Oireachtas Joint and Select Committees
Wednesday, 1 December 2021
Select Committee on Housing, Planning and Local Government
Planning and Development (Amendment) (Large-scale Residential Development) Bill 2021: Committee Stage
The committee is meeting to discuss the Planning and Development (Amendment) (Large-scale Residential Development) Bill 2021 that was referred to us by Order of the Dáil earlier today. I welcome the Minister for Housing, Local Government and Heritage, Deputy Darragh O'Brien, to the meeting for this purpose. Members should note that the Dáil, when referring this Bill to the committee, also ordered that Committee Stage be completed no later than 3 December.
I move amendment No. 1:
In page 3, between lines 21 and 22, to insert the following: " 'Community Organisation' means an established, active and representative, residents organisation, based in the locality of the proposed development;".
Amendment No. 1 defines a community organisation, which is important to define because the term "community organisations" is mentioned in amendment No. 43. I will speak to amendments Nos. 1 and 43 together.
Amendment No. 43 provides for community organisations to be consulted as part of the planning application process, as outlined in the Bill, which allows for developers to meet officials to discuss a development. It is vitally important, especially in urban areas, that local community groups are aware of what is happening. The amendment would go some way to short-circuit and prevent complaints about planning. The natural opposition that most people have to this is that the amendment gives opposition a more open hand. I believe that by being open and fully discussing matters with the people on whom the development would have an impact, they will know what the process involves and what is being discussed. Amendment No. 43 would streamline this process.
Amendment No. 43 is very long so I will not go into it in great detail. The amendment outlines the process. The amendment provides for community organisations to attend meetings and participate in meetings, which is very worthwhile. The purpose of this legislation should be to involve the community as well as the developer because it is the community that will have to live with the development. The amendment can only strengthen the process and the development. A number of community groups have been involved in the consultation stage and made suggestions. In fact, this amendment was put forward on behalf of one of them. This amendment is worthwhile and should be given consideration.
This legislation is quite significant. Many Deputies will have spoken in the Chamber on the importance of this legislation, and how it effectively gives back to the local authorities by making them the first port of call for planning applications.
The strategic housing development, SHD, process deprived local communities of the opportunity to contribute to the planning process and gave them very limited recourse to appeal, a judicial review being the only option in many cases. I thank the Minister for brining forward this legislation to bring an end to the SHD process. It is crucial. The previous Government relied far too much on the market for the types of homes that were delivered and on the belief that a fast-track process in itself would deliver homes. That has proved not to be the case. This is important legislation. It will end the SHD process and ensure local communities have a voice in the planning process.
The Minister and I attended a community consultation with residents in Santry, it being a community that has seen significant development but that has had very little opportunity to contribute at the planning stage. What was being provided was largely buy-to-let properties. Those in the community wanted more housing to accommodate families with children and the people who lived in their community but what was delivered did not satisfy that. I thank the Minister for coming to Santry to discuss these proposals with the community and talking through what this legislation would achieve.
The wording of my amendment differs slightly from amendment No. 43. Amendment No. 43 seeks to include community organisations or representatives in the planning process. A difficulty with that, with which other parties might also have a problem, is that it is difficult to define that. My amendment seeks to use the structure known as the Public Participation Network, PPN, as one body that might be consulted. There are different ways of consulting and involving the community. If the Minister has a difficulty with some elements of my amendment, he might consider it and his officials might be able to improve on it. Using both the PPN secretariat and the PPN itself would be one method of including the community at an early stage in the planning process without that in any way delaying the overall timelines. We all know those timelines are very important. It would not be my intention to delay the process in any way. My amendment seeks to include communities, iron out problems early in the process and ensure communities have a voice and can contribute to the process, which the Minister have provided, at an early stage. I thank him for that and ask him to consider the amendments.
I thank the Deputies for tabling the amendments. As I did not get an opportunity to respond to the Second Stage debate on the Bill in the Dáil due to the time having elapsed, I want to put what we are doing here in context. I welcome the broad agreement on the legislation. It will reinstate the two-stage planning process and put planning decisions back in the hands of the local authorities, which is where they should be. That is something in which I firmly believe. These amendments relate to public participation. Many residents felt they could not participate because applications were made directly to the board under the SHD process. If people were not happy with that decision, while they had some input in a process through their councillors, which with I would not have been particularly happy, there was recourse to the courts through a judicial review. We are reversing that now for these developments, and rightly so. That means at the pre-application stage, on which I made amendments to the Bill in the Seanad, the records of a pre-application meeting with a developer must be kept and published, and the opinion on what is being asked for at the pre-application stage must also be kept and published with the file. Resident and interest groups will get to make observations, and rightly so, on any planing application at the beginning of the planning process once the application is lodged. A pre-application stage does not necessarily bring about an application. We are also restoring democracy to planning at a local level, effectively, to make our planning system more efficient. This is one of a number of measures the Government will bring forward. This legislation will not merely stand on its own.
Effectively, we are restoring the input that we want people to have. I accepted two amendments in the Seanad covering transparency of the pre-application process in order that people would know what has been discussed at pre-application stage, what has been agreed, what has been asked for and, furthermore, what opinion the local authority has given on the pre-application. This is important and fundamental, and it is tied into the process.
We are ensuring people will be able to make observations to their local authority once an application is submitted, as should be normal in large-scale developments. Furthermore, when any large-scale residential development, LRD, application is lodged, every elected member of that local authority will be advised, as a matter of course, and not on an ad hocbasis, that an application and its reference number has been lodged and that it is in the planning process in order that local elected members are aware of what applications are in planning.
I closely examined these amendments. I wanted to give the overall context of what is being done under this legislation. It appears the proposed amendment might have its origins in the initial process outlined in the general scheme. It may also be that Deputies wish to amend the provisions in section 32(c) and (d) of the principal Act, as inserted by section 3. However, as drafted, the amendment would technically provide for a further new consultation process, which could have quite significant impacts on timelines. I do not think any of us want that.
Deputy McAuliffe referenced a means of involving many different community groups. The Deputy and myself met residents of Santry on the general issue covered in the Bill. What residents wanted was a say in planning, and rightly so, and an end to the SHDs. In this legislation we are restoring the primacy of development plans, local area plans and master plans. Our planning must be plan-led and development-plan led. Other contributions were made on Second Stage on ministerial guidelines. I intend to examine that in the future and I take this opportunity to state that.
However, in the context of this legislation and the fact we need to move forward on it and have the new legislation and regulations in place by 17 December, I am not in a position to accept the amendments. Regarding the suggestion of how we might structure something around the PPN to make the process streamlined, I will examine that in more detail before Report Stage. However, I cannot accept the amendments, as drafted. I thank the Deputies for the time and effort they have put into tabling them.
I thank the Minister for his response. I agree with him that residents want to have a say at the planning stage and the Bill grants them that. Being aware of proposed developments at the pre-planning stage give residents more of an opportunity to be prepared for that process. In particular, I ask the Minister to consider those sections that provide information at the pre-planning stage level. Everyone would accept community organisations are not like a traffic department or a drainage department where they need to contribute in a technical manner but they should have an opportunity to at least have access to information early in the process. Having access to such information would not in any way delay the process. All it would do is arm them and perhaps clarify some of the issues they have in advance of the formal planning process. Once the formal planning happens that conversation tends to be closed and the process moves on to a statutory level.
I appreciate the Minister's comment that he will consider including the PPN system, or notifications through the PPN system, on Report Stage. Perhaps we can work on that between now and Report Stage. I understand the timeline involved. Nobody in my community wants the SHD process to be on books for any longer than it has to be. I do not want to delay it through this amendment but I ask the Minister to consider doing whatever he can. I appreciate his response.
I understand what the Minister is saying but it seems the system he referenced would be much more convoluted and much less clear.
It would probably make it fairly clear to someone intimately involved in the system, but it would not clarify very much for a community group or make it streamlined. There is nothing wrong with having community groups involved, especially where their members live in the area that would be directly affected by the development. They will have to live with it long after the developer has left.
As I understand it, this amendment was also taken as one of those put forward in the context of the original heads of the Bill issued by the Department. Therefore, the Department must have considered at some stage as well. That is important and for that reason, I will let my amendments stand. We could address the matter on Report Stage if the Minister intends dealing with it then. We can see what comes from forward in the meantime. I am, however, leaving the amendments to stand as they are now.
On what will be done before Report Stage, much of what the Deputies are looking for is in the various sections of the Bill already. I fully support and want public involvement in our planning system. That is why I am bringing SHDs to an end early and why I want to do that. We will tease out this issue a bit further. It is up to the Deputy whether he presses the amendment, and I fully respect that. However, we will examine a mechanism that we could potentially bring forward on Report Stage, perhaps under regulations, whereby we could explore giving the public participation networks, PPNs, a role.
This aspect must be structured properly, though. The definition of "Community Organisation" in the Deputy's first amendment is very broad. What is it? Do they have to be registered? I have discussed this with Deputy McAuliffe previously. If organisations are registered with the PPN, at least a formal channel would be in place. It would mean that a group is not just set up as the "Thomas Pringle Group", for example, and then we could also have "The Provisional Eoin Ó Broin Group", or something like that, where groups are just set up overnight. I do not mean to be facetious. However, we would need to have a structure, and potentially the PPN could be that structure. As I said, I think we can do something in that regard by means of the regulations. As we go through the Bill, the Deputy will see that we have vastly improved the input at the initial planning stage. We are restoring that, and, equally, all the information concerning pre-applications must be published at the application stage.
Let us think about it this way. Not every pre-application goes forward as a planning application. When that does happen, all the records of those meetings and the opinions and information sought must be published with the formal application. Therefore, there is full transparency, and rightly so. Every time an application is lodged under the LRD process, every local authority member, namely, the councillors, must be advised as a matter of course. We will see that as we move through the Bill.
As I said, it is up to the Deputy to decide whether he wishes to press his amendment. We can come back to an element of this on Report Stage and we might be able to provide further clarification then. I hope that is okay.
I move amendment No. 2:
In page 4, lines 23 and 24, to delete “, or such other percentage as may be prescribed,”.
This amendment relates to the definition of an LRD, which states that the floor space "is not less than 70 per cent, or such other percentage as may be prescribed, of the LRD floor space of the buildings comprising the development", in other words, that the housing or student accommodation elements of a development comprise 70% of the floor space. Our amendment would delete "“, or such other percentage as may be prescribed,” because, as it stands, that phrase means that the 70% can become entirely meaningless. It could be reduced to 60%, 50%, 40%, 30%, 20% or 10%. That could happen, and it would then be possible to have a large-scale development with only a small percentage of residential units classified as an LRD. The purpose of amendment No. 2 is to address that issue.
Amendment No. 4 relates to floor space not being used for residential or student accommodation, and states that "a public consultation shall take place with individuals and community groups which the planning authority shall have due regard to in determinations of the granting of permissions for such floor space”. Again, this is to ensure that even if it is not 70%, this is to ensure that the 30%, for example, of floor space would not simply be a free-for-all regarding what goes there and, instead, that there be real community input, etc.
We are taking feedback from the Local Government Management Agency, LGMA, and other bodies, on this matter. One of the big challenges we have concerns brownfield urban development sites. It has been said to us clearly that the 15% limitation in this regard was restrictive. We are looking at some larger developments which we want to have that desired mix of crèches, shops, launderettes and whatever else. To achieve that outcome, 15% was far too restrictive. Therefore, we are saying that we should go to 30% and allow that to be varied, as is deemed appropriate.
This is a positive move which speaks to the experience we have had of a lack of development on brownfield sites in our cities, in particular. It is genuinely considered that this proposed amendment would limit our ability to respond to possible future external factors, which could affect the viability of sites with which we already have issues. The ability to vary by regulation the percentage of the LRD floor space that comprises a development would allow the planning system to respond to changing conditions and circumstances in certain communities, depending, for example, on what facilities are required. I genuinely do not foresee a situation where we are going to see what the Deputy suggested. We need more people living in redeveloped brownfield sites in our cities, but we must have liveable communities with facilities.
The Deputy referred to cases where the amount of floor space would be varied to below 50%. That is not going to happen. The 30% maximum other use threshold in the Bill, and that is where it is set, will allow the relevant local authority, and it is the local authority concerned and not the board, to decide, based on the local development plans, what is appropriate in a relevant area on a case-by-case basis. It is important to remember that context as well. We must allow that ability, and it would be far too prescriptive to do otherwise. This process is about returning planning to those who should know best, namely, local planners and local authority members.
The whole purpose of this legislation is to bring the planning process back to the local area and to the planning officials who know the prevailing local conditions and circumstances best. It is better for qualified planners to do that, and to be able to make that distinction as applications come in, rather than for us to be far too prescriptive and restrictive at a general level. If we are to restore planning for these large-scale developments to a local level, as I am going to do, and involve planners who know the area and who must have regard to and will be following the local development plan into which local councillors will have input, as they should, there must be a level of flexibility to allow for those conditions.
Housing developments of this scale need local supporting amenities. I realise the Deputy is aware of that point. Such developments require services and other facilities, and planning authorities must be able to ensure that they are provided for in LRD proposals. Therefore, this change I am bringing forward is a positive one, and I cannot accept the Deputy's amendments. They are far too restrictive and on a one-size-fits-all basis. Allowance must be made for a local ability to vary specifications and to make decisions on a local level. I think it is appropriate to do that, but I thank Deputy Paul Murphy for the amendment.
I thank the Minister. To clarify one point, where the legislation refers to "or such other percentage as may be prescribed", the Minister is saying that is a power of the local authority, as opposed to being an issue of ministerial order, which is how I would have read it.
I accept the point that large-scale residential developments will not simply be 100% composed of regular housing or student accommodation.
We want communities with other things that people need. The point is that this is the threshold by which developments can get in to this special LRD process. If they do not get into this process, they still have to go through a regular planning process. The point we are making is that it is appropriate to provide that to avail of this special planning process 70% of the development must be made up of residential units. The Minister said he does not propose to bring it down to a particular level but, presumably, he will not be the Minister forever. A future Minister may well decide to bring it down. That is a problem.
There is also the basic democratic point that a future Government could have a problem with the 70% and want to reduce it to 60%, which is fine, but the matter needs to be brought before the Dáil for debate as opposed to the Minister, with the stroke of a pen, having the capacity to do that. That is problematic.
One of the issues is areas where there have been conflicts between ministerial guidelines and city and county development plans, which we will come to later as well in the context of other amendments. Is there a potential here that if the 70% was to be varied, it could find itself in conflict with a city or county development plan's retail or enterprise strategy? In such conflicts, which would take precedence? Many of us are engaged in city and county development plan reviews. For example, in Dublin Mid-West, which is my constituency, we are locating a lot of the new retail in the Clonburris strategic development zone. We have set out very clear volumes for both residential and retail, amenity and public services. I presume there is nothing in this provision which the Minister is defending that would in any way undermine, for example, percentages or floor space requirements that are in an SDZ or, more generally, in a local area plan or a county development plan. I would be interested in his response on that.
What we are doing is future-proofing it. I do not see the development plans that are being put together now right across the country and the mix within different zones, be that major town centre zones or mixed use zones, which is a matter for the local authorities, being in conflict. This relates to future applications through the LRD process. We would be saying that, at maximum, 30% of a use threshold would be that. It would be 70% minimum residential. The rest is varied within it. We would not be going past that.
On Deputy Paul Murphy's point, any future Government could do anything with any legislation. Equally, any member of the Opposition could also do that. This is the best approach right now. We are returning to the local authorities, and rightly so, decisions on these large important developments that most of us want to see delivered. We want to see homes for our people and good planning and good developments that are affordable for people to buy to live in and to rent in. That is what we want. This is appropriate to where we are right now. It is about future-proofing the process for new applications and getting this planning back to our local authorities. That is why we want to have the new regulations up and running by 17 December. Unfortunately, I cannot accept amendments Nos. 2 or 4.
I move amendment No. 3:
In page 4, line 25, after "development" to insert "and does not materially contravene the development plan or local area plan relating to the area".
The Minister and I have served as councillors, as have most Deputies present. I am fully aware of the significance and value of county development plans and the long hours or debate and consultation that goes with them. Therefore, I would like us, as Deputies and a Minister, to ensure that the LRD is in line with development plans and does not materially contravene them. This was a feature of the SHDs and it consequently led to many unsustainable developments, which were vehemently objected to by local residents and representatives. This is still ongoing and costing communities a great deal of money and stress. The idea behind this amendment - I have spoken about this in the Chamber as well - is to not allow An Bord Pleanála to contravene the development plans that are in place.
Yes. One of the issues that has arisen is the very significant increase in judicial reviews of decisions by the board with respect to SHDs. A large number of those judicial reviews have been won. In 90% of the cases that were won, the developer materially contravened the city or county development plan and the board approved that permission. The cause of that conflict was not so much the SHD, but the mandatory ministerial or section 28 guidelines, in respect of building heights and inferior design standards for rental apartments and, to a more recent extent, the misapplication of the planning objectives contained in the national planning framework, which are very high level, overarching planning objectives that, in a number of instances, have been used to make a decision by the board in direct contravention of new county development plans, which, in some cases, have the approval of the Planning Regulator.
The issue is that material contraventions should only be in exceptional circumstances. More important, now that we have a new round of city and county development plans that have gone through the process with the Planning Regulator, the number of potential conflicts should be far lower than arose in the previous period. My amendment is very specific. It states that an application should not be accepted unless the applicant demonstrates what exceptional circumstances warrant its consideration and, to ensure that process is done in a legislatively appropriate way, I am giving the Minister of the day powers to set the regulations that would determine that. Everybody here has had cases where the controversy at the centre of a development has been the breach of a development plan. If the development should only be breached in exceptional circumstances, surely there should be a filter and, therefore, I see no reason an amendment either in the form of the wording I have provided, or some other version of it brought forward on Report Stage, could not be considered.
I thank the Deputies for the amendments. We discussed this issue at some length on Second Stage. There was a great level of discussion on it in the Seanad as well.
Amendments Nos. 3, 9 and 37 relate to the issue of material contraventions of a local development plan. Again, the purpose of this legislation is to bring planning back to have regard to the development plans. The making of development plans - Deputies Ó Broin, Duffy and other Deputies know this as well as I do because some of us have served as councillors - is a statutory process undertaken by the local authority, which is a reserve function of the local councillors. The development plan is made with the advice of the executive and must have regard to proper planning and sustainable developments in the area. Most of our local authorities are currently engaged in the process of the next round of their development plans. However, certain circumstances may arise in the making of a planning application for lands, including land banks of strategic importance, where particular considerations may arise either in documentation lodged with the planning authority in the submissions received from elected representatives, members of the public or other committees, that require determination and may require planning permission to be considered, which would result in a material contravention of a development plan. This would be to ensure a sustainable or other appropriate form of development on lands the development plan or a local area plan may not have considered. This is not like SHDs in that sense either, which brings me to Deputy Ó Broin's point.
He is right. The reason many of these judicial reviews were taken is that there was no process at local level to identify where those issues were. They were going straight to the board. There were some quite infamous cases in which the board granted decisions having no regard whatsoever to development plans or local area plans. There is a process set out in this Bill through which planning authorities must go if they are to undertake material contraventions of the development plan. This may include the development of large-scale residential developments, as proposed in this Bill. While the need for material contraventions has arisen recently in response to inconsistencies between adopted development plans, local area plans and, indeed, national policy including ministerial guidelines, the current programme of review of draft development plans being undertaken by councils, with the oversight of the Office of the Planning Regulator, which is important, will ensure that statutory local plans will comply with national and regional plans, in addition to relevant ministerial guidelines, some of which I will be reviewing, as I said earlier on. This should reduce the need for material contraventions of development plans in future in the case of specific planning applications, and I believe it will.
Let us remember what the process is now. Contraventions of the development plans, where required, are still a reserved function. A very high threshold must be met. No less than three quarters of the elected members must vote in favour of any such resolution. This is considered a safeguard that provides for input into the process through the public consultation in addition to oversight by the elected members of the local authority. The Planning and Development Act provides for appropriate consideration of all planning applications, including proposals for large-scale developments, as outlined in this legislation, with oversight and direction from elected members. I do not consider it appropriate to remove the provision on material contraventions within the planning legislation. Perhaps that was not the intent of the amendments but this would reduce the options for consideration of proposals which may be in the interests of proper planning and the sustainable development of a given area, on very rare occasions. These proposals would obviously be subject to scrutiny and, rightly, the approval of the elected members.
Furthermore, clear direction is given to the board in section 37(2)(b) of the 2000 Act, as amended, on the circumstances in which the refusal of a planning application by a local authority for reasons of material contravention can be considered. Such circumstances include situations where a proposal is of strategic or national importance, where there are conflicting objectives in the development plan, where ministerial planning guidelines, strategies or policy directives are required to be taken into account or where the pattern of development in the area is to be considered. The board is therefore restricted to considering particular parameters in this matter. Outright restriction of the board's ability to consider material contravention of a development plan for a large-scale residential development would potentially be counterproductive for significant housing developments, in particular where such proposals would be in the interest of overall proper planning or sustainable development in a given area. For the reasons I have outlined, I cannot accept amendments Nos. 3, 9 and 37.
My amendment does not rule out in all circumstances consideration of planning applications where such applications include material contraventions of the development plan. It asserts what is already in the Planning and Development Act, as amended, that is, that such requests to materially contravene development plans should only be made in exceptional circumstances. It goes on to say that, other than in circumstances set out in regulations by the Minister, applicants would have to justify in their application why they are seeking to breach the city or county development plan. The problem is that even though material contraventions are meant to be exceptional, not only have we had a litany of SHD applications that have breached development plans but they have been approved by the board. These were then challenged and overturned in the courts. Despite the fact that the courts overturned these applications, the board continued to approve other proposals for SHDs that included material contraventions of development plans. This amendment aims to reassert the exceptional nature of such contraventions. It gives the Minister the latitude to set out in regulations the circumstances in which these may be justified. The fewer legal challenges there are to decisions, the faster planning permissions get through and homes built. Therefore, if we introduce this additional check where the applicant will have to justify proposals for material contraventions of development plans with regard to regulations set out by the Ministers, the likelihood of judicial reviews being taken and decisions being struck down will be reduced. It would therefore speed up and improve the planning process, thereby delivering much-needed homes.
From my experience in the architectural space, I know that developers tend to push the boundaries. They normally go beyond what development plans say can be done to see what they can get permission for. That makes this difficult. I will mention two recent examples of problems. In rural areas, An Bord Pleanála has given permission to developers to build large developments in areas where there are no transport facilities for school and so on. The other issue is that, while county councils may object to developments, they have already been objecting to SHDs but An Bord Pleanála has been ignoring them. That is concerning. An Bord Pleanála's recent track record has been one of just giving permissions. It may then follow that a local authority may refuse a planning application on whatever grounds only for it to be appealed to An Bord Pleanála, which will rubber-stamp it and say it is fine. That is an issue and we need to keep our eye on it.
Colleagues will know this but it is important to reiterate that this relates to the application going to the local planning authority. Anyone can make an application for anything. Our process will involve a pre-application stage. Applicants coming in will have to go through the pre-application stage. A local authority may point out a contravention of the development plan in the applications and say it does not want that. If the application came through and the local authority, rather than the board, granted it, the elected members would still need to vote to contravene the development plan. I take Deputy Duffy's point. I have not been talking about any specific planning decision but I take the Deputy's point regarding some of the decisions An Bord Pleanála has made with regard to SHDs. However, where a council has let it be known that it disapproves of an application, this has only happened through a consultative process by way of a submission to An Bord Pleanála. These provisions are much stronger. In the instance of an application for a large-scale residential development going through this process, the planners would have to agree to bring any contravention of the development plan to the members for a vote.
Deputy Ó Broin spoke about exceptional circumstances. How do we define such circumstances? I take it that Deputy Ó Broin's amendment No. 9 relates to the local authority planning system rather than the board. There are existing provisions. They refer to exceptional circumstances. I have tried to outline what some such circumstance might be in my initial response but we cannot accept amendments Nos. 3, 9 or 37.
The Planning and Development Act already includes a general exceptional circumstances test with regard to material contraventions in planning applications. The problem is, as we saw with the SHD process - and this speaks to Deputy Duffy's point - a much higher number of material contraventions were sought, granted and then overturned in the courts. If a local authority planning department approves a planning application that materially contravenes the county development plan, there is no requirement for a vote by the elected members. People appeal such decisions to the board, which decides whether to proceed with them. We need to weed out those applications involving a material contravention, excluding those that the Minister, with the good guidance of his officials and, I suspect, some advice from the Irish Planning Institute and others, would frame by way of regulations.
Otherwise, Deputy Duffy is correct. Certain categories of developers will always seek to push the boundaries beyond the development plan.
I am also alerting the Minister to the fact we already have a problem whereby the board is looking at high-level policy objectives, for example, with respect to compact growth, and approving planning applications that are in clear contravention of city and county development plans, even where it is clear the city and county development plan is compliant with the housing needs demand assessment provided by the Minister or the more granular application of the high-level planning objectives in the national planning framework.
I acknowledge he will not accept the amendment, so I will not labour the point. I urge him to consider how we can weed out planning applications to this new process that materially contravene the development plan where that is clearly not appropriate. I ask him to talk to his officials about the issue before Report Stage and I reserve the right to return to the issue then.
I appreciate that and we will have a further look at it. I take the points the Deputies made. I firmly believe the reality of bringing forward this process will both reduce the volume of judicial reviews residents have felt they have had to take because they had no other option, given they were not a part of the normal two-stage planning process, and ensure that where applications are made that materially contravene the development plan, our pre-application stage will be much stronger, and I think the process has a role in that regard. We will nonetheless examine the matter before Report Stage next week.
I move amendment No. 6:
In page 4, between lines 36 and 37, to insert the following:
“Amendment of section 28 (Ministerial guidelines) of Principal Act 3.Section 28 of the Principal Act (as amended by section 20 of the Planning and Development (Amendment) Act 2018) is amended by the deletion of subsection (1C).”.
We have just come from the remaining Second Stage debate of this legislation. Deputies across the Chamber, both Government and Opposition, highlighted many of the difficulties with the scale and nature of large-scale developments under the SHD process, many of which are subject to judicial review and eventually overturned. There seemed to be a sense from Members that this legislation, in and of itself, will resolve that problem but, unfortunately, it will not. The reason is that a number of significant changes made by the previous Government, in parallel with the SHD process, will remain in place. It is worthwhile considering these because, if we do not deal with them now, we will have to return to them at a future stage, just as we had to come back and deal with SHD.
As members will know, when Deputy Kelly was Minister for the Environment, Community and Local Government in the dying days of the most recent Fine Gael-Labour Party Government, he passed legislation making very significant changes to planning law that allowed a Minister, without any vote of the Oireachtas or local authority, to make substantial changes to planning law by way of decree. There could, of course, be a consultation but, ultimately, it was within the gift of the Minister. Previously, ministerial guidelines were made by way of advice and major planning policy was made by legislation or city and county development plans. I have no objection to a Minister or a Government wanting to set standards and have consistency. My view is that if they do that, they should have the approval of the Oireachtas and that, therefore, there should be a vote and not a unilateral declaration.
The mandatory ministerial, or section 28, guidelines have been used only twice, as most members will know, both times by the then Minister for Housing, Planning and Local Government, Eoghan Murphy. One time related to building heights, removing the ability of a local authority in a city and county development plan to have any height restrictions. I am absolutely not against height in appropriate locations, but I believe the city and county development plan is the best place to have those discussions. More controversially, the then Minister introduced a two-tier system of design standards for apartments, where the original 2015 guidelines by the Department, which are very respectable in my view, apply to build-to-purchase apartments, and an inferior set of design standards was put in place as an option for build-to-rent. Some build-to-rent, because it is higher end, sticks to the better standards but most do not. That means renters get less natural light, less storage and a higher volume of student apartments in the development, and a higher number of apartments is permissible to core-shaft, whether that is a lift or a stairwell.
The problem is the national planning framework rightly wants compact growth, with far more people to live in our urban centres with greater densities, which means greater levels of apartment living, yet it is virtually impossible to buy an apartment in our urban centres, particularly in Dublin, because of the astronomically high development costs. That means that if we want people to live in the urban centres, particularly Dublin centre, they have to be able to rent, yet we are saying they should accept lower design standards. That is completely contrary to the national planning framework. I know that many members of the Minister's party share the concerns I and others have about that two-tier set of standards.
These amendments will remove the ability of a Minister to introduce mandatory ministerial guidelines in the manner Deputy Kelly introduced them. Such changes should be made only with the democratic imprimatur of the Houses of the Oireachtas. The amendments will also repeal both sets of mandatory ministerial guidelines introduced by Eoghan Murphy. We tabled legislation on this previously and had a debate, where Fianna Fáil, Fine Gael and the Green Party opposed that legislation. If we do not improve the design standards for rental apartments, which we need more of in order that people can live and rent in the urban centres, and if we do not deal with the issue of heights and what the best way to determine heights and densities is, something on which we are still waiting for the Department's guidelines for local authorities, we will have the same problems, even within the large-scale residential development process, which will lead to more judicial reviews at the latter end, something most of us would prefer not to see. We want to see the best planning decisions made by the local authorities, with people on either side having the right to appeal to the board.
I urge members to consider getting rid of these regressive changes introduced by Eoghan Murphy and Deputy Kelly, in both the previous Government and the Government before it. Let us do exactly what the Minister said he wants to do, although he will not do it fully if he does not support these amendments, namely, return the power to the local authorities and the development plan process to make those decisions in line with the national planning framework and the work of the Planning Regulator. Let us remove these draconian, unilateral changes to planning law by any Minister, which have no democratic legitimacy whatsoever and should not be part of our planning code.
Deputy Ó Broin made some excellent points and I have a similar view on the issue of heights and densities. To promote more sustainable living, develop better infrastructure and public transport, meet our climate change targets and create more vibrant cities and urban centres, we need more density, but how we do that needs to be realistic and should be decided locally. On Second Stage, I gave the Minister some examples from my constituency of where quite excessive planning permissions have been granted under the SHD process, which has resulted in areas that should be developed and built on and have homes delivered being considered unviable at present and possibly unviable for years to come. Rather than this having facilitated the delivery of homes, it has been holding that up.
Amendment No. 51 seeks to remove the ability of any Minister to undermine planning guidelines set at development plan or local authority level through those mandatory section 28 guidelines. It is welcome that the Minister said beforehand that this needs to be addressed. It should be done now with our amendments rather than delayed. There has been a lot of discussion in local communities about the problems of the SHD process. While the problem is known as the SHD process, the actual SHD legislation is just a part of it. Another part is the section 28 ministerial guidelines. Putting initial decision-making back with local authorities is very welcome but leaving these guidelines in place will lead to more problems and conflicts. The quicker we can address and correct this and bring it back to the way it was, the less conflict we will have through the planning process and we will also have more realistic and more viable planning permissions that can then be developed. This is a key problem. There has been a rake of speculative planning permissions and increased land values but this does not lead to homes being delivered because we are looking at densities and heights that simply cannot be supported. Where they can be supported, it is only through the investment fund build to rent model, which is skewing the level and type of supply in certain areas without bringing about the kind of mix all of us would be supportive of.
I have a lot of sympathy with the points made, particularly around ensuring the primacy of the development plan and the issues around height being a national strategy. In my locality, areas we want to see developed for height and are identified for height have not seen that investment but areas where the city would not have preferred that height because it wanted to concentrate it in a certain area have seen development. Any height strategy encourages height in some areas and discourages it in others. Previous Ministers have taken that ability to have a strategy away from us. My only concern with the proposed wordings from both Deputies is that they might also limit the Minister's powers to bring in positive measures. The Minister recently stepped in to prevent student accommodation being converted into tourist or hotel-type accommodation and also stepped in with regard to co-living. I wonder whether in trying to seek this change, we are also removing the power of the Minister to take positive steps. I appreciate that local authorities are the places for these types of decisions but there are times when local authorities get things wrong. I would not like to see us completely remove the power of the Minister if we want him to make positive decisions such as that on student accommodation, which was taken earlier this year.
I could not have put it better than Deputy McAuliffe. Let us take a small step back. What we have done as a Government so far - in fairness, with the co-operation of the Opposition in support of most of these measures - is ban co-living. We are getting rid of SHDs and restoring planning to local level and rightly so. We are restoring local democracy according to commitments we made in the programme for Government that we are seeing through. There is a real point in what Deputy McAuliffe said. I do not dispute some of the issues that have been raised here and as part of the planning review that is under way about some of the issues around this but I think most people would understand that we need a consistent approach to policy areas such as student accommodation, co-living and other positive measures we may make. If we remove the legislative provision to empower a Minister to ensure a nationally consistent approach to planning in all 31 local authorities, the three regional assemblies and An Bord Pleanála when we are implementing national planning policy, it would be very problematic. I agree with some, though not all, of the points that have been made. One of the amendments would repeal and delete the ministerial planning guidelines, which is in direct conflict with my statutory role as Minister. I genuinely believe that while the views put forward are well held and well made, this is the wrong place and time to do it. It needs to be more considered than what we would be doing by literally deleting a statutory power any Minister would have to ensure there is consistency in planning approach. I take it that neither Deputy would want that to happen or none of the three so-----
First, to respond to the Minister and to Deputy McAuliffe, in my view, this is exactly the place where this discussion should be happening. The reason I say that is because the strategic housing development planning process and the section 28 ministerial guidelines on heights and design standards are a package and it is the interaction of that package that has caused so much conflict and led to so many judicial reviews and decisions by the board being overturned. One cannot treat them separately. I agree with the Minister that we need very careful consideration of these matters but that is what this session is for.
Also, the Minister is incorrect in his characterisation of the first of the amendments. I absolutely believe a Minister should have the authority to bring forward proposals that try to achieve a consistency of planning across local authorities. The difficulty I have with the current legislative framework is the Minister can do that without the vote of the Oireachtas. If a Minister wants to make profound changes to planning law and to significantly restrict the scope of action of local authorities in their city and county development plans, he or she should, of course, have the right to do so but it should be voted on. In fact, I suspect if the former Minister, Eoghan Murphy's mandatory ministerial guidelines had had to go to a vote of the Oireachtas in 2018 we would not necessarily be in the mess that we are in today because there would have been far greater scrutiny of those guidelines, particularly with respect not only to co-living but also to the inferior design standards for built-to-rent. In fact, this is crucial.
I also want to agree with Deputy McAuliffe. Something that frustrates me about the debate about heights is that those of us who opposed former Minister Eoghan Murphy's mandatory ministerial guidelines on the issue are wrongly described as being against height. The Dublin City Council development plan identified 11 separate locations where high-rise buildings were permitted. The issue, however, is that where high-rise buildings are built should be subject to a deliberative, consultative process and a democratic agreement in the city and county development plan. Deputy Higgins knows well, for example, from some of the challenges in the Clonburris strategic development zone, SDZ , that issue of what was the most appropriate height in proximity to the train stations was a very significant matter of public concern. Ultimately, a democratic process by the local authority, and then finally decided by the board, was the way that was done. That is much better than a ministerial guideline and it is important to stress that.
I would also say that much of the debate around heights is misplaced because the real debate is about density. If we want to increase the density of our city, we have to decide the best way to do that. In fact, high-rise buildings are not the optimum way to achieve density. Mid-rise, mixed-use developments achieve far greater levels of density. In fact, you can even get density at low rise. It is concerning that the local authorities still do not have the guidance on densities despite the fact that they are at an advanced stage in the development plan. I do not accept the Minister's responses to the amendments.
I also think Deputy McAuliffe is a little mistaken.
There is nothing in these amendments that would have prevented, or could prevent in the future, the Minister issuing the kind of circular he issued recently about the change of use for student accommodation. That would still be permissible. This is about profound changes to planning law being made by a Minister without a democratic mandate. That should be removed, as should the two sets of guidelines. I will be pressing the amendments.
The Minister said he is going to look at these guidelines as part of the planning review so it would be useful to have as much of an indication as possible of the timeline for that. I know the Minister cannot tell us exactly but it would be useful to have an indication.
Some good points have been made about how to achieve better density and that is not all about the height of buildings. I have been flagging the point that some of the heights and density that have been achieved through planning applications for strategic housing developments have led to unviable planning permissions and areas not being built out. An issue related to that has occurred in many of the larger areas zoned for development that have been earmarked to produce more housing and higher density, and which have been partially developed. I am talking about areas that were zoned and on which development started before the crash of the Celtic tiger. As a way to kick-start development after the crash, many planning authorities indicated they would allow lower density, two-storey development on part of these lands which initially had been earmarked for duplexes and three-storey, four-storey or five-storey buildings. To compensate for that lower density and lower rise in some areas, the planning authorities stated they would allow for much higher rise and higher density in other, more concentrated areas. The easier areas to build out have been built out at this stage. The remaining lands that were earmarked for higher rise and higher density development are now these strategic housing development applications, which are effectively unviable and for which there is not demand. That issue needs to be grasped and dealt with. The best place for that to be tackled is at a local authority level, both for the reasons Deputy Ó Broin was talking about in terms of the democratic process required but also because each area is different. Each area needs to use local knowledge and involve planners in that. The more we can involve the forward-planning sections in local authorities on this and the less that is done centrally, the better the outcomes will be. Those matters go hand in hand. I would be interested to hear from the Minister in terms of timelines.
I have nothing further to add on the other points but in response to Deputy Cian O'Callaghan, I remind people that we are returning planning to local authority level. Many points have been made and I disagree with some. It is the wrong place to be making drastic decisions such as those suggested.
The planning review is under way. A significant review of all aspects of planning is being undertaken and we intend to conclude that by next September. It is a sizeable piece of work that would usually take three to five years. It is an extensive review. I expect the work to be concluded by the end of September and the report will probably be published by the end of next year. It is an extensive review. The committee will have an important role in that regard.
The whole thing is about having a plan-led approach. That is what we want and one of the issues with a lot of residences is that plans have not been abided by. When we are setting zonings, development plans and master plans, we have, in some instances, not been prescriptive or descriptive enough about what is due to happen in each area, what heights and density are required. Much of the time, residents will only find out when there is a planning application and it comes as a big surprise. That should not happen. We must change the way we are doing things so it is master plan-led and communities understand what is planned to happen. I will add nothing further. We have had a good discussion. I will not be accepting these amendments. I hope I have answered Deputy Cian O'Callaghan's question.
I move amendment No. 7:
In page 4, between lines 36 and 37, to insert the following:
“Amendment of section 28 (Ministerial guidelines) of Principal Act
3. Section 28 of the Principal Act (as amended by section 20 of the Planning and Development (Amendment) Act 2018) is amended by the insertion of following subsection after subsection (1C): “(1D) The Build to Rent and Shared Accommodation sections of the Sustainable Urban Housing: Design Standards for New Apartments Guidelines for Planning Authorities, issued March 2018, are repealed.”.”.
I move amendment No. 8:
In page 4, between lines 36 and 37, to insert the following: "Amendment of section 28 (Ministerial guidelines) of Principal Act
3. Section 28 of the Principal Act (as amended by section 20 of the Planning and Development (Amendment) Act 2018) is amended by the insertion of following subsection after subsection (1C):"(1D) The Urban Development and Building Heights Guidelines for Planning Authorities, issued December 2018, are repealed.".".
I move amendment No. 9:
In page 5, between lines 19 and 20, to insert the following:"(iii) that materially contravenes the relevant city or county development plan, other than in exceptional circumstances as set out in regulations by the Minister,".
I move amendment No. 10:
In page 5, line 30, to delete “he or she has” and substitute “they have”.
These two small amendments are about gender-inclusive language. Has another vote been called in the Chamber?
The amendments are about gender-inclusive language and being in line with the UN guidelines. I am sure it is not the intention of those who drafted this legislation to exclude anyone based on gender identity, but if these amendments are not accepted, that is exactly what this Bill will do. We are approaching the end of 2021 and it is time for our legislation to be in compliance with the UN guidelines in terms of being fully inclusive of different gender identities. I would like to hear the Minister's comments.
As the Deputy rightly said, these amendments aim to provide for the use of gender-inclusive language in the Bill. While I appreciate that aim, we have consulted with the Office of the Attorney General on the amendments and it advises that the words "they" and "their" are both plural form, so their inclusion in the text of the Bill as proposed would have an impact on the interpretation of the legislation.
I have a suggestion, though. The Interpretation Act 2005 guarantees that any reference importing the feminine gender also imports the masculine gender, and vice versa. I have approached the Attorney General about this matter specifically. In the circumstances, the correct approach would be to amend the Interpretation Act. That does not fall under my remit but we could get the Deputy some advice on the matter. It is unquestionably an important issue, but "they" and "their" are plural form in this Bill and if we were to include them as the Deputy has requested, it would create an issue for the Bill's interpretation. To change that interpretation, we would need to amend the 2005 Act, which would then be reflected in the legislation. Due to this technical interpretation, unfortunately, I cannot accept the amendments.
I will reply briefly. I appreciate the Minister's response and his suggestion of a way to deal with this but the language I have used is internationally accepted as being inclusive. I appreciate that the Minister has different advice on which he has to act, so I will not press the amendments. However, I want to see this matter being addressed. I am happy that the Minister is committed to having it addressed, not just for this legislation but also for legislation in general.
This is an important proposal and is what we want to see happening. What I will commit to is engaging further. We engaged on the amendments with the Office of the Attorney General. I will take the matter up with the Minister for Justice. We will keep the Deputy in the loop and I will get him connected with the relevant official.
I move amendment No. 11:
In page 6, between lines 8 and 9, to insert the following: “(ea) details of the manner in which obligations under the United Nations Convention on the Rights of Persons with a Disability, with due regard to the principle of universal design and regulations under Statutory Instrument Number 513 of 2010, have been reflected in the proposed development;”.
What are trying to do here is ensure the large-scale residential development would be required to adopt the principle of universal design in terms the housing being accessible to people with disabilities. We need more disability accessible housing. We have a similar logic in a number of our amendments and in some we intend to add. The developers here are getting a special pass. We are sceptical about whether we need a special process for them at all, now that we are getting rid of the strategic housing developments, SHDs. They should just have to go through the normal planning process. We do not really see why they should get a special process of their own. Given that a special process is being established for these large-scale residential developments, there should be a quid pro quo, one of which being that the housing delivered under it will be universally accessible to people with disabilities and that it will be to the highest environmental standards. We have not submitted an amendment on this at this stage, but will be saying there should be a higher proportion of social and affordable housing. There needs to be strings attached to getting a special process, which are about meeting social and environmental objectives, the first of which is around universal design.
Amendment No. 12 requires developers to state the level of likely greenhouse gas emissions and how the construction of the development will meet our climate objectives and be built the highest standard in that regard.
I thank Deputy Boyd Barrett for the amendments. These were discussed in great detail in the Seanad. There is no question but that all of us want to ensure we have adapted housing and universal design in housing for those with disabilities and we are certainly moving towards it. I have a different point of view from the Deputy. This is not a special planning process. It is the normal planning process with strict timelines around delivery, because we need homes. It is bringing them back to the local authorities.
Amendment No. 11 relates to the considerations around universal design obligations under the UN Convention on the Rights of Persons with Disabilities. I explained this at length. These matters are more appropriate to building control and standards legislation, rather than planning legislation. It is important we have good and exacting standards in the local authorities and we are getting much better, but we need to produce much more. People with disabilities spend much more time on the social housing waiting list than those on housing lists without special needs and that is why we are bringing forward a special plan for disability housing. Amendment No. 11 is really around building regulations and standards and is not appropriate to this legislation.
The same argument goes for amendment No. 12. The Climate Action and Low Carbon Development (Amendment) Act 2021 contains a number of actions aimed at promoting low-carbon construction. We have the climate budget as well, so we are obliged to do that by law and will do so. Amendment No. 12 is more relevant to building regulations and construction waste standards than to planning legislation. It is already being addressed within the climate action plan. That is not taking away from the reason, thrust or meaning in putting forward these amendments. I fully understand that. We all want to go to the same place on this and we are doing that. However, these two amendments are not appropriate to this legislation and I cannot accept them.
I expect a clamour of support from others on the committee for these amendments. I dispute that this is not a special planning process. There is access for the planners to meetings in advance of large-scale developments. We will be discussing later how they consume significant resources, about which local authorities are concerned. Staffing resources and so on that the local authorities do not have will be consumed to facilitate large-scale developments. I do not see any reason they should not just go through the process under the Planning and Development (Amendment) Act 2021. It is a special process and they will have access to the planners in advance, to try to get their development through in a contracted timeframe. Given that, I want strings attached. Frankly, I want strings attached to all development to ensure it is meeting social and environmental objectives. We need more of that.
If there is a new process being established, it should guarantee equality for people with disabilities that we are required to deliver under the United Nations Convention on the Rights of Persons with Disabilities, UNCRPD. It should guarantee that it will significantly contribute to meeting our climate objectives and energy efficiency targets that will benefit the inhabitants of these residences with lower energy bills and so on. This should be tied to any planning process but in particular to large-scale planning and development proposals and especially where they get a bespoke process for the large-scale developments.
I need to get something on the record in case I have to fly to the debate on the Finance Bill and try to bilocate. There should be a greater obligation for social and affordable housing and student affordability in accommodation. Why else would we give them special treatment?
I support both the amendment and the intent behind the amendment. The Minister has made his position on the amendment clear but I ask him to progress the upcoming review of Part M of the building guidelines as a matter of urgency to improve the level of universal design within our building system overall. He might pay particular attention to the very strong advocacy of the Irish Wheelchair Association, which rightly highlights that current universal design under Part M does not include wheelchair livability within properties and they only deal with accessibility. Therefore, Part M must be reformed to ensure people who are residing in a house with a wheelchair would have full access to all basic amenities in the house. That is key, so will the Minister give an undertaking to look at this with his officials, particularly with the upcoming revised disability housing strategy that is due for publication later this month?
If it is helpful to the Minister, the committee will meet to discuss the low-energy technology in buildings. We also have a proposed meeting for building regulations and acceptability. It will be open for every Deputy to attend when we deal with those matters.
I will be quick. It is a sensible suggestion from the Deputy but the disability housing strategy is due to be published and much work has gone into it. It is something we are all serious about. There have been improvements over the years but we must go further and step it up, looking at areas for specific targets for different local authorities. There is a disability housing group set up in each local authority and it is right that they are in place. I can give a commitment that this is happening. With regard to where amendments Nos. 11 and 12 would sit in the legislation, I have not changed my position. I cannot accept them.
I move amendment No. 12:
In page 6, between lines 8 and 9, to insert the following: "(ea) a calculation of the expected greenhouse gas emissions, including emissions from embodied energy, expected through construction or demolition in the proposed development;".
I move amendment No. 13:
In page 6, between lines 8 and 9, to insert the following: "(ea) details of the manner in which the local development plan or county development plan of the local authority in which the site is located is reflected in the proposed development;".
This would require that any application for a large-scale residential development include specific local objectives, essentially, in what it must set out in adhering to the development plan. It would also set out in general how it is complying with the county development plan in the local authority area in which the proposed development is taking place.
We accepted a version of this amendment in the Seanad. Page 6 of the Bill has a paragraph (ga) on lines 13 to 15. I accepted the amendment in the Seanad after a number of Senators had put it forward. It now reads in the Bill:
(ga) a statement setting out how the proposed LRD has had regard to the relevant objectives of the development plan or local area plan in whose area or areas the proposed LRD would be situated,
(h) and such further information as may be prescribed.
That must be done. I accepted two Opposition amendments in the Seanad and that is now reflected in the Bill. These amendments are exactly the same. The provision is included.
As we are speaking to the group, amendment No. 14 refers specifically to the specific local objectives. These are not mentioned in the amendment to the Bill to which the Minister referred.
I am happy that is encompassed in paragraph (ga), which references the objectives or zonings within the development plan. This is not to dump on the Deputy's amendment but the provision means a statement must indicate how the project is consistent with the development plan and any measures within that plan. I think we are covered so on that basis I will not include the amendment. I accepted two Opposition amendments in the Seanad.
I move amendment No. 14:
In page 6, line 14, to delete "relevant objectives of the development plan or" and substitute "objectives, the provisions and any SLO’s in both the county/city development plan and any".
Again, I reserve the right to bring this back on Report Stage.
I move amendment No. 15:
In page 6, between lines 16 and 17, to insert the following:"(i) the information sought under this section shall be published online on the planning authority website within five working days receipt of this information.".
I will go through these relatively quickly. Amendment No. 15 seeks that information on pre-planning should be published online not when an application goes in but within a number of days of the local authority receiving it. That is important for the pre-planning stage to work well, and there must be some engagement with the local community. Some of the information and knowledge from the local community that is important in larger planning applications should be brought into the process at that stage. Often with a large site or development, the local community has knowledge of it that the planners in the council may not. The developer or its consultants may not have the knowledge either. Sometimes this relates to water courses or potential landslides, for example. There are many issues on which a local community may have knowledge and the developer or the local authority may not. These are not matters of detailed design, as would be dealt with in the main process, but they are overarching questions that should be addressed at a pre-planning stage. If there is no ability for a local community to know pre-planning is ongoing, how on Earth would it be able to raise any big, overarching or strategic matters at that point if, effectively, it is a secret or non-public process? That is amendment No. 15.
Other amendments are in a similar vein. Amendment No. 18 allows for public and not just community organisations to make submissions at a pre-planning stage. Amendment No. 22 would make sure the minutes of pre-planning were online within a number of days of the process being concluded and not just when the application goes in. Again, that is for reasons of transparency.
Amendment No. 26 states that the LRD opinion should be published online within five days of it being issued. I have even provided an alternative solution to that in amendment No. 27 in case the Minister does not like my suggestion of the wording around five days. Amendment No. 27 is a direct alternative to amendment No. 26.
Amendment No. 17 should be particularly easy for the Minister to agree to. It simply specifies that a planning authority or local authority may consult with community organisations as well as people, who are specified but not mandated in the amendment. That is a particularly easy one to agree with.
Yes. I also support Deputy O'Callaghan's amendments. On a number of occasions, the Minister has said that he wants to move towards a plan-led approach to planning. I completely agree with him on that. However, there is not a wild lot of plan-making in this Bill beyond what is already available. That is not a criticism of the Bill. It is just not what this Bill does and, therefore, there will be occasions when large-scale planning applications come in without a plan, bar the city or county development plan, and the community will have, especially at the pre-planning stage, no involvement whatsoever. I have not been in any way prescriptive in this amendment. It is trying to establish the principle that some form of public participation in the pre-planning process is required and that the Minister and his officials will, by way of regulation, set out how that would operate.
The key principle is that the earlier we involve third parties in the wider community in the process, the better the planning outcomes will be for everybody because people will have a sense of ownership. The Minister knows as well as I do that even in the best-case scenario, the two-stage planning process that is being reintroduced here, which I support, will still have an adversarial element to it. An applicant puts in a planning application and third parties put in opinions, sometimes to amend and sometimes to object, but it often becomes a zero-sum game. When planning becomes a zero-sum game everybody ultimately loses, whereas if there are occasions where communities are brought in before the formal application and statutory process, interesting things can happen. We have seen that, for example, in aspects of the strategic development zone process and Part 8. I urge the Minister not to say "No" to public participation during pre-planning.
I know he will not accept the amendment but I ask him to consider, between now and Report Stage, whether there are some mechanisms for involvement, particularly when a pre-planning process is clearly moving in the direction of a full plan. That might identify some issues or problems through third party observations from environmental NGOs, other interested groups, such as heritage groups, or residents, which could alert the applicant and local authority at the pre-planning stage of something that could be ironed out then, rather becoming a matter of dispute or contention in a formal planning process. There is merit in public participation at the pre-planning stage.
I have deliberately not been prescriptive. If the Minister does not accept this amendment, I urge him to at least consider the proposition and come back on Report Stage with some thoughts on it. This is not only about improving the process but removing the conflict and contention, and improving the level of dialogue and consensus, so we get better quality outcomes and less likelihood of appeals or judicial reviews because of potentially poor planning decisions that simply did not have full visibility of all the issues, which third-party participation might resolve.
Amendment No. 41 is consistent with my other amendments. If it is accepted, it will delete the lines that prohibit a local authority from only making records available at the point a planning application goes in. It allows local authorities to do that.
I reiterate the point Deputy Ó Broin made. Some of my amendments are prescriptive. If the Minister wants to look at the issue separate to that, it is perfectly fine with me. It is about the principle of seeing whether there is a practical way to get some input in at that early stage. That could be useful. In particular, at the very least, allowing a local authority to seek those opinions by specifically mentioning community organisations, not just people, is a minimal approach to it. We should go further than that.
These are major developments that will have a big impact. They are not just an individual house or small development but will comprise 100 or 200 units, depending on whether they are residential or student, and will have a big impact on areas. If they are going to work and not negatively impact on a community or get a hostile reaction, and be a good development that will add to any area, we need to consult with all the people who are likely to be impacted to get their input and expertise. We need to give people advance notice so we get the best development we possibly can that will meet the objectives not just of developers but of the locality and its need for quality, affordable and accessible housing, which meets the best environmental standards and so on and so forth. It is critically important, at the earliest possible stage, to engage with people. It is against the backdrop of the public always feeling they are last to know about developments and that stuff is hatched behind the scenes and then unleashed on them. This amendment outlines a way of preventing and pre-empting that and involving all the relevant stakeholders at the earliest stage.
Amendment No. 19 specifically refers to student accommodation and the need, in addition to generally consulting with stakeholders, community groups, residents' groups, councillors and so on, to engage with student unions and third-level educational institutions in an area, in order to get input from them as to whether a development will meet the needs of students.
We also believe the LRD opinion should be published on a website so everybody can see it and interrogate it. That is what we are proposing. I am confident the Minister will take all that on board.
I will be very quick. I broadly agree with the other Deputies on these amendments. To ensure an inclusive and transparent planning process, we believe that the LRD opinion, and the application documents, should be made available to the public on the planning authority's website within three days of the provision of the LRD opinion. I am not sure where that is going at the moment, but in the interests of transparency those documents should already be live. I do not see why they could not be made public.
I will respond to all the amendments together as they are related. Again, the context of this is that planning is being brought back to local authorities. We know that. On the pre-planning stage, section 32B(4), which is in section 3 of the Bill, provides that: "The planning authority may, prior to the LRD meeting taking place, consult with any person who may, in the opinion of the planning authority, have information that is relevant for the purposes of the LRD meeting in relation to a proposed development".
In broad terms, that gives the planning authority the power to seek other inputs at pre-application stage. The important thing is that we want transparency. How will we make sure there is transparency in the pre-application? All pre-application notes, opinions and what is being sought, once an application is made, have to be published. I made that change in the Seanad. The information will be published, but only when the application is made. Why is that? Many people want to know what is happening in their areas, and I do too. I will give the example of the strategic housing development, SHD, because it is the best data that we have. There are 553 pre-application consultations under the SHD. Of those, only 374 applications came about so 179 did not proceed. By doing what I understand people are looking for, we would potentially publish much information about applications that will never happen. It is best that when an application is lodged, the pre-application information must be published online, because it is live and we want to make sure people do not mix up the pre-application stage up with the application stage.
What I do not want to happen - and I genuinely mean this - is that people see the pre-application as important for dealing with issues. At the pre-application, the council can seek stakeholders to come in if they so wish. This is to try to make sure that we have good applications or to act as a filter and say, “That is not appropriate, we do not agree, go away”. In those instances, subject to these types of amendments being as broad as they are, we would have to publish all of that information. There could be numerous pre-application meetings on the same application that will never go anywhere. It is most important to get the process right, so that when a development gets to application stage, people will know what will happen and what has been discussed at pre-application stage.
We should also remember, and this goes to the point about the involvement of the elected representatives, that every councillor in the area will automatically be told about every LRD application that is lodged by the local authority. They will not just be told by way of planning lists, which can be sporadic insofar as some local authorities are better at issuing them than others. Some do not issue them. This will be tied into the legislation and it must happen. We will publish it and I believe we should. There should be transparency. I also believe we should publish the right information when it is relevant. We should make sure that the general public does not mistake the pre-application stage for the application stage and say, “Well I've already had my say there and I'm not putting in my observations”.
I understand what the members are getting at. We have greatly improved the transparency piece. Based on the data that I have, and it is probably the most comparable, 553 pre-application consultations were made, there were 374 applications and 179 did not go anywhere. In some of the bigger local authorities, there would many people having pre-application meetings and publishing data that is not relevant to anyone. The data becomes relevant when it goes in for application. It is then that the information will have to be published.
Section 32B(4) allows for a consultation with stakeholders at a pre-application stage. We have to remember why we are trying to do this. We want a transparent, streamlined and efficient planning process. We need good homes for people and members all know that. Much of what is being looked for in that group of amendments is in this legislation already. I cannot accept any of these amendments.
I thank the Minister for the reply. I know I am not going to convince him to change his mind. I would like to just press the value of involvement in pre-planning for him to consider. A site in Clondalkin many years ago had been subject to controversial Celtic tiger-era planning applications. The site was eventually sold to a new developer. That developer wanted to ensure that, to the greatest possible extent before they went to formal planning application, they listened the views of the local community to see if they could incorporate them into the plan. An informal pre-planning consultation took place. It was not statutory. It was by the developer in the community centre who met with local residents to say, “Look folks, this is what I am thinking" and asking for their views. There was an interesting exchange. All of the councillors from the area attended without holding a prejudiced view towards the development. Significantly, the developer listened to the opinions of the local community and incorporated their opinions to the best of their ability in the formal planning application. That dramatically reduced the level concern and hostility from residents in the immediate vicinity towards development. There were virtually no third-party opinions in an area where there had been a controversial planning history. Planning was approved and there was virtually no conflict. That is a good principle.
Again, I know the Minister will not accept the amendments. All I would ask him to do is, in the same way as with the strategic development zone on that macro scale, that we have significant consultation, well before the formal planning process. There is a merit in trying to do something not too dissimilar with large-scale residential developments. I urge the Minister to have a think about it. There is value when communities are involved early, before the zero-sum game on whether they are for or against a planning application. That can create interesting outcomes that improve the application, reduce the conflict and ensure everybody gets a better outcome. I know we will not convince the Minister today, but I ask him to please consider the issue, engage with the Irish Planning Institute and other officials, as well as with his Department. This could greatly enhance the process and reduce a level of conflict that causes great difficulty for applicants, third parties and for the planning authorities themselves. There are ways of resolving some of that in the pre-planning stage.
I know this from my local area, where there are some large planning applications. I can think of one where there was much knowledge in the local community about landslides in the area and about watercourses. The developer and the planning authority did not pick up on these. They were not in the pre-planning process that took place. It all resulted in the developer not getting a successful planning application through. To date, homes have not been delivered on that site. However, if there had been good engagement with the local community at a pre-planning stage, it could have been a much better outcome for all involved, for the local community, for the developer and for the people who could be living in those homes now. There is a huge value to this.
There is also the element that pre-planning takes up public resources. Given that it takes up public resources, why then should there not be a wider benefit of those public resources? The information and the lessons from the pre-planning stage should be made available and published online, whether or not this goes to a formal planning process thereafter. Indeed, that information in terms of learning in a local community would be useful. It would also be useful for other potential applicants in that area in that they would be able to see some of the key infrastructure issues that came up at pre-planning stage. For somebody making an application themselves, it will be for a site that they own. Information specific to that site will not be much use to anyone else. However, having that information more widely available is a good that could come from this.
A mistake is being made in the approach. The Bill is effectively deciding what the public wants to know about and when. We have been getting clear feedback from the public and from community groups that they want to know about what is happening in the pre-planning stage. The Bill decides for them that this information is not relevant to them and they are not to know it. It is no one’s intention to imply this, but there is the kind of narrative that people might not understand the difference between pre-planning and actual planning. People will understand the different processes around it. Certainly, people are interested. Rather than making the decision for people that information will not be relevant to them or that they do not need to know, the Minister should let people have the access to information they want and are looking for. That would give them more confidence in the planning system. It would help capture the issues early on and have them ironed out. I would just ask that that is looked at.
On section 32B(4), my amendment No. 17 specifies any "person" or "relevant community organisations". It is not explicitly clear from the current wording that local authorities can go to community organisations. Why not at least specify that local authorities can go to any person or community organisation and write them into that wording, if a local authority wants to go to them for information?
That makes complete sense in many areas where the local authority will know that there is a community or heritage organisation which has expertise or knowledge that could be relevant. We should specify that in the Bill, rather than just using the term "any person", which is more limited.
I thank the Minister for his commentary. I am divided on this. From working in my area of the city in the past 20 years, I have seen multiple planning applications . They contain layer upon layer. I have experience in this so I can read through these things and organise them, but if you are going to get blank planning applications that are not going through, it will seriously confuse people. If you look at the area in south Dublin that I live in, so many applications have gone in over the past 20 years. If five, six, seven or eight applications are added in that do not go anywhere, that will make matters more complicated in a development area of large scale where applications are amended and where stuff gets changed. I will withdraw my amendments. I would err on the side of where the Bill is.
I will try to be helpful here. Earlier, I said that I cannot accept the amendments as they are and that I want public participation. We will see when we come back on Report Stage if there is a way, as has been suggested by a number of Deputies, whereby, maybe by way of regulation, we could issue circulars to local authorities. I have seen the issues that Deputy Ó Broin has described in my area. There is a lot of good ad hocpre-planning where a decent developer wants to find out what is going on, for example. That should still happen. However, Deputy Duffy is right in what he is saying, namely, that we cannot publish everything for every pre-planning application in areas of high development when you are trying to go through different iterations of applications. A balance has to be found. Everyone will know what happened at pre-planning stage in every application because that measure has been brought in. Let me see if I can come back with something to address this. I am not promising an amendment but I will try to come back with a method that we could use for those groups. The term "any person" that Deputy Cian O'Callaghan mentioned is covered by the word "groups". I have clarified that with the Office of the Parliamentary Counsel in respect of amendment No. 17. I will come back specifically on this matter on Report Stage. We greatly improve the transparency and the consultation if people know what happens at pre-planning but I take the points that have been made and I will come back to see if there is another mechanism to address this. There is merit in what has been said by members.
I hear what the Minister is saying. I want to amplify Deputy Ó Broin's point in the context of big developments in particular. There are hundreds if not thousands of small-scale developments so to have public consultation on every small development proposal would not be practical or workable. We are talking about relatively small numbers of big developments that will have big impacts. If you are talking about a big development that will have serious impacts but that could be beneficial and if you get people involved in the consultation on the ground floor rather than when the process is further advanced, you will get better development proposals. As Deputy Ó Broin said, this could potentially even benefit the developers. It will lead to a more bottom-up and participative planning and development process, which is what we need.
I am not sure why my amendment was not linked with this group but it touches on many of the same issues. I take the Minister at his word that he will look at what he can do on this issue, perhaps on Report Stage. If that allows us to progress to the next section and in the meantime reserve judgment to see what comes back on Report Stage then I would look forward to that.
The Chief Whip and the main Opposition Whip had agreed that Opposition and Government members of the committee would pair with each other. Deputy Boyd Barrett is not a member of the committee. That was agreed by Deputy Mac Lochlainn and the Minister of State, Deputy Chambers. If the Deputy goes to vote, then one of our members will also have to go and vote.
I move amendment No. 16:
In page 6, to delete lines 40 and 41, and in page 7, to delete lines 1 and 2 and substitute the following:“(4) The planning authority shall, prior to the LRD meeting taking place consult members of the local authority, relevant community groups, residents associations, other stakeholders and any person who may, in the opinion of the local authority, have information that is relevant for the purposes of the LRD meeting in relation to a proposed development.”.
I move amendment No. 18:
In page 7, between lines 2 and 3, to insert the following:“(5) The planning authority shall make details of the proposed development available on their website and seek submissions from interested third parties in advance of the LRD meeting taking place and submissions from the general public will be published online within five days of their receipt and shall be taken into consideration by the planning authority in preparing for the meeting.”.
I move amendment No. 19:
In page 7, between lines 7 and 8, to insert the following:“(6) With respect to information provided under subsection (3)(a) with regard to student accommodation, the Minister shall provide for consultation with educational institutions, representative student bodies and elected members of the planning authority, who may in the course of such a consultation set out conditions in respect of student accommodation, which the planning authority must have due regard to in rendering an opinion under section 32D.”.
I move amendment No. 22:
In page 7, lines 28 to 30, to delete all words from and including “only” in line 28 down to and including “34” in line 30 and substitute “be made public by publishing it online on the planning authority website within five working days of the meeting taking place”.
I move amendment No. 23:
In page 7, line 31, after “regulations” to insert “subject to approval by Dáil Éireann”.
All of these amendments relate to ministerial guidelines and seek to ensure that those guidelines would be subject to approval by Dáil Éireann to give them proper democratic input and oversight.
I oppose these amendments, which provide that regulations made in relation to matters of procedure and administration of LRD-only or LRD opinion or planning applications should be subject to approval by Dáil Éireann. It is correct that certain planning regulations require approval of both Houses under section 262(4) of the Planning and Development Act 2000 before they are signed into law but this requirement is generally applied for matters such as exempted development regulations, which removes the need for certain development works to seek planning permission or fees regulations whereby the Minister sets fees to be applied by planning authorities. If we were to do this, requiring the approval of regulations which set out matters of administration would be overly burdensome both for my Department, given that it is not being done for others and regulations are a secondary part of the legislative system, and for Members of the Dáil. It is long established that secondary legislation can be prepared and signed by Ministers as long as the principles and policies of the regulations are set out in the legislation. For that reason, I oppose the three amendments.
I move amendment No. 25:
In page 8, between lines 7 and 8, to insert the following: “(1A) The planning authority shall make the opinion available on its website, together with a copy of plans and other details discussed at the consultation meeting, upon lodgement of the LRD application.”.
I move amendment No. 26:
In page 8, lines 19 and 20, to delete all words from and including “when” in line 19 down to and including line 20 and substitute “by publishing it online on the planning authority website within five working days of the opinion being issued.”.
I am trying to get over to the Finance Bill shortly so I will not be here to move any further amendments. I am not being rude.
I will say two things on this section. First, we had an amendment ruled out of order but the Minister should take it on board because his colleagues in Dún Laoghaire-Rathdown are concerned and there was a vote at Dún Laoghaire-Rathdown County Council in relation to the staff resources that would be necessary in order to deal with large-scale residential development. They will write to the Minister about this. To put it starkly, the officials in Dún Laoghaire-Rathdown said there could be cuts in other services because of the staff resources that would be necessary to deal with large-scale residential developments. That is pretty serious stuff. As a consequence, the councillors, including the Minister's Fianna Fáil colleagues, unanimously approved a motion to request that the additional staff resources be provided to local authorities to deal with large-scale residential developments. Otherwise, this could have serious knock-on effects for other services. The Minister should take that seriously. It is not just me but everybody in Dún Laoghaire-Rathdown and the Minister will probably find the same elsewhere.
The second point links to some of my earlier amendments. I do not see why we need anything that is not affordable at the moment. At the very least, there should be a higher requirement for public and affordable housing in any large-scale development than 20%. We are in a bad state and are limited in the construction resources that we have, including construction workers. There is only so many people to build stuff at the moment. Everything has to be thrown at upping the amount of affordable and public housing we deliver, given the place we are in. There should be no LRD process where there is not a requirement for an additional minimum of, I would say, 50% social and affordable to try to address the housing crisis. I do not have an amendment in on that but I will put one in on Report Stage to the effect that there should be a higher obligation for social and affordable housing linked to any consideration of a large-scale residential development.
This came up on Second Stage and I did not get a chance to respond because we ran out of time. Local government resources will be provided to deal with this. Next week or in the coming days I will make a significant announcement on that. The Government has committed under Housing for All to provide resources to local government, has done so already in relation to housing delivery teams and will be doing more of that. We need to resource them where needed. I agree with the Deputy on that. My colleagues in Dún Laoghaire-Rathdown through Deputy Devlin and others have been on to me also. It will be addressed. The amendment is out of order but it was raised by a number of Deputies on Second Stage and I had no time to respond so am formally doing so now. I assure the Deputy that will be done.
On the other point, affordable housing is central to everything the Government and I, as Minister, are doing at every opportunity. There is the LDA Bill, which refers to population centres of over 150,000, that is, Dublin and Cork. Great work has been done by Deputy Duffy, who is a member of this committee, on that. We have 100% affordable and social in those areas. We are increasing the Part V provision. The Affordable Housing Act has been passed and was supported by most of the Opposition. We will lead with our local authorities delivering affordable homes. The Deputy is right that we want to see more affordable housing. We want to see affordability permeate the housing market. That is where we need to get to. We are not there but are making changes in that regard.
We are acutely aware of local government resources and I will make an announcement in the coming days on that.
I move amendment No. 33:
In page 9, to delete lines 16 to 20 and substitute the following: “ “(1B) Where a planning authority receives an application for permission to which section 32A(1) applies it shall—(a) notify the elected members of the planning authority of the making of the application, of where the application is available for inspection, and of such other information as may be prescribed, and
(b) present to the relevant elected members the details of the application at a meeting.”.”.
This amendment is grouped with that of Deputy Nash because it is similar but has a significant difference. It was raised with the Minister in the Seanad as well. One of the few benefits of the SHD process was the presentation councillors received detailing the application process. As part of that, their views were composited in a report submitted alongside the report of the manager. Many councillors felt it was one of the few benefits of the SHD process. I appreciate the new process does not allow that sort of combined submission by members of the local authority but that presentation was incredibly useful for local councillors.
In Dublin City Council, even in advance of SHD presentations, a presentation was made at the area committee meeting on significant planning applications. I had not realised that was unique in that this process did not exist in other local authorities around the country. The proposal made in the Seanad and by Deputy Nash today, which fell, was that this would happen at area committee meetings. I agree with the Minister’s concern that it could inadvertently delay the LSRD application. Since this is not my intention, my amendment does not specify that the information should be presented at an area committee meeting or municipal district meeting but, rather, at a meeting. It could be an online meeting or a physical meeting that is already scheduled. I ask the Minister to consider the amendment. It is important that local councillors be briefed by their councils on applications for developments of the scale in question. It would benefit local democracy.
Amendment No. 52 seeks a small change to the Title of the Bill. I believed the amendment might entitle me to speak first. It outlines exactly what the Minister refers to in respect of restoring the power to local authorities. It proposes a small cosmetic change.
Deputy McAuliffe's tactic to speak first was a good one but it backfired on him as amendment No. 52 is at the very end.
To be serious, every local authority member has to be advised of any LSRD application that is lodged. I thought it was a retrograde step when it got to a stage where councillors could not receive a briefing. A circular was issued some time ago, although not by me, whereby councillors could not call up files. They did not wish to get involved in the planning decision but to put forward their views. It used to work well in my local authority, for which I can speak. I am considering what we can do. The Deputy referred to Dublin City Council. There is nothing to stop a local authority from briefing councillors when there is a significant application. Some do and it makes a lot of sense. The passage of this legislation will mean that every councillor will know about every LRD application in his or her area. They will have to be informed about it. They will be able to make a submission.
A good thing about the SHDs that the Deputy mentioned was the group submission by the council that went to the board. The issue is whether any regard was paid to it. Many councillors I spoke to felt they put a lot of work into their submission but that it got lost when grouped with the submission of the local authority, be it Final County Council, Dublin City Council or Waterford City & County Council. It is different now because one is dealing with one’s own local authority. I am going to consider the question of how a local area committee or councillor might be able to engage. I believed the planning meetings at local authority level were useful, if used properly. Maybe they needed to be changed a bit. Councillors are not planners, and we do not want to muddy that line. We know where the reserve function associated with the development plan sits. We know where the executive function sits regarding planning but I am going to examine the matter. When the legislation is enacted, every local elected member will have to be advised when there is an application.
I am not encouraging the Deputy to press his amendment, but far be it from me to tell him what to do. What I am saying is that if we move in the direction of doing something about this, we need a bit of time. To be fair, a lot of what the Deputy is looking for in his amendment is being done already within the Bill. The Deputy and I have discussed that at length, so his input is reflected in the Bill.
If Deputy McAuliffe needs any encouragement, there are plenty of us on the Opposition benches who will give him all the encouragement he needs to press the amendment. Unfortunately, however, he proposed to withdraw his amendment before we could give him that encouragement.
A circular issued in 2018 was interpreted by South Dublin County Council, at least, as prohibiting councillors from requesting a planning application or from being shown large ones. Mr. Paul Hogan from the Department told us a new circular would be issued to clarify the original document, or whatever you want to call it. In South Dublin County Council, we were not allowed to look at applications. I am not sure what other councils that happens in. It would be great if a circular could be issued indicating applications can be called for and requiring the planners to come in to discuss large applications, because they are very informative.
That is exactly what I am considering. I was not Minister in 2018 but believe the document was misinterpreted by some local authorities and taken to the extreme. Input from local elected members can be very good. They can end up being a conduit for many other groups. In some instances, there is more organised feedback. That is exactly what I am considering. Mr. Paul Hogan is still involved. I will keep the committee informed about this. I expect to see changes; I am not just saying we are considering it.
I move amendment No. 35:
In page 9, line 29, after “(a),” to insert “not”.
I will speak to amendments Nos. 35 and 42 together because they are related. My concern is that this part of the Bill will have the effect of tying the hands of the local authority, or planning authority, regarding decisions that have already been made through the SHD process. I am referring to where there have been mistakes made regarding permissions granted, difficulties with unviable planning permissions, or densities and heights that are simply not viable but that may confer a speculative value on land. The relevant sections of the Bill will tie the hands of local authorities and they will be prevented from making substantial differences if they have a good rationale for doing so where someone comes in for modifications regarding existing planning permissions or whatever. If the change I am looking for were made, it would not mean a planning authority could simply, for no reason, seek significant changes. The language of the Bill, as it stands, would tie the hands of a local authority where it has a good planning rationale, where it is conceded that there has been a lack in certain respects, where a permission has not resulted in building out over several years, where a permission is not viable although housing is needed in the relevant area, and where significant changes may be needed. My fear is that the legislation ties the hands of the local authority, the planning authority. I am trying to prevent this.
I have a question on section 4. Could the Minister add his response to his response to Deputy O'Callaghan's amendments? The Minister has been given power to make regulations that could restrict the types or frequency of further information requests at the latter end of the formal planning decision process of the local authority.
Will the Minister give an indication on the record of those regulations? I am sure he does not want to prevent local authorities from asking for information that, in their view, is necessary to make a decision. I know, for example, in the official briefing we got from the Department, they were concerned about consecutive further information requests that could delay a decision. My worry is whether certain categories of further information requests will be excluded in the regulations. How much information can he give us about that at this stage?
I will take the last question first. I covered this on Second Stage and in the Seanad as well, but I am happy to go through it for members here. First, we will publish the regulations this month in relation to further information. I want to give members an idea of the limitations I am considering. The limitations on further information would purely relate to matters that would reasonably have been expected to have been included in planning applications generally or as a result of issues raised or discussed as part of the pre-application consultation stage. It is not my intention to limit further information altogether.
It will be possible to address matters raised by third parties during the five-week public consultation stage of a planning application, material issues which could not have been foreseen or raised at a pre-application stage, material errors in documentation and faults or deficiencies in environmental impact assessment reports or Natura impact statements, or other relevant environmental documentation, among other things, by means of further information requests as deemed appropriate. They are the parameters of what I am considering.
On Deputy O'Callaghan's amendments, the inclusion of provisions for the modification of previously permitted developments under the Bill seeks to provide legal clarity in respect of such applications. Under the strategic housing development process, which is to cease, applications for modification are submitted directly to An Bord Pleanála. To avoid any type of gap in the legislation in respect of strategic housing development permission, given the proposal to reinstate the role of the planning authorities as the consenting authorities for large-scale residential developments through the Bill, it is deemed appropriate that applications for modifications to strategic housing developments as well as large-scale residential developments would be made directly to the relevant planning authority in the first instance, which is the correct way to do it. Where modifications proposed to a previously permitted development are deemed by the planning authority to be very minor in nature, there is a provision in the Bill for the planning authority to determine that pre-application consultation is not required and that the planning authority need only consider the proposed alterations in determining the modification application. This reflects the minor nature of some modifications that may be proposed and the fact that the large-scale residential developments proposals will have previously been subject to detailed pre-application consultation, thereby allowing for the most efficient use of local authority resources. That is our view on the matter, and I cannot accept amendments Nos. 34, 35 or 42.
I wish to probe the Minister's comments on the regulations. How will "reasonable" be defined in that context and how will it be policed or enforced? If, for example, a matter arises about which a local authority considers it reasonable to request further information, a decision which the regulation seems to conflict with, how will that be managed or adjudicated? There are likely to be circumstances - we have not seen the regulations so we are speculating blindly on this - where a departmental interpretation of the regulations could determine that a planning authority's request for further information is not reasonable because it should have been asked at pre-planning stage. The planning authority might disagree and say that this was not something it reasonably could have considered. How will that be managed? There could potentially be tension, which we would all obviously like to avoid.
The purpose of this is not to restrict information. We have seen many applications go through a series of requests for additional information, clarification of additional information, further additional information and on and on. We want a better pre-application stage that takes an effective procedure from the strategic housing development process, which is a clear pre-application process. For argument's sake - we will publish the regulations this month - if a standard document or something like that is requested at pre-application stage that was not included in the planning application, it was not included and that is it. That would be an error if something has not been included in it.
What I have outlined is the areas we consider to be reasonable. We need to allow each local authority and planner to have some element of discretion or decision making around this, as they have already. Differently within this, we are setting statutory timelines around this. We will streamline situations whereby additional information or "further information", as we are calling it, is looked for to stop the situation where there is delay upon delay, which is caused by continual requests for further information. It should make the information at pre-application stage much better and clearer, if those matters are dealt with at that stage within a statutory timeframe. We will publish the regulations this month. They are being worked through. I assure members that the committee will be briefed on them because it is important. It is not to try to remove any rights from the local authorities. It is to try to improve the process, to be honest.
I wish to respond briefly. I am concerned that this wording means a local authority cannot take into consideration other issues such as if it considers planning permission already granted not to be viable and is not getting built. Local authorities may not be allowed to take that into consideration in this regard. That is my concern so I will be pressing this amendment.
I move amendment No. 36:
In page 10, between lines 9 and 10, to insert the following:
“Limit of duration of permission
6.Section 40 of the Principal Act is amended by the insertion of the following subsection after subsection (3): “(4) Notwithstanding subsection (3), where a planning authority grants a permission to which section 32A(1) applies—(a) ‘the appropriate period’ means the period of 24 months beginning on the date of the grant of permission, and
(b) section 41 shall not apply in relation to the permission.”.”.
Before I make any comments on this amendment, I am interested to hear the Minister's perspective on it. I know this was raised in the Seanad where it was tabled by my colleague, Senator Wall, on behalf of Senator Moynihan.
I have a more general question for the Minister on section 6. Perhaps he can include his reply alongside Deputy Nash's. Section 6 has a very incongruous presence. It is not in any way in my view related to large-scale residential developments or housing developments of any kind whatsoever. I listened carefully to the Minister's response to my colleague, Senator Warfield, in the Seanad debate. I was very unconvinced by the Minister's explanation.
Whichever is easiest.
It might be helpful for the Minister to respond to amendments Nos. 36 and 38 and then we can address the section. Unless Deputy Ó Broin wants to speak on amendment No. 36, I will invite the Minister to respond.
We discussed these amendments previously. Senators Wall and Moynihan raised them in the Seanad. They would be exceptionally onerous vis-à-visthe new process. One of the amendments refers to the beginning of a large-scale development from grant of permission at 24 months and the other one refers to six months. Amendment No. 38 proposes permission should be granted for six months only and removes the right for it to be varied. I strongly oppose these amendments. I discussed this with Senator Wall and while I do not want to take away from the amendment's worthiness, the potential impact of it was not fully understood. I get where the proposers were coming from. They were concerned that lots of SHD applications were submitted and permission was granted but they never effected. That is something about which we all share a frustration. The LRD will be much better because the process is back with the local authorities and there is a good, robust pre-planning stage. I would be very concerned about setting arbitrary timelines like this. A 24-month or six-month timeframe, as detailed in the amendments, would not be attainable and we would end up with good planning permission grants falling and having to go back into the process again. We had a good discussion on this in the Seanad and to be fair to Senator Wall, he understood where I was coming from. On that basis, there is a use it or lose it piece that we need to look at. SHDs had a really poor conversion rate but LRDs will be different. That is why we are giving the planning element back to the local authorities, which is where it should be. Unfortunately, I cannot accept amendments Nos. 36 and 38.
That is a reasonable assessment, as I understand it, of the Minister's interpretation of the engagement on this in the Seanad. It was, as he correctly pointed out, an attempt by Senators Wall and Moynihan to ensure that lessons that have been drawn from the SHD process could be applied to this process. It is deeply frustrating, in all our communities and constituencies, when we see developers using the SHD process to have significant developments fast-tracked through the planning process and then sitting on the sites or flipping them and making considerable gains on them while they go undeveloped. The intention of the amendment was to address the use it or lose it issue that the Minister, along with the Minister for Finance, appears to be confident will be addressed through the zoned land tax. The truth will be told when that is brought forward and we see what impact it has on developer behaviour. I reserve the right to resubmit the amendment on Report Stage.
I must apologise for not formally moving amendment No. 32. I was of the assumption that this would be a hybrid meeting and I attended the committee room a few minute's ago in an attempt to do that but was a little late. Unfortunately, I could not contribute on that amendment. I thank the secretariat for sending on the link to the meeting and I am happy to have had the opportunity to formally move this amendment. I will not press it but will reserve the right to move it again on Report Stage.
I move amendment No. 37:
In page 10, between lines 9 and 10, to insert the following: “Amendment of section 37 of Principal Act
6. Section 37 of the Principal Act is amended by the insertion of the following section after section 2A:“LRD Appeals2B. The Board shall not grant permission for a LRD where the proposed development, or a part of it, contravenes materially the development plan or local area plan relating to the area concerned.”.”.
I will not press this amendment but I reserve the right to resubmit it on Report Stage.
This is a really incongruous section. It does not belong in this legislation at all. I do not accept, and have yet to hear a convincing argument, that it is in any way related to LRDs. My understanding is it is what is often called a leapfrog provision whereby on foot of a judicial review, where one party seeks appeal to the Court of Appeal, the other party can attempt to leapfrog the Court of Appeal and essentially fast-track a decision of the Supreme Court. I heard the Minister's explanation of this in the Seanad, namely that it was designed to speed up the process and while I do not dispute that this is the purpose, he has not explained what process is being speeded up. Only a tiny number of SHDs ever went to the Court of Appeal. As we know, a large number were judicially reviewed and they stopped there.
I suspect this was not meant to be in this Bill originally. I suspect it did not originate from the officials working on the replacement for the SHDs and the Minister needs to explain to us the origin of this section and why it is in this Bill. Members will be aware that we are due to debate significant and potentially controversial legislation next year on the reform of the judicial review process. Many of us are very concerned that this legislation will seek to limit people's access to justice but that is a debate we can have at a later stage. My suspicion - and it is only a suspicion - is that somebody else, somewhere else in the infrastructure of government, wanted this provision in place in advance of the judicial review reform legislation because they anticipate this provision may be needed, potentially for large infrastructural developments, for example. If that is the case, there might be a good reason for it and I would be open to listening to the Minister's arguments but in the absence of him credibly explaining why something that is not to do with residential developments is in a Bill on residential developments, I am left with no option but to oppose it.
My colleague, Senator Warfield, raised the very same questions with the Minister and neither I nor he was satisfied with the response. I urge him to tell us why this is here and what he is expecting it to be used for because if he did not expect it to be used between now and the passage of the judicial review reform Bill in the first half of next year, then it would not be here in the first instance. A little more transparency around this provision would be better for everybody. The Minister may surprise himself and actually convince some of us who are opposed to this section that it has merit. He did not do that on the floor of the Seanad and I urge him to do it here at this committee.
I have the same concerns about this section. It stood out for me too. I wondered why it was included in the Bill. I would like to hear from the Minister the rationale for this section and why it is in this particular Bill. How is it related to the rest of the Bill? Is this specifically needed in this Bill or could it have sat in other legislation? What is the origin of this section? Where did the suggestion for its inclusion come from? Was there lobbying involved? If the Minister could clarify all of those issues, that would be very useful. It would be useful to know where this has come from and what he hopes to achieve with this section. What would be the outcome of this and why is it necessary? I ask him to provide as much information as possible, starting with the origins of this section.
I agree with Deputies Ó Broin and O'Callaghan that the section seems out of place in the Bill. Maybe the Minister can outline the reasons for including this section and why he feels there is a need for it in this Bill. Sometimes we deal with legislation containing add-ons where the Government tries to put in additional provisions that would not necessarily have been there at the beginning.
That is what it looks like to me. I hope the Minister can enlighten us.
The reality is that this legislation is forward-looking. No one lobbied in respect of it. I am not sure to what Deputy Cian O'Callaghan is necessarily referring. There was no lobbying on this. Let us be clear on that. Obviously, there is a lobbying register and members should feel free to check it. The reality is that this is a streamlining provision. As I stated, we are carrying out a full planning review. Deputy Ó Broin referred to the judicial review reform legislation that actually predates this Government and goes back to the previous Oireachtas. It is moving through slowly. This provision is absolutely needed as a streamlining provision for any potential challenges taken against the State or a local authority or in instances where there would be a leapfrogging arrangement. It is appropriate. It is important that it is in place when we are trying to make the planning system more effective.
We are grounding this back with local authorities too. I do not wish to repeat myself, but the whole purpose of this is to bring planning for these large-scale developments back to local authorities. I believe this is appropriate to the Bill. It is important that it is done and that we do not have to wait for the conclusion of the full review of the planning code of which we are in the middle. I responded to Deputy O'Callaghan earlier on the timeframe in that regard. I will be bringing other planning legislation through in advance of the planning review being completed. Although members may disagree with different parts of the planning system, I think we all agree that we had to improve its efficiency while making sure the right to make observations or objections in support of or in opposition to applications is retained. That is a right I firmly believe in. This provision is relevant, valid and important and it is urgent that it is done. Hence its inclusion as section 6 of the legislation
As this is a significant legal change, it is important that we tease it out. Let us be clear that when this large-scale residential development process is in place, people will enter the pre-planning process and then the formal planning process and may then decide to appeal that to the board. There may then be judicial reviews. All of that will take the guts of nine to 12 months. There will be no large-scale residential development that will need to access this leapfrog provision in 2022. That is a reasonable assessment. That means this leapfrog provision is for one of two other things. It may be that somebody in the architecture of government wants to have this leapfrog provision in case it is required in the context of strategic infrastructure developments that are somewhere in the planning process at this point. That could be entirely reasonable. I am not suggesting there is anything untoward going on, but I think we should be told what that is.
Alternatively, it could be that somebody in the architecture of government and the Department is anticipating post-judicial review appeals to the Court of Appeal for strategic housing developments, including some of the most controversial such developments. Again, that is anticipated before the judicial review reform legislation is in place. My speculation - it is purely speculation and I am not casting aspersions on anyone because this is a completely legitimate thing for the Government to do - is that we have a very proactive Attorney General and this particular provision has all the fingerprints of the Attorney General, with his fulsome knowledge of the courts. There probably is an appetite within the Supreme Court for such a leapfrog provision. It would probably have a little bit more capacity to deal with such complex cases.
However, the question I genuinely asked of the Minister because I am open to being convinced on this - he has not answered it so I will ask it again - is what kind of development he expects this leapfrog provision to be used for between now and when his judicial review legislation, which I understand should come for pre-legislative scrutiny early in the new year and be passed within the first half of next year according to the timeline for it set out by the Department, comes into being. This provision is not for large-scale residential developments. None of those will even get to judicial review, let alone an appeal to the Court of Appeal, by the end of next year. Is it for certain strategic infrastructure developments? The Minister must know the answer. Why can he not just be straight with us and let us know so that we can judge whether it is a good and worthwhile provision? Thus far, he has not given any explanation as to why it is in this Bill in respect of large-scale residential developments.
It would be useful to know what are the origins of this. The Minister can correct me if I am reading this incorrectly. Is it that the planning review is being undertaken now and that some things are coming out of it that the Minister is already advancing into legislation, this is one of those things and we can expect more of them before the planning review is completed? Do I have that totally wrong? If so, the Minister might explain that again and explain from where the idea behind this came and what are its origins. Am I to take it from his comments that we should expect more provisions such as this in legislation in the coming year before the planning review is completed? What is the process that is happening here? It would be useful to understand that.
As I stated, this is a streamlining provision. By the way, I assure Deputies that this has not been brought forward with any particular project, development or strategic piece of State infrastructure in mind. That is not the case. Governments rightly use legislation and legislative vehicles to advance changes. That is what we are about. That is the reason we are legislators. This is a streamlining provision. I am not being smart, but I do not have a crystal ball that would tell me for what this provision will be used. It is a useful and necessary provision to streamline the process. I bring forward the legislation and amendments as Minister. In the context of the legislative process, these provisions are initiated by me with Government approval. That is the provision and those are its origins and the rationale for it. Obviously, members will make their own minds up on it. It is a forward-looking and streamlining provision in respect of planning. I cannot say whether it will be used this year, next year or the year after that for a residential development, or whether it will ever be used. However, in my view, it is required.
I will be brief. The Minster stated this is a useful and forward-looking provision that is about advancing change and streamlining and has Government approval. He then stated that he does not know when, if ever, it will be used. If that is the case, why is it being included in the Bill? I made a point earlier regarding how we see parts coming into legislation. In my two short years in the Dáil, I have had concerns regarding some legislation that has been adopted. We are here to discuss large-scale residential development but the Minister has not explained why this section is needed.
I would be interested to hear the explanation of the Minister in respect of why this provision is now so important as to merit inclusion in the Bill but it was not contained in an earlier general scheme of the judicial review legislation. It has come out of nowhere, whereas we have a general sense of what the previous Government and the officials were working towards in terms of the judicial review process. I ask the Minister to explain why this reform is suddenly more important than the others and why it has to be introduced more quickly than the others.
The Minister might also explain the following point. My understanding is that the Government does not introduce any kind of legislation unless it has a reason for doing so, and it does not just introduce legislation speculatively. Therefore, the real question is what is the reason for this, and, again, the Minister has not asked it. For the third and final time, I will press him. I presume somebody somewhere thinks this is going to be necessary and, therefore, that is why it is here, not in the appropriate place, which is the judicial review Bill we are going to deal with early next year.
I appreciate that all legislation is brought forward by the Minister. I was asking what where the origins and where the idea for this originated from. Perhaps it originated with the Minister but, if it originated elsewhere, we are none the wiser on that. It is a legitimate issue to ask and I want to make that point.
Has any analysis been done on how this will affect people's access to justice, given this could have cost implications for people? Has that analysis been done and, if so, what did that analysis show us or what are the results of that analysis? If that analysis has not been done, should it be done?
I do not want to drag this out but I want to give some additional rationale, should it be required. At present, if a planning authority, including the board, or, where relevant, the State, succeeds in defending a judicial review challenge and the High Court certifies that it may be appealed, the appeal then goes to the Court of Appeal. If the planning authority or the State succeeds again in the Court of Appeal, the applicant or the objector can then apply to the Supreme Court for leave to appeal. There are all of those different stages, all the way up. Given the criteria for allowing an appeal from the High Court in the first place are very similar, although not identical, to the criteria that must be met for an appeal to the Supreme Court, leave to appeal is normally granted by the Supreme Court in these cases and would only be refused in exceptional ones. This means that, notwithstanding having succeeded at High Court level in defeating a judicial review application, the ultimate resolution of the case could take another two or three years in the Court of Appeal and subsequently in the Supreme Court.
That is the reality of it. It is obvious to most of us that this has adverse delay consequences for the proposed developments in question, hence the streamlining. The amendment to section 50A makes provision for the planning authority and the State, or any party to the appeal, to apply directly to the Supreme Court in the event that the High Court gives an applicant leave to appeal, so they are then leapfrogged. This would mean the Supreme Court would then hear the appeal, directly bypassing the Court of Appeal.
The introduction of these changes proposed in the Bill would have the effect of significantly reducing the time for the ultimate disposal of the litigation, although, obviously, it does not say what the judgment would be. If the judicial case is refused, it would enable relevant projects to proceed earlier than otherwise would have been the case. In my view, to repeat, this is a very important streamlining provision because court delays can impose significant costs or, in some instances, even inhibit viability. Some objectors to developments can be very conscious of these delays as well, and if we are all honest with each other, we know that too.
It is appropriate in this legislation. The judicial review reform Bill to which Deputy Ó Broin refers will go to pre-legislative scrutiny and its general scheme was approved by the previous Government as well. This Bill is the right place for this measure. It needs to be done, hence this section is included in the Bill.
We will give members a few minutes to get back to their offices and then commence with amendment No. 39.
Deputy Cian O'Callaghan has now arrived in his office. Amendments Nos. 39 and 40 are related and will be discussed together.
I move amendment No. 39:
In page 11, lines 5 and 6, to delete “in particular houses and duplexes” and substitute “including houses, duplexes and apartments”.
This amendment very simply extends the definition of homeownership to include apartments. For many people apartments are their forever home and many choose to downsize as they get older by purchasing apartments. I will leave it at that. I think there is another amendment there so I will wait for the Minister to respond.
My amendment No. 40 is near identical to that of Deputy Duffy and seeks to ensure that apartments are included. This part of the Bill specifically mentions housing need in terms of owner-occupiers and references, in particular, houses and duplexes. Therefore, it is entirely appropriate that apartments are named as well.
As Deputy Duffy has said, there are lots of people for home ownership and people who want to be owner-occupiers. Apartments are as much a valid choice as a traditional house or duplex so it is entirely appropriate that apartments are specifically listed here.
I fully support the two amendments.
I ask the Minister to clarify the following in his response. My understanding, having listened to his comments previous to the introduction of these amendments, was that this was part of the attempt to ensure that at least 50% of the residential development of houses and duplexes would be made available for owner-occupation. I do not see how the sections of the Bill, which obviously were amended in the Seanad at the Minister's request, achieved that objective. Have I misunderstood that this is the legislative provision to achieve that end or does it have some other purpose? I ask because not only do we need to ensure that apartments are included in this section, as the two amendments propose, but that this would empower local authorities to make decisions to ensure a percentage is for owner occupation. The rate of 50% is arbitrary and the local authority should be able to make that decision based on the local planning need. I do not see how any per cent is achieved in this but maybe the Minister could explain.
Section 2 of the Planning and Development Act 2000, as amended, set outs the interpretation and "house" includes apartments thus negating the need for the word "apartment" to be inserted in the amendment. That is the actual interpretation of "house" under the Planning and Development Act 2000 so the apartment aspect is covered.
To answer Deputy O'Broin, this is part of the owner-occupier guarantee. This is the first time that owner-occupier and home ownership have been recognised as a form of housing tenure. It has been a really important objective of this Government and of myself to be able to help people, should they so wish, to own their own home so it is really important that this provision is in this legislation.
When one looks further down through the section what it actually asks each local authority to do is that when they develop their housing strategy, and as part of their housing strategy, they would estimate the need for owner-occupier. Indeed, having a reference to first-time buyer will lead into, on top of a Part V provision, which is now increased to 20%, for them to designate an additional percentage for owner-occupier only, which I think it is a good thing.
As members will know, we have had issues with bulk purchasing. This is not just a reaction. This is something that we want by way of promoting home ownership and levelling the playing pitch. The remainder of the section will allow each local area to estimate so it may state the different requirements for housing in different areas within the area of the development plan. Once it is in the development plan then that underpins the decisions that each local authority can make at the planning application stage. Such estimate shall be deemed to be included in the housing strategy concerned, which will flow into the development plan and then flow into the planning permissions that are granted.
In response to Deputies O'Callaghan and Duffy, section 2 of the Planning and Development Act sets out the interpretation of a house and that does include an apartment.
I support the intention behind the amendment. I would like to understand how the text of the amendment relates to a previous commitment of around 50%. It seems to me that the wording of this section gives the local authority much more flexibility, which in my view is a good thing. So a local authority, in its development plan, on foot of a recommendation by a chief executive, if I read this right, could say the following. In this part of the functional area of the local authority we have a very high concentration of private rentals so we would like the balance shifted to owner-occupation or vice versa. Therefore, it is not about setting a percentage centrally but giving the local authority the flexibility to set those percentages and then for planning applications to be judged against that. Is my interpretation correct? Would a local authority be able to say in its housing plan, on foot of these, that there may be certain areas where there might be an even higher percentage of owner-occupation than 50% or a higher percentage of rental than 50%, if that is what is required? Have I interpreted this correctly, in that respect?
Yes, the Deputy would be. We have underpinned this in the Affordable Housing Act as well so the provisions will allow the local authorities, as part of their housing strategies, to identify where the gaps are and it is important that that is done. In the housing delivery plans that are being submitted to me, and must be with me by later this month, they will include affordable, social and private housing. We want them to go further than that and outline where they need owner-occupier. We have issues with a certain concentration or location of designated build-to-rent apartments and build-to-rent developments that there is no owner-occupiers within it and we need local authorities to be able to do that so this is part of the owner-occupier guarantee. We have strengthened it in the Affordable Housing Act as well. It has been further put into the Planning Act and is the first time that owner-occupier is recognised as a form of housing tenure. As Members will know, in the Land Development Agency Act, we have made provision for a base of 50% on State-owned land that will be developed for affordable and at population centres of over 150,000 such as Cork and Dublin there will be 100% social and affordable.
My understanding is that duplexes, as a definition back then, would not have been specifically specified. I got specific advice based on the amendments that were tabled by Deputies Duffy and O'Callaghan. The specific advice that I have, which we can reconfirm to the Deputy in writing, is that the Planning and Development Act, as amended, regarding the interpretation of house, does include apartment and, therefore, negates the need to stipulate apartment in an amendment. The Deputy can press his amendment or come back on Report Stage but I will supply him with additional information.
I appreciate that. If duplexes do fall within the definition yet state houses and duplexes but not apartments, then that is unhelpful to say the least. I appreciate that this is in the definition in section 2 of the Planning and Development Act but good legislation should be clear and unambiguous as much as possible. Good legislation should not have to involve wording like this that requires people to go back to a previous definition in order for people to understand that apartments are included. Good wording here would explicitly include apartments, especially if duplexes are part of this. If we are relying on the definition contained in the Act then referencing it would make things that bit easier. If we gave the list of "houses, duplexes and apartments" then we would all know and anyone who read this legislation would be very clear.
I take the point made by the Deputy and we will provide further information in advance of Report Stage. On page 4, we refer to the development of 100 or more houses. The definition of houses in the Planning and Development Act does not just relate to houses and I will supply the Deputy with additional information in advance of Report Stage.
This section has to do with appeals to the board regarding large-scale residential developments and the time limits for appeals. Will the Minister remind me what is the quorum required on the board for making decisions?
I want to signal at this point that I think this is inadequate. It is a problem that such a small group of people can make decisions in general on the board, especially in the context of large-scale developments. The quorum on the board for making decisions needs to be increased significantly. I will be interested to hear what the Minister has to say. I want to say this now because I will probably table an amendment.
I thank Deputy Boyd Barrett. I really want to keep us to amendments and to the Bill in front of us, and not deal with the make-up of An Bord Pleanála and the quorum for the board. Does the Minister wish to respond briefly?
I will go by the ruling of the Chair and just say on this that if Deputy Boyd Barrett has an issue with the quorum or the operation of the board structurally, and I mean this seriously, I cannot see how it would fit in with the Bill to be honest. I really do not. It is open to the Deputy to table an amendment. It would probably be better to deal with this by way of a separate Private Members' Bill. I get his point, but, to be honest, I do not think it would be appropriate to deal with it in this Bill. There are mechanisms open to the Deputy should he wish to progress this matter. I would be happy to engage with him on it.
I move amendment No. 41:
In page 16, lines 4 to 6, to delete all words from and including "only" in line 4 down to and including "34" in line 6 and substitute "be made public by publishing it online on the planning authority website within five working days".
I move amendment No. 44:
In page 16, between lines 33 and 34, to insert the following: "Insertion of section 247A into Principal Act16.The Principal Act is amended by the insertion of the following section after section 247:
"247A.(1) The planning authority shall convene a final consultation meeting within 4 weeks of receipt of the prospective applicant’s request, to be attended by the planning authority, the prospective applicant or his/her representative, or both, and planning authority officials who have sufficient level of relevant knowledge and expertise in the matter concerned and a representative of the PPN network.
(2) The planning authority on receipt of the request, may issue the documentation received, or parts thereof, to any relevant prescribed bodies, including the secretariat of the Public Participation Network as defined in the Local Government Act 2014, that in the opinion of the planning authority may have relevant observations in relation to the proposed development.
(3) The failure of a prescribed body to respond to a request under subsection (2) shall not prevent the planning authority from proceeding under this section to deal with the request concerned.
(4) The planning authority may, at its discretion, consult with any person including PPN members for that local authority, who may have information that is relevant for the purposes of consultations relating to a proposed development under this section.
(5) The planning authority shall be required, within 4 weeks of the holding of the final consultation meeting, to form, and issue to the prospective applicant, and other relevant prescribed bodies, including the secretariat of the PPN an opinion as to whether the documents submitted for the final consultation meeting constitute a reasonable basis for making an application for permission for the proposed development.
(6) The planning authority shall in appropriate cases, set out in the opinion issued under subsection (5) its advice as to any issues that need to be addressed in the relevant documents that could result in them constituting a reasonable basis for making an application for permission.
(7) An opinion issued under subsection (5) shall be valid for 1 year from the date of issue of that opinion.
(8) The Minister may make regulations to provide for such matters of procedure and administration as appear to the Minister to be necessary or expedient in respect of matters to which this section relates, including items which may be considered at the final consultation meeting, and the conducting of the final consultation meeting and the forming an opinion under this section.".
I move amendment No. 45:
In page 17, to delete lines 6 to 39, and in page 18, to delete lines 1 to 7.
This is the section that repeals the strategic housing development legislation. This is good, but we do not think there should be any get-out clauses on the repeal of the section. We want to delete everything after the line repealing section 4(1) of the Act of 2016. We believe the end of the strategic housing development legislation should be the end of the strategic housing development process. This is what we are trying to do.
Amendments Nos. 46 and 48 are on the interim measures. Amendment No. 46 seeks to reduce the timeframe from 16 weeks, or four months, to five weeks. The intention is to limit the further damage that can be done through the strategic housing development process and the interim measures that will potentially drag the strategic housing development process well into next year. I do not believe that this is something anyone wants to see. I am concerned there could be a flood of applications towards the end of the process that would create resource problems in terms of dealing with the decisions. If the resources are constrained at planning decision level during the process it could lead to more pressure and more mistakes being made. Amendment No. 48 proposes removing the provisions altogether. These amendments seek to limit the further damage that can be done by the strategic housing development process.
In my view, this is probably the weakest section of the Bill. I want to spend a little bit of time going through why in support of the amendments. A small section of amendment No. 49 is missing. It is probably my fault at the submitting end rather than the Bills Office. I might come back to it on Report Stage.
The original legislation Eoghan Murphy amended during the lifetime of the previous Government set the expiration date for the strategic housing development as December this year. It was something that was going to happen irrespective of who was in government. The current Government made a bad decision in accepting that the pause to the planning process in 2020 required a two-year extension. The Government did so and it created a reasonable expectation among applicants that the strategic housing development process would come to an end in February. Pretty much everybody understood that to be the case. This is not what is in this transitional mechanism.
There are two transitional mechanisms. It is important people fully understand their import. The first is for those people who have already been in the pre-planning strategic housing development process for some time and who receive pre-planning approval to move to the formal strategic housing development application process by the end of December. They are allowed move to full application. This is a reasonable expectation because they expected to have until February to make a planning application. What I do not understand with respect to this group of people is why the Minister is giving 16 weeks when for a year and a half we have all been told February would be the end date for strategic housing development applications. Therefore, an eight-week period rather than a 16-week period would have been reasonable and legally sound. It would have meant strategic housing development applications for this category of applicants would be made in and around August. It is one of the things we would have had to live with.
My first amendment proposes shortening the period for the formal application to the board for a strategic housing development for someone who already has pre-planning approval.
The second category of transitionary arrangements the Minister made is excessive in the extreme. It allows an applicant to put in a pre-planning application to the board for an SHD by 16 December, if 17 December is the enactment date, and the board will have nine weeks to make a decision, which takes us up to February. It will then have 16 weeks to make the application, which takes us up to June, and there will be a further 16 weeks for the board to make its decision, which takes us up to October. Conceivably, therefore, SHD applications could be submitted in the middle of next year, with decisions made in the autumn of next year, and some of them potentially judicially reviewed and having legal challenges running into 2023. I do not understand why that mechanism has been put in place.
The full wording of the amendment, which should be in front of us today, although I will return to it on Report Stage, would not just have shortened the eight-week period but would have meant that in the case of anybody who only applies for pre-planning SHD approval at this point, the board would make that pre-planning assessment. Instead of allowing the application to go into SHD next year, if the board gave approval, it would go into the LSRD process. That would be much more sensible and it would do exactly what Deputy O'Callaghan is trying to do, namely, dramatically reduce the potential for controversial and unviable SHD applications to be made throughout next year. I find it difficult to understand why we would be so generous.
I think the Minister is guilty here of making the same mistake he made with co-living, which was giving applicants too long a period from the announcement of a review, to the receipt of the report, to the announcement of the action, to the enactment of the action. It is the same here. People are getting an additional year for SHDs when they should have ended in February. While I can live with a transition arrangement that takes us up to April for those people who have got pre-application approval, I cannot live with somebody just lobbing in a pre-planning application later this month and then getting a six-month grace period to make a full application, with a decision to be made in October. There is no logic to that and I do not think it is necessary, which is why I will certainly press my amendments and why I also support the spirit of the amendments tabled by Deputies O'Callaghan and Boyd Barrett.
I will not reiterate what Deputy Ó Broin outlined. This is a loophole. When the Government is just about to do something correct, all of a sudden there is another avenue or loophole. Why we are adding another year? It does not make sense. Obviously, something had to be done, but I cannot understand why we would allow people to come into this process at this stage. Perhaps the Minister can explain it. To me, it seems like a back-door loophole and an extension that is not needed . As Deputies Ó Broin, O'Callaghan and Boyd Barrett outlined, we should have a more concise period and get rid of the SHDs. Let us put them behind us. I was not a Deputy when they were introduced but Deputy Ó Broin and many other Deputies said they were not going to work, and they have not worked.
Let us put a few myths to bed. We need transitional arrangements and they have to be there, as most people recognise. To respond to Deputy Boyd Barrett, the process cannot be just cut off. In the Seanad, the main Opposition party originally argued there should not be any transition but now it is proposing eight weeks. We have to provide a transition. If someone is engaging with a formal pre-planning process, applications cannot just be flipped over to the board. We would be open to legal challenge and we cannot do it.
In order that Deputies are aware, as the Act that provides for SHDs stands and until we bring in this legislation with the provisions I am making, if someone has received a pre-application opinion from the board, he or she could lodge an SHD application in five years. If anything, I am shortening that provision substantially. That is what is happening. It is not a loophole. We are ending SHDs. The idea that the planning pause during the first wave of Covid would not apply to one aspect of planning just does not stand up to fair scrutiny. The Government committed not to extending SHDs, which we are not doing, and we are going further by putting in a better process that is more democratic and transparent and that will restore planning to local authorities. We cannot accept amendments that would provide for no transition because that would not work and we would leave ourselves open to challenge left, right and centre.
The idea that anybody who has not even engaged will rock up before 17 December, lodge an SHD application and off they go is not the case. There would have to be a section 247 application to the local authority and much of the work would have to have been already done. In light of the number of judicial reviews taken against the SHD process, I do not see how it is an attractive process for anybody who has not engaged with it heretofore to come into the system. A line is often peddled about co-living being extended for a period, but we banned co-living. We had to send it out for screening. Everybody knows that is the case. It went out for 30 days of screening, which had to happen, but that was it and they are gone. SHDs will be gone too because of this legislation, and that is a commitment both the Government and I have made.
I cannot accept the amendments. We need transitional arrangements. It will not mean a glut of new SHD applications will come in during the final week, in advance of their termination. Applicants will have to have engaged with the process. In the case of anyone who has not engaged with the process, new applications from 17 December will go back to the local authorities. That is important. It is being done in a very short space of time. It is relatively complex legislation that, thankfully, has heretofore received the support of virtually all Members of both Houses, but transition arrangements are required. What I have proposed are appropriate and realistic timeframes to allow for some potentially good applications we want to see through to fruition. If they were flipped out into another process, it could very well end up further delaying the provision of more homes. I am tired of seeing delays for many different reasons, some of them good reasons, in respect of the delivery of homes.
We need homes to be built. The Bill will restore planning powers to the local authorities, which is what we all want to do. I respect the Deputies for the amendments they tabled but I cannot accept any of them.
I return to the second transitionary mechanism, for those people who do not have pre-planning approval from the board to make their SHD application, because that is the one I think the Minister has got wrong. I say this in all sincerity. My main worry is that applications could come in at a late stage. They have only to enter the pre-planning application process for SHDs by 16 December. While preparatory work will have to have been done beforehand, they will still be able to enter at that point. The reason I think the Minister should seriously consider the proposition I am making, namely, that while that pre-planning application can be assessed by the board, it should be redirected into the LSRD process, relates to the fact that is a better process. The Minister and I agree the LSRD process is far superior to the SHD process.
Moreover, a significant number of SHDs end up being judicially reviewed and delayed. I would have thought, therefore, it would be much better to redirect those applicants that have yet to get pre-planning application approval into the LSRD process. The reason some may not want that relates to the fact they might fancy their chances with the board. The board - in my opinion, and I say this with the greatest respect to the individuals there - continues to make questionable planning decisions. I say they are questionable because when they are challenged in the courts, the courts tend to uphold the challenge. I see no reason anybody should be allowed to put in an SHD application as late as the latter end of June of next year, with a decision to be made in October of next year.
That is just far too generous. It was never the expectation. The Minister himself will know that there was a kerfuffle when a circular was mistakenly issued giving the impression that April would be the deadline for everybody, which would have been bad enough. That was then withdrawn. Then another circular was formally issued and it did not provide any clarity. It was only when we saw the text of the Bill that we realised that the transitional mechanisms for those people only entering into the pre-application process would go throughout the course of next year. I appeal to the Minister. He is getting this bit of the Bill wrong. Whatever about an argument over four weeks, I still think 16 weeks is too long for the first group of people in the transitionary mechanism. Eight weeks would have been fine and we could have been done and dusted with all new applications by the end of February, which was everybody's assumption. The Minister is getting this secondary bit absolutely wrong.
I wish to challenge the Minister on the pause because it is a very important point. When the planning process was paused during the first lockdown, everybody knew that anything that was in the process at that point in time and that was affected by the pause would get an extra two months. That was very clear. None of the SHD applications that will benefit from the additional months into 2022 were affected at that point in time. That was not the legal issue, as far as I understand; it was the timelines in the legislation Eoghan Murphy had passed to extend SHDs to the end of this year. That could have easily been fixed by primary legislation. We could have easily stuck to the original deadline. If legislation had been introduced earlier this year, we could have had transitional mechanisms that dealt with that. That is not my primary concern. The Minister is giving new entrants to the system an extra year. That is a mistake. He does not need to do it. I know he will not support the amendment, but I urge him to rethink some of this between now and Report Stage. The Minister cannot say to people that SHDs are ending in February 2022 but that applications will continue to come in in June 2022, with decisions made in October and potential battles in the court into 2023. That is not what people were promised and it is not what should be provided for in this section of the Bill.
I think there was a legitimate expectation that the SHDs would be wound up in October just past, so people were on notice about that. The point has been well made that if this legislation goes through, there will be a new system for people to be able to go into for large-scale planning applications, so it is not that there is not somewhere for new entrants to go and it is not as if they are being blocked or anything like that. I think there are ample cases and ample evidence of not necessarily all applicants but some applicants availing of SHDs as a form of speculative planning application to result in increased land values and not in actually delivering homes that are needed. That is what has gone on, albeit not in every case, so the sooner that is ended the better - certainly the better for housing delivery, good planning and people who are actually interested in providing homes. The people who will lose out on this, however, are those looking for the speculative permissions, which some of them have got. I have no doubt in my mind but that some of the decisions that have been made which effectively increase land prices and, arguably, because of the heights and densities, make development less viable and less likely to happen in the coming years, are actually blocking housing delivery. Some of those decisions have been made as a result of this system and would not have been made if the original decision was with local authorities.
I am not as well versed on this as everybody else here. The Minister is saying that if we just repeal and do not have these transitionary arrangements, as the SHD legislation is currently framed, you could be open to legal action because the applicants are already in a pre-planning process or because they have indicated that they want to get into a pre-planning process. Is that what the Minister is saying?
People have engaged in and are in the middle of a process under the planning guidelines and the planning legislation that were in place. We cannot just tell them to get out of that and go into something else. They have to operate under the legislation that is applicable and effective at the time they make the application. The Deputy is fully entitled to his opinion. Obviously, I have to act within the law and based on the advice I have. We also have to have an element of fairness. We cannot tell people, "You have engaged with this process right the way up, but forget about that now and go into a new process and start all over again." That in itself could have the effect of delaying. I think most people understand that we need transitionary arrangements. The difference of opinion here is on how long or short those arrangements should be and how we should transition from one system to another.
Just to be helpful, it is not a question of just signalling an interest in going into the SHD process; a lot of preparatory work would have to have been done. You would have had to apply through section 247 as well, that is, through the local authority. You would have to have plans drawn up and the whole lot. Someone cannot just come out and say, "Oh, God, SHDs are going. I am going to go in now and say I am interested in applying, so leave the process open for me." That is not the case. That is not what is happening. I have outlined my position and the reasons for it.
If the current planning system is abolished next week but I put in a planning application tomorrow, I could still be in the system next summer. That is just how it works. There is a 13-week process for planning applications. That is if further information is not sought. If it is, it takes up to six months to go back in. An appeal to An Bord Pleanála can take anything up to six months. At the moment there is the pre-planning process, which, statutorily, is meant to be eight weeks. At the moment it is 16 weeks. The way it is at the moment is nuts. The system is there. If it is shut down and you get in before it is shut down, I think there is a legal entitlement for you to execute or follow through on what you have started. That is my understanding of the matter anyway.
I move amendment No. 50:
In page 18, between lines 8 and 9, to insert the following:
Miscellaneous 18.Section 27 of the Principal Act is amended by the insertion of the following subsection after subsection (4):“(5) Following a review of the development plan, any material alterations to a draft development plan will be subject to review by the regional assemblies to ensure consistency with the Regional Spatial and Economic Strategy (RSES).”.”.
The amendment is quite self-explanatory. It states that once a regional assembly proposes amendments to draft development plans, it is restricted from reviewing any alterations after it.
Will the Minister quickly speak to that now?
While I believe this proposal has merit, in the circumstances and given the timeframe, I suggest the proposed amendment would be more appropriately examined in greater detail as part of the ongoing review of the Planning and Development Act 2000. With the Deputy's permission, if he provides me with some background detail and outlines his thinking on the amendment, I will have the matter formally included in the planning review. There is merit in it but we would need to tease it out further as part of that planning review, if that is okay.
I move amendment No. 51:
In page 18, between lines 8 and 9, to insert the following:
“Amendment of section 28 (Ministerial guidelines) of Planning and Development Act 2000
18. Section 28 of Planning and Development Act 2000 is amended—(a) by the deletion of subsection (1C) (substituted by the Planning and Development(Amendment) Act 2018), and
(b) by the insertion of the following subsection after subsection (1C):“(1CA) Notwithstanding subsection (1), guidelines under that subsection—(a) shall not contain specific planning policy requirements with which planning authorities, regional assemblies and the Board shall, in the performance of their functions, comply, and
(b) any guidelines issued by the Minister under subsection (1) and in force immediately before the commencement of the Planning and Development (Amendment) (Large-scale Residential Development)Act 2021 that contains a specific planning policy requirement shall be construed, after such commencement, as a requirement on the planning authorities to have regard to the guidelines concerned in accordance with subsection (1A).”.”.