguards exist to ensure that when the Government does this that it will, as required by the Aarhus Convention, provide reasonable timeframes to ensure the provision of effective participation rights as well as wide access? Given the practical obstacles the public will face during the pandemic, how can the provisions in section 3(3)(b), which allows a further variation in timeframes based on an administrative area such as the board or local authority, be justified given that people limited by a lockdown in one area may be impacted and have an interest in applications in another area? In addition to the risk to participatory rights and hence the legality of decisions compromising clarity and certainty for all concerned, is there not a serious risk of confusion about what time limits pertain, where and when?
Second, what provisions are there to ensure really robust communications from the Government in order to make sure the public is properly apprised of what the timeframes are? There should be more than just a notice on the website of the Department or a planning authority.
Third, what further requirements are there to ensure people can make electronic payments and submissions for all types of consents, including strategic infrastructure planning appeals and ordinary local authority decisions, for example?
Fourth, when will the file of the board be electronically available? It is significant for anyone who is considering taking a judicial review.
Mr. Eamonn Kelly:
That is no problem. On the issue of safeguards and timeframes, by its definition, the Bill extends existing timeframes. The whole point of it is that if there is a set period, the Bill extends that period in parallel to the point that there is a new lockdown. By definition, the extending period relates to the lockdown period. Its very nature is to ensure that public consultation is preserved. I hope that answers the Deputy's question on timeframes.
On the issue of the specificity of various areas, it is absolutely the case that confusion could arise. As I stated, the provision was not just included to cater for situations where there is a prohibition on members of the public moving freely, there is also the potential of individual authority members being struck down by Covid infection such that they cannot comply with the process. That is one example we would envisage. For example, a planning authority may not be able to work through its statutory objectives because its members are infected or have to stay at home or whatever. As members are aware, in the previous lockdown it was used for the entire country. I would argue it worked well because it was widely known about by all elements of the planning sector. We had wide engagement with environmental NGOs and through planning institutes and local authorities. It was widely publicised not only on our own websites, but also through sectors that are involved in planning generally. In terms of communication, we will be doing that again. I do not know whether the Deputy is familiar with what happened on the last occasion. We do have the good experience of having done this before. Circulars were sent to all local authorities. The main point of information was on our public website. We have a large Covid section for members of the public. Local authorities also took it upon themselves to put it on their websites. In some cases, local authorities put notices on their doors. Mr. Hogan and his team drafted frequently asked questions that were also put online. To answer the Deputy's question, we will do what we did before, which is to ensure that as wide a populace as possible understands this issue. The key point in terms of interaction with members of the public is that they are not being restricted. Their engagement is being elongated.
The Deputy asked about e-payments. That is a different issue. Other amendments to the planning Acts are being progressed in terms of e-planning. That is coming in due course. On e-payments, the whole point is that the Bill allows for the extension of the public participation period when there is a lockdown. If a person needs to pay €20 to lodge an objection but there is a lockdown, that period is extended such that they can do so when the lockdown ends. I hope I am explaining it clearly. I again point out that we used this process before. All statutory provisions in the planning Acts were extended by eight weeks this year and that will work its way through the system. It is widely known about by those involved and certainly by all the local authorities. As I stated, the information is available on all the relevant websites, including local authority websites. Does that answer all of the Deputy's questions?
I have four short questions. The first concerns substitute consent. How can we be 100% sure that in all cases, all the information the board will be considering on the issue of exceptional circumstances at the substantive stage will be available to the public so that it has an effective opportunity to comment on it, both for pending cases and when new consideration is to be undertaken? I refer also to new cases where some of the information pertaining to exceptional circumstances may have been considered in the closed notice or leave stages, which are not open to the public. Will that information be made available when the application is made?
Second, what will happen with substitute consent cases that went through under the old provisions which the Supreme Court has ruled against? The judgment has implications for other gateways to substitute consent, such as section 177B.
Third, if substitute consent is granted under the Planning and Development Act 2000, what happens to the other assessments and conditions which may also be compromised under other sectoral environmental impact assessments? These might also be required for development under the Environmental Protection Agency Act 1992 or the Gas Act 1976.
Finally, does the wording "considering whether exceptional circumstances exist" in section 177D(2) conform to the high bar required by the European Court of Justice for regularising consents granted in breach of the EIA directive?
I have two questions. One concerns the balance of rights between the landlord and the tenant. The second concerns the public consultation issue, which we have been discussing for the last while. If the landlord and the tenant are both experiencing hardship, who loses out? How is that determined? Mr. Lemass gave an explanation when Senator John Cummins asked whether a tenancy is protected when a counter-declaration is made. I understand that if a landlord makes a counter-declaration and then issues a notice of termination, it is up to the tenant to raise a dispute. How is that determined? If a tenant's rights are protected under legislation, how do we see him or her through this process? It can become quite technical and cumbersome.
My second question concerns public consultation. I do not believe there is anything sinister in this proposal. I think it is a reaction to Covid-19 and the need for public safety. However, in any situation we must avoid unintended consequences. We do not want to give the impression, rightly or wrongly, that we are limiting public engagement or the autonomy of elected councillors. It is quite clear from the contributions made today and in the previous debate in the Seanad that there are serious concerns around this. We should reflect those concerns in the language. A sunset clause should be attached to the either-or provision in this Bill. That provision is there to get us through Covid-19. When we are living in a Covid-free world - soon enough, please God - it should be allowed to lapse. Failing that, we should add a caveat to make it clear that it is a decision presented by the executive and approved by the members of the council. We should trust them to get this over the line and to determine what is in the best interests of their electorate and how best to consult them.
A previous speaker noted that this is the only part of the public consultation process that is prescribed by legislation. I worry that this might create a precedent for public consultation throughout the development plan. Mr. Lemass and I worked on the development plan previously. I know he would never do anything like that, and I am not suggesting that any county manager or executive would. I simply want to make sure that no unintended consequences are hidden in the Bill.
Mr. Paul Lemass:
I thank the Deputy for the questions. She accurately summarised the operation of the declaration and the counter-declaration. The Bill states that this part shall not apply to that. In the event that a landlord proceeds with a termination, the tenant can raise a dispute. As part of that process, the tenant can demonstrate that he or she has made a declaration and query the validity of the landlord's declaration.
Separate from the notice of termination, the tenant could take a dispute to the RTB claiming that his or her declaration is valid but the landlord's is not.
Mr. Paul Lemass:
If both have valid cases, then this part does not apply as a protection to the tenant. That is not, however, to prejudge any other protections from which the tenant might benefit through the normal notice of termination procedures, and the extended notice periods which have been provided in that regard. If a tenant and a landlord are both in difficult circumstances, however, and the landlord makes a valid declaration, that counters the protection which a tenant may have sought through this particular provision. It does not prejudice recourse to any other provision which the tenant may wish to avail of through the RTB.
Mr. Paul Hogan:
On the public consultation issue, I highlight that it is not proposed to change the prefix to this part of the legislation which is that the "planning authority shall take whatever steps [it considers] necessary to consult the public". It is important to understand that aspect, and that it remains in place, as does the facility for oral submissions on an individual meeting basis. All we are saying is that, in taking those steps, there shall be at least a public or online meeting. I reiterate, and this will be further set out in firm guidance, that generally a consultation procedure or programme is required at this point in the process. It is the same in that regard as it is at a later stage, which is not set out in legislation but happens everywhere and always. Not everything, therefore, must be set out to the nth degree in legislation, as long it is in the context of taking those necessary steps to consult the public. That is what matters.
I thank the witnesses and everyone for their comments so far. In 2016, some 470,000 people were renting. On 23 November, there were 352,000 people on the pandemic unemployment payment, PUP. Why do the witnesses think that only 348 tenant declarations have been made? Does someone whose income has been affected by Covid-19, and who can prove it, need to be in rent arrears to avail of a freeze on rent increases? Must people in that situation consult with the Money Advice & Budgeting Service, MABS, and follow the other steps? Are we essentially forcing people into rent arrears and putting their tenancies at risk, when these provisions could instead be made available without those requirements?
The planning consultation provisions of the Bill are due to last until June 2021. Why are the tenancy protections to end in April, and why is provision not given to the Minister to extend those protections, if necessary? Why was the five-month exemption from rent arrears chosen? How was this timeframe reached? Unlike tenants, who must provide evidence of rent arrears, why are landlords automatically considered to be relevant persons if they are receiving any Covid-19-related social welfare payments? Employers can also subsidise the EWSS up to people's full incomes, yet no provision deals with landlords receiving payment under this scheme, but who have suffered no loss of income.
On the balancing of rights regarding a ban on evictions, I believe this Bill will give the landlord more rights than the tenant in respect of situations where the landlord is receiving any Covid-19-related payment. This will deter tenants from making declarations, therefore, because they will feel that protections are not in place to support them. Putting these provisions in for the landlord is, therefore, detrimental to tenants.
Mr. Paul Lemass:
I will happily take the questions concerning tenancies, and my colleagues can address those on planning. On the question regarding why there have been only 348 self-declarations by tenants, all I can tell the Deputy is that we asked, and funded, the RTB to write to all landlords and tenants to make them aware of these protections.
We sent out in the neighbourhood of 400,000 notices because there were 300,000 tenancies but about 100,000 landlords involved. We wrote to all of the people involved to make them aware of these protections. That is out there. We publicise it quite heavily through the RTB, online and in the media but also by writing to registered tenants and landlords and making them aware of it.
The Deputy asked why more people are not availing of the protection. I can only refer him back to the research the ESRI conducted for us in the middle of this year which pointed to the fact that the temporary payments, plus the decline in consumption patterns because of the lockdown, would have affected the build-up of arrears in the short term. We then came out of lockdown but later went back into lockdown. It is borne out by figures that suggest average national savings have gone up and people's wealth has gone up that little bit. There may be something in all of that because the pandemic unemployment payment, PUP, and other payments are helping people get through this period. I cannot say definitively. I can only speculate based on that evidence.
As regards when the tenant can declare, this part applies to a situation where there is a significant risk of the tenancy of the dwelling being terminated by the landlord. It is not any more specific than that. It applies if a tenant feels at risk of arrears and at risk of a tenancy being terminated as a result of them. The arrears may not have occurred yet but the tenant may know that in the weeks and months to come, because he or she is not working or because of certain financial challenges, he or she is at risk. That is the situation. It is a self-declaration but the person has to be accurate in what he or she says in the assessment and it is an offence to make a false declaration. It is up to the tenant to make that declaration.
Regarding why tenants have to have recourse to MABS, the new provisions require them to request the RTB to facilitate engagement with MABS. One of our concerns is that there were 348 declarations at the end of November but only seven people had recourse to MABS. MABS is there to help people. We want to be sure that people put together workable arrangements with landlords that will endure well beyond these protections. Someone may have a problem now and may need protection until 11 January, or 12 April, as it is hoped the date will soon be, but that will not be long coming around. We are keen for people to engage with MABS so they can put in place longer term and more sustainable arrangements.
The Deputy asked about landlords who might have no loss of income and landlords in receipt of the PUP. If a tenant feels that a landlord's declaration is unfair and the landlord is proceeding to terminate the tenancy, the tenant can raise a dispute.
That is not the question. To clarify, the question is about landlords who are in receipt of full income and can still terminate the tenancy. How is the tenant to know if the landlord is in receipt of full income? All the tenant will know is that the landlord is in receipt of a payment.
Mr. Paul Lemass:
If the landlord tries to terminate the tenancy, the tenant can raise a dispute. In such a dispute, tenants can say they made a declaration to get protections and their landlord countered on the basis of hardship, but they can point to evidence that the landlord is not suffering hardship. The RTB can request data from the landlord in these circumstances. I direct the Deputy to the judgment of the RTB in one of the Tyrrelstown cases where it overruled an eviction because it was able to demonstrate that the landlord was still in receipt of rent and would not, therefore, be suffering hardship. We have consulted the RTB on these protections and they are intended precisely for situations like the Tyrrelstown case where the landlord was prevented from proceeding with the termination because it was demonstrated that the landlord had adequate income and was not suffering the hardship claimed in the declaration. That is on the record of the RTB as a judgment in the case of what is known as the Tyrrelstown amendment. We envisage a similar approach here. If a dispute is raised and the landlord claims hardship, he or she has to demonstrate that hardship. The bar is quite high for the landlord in that regard.
I will concentrate on the new amendments to the Bill that relate to the tenancy protections.
On the dates, it refers to tenants who at any stage between 1 August and 12 April 2021 were on pandemic unemployment payment, PUP, and so on. Why was 1 August chosen rather than 1 April? People might have been in receipt of the PUP between April and August and built up arrears but are not now covered by the Bill.
The question of why landlords and tenants were covered by the same penalty for false declarations has been covered.
The five-day period in which the tenant must respond to a notice to quit is far too short. Then they are expected to notify the RTB and pass on the data to MABS. I imagine there are general data protection regulation, GDPR, issues on this and I query that measure. Has there been consultation with MABS about the additional work it would be required to undertake? MABS is already very oversubscribed.
There is an attempt to balance landlord and tenant rights. I would accept that if there was more work around tenants' rights, but the Bill's purpose is about preventing people from having to move during periods of restriction. I cannot visit my mother in her home today. That is the environment we are in. It is not a project about balancing landlord and tenant rights. We really have not thought out the details of some of the requirements. Take the expected enactment of legislation on 19 December. The RTB will write to all those impacted to alert them of their need to lodge an application with the RTB and then MABS, which they must do in five days. This would mean the RTB sending letters to tenants between 19 December and Christmas Eve. That is bizarre timing, if nothing else.
Actions are to be taken within five days of the commencement of the Bill on 11 January, that is 16 January, is a short period. Most places reopen on 2 or 3 January. It gives a very short time for people who have previously applied for an exemption and who might get a letter from the RTB before Christmas telling them to contact the RTB and apply to MABS by 16 January. The timing has not been thought out.
I am very concerned by the answers given to Senator Cummins about the measures being disapplied. The Bill is about giving tenants certainty that they will not have to move around during periods of restriction. It appears that certainty can be extinguished simply by a landlord making an application. If a landlord makes a submission to the effect that the rent is his or her sole income, then the tenant no longer has the certainty that he or she cannot be evicted. I accept that other recourse is given under the normal notice period, but the main provision there is time. There are no additional rights.
I have no issue with the balancing landlord and tenant rights but that is a longer term project and what is needed here is certainty for tenants. The five-day period is too short, as are the timelines for the Christmas period, which do not take account of the holiday season. Data transparency is an issue. Where a tenant fails to provide the RTB and MABS with the required information and the landlord submits that is the case, then the new protections disapplies. How does the landlord know? This Bill is trying to do things that are part of a bigger project. It will have to be amended. I am the third Government representative to express concern about the Bill and I expect other committee members will be louder.
Mr. Paul Lemass:
The Deputy asked about the choice of dates from 1 August to 12 April. The previous Residential and Tenancies Valuation Act 2020 looked back to 30 March. The view is that that Act protected people who were in receipt of payments during that period.
A person in receipt of payments between March and August and beyond until 11 January is covered by the Residential and Tenancies Valuation Act 2020 and can still make a declaration today and up to 10 January under that Act. That Act came into effect on 1 August so that is the timeframe we are looking back to in this regard because the previous period was covered by the Residential Tenancies Board. That is the logic behind the timing.
On the five days to respond requirement, when a declaration is made there are two actions, namely, a declaration is made to the RTB and also a request to the RTB to put the person in touch with MABS. This happens immediately. The RTB on receipt of the declaration puts the applicant in touch with MABS. Separately, the board requests that the applicant engage with the landlord within five days to consult on an arrangement. The purpose of this is to put an obligation on people to make that happen. It is not that the agreement has to happen within the five days but a person must engage within five days. Part of the concern is that with 348 declarations we have only had recourse to seven people going to MABS. There is an uncertainty as to what others are doing. We do not know if they have reached agreement or not. The GDPR issues will be addressed because the applicant, as the tenant, makes the request. I think that is correct but I will double check it.
On the issue of additional work for MABS, in the context of the overall numbers presenting at the moment, we do not believe this is an issue. We consulted with the Department of Social Protection at the time of the original Act. We do not believe that additional work is an issue. There is an important point that I would like to make. The genesis of this amendment is not public health. The genesis of it is the economic fall-out as a consequence of public health. It is for this reason the interests of the landlord have are being given a weighting.
Mr. Paul Lemass:
I do. The legislation enacted in August last, known as the Residential Tenancies Act 2020, provides separate protections. Anyone in a situation where their movement is restricted by 5 km cannot be evicted from their tenancy. This applies any time that restriction is in place. If that restriction was reintroduced tomorrow there would be a moratorium on evictions for everyone for that period of time. The two provisions exist in parallel. This is purely an economic fall-out as distinct from the public health one.
On the point regarding 19 December, because we know there are 348 applications, assuming this legislation passes through the Houses the RTB will write to those 348 applicants. As things stand, they are protected until 11 January based on the declaration they have made under the Residential Tenancies Act, which was enacted last July. It is in regard to post 11 January we want to ensure they are protected. They do not need to make a declaration but they do need to engage regarding an arrangement with their landlord and MABS protection. They do not need to do that if they have already done so. If they have already engaged with their landlord and they have an agreement and it is working there is a disapplication process for those particular requirements.
The Deputy also asked what happens where the landlord can demonstrate that the tenant has not provided the required information. In reality, that type of situation would only be exposed at dispute stage. The dispute is raised if a landlord takes a case because the tenant has not provided the required information and, therefore, is in breach of his or her part of the declaration.
Mr. Paul Lemass:
It might only be resolved at dispute stage once the notice of termination is issued. It should be remembered that a declaration from a landlord to a tenant andvice versain and of itself does not terminate a tenancy.
That simply tries to avail of protections, and then it disapplies that attempt because the landlord is in hardship or whatever it may be. Separately, the landlord will then have to go through a process to terminate the tenancy, and as part of that process, the tenant could legitimately put their hand up and seek to raise a dispute, claiming that despite a declaration being made which was countered by the landlord, they do not believe that the landlord meets the requirements for his or her half of the declaration.
My question follows on from that of Deputy McAuliffe. I know many good tenants and landlords, and also some rogue tenants and landlords. When the level 5 restrictions were put in place, it was announced that there would be a rent freeze. Some people thought, on the basis of the information that went out there, that they did not have to pay rent during this period, and subsequently got themselves into difficulty. Currently, if notice is given for a tenant to leave a property, they have five days from that date in which to raise a dispute. Is that correct?
Mr. Paul Lemass:
No. It is not the same five days. If a landlord serves a notice of termination, the tenant has the full duration of the notice period in which to raise a dispute, whatever the duration of that period, and it could be as much as 224 days. Indeed, the use of notices of termination was suspended during lockdown. So, the tenant has the duration of that full notice period in which to raise a dispute.
I am talking about a dispute being raised with a landlord after the notice period. Is it correct that when a tenant raises a dispute, the information must be brought back within five days and then they must contact MABS?
Mr. Paul Lemass:
I think we are at cross purposes here. The intention of this legislation is that a tenant should be able to declare that they are at risk of having their lease terminated. If they make that declaration - it is not a dispute; it is just a declaration at that point - they must contact the landlord within the five-day time period and request that some arrangement is worked out. That is the five-day period to which I have referred. The arrangement can happen thereafter.
On the issue of contacting MABS, I have sent many people who have fallen behind with rent payments to MABS to seek help. It has often happened that two or three weeks have passed before someone has been able to meet with them. In different counties, MABS is under different pressures. This is where I am going with my question. Mr. Lemass mentioned that only seven tenants have been referred to MABS. I refer people to MABS on a weekly basis, and it could take two or three weeks for them to get a meeting, with the process in place. MABS does fantastic work, but the problem is that people are waiting two or three weeks at the moment to get a meeting, and more people will be using MABS under the protections provided in this legislation. It is going to put more pressure on MABS, particularly when it comes to getting the information back to tenants in the case of a dispute. Again, it comes back to the rental issue that we have here. What supports are available for MABS? I believe that there is going to be a bigger uptake in this regard as we go forward, because we have not got to the end what is happening at the moment. This legislation is going to open the floodgates and more people will be going to MABS. There is a lack of understanding on the part of tenants of where they can go for help and what they have to do. It will put more pressure on organisations such as MABS. I want to know what support is going to be there for the likes of MABS, to help both tenants and landlords so that this issue can be resolved.
Mr. Paul Lemass:
On the question of MABS, we consulted with the Department of Social Protection regarding bringing MABS into the loop on the whole question of rental arrears. Both the Department and MABS were very supportive of this and the ongoing engagement between them. The RTB has a memorandum of understanding with MABS, so it is a managed process. I accept the Deputy's point that there may be a two to three week delay, which may not be unreasonable in some circumstances. However, the point of this legislation is that a tenant would have to contact the landlord with a view to working out an arrangement. As part of that contact, it would be entirely reasonable for the tenant to say that he or she is engaging with MABS as part of that process, and that he or she will conclude the arrangement with the landlord after he or she has engaged with MABS. MABS could point a tenant in this situation towards rent supplements, for example, and uptake in this support has increased by around 10,000 - I do not have the exact figure, but it is of that order - since the Covid pandemic began.
We have just come out of level 5 restrictions, and people have been under the misimpression that they do not have to pay rent. I have been told by MABS that in the past two to three weeks, there has been an increase in the number of people contacting it, because of the misinterpretation of the information issued to tenants in respect of a rent freeze. Now that we have moved to level 3 restrictions and people are going back to work, they have realised that they have made a mistake and they have a problem. MABS has told me - and I have found the same in my office - that it is getting three or four cases a week, when it was previously getting one, so the pressure is starting to build up. I am sure Mr. Lemass's statistics are correct, but I am talking about the here and now, and I know that people are contacting MABS more frequently. There are people who are only now realising that they are in difficulty.
The Deputy has raised an important point in stating that MABS should be fully resourced to deal with this in the event that these issues continue.
I have a few questions. On the public consultation, it should be noted that public participation and attendance feature in all stages of county development plan sessions in local authority chambers and in submissions, and access is available online. I have always defended the importance of public access and participation in respect of all planning matters. The greater the public participation, the greater the likelihood that the outcome from that process is going to be more acceptable and better for all involved. It does not unduly concern me that a public meeting may now be online or in a town hall, church hall, or wherever it may be. In fact, I know from working with my own forward planning section in Wicklow, that it may now be possible to have four public meetings in one day, whereas before, it may have taken a week for planners to do this. Therefore, we must consider the balance between the positives it brings and the perceptions of the negatives it brings, including that some people may not have access to online meetings, although I believe Internet access has improved during lockdown.
Mr. Hogan referred to the guidelines for local authorities in development plan processes. Will that also include guidance on how to conduct a public meeting, and will the facilities, the technical resources and supports be there for local authorities to embrace this straight away? In general, the move to e-planning is a very positive one, because the planning and development consent processes generate so much paperwork and many files. The online and e-planning approach is the way to go, provided that each local authority can provide the same standard. On some local authority websites, the planning system is very hard to navigate, whereas with others, it is much easier to read, and some people prefer to have those paper files in their hands. Will the guidelines for the local authorities cover the public meeting at the issue stage of the development plan process?
Mr. Paul Hogan:
What we are basically saying is that when that choice is there, it should be in the context of an overall consultation programme, and the guidelines will mandate planning authorities to set out what their consultation programme is at the beginning of the process. We have never characterised this as being about officials' or planners' time.
There is a reality where it can be far more efficient to allow online meetings as well as in-person ones. It takes the pressure off having to exclusively have meetings in person. It is very difficult at times when there is an event on. Often, people have asked me if I did not know there was a match on the night of a meeting, which might seem like a very small thing but can happen regularly on a Tuesday or Wednesday night when one is trying to hold consultation meetings. It can be very disheartening for people who turn up and find there are very few people there to discuss the issues. We think the "either or" option is a good idea. It does not limit it to one or the other. It does not make that leap from the current system to e-planning without considering the ability to do both. We will encourage that in the guidance we prepare.
I am conscious that we must defend public participation in the planning process. Can local authorities make requests as regards the decision to set the extended timeframes for statutory processes in the planning process? The Government will decide on extending statutory timeframes. However, if many of the planners in a local authority came down with Covid, as in a situation that was described to me, how would that local authority proceed? Would it apply to the Government or the Department for that?
Mr. Eamonn Kelly:
The way the process works, as it did before, is that it is ultimately a decision for the Government. The Minister for Housing, Local Government and Heritage initiates the process. As he is the line Minister for local authorities, they can engage through him. That is how we envisage it happening but it is ultimately a decision of the Government. The local authorities would not engage with the Government. They would engage with the Minister and the Minister would then have to make a case and there is lots of oversight in the steps. He would have to engage with both the Minister for Health and the Minister for Public Expenditure and Reform and then make the recommendation to the Government. It would then have to decide whether to do it on every individual order. The answer to the Chairman's question is "Yes". If a local authority wants to engage with the Minister, that is how it would happen. The previous lockdown was a reaction to the initial health restrictions that were issued. We have specifically put in the flexibility to allow for that and it is clearly stated that if there were an issue with a specific local authority or building control authority, they could bring it to the attention of the Minister.
On the substitute consent, it appears we are raising the bar in the process of applying for substitute consent. Can people participate in the public participation at either stage without having to participate in it at one stage, like a planning application, and then going to the board? Can they come in-----
Mr. Eamonn Kelly:
Effectively, yes. I do not know if now is the time to answer Deputy Cian O'Callaghan's questions but the new provisions will require a whole new set of public consultations and a new phase. There will be new public notices. All the information will be available online and An Bord Pleanála, which is the competent authority, will have it so even if a person was not involved before he or she can get involved at the second stage. It is akin to a request for further information. When applications are in planning or when there is a new public notice up, anybody can come along and participate. It is not only those who were involved previously. It is as wide a net as possible.
I thank the witnesses. I am repeating some questions but during Covid, planners were working from home and local authorities were told to keep as few people as possible in buildings. That was part of what Covid was but it had a huge knock-on effect on pre-planning meetings and people going in to local authorities to get information. That is a huge issue, even for development plans. In Carlow, our development plan will be extended to the middle of next year or longer. There are major issues with communication but also with going in for pre-planning or to talk about a development plan. These are life-changing issues. Local authorities are dealing with people's livelihoods, whether through businesses or housing or so on. It is so important that we get this right and I have a huge fear about going online. Many people I know, particularly elderly people, do not want to do online meetings. We should not be encouraging that.
It important to sit in front of a planner or someone in a local authority to get information, whether about a development plan or a house someone is building. We need to look at that and we should not encourage online meetings. I am not a firm believer in those.
I want to talk about the issue of landlords and tenants. Like previous speakers, I work very closely with MABS. We have an excellent MABS branch in Carlow, as well as the RTB, to which the witnesses say they give funding. There, again, is another issue. Many of the staff, in fairness, are working from home due to Covid and they are doing their best. They are excellent. I could not fault any of the staff. Is there an issue with information coming from the Department and letting tenants know their rights? I think there is. I am concerned that there have only been seven referrals to MABS. That is a worry and a concern in the sense that we need to make sure tenants know their entitlements. As regards the five days' notice, it is coming up to Christmas and local authorities, MABS and the RTB will be closed. I always find, as I am sure others do too, that when something happens it always happens around Christmas and it is so hard to contact someone about it. We need to be very aware of giving timescales and a date for people. The Department needs to look at that.
Is there a ban on evictions for local authorities? This issue came to my attention recently. I am sure there is when we are in a situation with Covid-19 but it is something with which I was dealing and it is important that local authority tenants know that too. It has not been communicated. It is so important that there is information and awareness and we work through MABS, the RTB and our local authorities, which are all under pressure with Covid-19 and trying to do their best. We need to make sure we get this right because it is so important. There is such a short timescale for this and it would make a huge difference. I have repeated some of the questions but I just wanted to thank the witnesses.
Mr. Paul Lemass:
I can take the tenancy question, for which I thank the Deputy, very quickly. I should have made the point that the seven referrals to MABS were via the RTB. Deputy O'Donoghue made the legitimate point earlier that people might have gone to MABS of their own volition or were referred by others. I cannot say definitively but under the new legislation, in order to avail of the protections, tenants will be obliged to go through the RTB to get to MABS so we will know exactly what the numbers are at that time. That might help with the demand planning-----
Is there enough staffing funding in place? I am sorry to cut in but people in every organisation are put to the pin of their collar and the RTB and MABS will play a huge part in this. We have to make sure there are enough staff and funding. The Department gave funding to the RTB but it is important that MABS, which does an excellent job, is also resourced and staffed.
Mr. Paul Lemass:
My sense from engaging with the Department of Social Protection and MABS is that they were happy to take on this work and they did not raise any concerns regarding staffing at the time. The numbers thus far have been on the low side. We will, of course, monitor them and we will know more because every single declaration will have to have a referral to MABS. We will know exactly what the number is.
I will look into the question of RTB access over the Christmas period.
As regards local authority bans on evictions, we send out a circular around lockdowns to encourage local authorities to exercise forbearance and a similar approach is taken-----
To go back to the tenants and landlords, if, for example, a landlord has been on the EWSS for two or three weeeks throughout that long period because perhaps they are self-employed, does that stack up against a tenant being on the PUP for the whole duration? How are we deciding which of those cases wins out?
Mr. Paul Lemass:
Realistically, at the point of declaration, one declaration would counter the other. The landlord also has to act in a bona fide way and if he or she just got a few weeks of PUP I do not think that would stack up.
I could not adjudicate on that. It would only come to an adjudication in the context of a dispute over a termination, where I believe the board would be very well placed to make a judgment on that.
It is not a question that requires a response but a number of us do have more detailed questions on the substitute consent. Our difficulty is that we must table amendments at 11 a.m. on Thursday and we have not yet seen the final text of the Department's amendments because it has not been published. We will have to consider amending things that have yet to be published. Without in any way wanting to burden the witnesses with unnecessary work if, through our Chairman, there was a small number of specific questions we wanted written clarification on, could we submit them to the officials by the end of business today with an expectation they would endeavour to give us a response tomorrow? Can the officials also tell us when they expect the publication of their final substitute consent amendments?
Mr. Eamonn Kelly:
Absolutely. I understand that it is very technical and I more than happy to answer questions on it. We are engaging and ultimately it is the Office of the Parliamentary Counsel that are finalising it at the moment. We understand they would normally tend to use the same deadline. I believe they are also proposing to submit on Thursday. That is my understanding.
Just so we are clear, this means we will not be in a position to potentially amend the Government's substitute consent text, which is really a standalone piece of legislation. Other than us giving an opinion on it while on Second Stage, Members of the Dáil will have no ability to seek to amend any of that because of the way this is being set up. Is that correct?
The issue is that effectively no member of this committee or Member of the Dáil will be able to seek to amend the substitute consent portions of the Bill because that would only be approved on Committee Stage on Wednesday and will then go straight on to Report Stage.
Again, that is no criticism of the officials, but it is the first time this has ever happened during my time in the Oireachtas. I would like my discontent recorded in the minutes. Again, that is no criticism of Mr. Lemass or Mr. Kelly.
I thank the Department officials for agreeing to meet and consult with the committee. We are all tied by time constraints. I apologise to Deputy Ó Broin for having to end the meeting. Perhaps we could write to the officials to get some written replies to some of the questions we did not get to put to the Department today.