Oireachtas Joint and Select Committees
Tuesday, 14 June 2022
Joint Oireachtas Committee on Housing, Planning and Local Government
Review and Consolidation of Planning Legislation: Department of Housing, Local Government and Heritage (Resumed)
Steven Matthews (Wicklow, Green Party)
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I wish everyone a good afternoon and welcome them to the committee. We recommence our oversight of the review of the planning system. We are joined again by Ms Maria Graham, assistant secretary, Ms Mary Jones, principal officer, Mr. Colin Ryan, senior planning adviser and Mr. Eugene Waters, assistant principal officer, Department of Housing, Local Government and Heritage. The opening statement and briefing material have been circulated to members.
I must read a quick note on privilege before we begin. I remind members of the constitutional requirement that they must be physically present within the confines of the place where Parliament has chosen to sit, namely, Leinster House, to participate in public meetings. Witnesses attending in the committee room are protected by absolute privilege in respect of their contribution to today's meeting. This means they have an absolute defence against any defamation action for anything they say at the meeting. Both members and witnesses are expected not to abuse the privilege they enjoy. It is my duty as Chair to ensure this privilege is not abused. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative they comply with any such direction. Members and witnesses are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.
We are going to discuss themes 2, 3 and 4, which are consents, enforcement and planning bodies. Briefing material on that has been circulated. I invite Ms Graham to make the opening statement on behalf of the Department.
Ms Maria Graham:
I thank the Cathaoirleach and members for the invitation to continue the discussion on the planning review. As the Cathaoirleach mentioned, I am joined again by Ms Jones, Mr. Waters and Mr. Ryan. The last time we discussed plan making with the committee. Today we would like to primarily discuss the consent process and enforcement and the corporate provisions of both the Office of the Planning Regulator and An Bord Pleanála that are provided for in the legislation. As the Cathaoirleach mentioned, we circulated discussion papers on the topic to the committee and welcome its views on the issues. These papers have been provided to and discussed with the planning advisory forum.
The development consent process is a cornerstone of our planning system. Local authorities deal with more than 30,000 planning applications each year, of which, approximately 10% are appealed to An Bord Pleanála and a very small, but impactful, portion are subject to judicial review. However, the legislative provisions can be difficult to follow and interpret, particularly given the number of amendments to the planning Bill since it was first enacted.
One of the principles of the review we discussed on the previous occasion is to bring clarity to the legislation and to have a chronological format for processes. The work done to date on development consents has being framed in this context. It is not proposed to make any significant changes to the consents process, but we are seeking to bring greater clarity to the different categories of consents and to make the provisions easier to follow for those involved in planning as well as for the wider public. The paper circulated to the committee on this topic sets out that we are considering classifying all consents into four main categories: consents that are approved, in the first instance, by a local authority, such as standard developments and, now, large-scale residential developments, LSRDs; consents that are approved by An Bord Pleanála, such as strategic infrastructure developments, SIDs; specific consents concerning local authority and State development, such as Part 8 developments; and retrospective consents, including retention permission and retrospective consents. The provisions related to the last aspect are going through the Oireachtas now, in respect of substitute consent. Those elements will be amalgamated. The timelines for all consenting processes, including An Bord Pleanála processes, are also being examined as part of the review. When looking at the timelines for these processes, it is important we balance public participation with robust but timely decision-making. We would welcome the views of the committee on this issue.
Local authorities play a key role in enforcement relating to breaches of planning legislation and taking action on unauthorised developments. Carrying out unauthorised development is an offence, and anyone who has undertaken unauthorised development may be subject to enforcement proceedings by a local authority. It is not proposed to remove any of the methods of enforcement, but we are looking at having a more streamlined process for the two main methods, the enforcement notice and planning injunction. Additionally, the Department has been examining the distinction between enforcement of development and enforcement of activities such as quarries. Enforcement of activities is a specialised area and the question arises as to whether there is merit in having specialist teams dealing with it at a regional level across several local authorities rather than an individual local authority dealing with it as part of its wider planning role. This approach would also allow local authorities to continue to deal directly with traditional development-related enforcement cases.
The final paper concerned planning bodies. We circulated a paper to the committee on the corporate provisions of An Bord Pleanála and the Office of the Planning Regulator, OPR. These provisions are being examined as part of the review, and while some changes to the legislative provisions will be made, it is not proposed to make any changes to the independent nature of both bodies. An Bord Pleanála is responsible for the determination of appeals on planning as well as direct applications for strategic infrastructure development, including major road and railway cases. The board was established in 1977, and as there have not been significant changes made to its corporate provisions since then, these will be updated to reflect current best practice for State bodies. In particular, consideration is being given to revising the appointment process for board members to provide for such appointments to be made following an open competition operated by the Public Appointments Service. This will bring the process in line with that for other State bodies.
Regarding the OPR, its establishment stems directly from the recommendations of the Mahon tribunal and adds to the range of reform measures in respect of planning, local government and ethics legislation to address the tribunal's findings. The appointment of an independent planning regulator, empowered to oversee the planning system, was one of the key recommendations of the tribunal. While it is not a policymaking body, its role is to ensure the implementation of planning policy and legislation by planning authorities supports Government policy and statutory requirements. It also ensures effective programmes of research, training and public awareness in planning are in place to strengthen the planning process and that members of the wider public are effectively engaged in the planning process.
While it is not proposed to make significant changes to the OPR's corporate provisions, the review should ensure clarity and consistency between the respective roles of the Minister and the OPR in the planning system. In particular, as discussed on the previous occasion, there is a need to clarify policies and objectives that are mandatory and must be given effect, on the one hand, and guidelines that are advisory and to which regard must be had, on the other. While this will be covered under plans and guidelines, it will have significant implications for the OPR's plan evaluation function.
I again thank the committee for the opportunity to discuss further the planning review and we are happy to answer any questions the members may have on the processes or on the corporate provisions and these views.
Steven Matthews (Wicklow, Green Party)
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I call Deputy McAuliffe.
Paul McAuliffe (Dublin North West, Fianna Fail)
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I have no questions at this time. I will let Deputy Ó Broin go ahead.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I thank the witnesses for the documentation and the presentation. I apologise for not being able to remain for whole session last week, but I have read back over it. Therefore, a few of my questions may refer to the some of the subsequent comments made in response to other members.
Starting with Ms Graham, I have some initial thoughts or feedback on the questions, because, in some sense, that is what these sessions are for. I will take them in order, in respect of consent enforcements and bodies. The biggest criticisms we hear from a range of statutory bodies, private developers and private individuals is that the consent process just takes too long, especially concerning large infrastructure projects. Even if something is not subject to a judicial review but is an SID or it requires an appeal to the board, the average time being looked at for planning for big projects can be 12 months. Irish Water, especially, will complain that planning accounts for many of the big delays with the urgent wastewater treatment plants required to tackle the agglomerations currently subject to European Commission enforcement. I am not saying Irish Water is always right in that.
We must therefore be in a situation where all the timelines for the different periods of consent and consenting processes are clear, rigid and adhered to. Before we had the LSRDs, for example, the only clear, rigid statutory timeline was that of the local authorities, where they were making the initial decisions. That approach works, subject to some resourcing challenges etc. Therefore, it would be a positive development if this review came out the other side with the result that everybody knew how long each bit of the consenting process took, because that would give us the clarity everybody is seeking.
This leads us to the question of resources. Even in the LSRD scheme, the 18 weeks taken by the board to make a decision is too long. I also live in the real world, however, and part of the reason this process takes so long is that there are resource challenges. Likewise, if we are going to pile LSRD development applications on top of the board's existing work as well as applications for offshore wind planning projects, it will be a big challenge for the board, even with the promised staff. This review will therefore have to address the issue of resources, even in respect of recommendations, or perhaps not recommendations but by setting out that if a specific timeline is desired, then achieving it will require the following resources. This would allow for an informed discussion, whether in Government or here in the committee, to consider how such aspects can be managed. I say that because if one good thing were to emerge from this process, it would be not just a consolidated and clarified Planning and Development Act, which would be welcome, but that we fix the significant weakness in the current system.
Moving to enforcement, part of the problem is the enforcement powers in many instances do not work or are too slow. Larkfield House in my constituency is a case in point. It has been well documented, so I am not saying anything in the committee that is not in the public arena. A developer fitted out a building with 48 apartments with no planning permission and no building control certification. That building is still fully occupied. The developer has used the antiquated nature of the enforcement processes by submitting subsequent retention applications and new applications to string this matter out. This has been going on since late 2018. Today, I have a building in my constituency that houses 48 families, half of whom came from emergency accommodation and two thirds of whom are receiving housing assistance payment, HAP, or homeless HAP at enormous cost to the State and themselves. This building has no planning permission and is subject to ongoing enforcement action by the hard-working officials in South Dublin County Council.
This is an extreme example but it shows us the challenges that can result when we have these big developments. Therefore, while I am not necessarily proposing the core elements of enforcement change, if the Larkfield House situation is allowed to continue as it is and the individual concerned is making enormous profits in a building that is not fit for purpose, then we have a problem. We need to think this aspect through. The problem here again is resources. The enforcement process is incredibly laborious for local authorities and incredibly high risk if they have to take it all the way to initiating court action. One of the reasons, and it is not the only one, the regulations initiated by the former Minister for Housing, Planning and Local Government, former Deputy Eoghan Murphy, concerning short-term letting, which were based on a unanimous report of this committee, have proved so ineffectual is not because the regulations were weak, because I think there were correct, broadly speaking, but because the enforcement process is cumbersome.
Local authorities either find it difficult to enforce and it causes them difficulties, or a manager might say "Why use all that time and energy for such a poor return?" and use those resources elsewhere because of the resource challenges. Enforcement is about how we speed the process up and make it much easier. I am aware of the Minister's response when I proposed the idea of on-the-spot fines for certain categories of planning breaches for short-term letting. The great thing about on-the-spot fines is that they are quick. Of course, they are at a lower level - they cannot be at the very high level of fines - but we need to find some way of loosening that process.
On the planning bodies - I refer to the OPR - it is too early to make any substantive changes. Just a review of OPR is a good idea. I am sure the witnesses know what I am going to say. It is not aligned with what the Mahon tribunal recommended, as it should have been in my view. That should be included in the review. There was a reluctance to have a fully independent regulator as opposed to a regulator who makes recommendations on courses of actions to the Minister. So long as there is a clear delineation of responsibilities, that the Government and the Oireachtas make policy and pass laws and the regulator's job is to independently implement and ensure enforcement of those, I think we are okay. Some of the key deviations from the Mahon tribunal should be looked at, not necessarily to make changes now but to assess whether they were as problematic as some people thought.
In terms of An Bord Pleanála, obviously, we cannot stray into the wider difficulties that institution is having but I would say that given so many of the key recommendations of the 2016 review, particularly those pertaining to the Department and Government policy and legislation, have not been implemented the Department and the Government should take the opportunity, considering what will come out of the reviews by Remy Farrell, the OPR, the Comptroller and Auditor General and the board's internal review - there are four reviews happening now - to completely modernise that institution as part of the overall review. Therefore, I welcome some of the comments made in terms of appointments etc. but are there concerns around the recommendation of the 2016 review, for example, just using the Public Appointments Service for appointments to the board? I know that some planning professionals do not like the current system and would like a hybrid system or another mechanism of having a small number of nominated bodies as well as an open competition and a public appointments process. If the Government justifies why it is deviating from the recommendations but does something else to modernise the body, that would be very welcome. It would be a wasted opportunity if we do not come out of this with something to assist the board to overcome the difficulties that we all know will come out when the four reviews are made public.
Finally, there is one issue I did not get the chance to raise last week. The expert group on Traveller accommodation made a number of recommendations and there is an implementation group working on those. However, a small number of recommendations of the working group that pertain specifically to planning, planning reform, section 183, land disposals in Part 8, and planning approvals etc., are not in the work programme of the implementation group because they cannot be as they are matters for the Department of Housing, Local Government and Heritage. This is the opportunity to make those legislative requirements. Ms Graham will be aware that we struggled in the previous Oireachtas around those recommendations but collectively we unanimously came to a cross-party view that because there were no better proposals on the table that Part 8 and section 183 recommendations should be implemented. This is the Bill within which to do it. I know it does not specifically fit within these three areas but it would be a huge missed opportunity if we did not do it in this Bill. In some respect, it makes sense because it would not be a subsequent addition to the new planning and development Act, it would be integrated in the new Act and that would be much cleaner for everybody. I will ask some questions in the second round.
Steven Matthews (Wicklow, Green Party)
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Okay. The Deputy just provided some observations and comments for the moment. Unless there is something the witnesses specifically wish to refer to, we can come back to it afterwards.
Ms Maria Graham:
The piece on timelines is important because when one goes back to the organisational review, they weighed up the issue of the quality of decision making and timelines and made some recommendations in that area. I think we will hear similar comments to those made by the Deputy around the importance of certainty in respect of timelines. These are important issues for us to look at in the context of this review.
We are looking at resources, which are also associated with the efficiency and modernisation agenda as well. There are two pieces of resourcing that we are looking at. We are looking at the resourcing of the board and there is a significant project under way with the County and City Management Association, CCMA, with local authorities which looks at all the different functions, including enforcement. How many people are involved and what does it need to address any gaps, and what will it likely need for the future? In terms of planning reform, we see the resourcing question as being very much tied with learning and development and with the digital agenda to the planning reform. There may be four legs to a chair but they have to travel in tandem.
I refer to the point raised around Traveller accommodation recommendations. Basically, in any area where work has been done, including in the architectural side where there have been reviews, we are looking at that in the context of this planning review.
Steven Matthews (Wicklow, Green Party)
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I now call Senator Boyhan next because I am aware he must attend the Seanad.
Victor Boyhan (Independent)
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I thank Ms Graham and the other officials from the Department. These engagements have been meaningful. Most of what I say will reinforce what Deputy Ó Broin said. Ms Graham spoke first on the issues of clarity and consistency, which are two keywords. This is about communication and about people understanding the various players in the planning process and the clarity and consistency of approach.
I know we cannot talk too much about An Bord Pleanála today, but it would be remiss of me not to mention that last night a local authority passed a vote of no confidence in the board. I understand similar motions will be voted on across all the local authorities in the coming weeks and that is an unprecedented situation. It does not instil confidence when 31 local authorities, that are at the front line of planning, are questioning the confidence in the planning system. However, we have to go through the processes in place and that will eventually come to an end.
I refer next to the OPR, which Ms Graham referred to. We have learned a lot about the OPR, I am personally a supporter of it and its work, but it is evolving and learning. There certainly are big issues and vexed questions about the OPR regarding the understanding of county development plans. Indeed, I was reading a report in recent days about the role and possible role of the OPR in another planning authority, An Bord Pleanála, although it is at a different level. We need greater clarity on its functions. Planning is a small area. Ireland is a small place. The players involved know of each other but greater clarity is needed as well as distance between the OPR and the Department, which Deputy Ó Broin mentioned earlier. It is a question of tweaking the communication aspect and the clarification of the role, such as that when someone wants to make a complaint, it would be reasonable to request that it would go through the various stages and processes first at a local level. We need to be absolutely clear on what the OPR's role is in the elevation of a complaint against a planning authority. I believe there is a lack of clarity around that. There is also a lack of clarity about the role of the OPR in reviewing city and county development plans, which creates tension. This is not to say it is right or wrong; I am just saying there needs to be greater clarity. Ms Graham raised the training remit of the OPR, and I understand that as does Ms. Graham, but more work needs to be done there in terms of how the officials and elected members understand that role. Of course, there must be a tier of planning and we have to comply with national guidelines etc.
The other matter is the resourcing issue. Clearly, there needs to be a forensic and detailed audit of the resources to the 31 local authorities. Perhaps not all the skill sets are there. We talk about ecologists, conservationists, architects, and planners. There is synergy between architecture and planning. Some local authorities have a greater synergy between the two areas. Some local authorities run two different departments. It seems to be the case that there are different issues in different local authorities. A lot of the resourcing issues could be addressed if we embraced digital technology. By way of an example, I spoke to someone in one of the planning bodies in which, up to recently, applicants in respect of a protected structure had to provide up to ten copies of the application, coloured pictures and coloured sets of maps, and send them all over the place.
Now some of the local authorities are saying "No". They are telling people, as an initial alert, that they can access these documents online in the first instance and if they want more details, they will facilitate them. If we embrace technology, we can do so much more with our planning systems. I really think we could be at the cutting edge in that regard if we were to take that on. Again, we hear constantly that the board is trialling and reviewing systems and that local authorities are doing different systems. Covid-19 taught us one thing - when we were forced to embrace technology, even here in the Parliament, we suddenly realised we could do it. There is the potential to develop all of that.
There are two or three key issues with regard to the OPR and resources. It is also about the deploying of resources. There will be greater demands on a planning authority during the preparation of a county development plan than at other times. There must, therefore, be flexibility in the deployment of resources. There has to be potentially greater synergies between clusters of local authorities in the planning function. That is a real opportunity for the clustering of skill sets, resources and expertise. I am not saying that there must be outsourcing, but the potential can be there at times and not at other times. We need to look more imaginatively at how we can cluster planning within the regions in terms of personnel.
Those are just some thoughts. I thank the witnesses for their time. It is a really positive engagement. It is very helpful for the committee that the witnesses are here and that we are having this engagement.
Steven Matthews (Wicklow, Green Party)
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I thank Senator Boyhan. Does Ms Graham wish to respond?
Ms Maria Graham:
On the point around clarity, as the Senator said, there are three functions to the OPR. From Senator Boyhan's contribution and that of Deputy Ó Broin, the sense is that it is an evolving organisation. Clarity is important, however. The function of systemic review, which the board has in done four local authorities and will move to do in more authorities, is increasingly important in informing the process and identifying inconsistencies and operational issues. It has identified resourcing issues. In terms of learning and seeing what is good in some areas and best practice being looked at, we absolutely get the resourcing and clarity issue.
Again, I agree with the Senator on technology. I think we provided papers or have papers ready on e-planning.
Ms Maria Graham:
They are part of the first phase of the digital agenda but I think we can go further. The Department is looking at that under our chief information officer to see the wider processes because some of that is at the front end. When we mentioned enforcement, for example, that is where we thought shared resources for local authorities in clusters might work, as the Senator said. Similar arrangements have been put in place in the waste and waste enforcement areas, for example, and have proved to be very useful in terms of having a number of authorities working together with one taking the lead. Obviously, there are a number of areas where that works. That can certainly work for the local authority system so we are interested in doing that.
Increasingly, more expertise is required in the area of coastal local authorities that will be moving into that area and sharing ecologists-----
Victor Boyhan (Independent)
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Marine planning; absolutely.
Steven Matthews (Wicklow, Green Party)
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We are out of time on that point. Our roster has gone a little askew because people are coming from the Seanad and the Dáil.
I want to talk about consenting for the moment, which is mentioned in discussion paper 2. Part of the consent process is the site notice whereby a person must erect a notice at the start of his or her application. I am of the view that we need to tighten up on that a little bit. I have seen situations where multiple site notices have been left up on the same building. It is specified that a notice must be removed after a decision has been made. It is often not followed up on and we end up with multiple site notices. People actually get confused or do not notice a new site notice has gone up and think it is an old one. That is an area I would like to see addressed.
I also think the site notice could be modernised. I suggest it should probably have a picture or outline or suggestion of what the development will be; not the choicest picture but one from the angle where the site notice has been erected. A scale picture of what one is likely to see would help many people. Site notices can have very technical jargon with a small amount of description, which can be quite difficult for people to follow. I think a picture would be very helpful in that regard. I ask the Department to consider that as part of the consenting process.
One of the other issues on the consenting process, which has really damaged it in my view, is that local authority planners are bound closely to the objectives in the development plans. The specific planning policy requirements, SPPR, under section 28 completely skewed that as well. I seriously think we need to address the SPPRs. They have damaged a lot of confidence in the planning system. Essentially, the public is involved in planning by electing their councillors, abiding by the development plan process and submitting an application at the planning application stage, which then ends up at An Bord Pleanála, which is not as tightly bound by that plan. They get developments that are totally out of character and not what was expected for the area. I really think that needs to be addressed. I understand the need for the Minister to have the scope to issue ministerial guidelines but I think those specific ones have done a huge amount of damage.
Enforcement is referenced in discussion paper 2. Enforcement has always been weak but I wonder whether it has always been weak because of the amount of time that is required to be put into it by local authority planners who get caught up in court cases that can go on for a huge amount of time. Such cases are very resource intensive, and the penalties at the end are often very minor. One can understand why planners or planning departments may not be willing to put that money in at the time. They ask what the return on that is when people get fines or penalties regarding unauthorised developments or non-compliance with planning conditions. I know that is beyond the scope of our planning Act because they are court judgments. That needs to be accounted for as well.
It is proposed that the serving of a warning letter will be a mandatory first step in enforcement, except in urgent cases. Can the witnesses tell me what they think an urgent case might be? There is provision to be made here for the staying or withdrawal of a warning letter in certain situations. If the warning letter is stayed, does that mean if somebody fails in a section 5 application, it commences in that time period again? The warning letter is just to say to somebody that the Department thinks something is unauthorised or that there is a non-compliance. It is just to serve notice on somebody. I do not see why it would be withdrawn because if it runs out, it does not make any difference. To keep the continuity of that timeline, it would be better not to withdraw warning letters. Let them just fade out if there is no reason for them to have been issued, if the application is found to be authorised or if a section 5 declaration is given. Those are my questions on enforcement and the consenting process if the witnesses wish to respond.
Ms Maria Graham:
I will comment on enforcement in a moment. I understand what the Chairman is saying on the point around the SPPRs and development plans. Part of what we discussed last week on the development plan is the process of getting more into the development plan. I mentioned on that occasion that I believe there is a bit of friction in the system now because the development plans have not all been through the OPR process, which seeks to determine whether they are aligned with national policy. In some ways, the work we are trying to do is a process of clarifying what is national policy and what is mandatory and operational. As the development plans have gone through that process, there should be less reason to shift from them, unless policy has shifted.
For example, when An Bord Pleanála is looking at something, it may be looking at a development plan that has not been looked at from the perspective of compliance with the national planning framework. There might be that misalignment but once we have gone through the first cycle of development plans, that alignment should be in place. There should be less material contravention of a development plan then and the only issue should then be if a new guidance has come out, if it is mandatory or operational; and if it has an impact. Those distinctions between the national, regional and local levels are the kind of issues we need to clarify as part of this review.
Steven Matthews (Wicklow, Green Party)
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To clarify my point, the consenting process needs to be closely aligned with the development plan, regardless of who is doing it. That would be my view. It does not matter if it is the local authority or the next stage in An Bord Pleanála. We have seen a divergence there and that has created a lot of damage in communities that contributed to development plan processes. Those communities had an understanding of what was likely to come in and of what the zoning and site objectives were and then suddenly something way out of scale came along and An Bord Pleanála was able to rule on that.
Steven Matthews (Wicklow, Green Party)
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There is more alignment in the consenting process between both bodies.
Mr. Colin Ryan:
Enforcement is complex and it can be long and there are a number of reasons for that. If there is an offence with a criminal conviction then that is matter for the courts. If you are bringing forward a case you have to be capable of making a good one for the courts to make their decision on. The courts decide on what penalties can be applied. We are looking at the application and review of penalties to make them more fit for purpose and possibly more pointed. That is something we are working on with the Attorney General's review group because we are aware of that issue.
On urgent cases, the capability at present to seek a section 160 planning injunction for an urgent case issue, in which case no warning letter is needed. A warning letter is optional and it is being suggested that it become more mandatory in the sense that it allows for complaints to be parsed and clarified before committing to a full investigation. An urgent case would be the construction or demolition of a house, for example, and there are other examples. That is how it works currently and that is the capability that is there.
The staying and withdrawing of warning letters are there as options. The staying of warning letters is there to facilitate somebody who says they are going to do something or to clarify some matter. In such cases, it allows the planning authority the capability to stay something and then it re-emerges again soon afterwards. That reflects the fact that it is mandatory and not optional. On withdrawing letters, I hear where the Chairman is coming from on letting them run out but there are issues when members of the public who have done nothing wrong get a warning letter, they clarify that matter to the planning authority and they would like it to be withdrawn. It provides an element of security to members of the public in those scenarios to clarify that there is nothing more and that the case is closed.
Steven Matthews (Wicklow, Green Party)
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Is there scope within this to come back and redesign the site notices so they relay better information to the public passing by, which they were meant to do?
Ms Maria Graham:
We can look at that. It is something we have been thinking of. One of my colleagues had the idea of a quick response, QR, code that you could scan and then see. We might start from the scale of development because it is developments of scale rather than the likes of a house extension that are probably most immediately pressing. Maybe both are but we can look at it through primary legislation and regulations, or both.
Steven Matthews (Wicklow, Green Party)
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The programme for Government commits to a planning and environmental law court. There is probably an opportunity for us to look at enforcement issues through that. Is that something that would be considered in it? Am I wrong in my view that the penalties for non-compliance with planning sometimes seem to be way too low?
Mr. Colin Ryan:
They are high but it is a matter for the courts to apply them. We are looking at the penalty issues and at the capability for penalties to be realigned. Advice has been taken from the Attorney General's working group on that matter. The application of the penalties is the issue that comes to pass.
Ms Maria Graham:
The planning and environmental court is an issue we can look at. We are working with the Department of Justice, which is leading on that planning and environmental court. One of the issues will be what cases it will be looking at. We are looking at it from the point of view of the directives. It may be worthwhile looking at the scale of the issue that may go to a planning and environmental court rather than the other courts from an enforcement perspective. One of the things that might be important in a planning and environmental court may be the opportunity, if all the cases are going to the same court, to start to see a consistency and clarity of approach on that. That is not to suggest there is not a consistency of approach but that dedicated court may provide an opportunity, along with reforms in the legislation, to look at this. We are conscious that a functioning planning system has to have enforcement as a key part of it and from working with local authorities they would have the same view. That is particularly true with unauthorised developments. It may be a question of trying to get the scale right. There are different bits of enforcement but it is not tenable that 30,000 people get planning permission for something and that other people carry out unauthorised developments.
Steven Matthews (Wicklow, Green Party)
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I thank the witnesses and I hope they will take those observations into consideration. Deputy Higgins was online, although I did not see her.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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It is my turn but I will not take my full time if that is helpful.
Steven Matthews (Wicklow, Green Party)
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Deputy Cian O'Callaghan has to be in the Chamber so I will go with him.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I only have two questions and I will not take the full seven minutes. The opening statement's section on enforcement notes that it is a specialist area. I agree with that and with looking at the merit of having specialist teams on a regional basis to try to build that expertise in the area. Is consideration being given to having some sort of national office that could resource that? That could be the National Building Control and Market Surveillance Office or something like that. If not that, one of the key issues that others have touched on is that local authorities sometimes lack staff resources and expertise, as well as sometimes lacking the wherewithal to take court cases. If some of that could be resourced nationally or on a regional basis, it would strengthen this. Is that under consideration?
Ms Maria Graham:
The discussions to date have been focused on a regional level because local authorities see their role as being local and to see the developments that are happening in their area, as well as seeing developments that may be unauthorised. We have a sense, coming from the local authorities, that the remove to a national level may not be merited. That is why the regional perspective was being looked at. We are looking at resourcing. We have not been thinking from a national perspective; it has been more about how we enhance and support the local.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I understand that approach. People who work in local authorities will often tell you that because the court cases can be so complex and costly, there can be a reluctance to even take them or go down that route. This applies to everything around planning enforcement. If there was some national resource to be able to help them with that, like there is with the Food Safety Authority, which does that with more complex cases when it steps in and helps locally. I am not arguing for it to be taken away from local authorities and for it not to be done at a local level but we should see how that can be supported and beefed up properly.
My second question touches on a point that also been made already. On the appointments to An Bord Pleanála and the review of same, is it possible that a hybrid system would be looked at? Is that under consideration? Under that system some appointments would come from nominated bodies. If that is under consideration could that be done through the Public Appointments Service, PAS? When does the Department expect to have conclusions on this?
Ms Maria Graham:
One of the areas that the organisational review suggested was that the nominated bodies could do it and that it would then go to the PAS system to look at that.
The other alternative is simply to have it open to the PAS system, and for the legislation to specify the range of skills that are required. We are probably veering more towards that, without coming to a final conclusion. One would not leave it completely open. We have to be conscious that the concept of the board is that there is broad expertise and a mix of expertise, so it is looking at those elements. As the Deputy knows from the State boards process, they go through the process and the suggested names come forward to the Minister. The concept is that we will have this resolved by September, but, equally, we are interested in views. We have discussed it at the planning advisory forum but there was nothing distinct.
Ms Mary Jones:
No, there was not. There was a range of views on the matter among the members of the advisory board when we discussed it. Some people were of the view that it should be straight to PAS and an open competition, but acknowledging as well whether the nominating bodies still have a vote. When we raised the issue of identifying skills and identifying them in the primary legislation, there was a view that it may work and then one could tweak that as needs be to ensure we have the broad mix we are looking for on the board.
Emer Higgins (Dublin Mid West, Fine Gael)
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My apologies. I have just come from the Dáil; I thought it would be quicker to get to my office than across to the committee rooms. I thank the witnesses for attending.
I am particularly interested in what was said regarding the streamlining of planning enforcement, both from an enforcement notices perspective and also from a planning injunctions point of view. I hear repeatedly from my local authority that resourcing is a very big issue when it comes to planning enforcement. I am also told that the lengthy legal process is a very serious hurdle for councils to overcome.
To pick up on one thing in the opening statement, the witness referred to quarries. I love the idea of a specialist national team being charged with enforcement for quarries. When new laws came in a number of years ago on the basis of an EU directive to regulate quarries, all the quarries had to reapply for substitute consent in order to make sure they were adhering to current regulations. However, that was a very lengthy process. When one allows for appeals to An Bord Pleanála as well, it got even longer. While consent issues were tied up in boards and sometimes in courts as well when one considers further appeals, local authorities effectively ended up with their hands tied on all other enforcement issues with quarries. Operations could continue as normal while those cases were being heard in court. That is the experience of some of my constituents who live near quarries. I would be interested to learn more about how we could utilise the specialist skills set that is available when it comes to quarry enforcement to see if we could put together a team that would have a nationwide jurisdiction. I would like to hear a little more about that in particular.
There is also the streamlining of enforcement notices. Are there any resource implications for that?
Ms Maria Graham:
On the final point, there is a clear resourcing piece. There is a recognition that enforcement is probably the area in respect of which resources need to be pulled from other areas. It is quite intensive. From our experience and certainly from the experience of colleagues in the waste area where shared services have been put in, we see advantages to that type of approach. When we started looking at enforcement as part of this exercise, we looked at the distinction between development and activities. If something is built that should not have been built, it is very clear that it is there. Some of the activities are more difficult and need more intensive investigation to see what activity is taking place and who the owners are. There is a range of complex issues, and that is where we believe there are benefits to that type of regional team approach because they may not arise on a consistent basis. That is where we are certainly interested. From a legal perspective, it may just be that the legislation needs to enable this approach for activities. It is probably something where one could start with certain levels of activity and build on that because there is no doubt that we will have to grow the resources in this area.
Mr. Ryan might wish to comment on the enforcement.
Mr. Colin Ryan:
The issue is that it is labour intensive, difficult and complex. In particular, there is a need for the establishment of particular skills sets because in certain local authorities there might only be a number of particular activities arising once every so often. People move on and do different things, so it is to keep these at a regional level to allow for rapid and more cogent responses to these difficult and complex cases, which can take a number of years just for the assembling of evidence and going through the process. It can take a while.
With regard to streamlining the process, what we are looking at are timing issues and issues around the content capability for moving up to court, moving on in the court and what the court can do in terms with compliance with enforcement notices. At present, there is only a black-and-white situation. Either one has complied with it or one has not complied with it. There might be the capability for allowing from a proof point of view that one has done one's best and that allows the court to make a decision around that. Broadly speaking, however, it is about the technical issues surrounding the compliance with enforcement notices, timing the period, the capability of going to court and what court one goes to. Ultimately, the enforcement notice is a very serious issue. It is a legal matter and a matter that can end up in court. It is a matter that needs to be very clearly enunciated. That is broadly the issue with regard to the technicalities of enforcement.
Paul McAuliffe (Dublin North West, Fianna Fail)
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Is Deputy Higgins finished?
Emer Higgins (Dublin Mid West, Fine Gael)
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Yes, that is perfect. I appreciate the responses.
Paul McAuliffe (Dublin North West, Fianna Fail)
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I call Deputy Ó Broin.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I will follow up on a few of the exchanges and then I want to add a few more issues into the mix. Clearly, there are two types of enforcement. One is where there is a serious egregious breach, where somebody has done something that the person clearly should not have done and the person knew he or she should not have done it. Then there are much more minor breaches or breaches which, strictly speaking, are technical breaches that are not really of a substantive nature. There will then be grey areas continuing between them. We have to make sure that whatever we do takes a very hard position on those people who make egregious breaches. Deputy Higgins is right. Part of our constituency has a rural hinterland. We have experience of small quarries or other industrial type activities that are in flagrant breach of planning. They are subject to enforcement, including notices to cease their activities, but because it is commercially viable for them to continue right up to the point of whether the council decides to take court action, they continue to do them.
I heard what the Mr. Ryan said in terms of somebody who had done his or her best, particularly if it is one of those minor, less substantive issues. However, I have a concern, and perhaps I am reading too much into his remarks, that we do not get much tougher on those egregious breaches. One of the weaknesses in the system is not that people are being blasé about it but that the system allows people to make significant and continual breaches of planning. We need to get very tough with that. There is an additional point, and it is slightly tangential. We also must make sure that building control enforcement and planning enforcement properly co-operate and collaborate. I have seen some instances in other local authorities where a decision was made by a planning authority which is not consistent with best practice in terms of building control. That only becomes apparent when something is built with regard to locations and materials that are conditions of planning. Then there is a problem. There is a planning authority that has given a permission, but then the building control officers in that planning authority, who are sometimes juniors in the power hierarchy in the department, are now in conflict with their own senior planning officials and the director of planning and development.
While it is not directly related to the review because building control is a separate enforcement regime, consideration needs to be given to make sure some of those inconsistencies in the system can be resolved.
Ms Graham mentioned the environmental court. Similar to the points I made about the board, and I appreciate it will come under another Department which makes me nervous because it is such a crucial part of fixing our planning system, I am not sure it should have any enforcement role, certainly initially, because I would have thought most immediate need would be with respect to judicial reviews of planning decisions. The court would need to have a level of planning and environmental expertise, not only judges but significant resourcing of staff members who can deal with those matters. If we start lobbing on all the enforcements, or even enforcements above a certain level, would we be burdening what will be a very important new institution, if and when we get it, with too much, or should we make it the appeal body for large enforcement cases that have been taken elsewhere? The real value the environmental court is how we protect people’s access to justice under the Aarhus Convention while being able to provide for that in a speedy and timelined fashion without in any way compromising those issues. That is a consideration.
In its submission to the committee, the Irish Planning Institute raised an issue, which I want to raise by way of a question. It stated one provision that does not seem to be included in the issues under consideration is sectoral referrals to the board in the absence of public participation. I would be interested to hear that is now under consideration or a reason for its exclusion.
Climate must become a bigger part of everything we do at this committee, in the Department and in the construction sector. We are about to get our sectoral emissions targets. They will all be at the top end from what we read in the newspapers and I believe that to be a good thing. There is not an element of any aspect of the construction process, including planning, that can be immune to change in that respect. There might be a need, in a revised and update planning and development Act, for a module on a section on the interaction of climate emissions reduction and planning specifically on how we will deal with the embodied carbon reductions that will be a legal requirement. There are a few practical suggestions, which we have discussed at the committee previously. One relates to demolition audits. When somebody puts in a planning application to demolish a building there should be an audit on whether that is appropriate, the implications of that and whether that is what is best required. Local authorities should be able to refuse applications on the basis of a negative demolition order where the applicant has not made sufficient case. There are cases where a demolition is fine but rather than using the demolished structure for landfill, it could be reused and recycled into the built environment. We could have reuse orders that could be conditions of grants of permission, which would be important.
While Ms Graham's colleagues on the building control side will examine what are the standardised matrixes for determining what the embodied carbon is of new buildings and new building products, it would be a mistake for us not to then apply some of that to planning. It could be a feature of the planning system whereby there are requirements or where it is possible for a local authority to ensure that as part of that stated jurisdiction, it meets its emissions reduction target under the sectoral emissions reduction legislation. Certain categories of building could be refused on the basis that carbon content is too high at a particular given time. I know these are big new ideas, or they are not part of a previous conversation, but it would be a shame for us to do this major review and streamline this Act into a good item of legislation and afterwards for someone to ask about these carbon budgets and the fines we would fines from the European Commission if we do not meet those in each sector? Climate and how it interacts with planning will be key. I would be interested to hear whether that has been part of the discussion so far.
Ms Maria Graham:
I will reply in reverse order. We have an interdepartmental group on which the Department of the Environment, Climate and Communications is represented from the perspective of our understanding its role, consent and interest in this area and across the renewable agenda and climate change agenda. Obviously, colleagues are dealing with embodied carbon. Part of this is about future proofing the legislation and much of it relates to this processes. How do we reflect that and how policy is taken into account in the process in the knowledge that those policies may evolve? We certainly can reflect on those issues but there is piece at the start of the new planning Act that sets out what planning is about, what sustainable development means and the interaction with the environment to the degree that can be described that in a legislative form because it evolves over time. We mentioned a number of issues on the last occasion from a policy perspective that are important and the way we have moved to set that up in items of legislation. For example, the Land Development Agency Act sets out a good deal at the beginning of the legislation on why we need it. Some of this legislation may not be as well articulated on some of these issues. That would provide an important frame for the development plan process, how difficult balancing of planning decisions come about and some of the items the Deputy mentioned. We are conscious a range of measures are coming on stream which, as the Deputy said, will evolve, and perhaps the legislation, without prescription, will be able to take that on board.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I might add a supplemental point to that. Some of these things may be part of the review but a decision may be taken that it is too early to put it in the legislation There is a value in at least having those under consideration. Unlike the Land Development Agency or other areas, this is an area where we have legally binding reduction targets. Embodied carbon is responsible for 10% of current emissions and that will grow as the national development plan expands. Embodied carbon relates to what we do with the existing built environment in terms of what we reuse or recycle and what new elements we put into it. We had this conversation with the witnesses' counterparts who are working at EU level on having a certification system for embodied carbon in different products. What I got from that conversation, and I say this respectfully, is there did not seem to be a sense of urgency that we need. We are already two years into the Paris Agreement and we are meant to have emissions reductions out to 2030. We were meant to have a 4.8% emissions reduction in the past year but we had a 6% increase in emissions. Unfortunately, with this one, we do not necessarily have the same kind of space as we might have in other legislation. I am not asking Ms Graham to add anything else to it other than I am stating there is a sense of urgency with this. With regard to the experience of the body, particularly with respect to the weather review group, if with respect to the review we were able to ask what is happening in other jurisdictions, particularly in European jurisdictions where there they are ahead of us on some of these issues, and if they have started making changes to their planning process, that could inform subsequent revisions. All of us, including those of us on this committee, are very behind the curve in thinking our way through what a post-carbon budget planning system, building control system and construction industry looks like and we do not have much time to catch up.
Ms Maria Graham:
We are very alive to that. There are clear national targets around some of these issues and one issue, including for the planning process, is that we need to reflect on how and where they are translated down. That is an important component.
I will pass over to Mr. Ryan to elaborate on the enforcement aspect. We completely share the Deputy's view that the serious components of unauthorised developments, as well as other serious matters, are what we want to tackle.
Mr. Ryan may want to add to that.
Mr. Colin Ryan:
We are not looking to weaken the system and that is not intended in any way. The only issue is what is an egregious breach. If someone builds a big factory somewhere that is unauthorised, that is clearly an egregious breach, but it could be an issue at a local level where there could be an egregious breach for certain people, so it is that definition issue. At the end of the day, it is an offence. I take the Deputy’s point around the issue of the spectrum of breaches. What we are aiming to do is look at the series of very egregious breaches and then try to look at the smaller, more minor breaches in some other way. There is a continuum to this that has to be reflected on. If it is an offence, it is an offence. It is an issue that we are exploring, it is fair to say.
I want to stress that any streamlining or movement is not to weaken the system or look for some way out. It is just to look at it operationally from the point of view that when the facts are put to the court, there is some position that can be arrived at that meets the proper planning and sustainable development of the area. That is what the point is in regard to the enforcement issue.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Those are words that send shivers down my spine; task forces and working groups. No, I appreciate that.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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There is the issue of section 5 referrals.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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It is part of this.
Paul McAuliffe (Dublin North West, Fianna Fail)
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This follows on from Deputy Ó Broin’s comments about egregious breaches and more minor breaches. I fully accept Mr. Ryan's point that it is very difficult to define. Sometimes it is very obvious what an egregious breach is but it is different when we start looking for details. I accept the difficulty. However, sometimes the speed of the response is a barometer of how we react to it. Certainly, from the perspective of many public representatives, when a planning enforcement issue is reported at local authority level, there is often not a speedy response.
I have two questions, first, on the area of resources and how those planning enforcement operations are enforced and, second, the long lead-in times that often result from the enforcement process itself. I believe it dilutes the confidence people have in the planning process if they see what they believe to be a very significant breach either of a new planning permission that has been granted which, during the construction phase, is deviating from what is permitted, or, second, where something begins trading or operating that does not have any planning. This relates to that commercial calculation Deputy Ó Broin raised, whereby people trade it out and they make their money while they are operating in the gap. The speed of the response has to be addressed by the review as well.
Let us say there is a significant breach of either a new planning application or a new activity that is taking place on a site. An immediate response often assures residents that the matter is being taken seriously, whereas the failure to have an immediate response leads them to believe that nobody cares and, therefore, the matter will not be dealt with seriously. We need to have timelines around the initial reaction to complaints. I accept we also get complaints that are not genuine or that are erroneous and so on. However, if local authorities were able to react more quickly, if they had the resources and if there were tighter timelines on how they should respond, it would give people more confidence in the overall enforcement process. A quicker initial inspection and acknowledgement of a complaint would give people confidence that a process had started, as opposed to nobody listening. I ask that those points be taken on board in the review.
If the Department has any issues around the allocation of resources to those enforcement activities, I would be interested to hear if there is consideration of that. I imagine the Department is undertaking a legal process but enforcement is very important. There are a lot of Dublin City Council by-laws in my area that are never adhered to because we do not have enough enforcement officers, which is something to think about.
The second area in discussion paper 4 is the planning bodies. I note the first discussion point concerns the corporate challenges facing An Bord Pleanála and the Office of the Planning Regulator, OPR. I think we could have a full session on that but I do not want to drift into existing inquiries. I will ask a broader question. Is the Department looking ahead at issues that might come out of any investigation to try to ensure the public has confidence in the planning bodies? For example, the strategic housing development, SHD, process really rocked people’s confidence in the planning system. They felt like something was being taken away from them and their local representatives in order to make more speedy decisions, and all that happened was that we pushed all of the objections into the more expensive and difficult area of the courts instead of being able to resolve things or give people their say at an earlier stage. My question concerns the corporate challenges for An Bord Pleanála. I note the Department is not recommending significant changes to the OPR or An Bord Pleanála but I have concerns that An Bord Pleanála is sometimes seen to be too removed, or too independent is perhaps the term.
I will cite the example of the local area plans. Local authorities put a huge amount of money into these plans and some local area plans cost the best part of €250,000, with consultation and so on, yet very little reference seems to be made to them by An Bord Pleanála when decisions are being made, and very little reference seems to be made to the clustering of decisions that An Bord Pleanála makes. When local authorities make decisions, they regularly say, for example, “There has been significant development in this area and we are referencing the local area plan”. An Bord Pleanála tends not to take that kind of holistic view and – again, this is my own experience of it - it tends to examine the case in front of it without examining the impact on the community, which local authorities are very good at.
My second question concerns that whole area of giving assurances to people that they have some ownership of An Bord Pleanála and that An Bord Pleanála in some way references back to the structure of the council and the elected members. One of the problems An Bord Pleanála has is that people do not have faith in it because they do not believe they have any stake in it. I do not know how we get around that and whether there should be some community voice within An Bord Pleanála, but it is very much seen as a structure that is independent and separate. That is for all of the right reasons that we need, but it does not do anything to give confidence to the community that they have at stake in it. I have covered a few areas there.
Ms Maria Graham:
I take on board that there has been a strong number of contributions around planning enforcement and the speed and resourcing issue. That is something we are very alive to and it is very useful to get engagement on that.
The Vice Chairman specifically asked about resources. We are working with the CCMA on local authority resources. Enforcement is one of the areas where we are looking to see the level of resources that are there, what might be required for future need and what we can do around shared resources in that area. It is a platform that will be important, whatever comes from the review, to make sure there is an alignment in terms of looking to the future, as well as the gap that might be there at the moment.
In terms of the generality, I obviously cannot comment on the particular review that is under way at the moment in the board. In the broader context, we are at a point where we have had the national planning framework and the regional strategies, and all of the local development plans are now going through that. For the first time, we have a national planning framework that really sets a context to planning and sets that hierarchy. By the end of next year, broadly, all of the development plans will have been through the process and the OPR will have looked at them.
We will then be in a different era. We will have development plans with which people will have engaged that are compliant with the national planning framework. That should limit or set the context for the board when it looks at things. There should not be that misalignment or rift leading to the potential to have material contraventions on the grounds of national policy. In that broad sense, if we move on to the future in terms of this planning legislation, I envisage that people would be able to have confidence that, once the development plan has been through the cycle and has been through the OPR, there is a development plan that has been agreed and sets the context for what is going to happen. Over time, we want those development plans to get clearer and clearer to people and for there to be more engagement with people at the development plan stage so that they know what is going to happen in their area.
The large-scale residential developments going back to local authorities is also part of that piece. It must be in the context of the housing supply targets that are set for the area, the need to deliver on them, and the need to build for the future communities. That will be an important piece in building confidence in the planning system. From the system’s perspective, it is important that the impartiality and the independence of the board, as well as the independence of the OPR, are maintained. There are legislative proposals in the context of the organisational review. We are looking at them in that context. If anything else emerges, we will have an opportunity to take it on board.
Paul McAuliffe (Dublin North West, Fianna Fail)
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Is there a way we can in some way either embed or allow a flow of information surrounding those types of concerns, which I raised during the strategic housing development, SHD, process, and allow them to be part of the structure of An Bord Pleanála? I am thinking, for instance, of a worker representative being on a board. I appreciate I am throwing a random idea at Ms Graham. There needs to be some sort of community voice at the heart of An Bord Pleanála. How it will be done will be complex. It is important and not just for the current period, because there has been an issue there in recent years.
Ms Maria Graham:
On the concept of looking at board appointments and skills, we spoke earlier about potentially going to PAS and the list of potential skills being in the legislation. That is an area that could be looked at in the sense that the board needs to have a range of skills that are not just professional skills - it has professional planners and other professions - but also people who are the educated person in the street or the person who has that link to communities, both urban and rural. That is probably something we can reflect in that way.
Paul McAuliffe (Dublin North West, Fianna Fail)
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I am conscious Deputy Flaherty might want to come in, but I have one other question. On the idea of border areas where two development plans come together, the one with which I am most familiar is the north fringe, which everything from Finglas right across the north of Dublin city. Deputy Ó Broin would have it in the south city. Not enough work is done by local authorities to ensure key parts of the city have an integrated approach to planning. I constantly cite the example of Meakstown and Charlestown in my area where Fingal County Council effectively zoned huge swathes of land, allowed a significant shopping centre to be built right on the edge of Finglas, did not put in any community services and so on to support it, benefited from the rates and the development fees as result of that, and it took the best part of ten or 15 years for it to catch up and try to put in some of the community infrastructure. We are still working on that and we still have a lot of challenges. Even in this round of the development plan, there are examples of sites I would have said had the potential to deliver some housing on them whereas Fingal County Council is taking a more enterprise or commercial development approach to it. I am not a party to that plan, so I cannot influence it, but I still think not enough work is being done on the fringes of cities, where development plans work together. It is a structural problem. There is a border there. The OPR needs to examine that area, where two development plans come together, to ensure we do not inadvertently set up a system where centres become important and everything on the fringe becomes unimportant, with the fringe areas losing out as a result.
Ms Maria Graham:
There are areas where joint strategies are important and they cover many sectors. The housing and residential aspect is important. It is also a feature when it comes to renewable energy where one authority abuts another, one has designated the area for wind energy, the other has not, but it is the same effective landscape and topography. This is probably something a piece of the OPR can look at, but the OPR has to be working within a statute and a policy. On wind energy, it would be talking to Department of the Environment, Climate and Communications about how regional strategies might be put in place to bring the national targets down to regional so that the local development plans have to fit within that. However, it is a fair point around those issues. We would have looked at some of the provisions, as Deputy Ó Broin has said, to see where there can be interventions, to look at where they may have been subject to some legal cases, but it is just to look at that.
Paul McAuliffe (Dublin North West, Fianna Fail)
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The point is there will always be those fringe areas, no matter what happens - Garda divisions or whatever. What can the Department structurally put into the review to make sure those fringe issues are addressed?
Paul McAuliffe (Dublin North West, Fianna Fail)
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I have abused my position as Vice Chair by allowing Ms Graham to go on for longer. Did Deputy Flaherty want to come in?
Joe Flaherty (Longford-Westmeath, Fianna Fail)
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Very briefly. I apologise for coming in late. I had another engagement. Ms Graham may have already covered some of my points beforehand. However, to eliminate any doubt there might be, will Ms Graham recap the timeline? The review is planned for completion by the Office of the Attorney General by December of this year. Is that on course?
Joe Flaherty (Longford-Westmeath, Fianna Fail)
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Is Ms Graham confident about that?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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She is confident in the Attorney General.
Joe Flaherty (Longford-Westmeath, Fianna Fail)
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That was said with great courage and conviction. Well done. There are pros and cons regarding the Office of the Planning Regulator, and when it comes to the big cities and the big developments in particular, there is much merit in it. Ms Graham will be aware, however, that it is not universally welcome in rural Ireland and in rural counties. I will cite a specific example. In the development plans in rural counties, the OPR has been very regulated and has given prescriptive details in terms of the amount of land that is to be zoned, specifically relating to residential reserves, with large tracts of that removed. The problem in rural Ireland is always that land still carries a premium, whether it is zoned residential or for agriculture. If Johnny Murphy owns that land, he is determined he is going to farm it for the next 200 years, no matter what zoning is on it. There will be instances where land surrounding many provincial towns is zoned for commercial or residential that in all likelihood will never be developed in our lifetime. There is a concern that the diktats coming from the OPR are too restrictive, for example, for local councillors, who have the local knowledge and insight, who know very well that Johnny Murphy has no intention of ever selling that land, and who would have the wherewithal and foresight to say we should zone with Tommy Rooney, who would be much more disposed to selling his land. I can see obvious issues with politicising zoning issues. Within what the Office of the Attorney General is looking at, is there going to be any reshaping of the Office of the Planning Regulator or is that office sacrosanct and will it remain untouched by what is coming in the review and in the future legislation?
Ms Maria Graham:
As a number of previous speakers indicated , the office is relatively new. As I said earlier, it emanated from the recommendations of the Mahon tribunal. It is a very important part of the planning system and confidence in that system. There is no intention to significantly change any of the roles or functions of the OPR. Tweaking that might be required to clarify provisions is what is intended.
I understand precisely what the Deputy is saying regarding the point he mentioned. There will be some clarification due to the fact a residential zoned land tax will be coming into place. If people have no intention that land zoned for residential purposes will ever come into use, then they will have the opportunity to seek to have that land dezoned and there can be a greater focus on land that is zoned.
On the function of planning, if land is zoned, there is a presumption that it will come into use for residential purposes. There is an obligation on the State to prepare that land, put in services and do all the planning we have talked about, whether it is for an urban or rural area. Over time, that tension will reduce because land that is not going to come into use for residential purposes and that will be used for another purpose simply should not be zoned. The focus should be on the servicing of land that can come into residential use. That is the direction of travel To some extent, it is probably a difficult first trawl through and a learning process for everyone through the OPR cycle, but that will get easier over time.
Joe Flaherty (Longford-Westmeath, Fianna Fail)
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I have one final housekeeping question regarding a bone of contention that is, again, a rural Ireland issue. It is that of the owner of a house who is given planning permission where one of the conditions of planning is the house has to be built, developed and retained in that ownership. At present, if someone has secured that planning permission, he or she can write to the planning office to ask for that condition to be removed. That document is not made public at present. My neighbours have no way of seeing whether I applied for the removal of that condition and there is no record, or no way of publicly tracking, if that has happened. Is that something this review will capture?
Mr. Colin Ryan:
It was a requirement in the old rural housing guidelines, if memory serves me right, as was the seven-year period. The only rationale for its removal is that the banks or a mortgage holder could come in. If someone is looking to change a condition of permission, it is a requirement that it must be applied for. We will look at that. If a condition is being changed, that is a public act. It is a condition of a permission. It is the same if someone wants to change the number of bedrooms or whatever it might be in that situation.
Joe Flaherty (Longford-Westmeath, Fianna Fail)
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It is just a case of applying to remove a condition.
Mr. Colin Ryan:
A condition of permission is being removed so that is a public act. We will obviously look at it, since the Deputy raised it, and we will take advices on that. That condition was there to ensure that people who applied for permission did so in good stead, so to speak, and were not just doing it for the purposes of monetary gain. It was to give some flexibility around that.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I will pick up on Deputy Flaherty's points about the regulator and planning. As Ms Graham will know, I was very critical of the weakness of the legislation. There is a lot of confusion in the debates. This is not just a rural battle because the good people of Dún Laoghaire-Rathdown County Council have been in battle with the regulator on a not dissimilar point. However, the regulator does not make those policies. Whether one agrees with the policies or not, the challenge is with the national planning framework, the housing need and demand assessment, HNDA, and the outworking of Government policy. This is not in any way a comment on Deputy Flaherty's remarks, but it is very unfortunate that the planning regulator has become a whipping boy for Government policies on the floor of the Dáil. That is not to say I agree or disagree with the individual policies. If people do not like those policies, they should focus on who made the policies and not the individual officeholder or the office. Some of the language used in the House with respect to the individual who holds that office is not only unfair but misunderstands the fact it is the policies that are the cause of those contentions. If we want to change the policies, we should focus on that.
I completely agree with Ms Graham. Zoning is an enormous gift from the elected officials of a local authority to an owner of land. It gives the owner an enormous increase to the value of that land. If somebody is not using it, that zoning should be taken away. Separate to the national planning framework, housing need and demand assessments, rural planning guidelines and zoning guidelines, I will go a step further and say that if the owner of zoned land - my preference would be over the course of one development plan cycle but somebody else might be a little more generous and say over two - especially residential zoned land, has not used it, he or she should have to justify the retention of that zoning. There is just a presumption that zoning moves from one development plan to another.
We have a big challenge in the Vice Chairman's constituency, my constituency and elsewhere as regards land that will never be used residentially because it is not serviced or due to the intent of the owner, but is zoned. Somebody who has land that is potentially serviced, and could and would develop it in this development plan process, applies for zoning but because of the HNDA, and I support it and the way it is operated, certainly in the Dublin local authorities - I do not follow the details of authorities outside Dublin - we end up with this bizarre situation where we retain zoning for somebody who has not developed land for ten years and is probably not likely to develop it, and deny zoning to somebody in a contiguous piece of land that could be developed. The development plan process should be much tougher. I do not mean we would take everybody's zoning away but if somebody has not reasonably attempted to initiate development or to develop, in the context of this review, we should get tough on that.
My questions are as follows. Ms Graham and Mr. Paul Hogan made two interesting comments during their responses at the last meeting. I will not ask Ms Graham to comment on the first but I will say it in response to her because I said it at that meeting. She specifically reminded us that the Government makes policy and the Attorney General provides legal advice. That is strictly true and that is the position, but where an Attorney General is quite activist and takes quite an activist role, and this Attorney General has done that in a number of areas, which could be a good or bad thing, the dividing line between policy and legislation becomes very blurred. I am not saying that is a bad thing, especially when planning, law and environment are so inextricably linked. The point I made, and Ms Graham reassured me at the last meeting, is that the maximum transparency we have in respect of the work and output of the Attorney General's work is very important because that then allows us to make a decision on where those lines blur and that informs the debate. I just wanted to say that.
There was another very interesting comment. Mr. Hogan used a great phrase when he indicated that we had "backed off" on the SPPR approach. That was a phrase he used and that was the happiest moment I had when I read through the transcript. I hoped Mr. Hogan would be here so I could ask him to elaborate on it but I am sure Ms Graham can do so. It is an important point because, again, she has heard many concerns from this committee and its predecessor either about the SPPRs or how they manifest. I hope Ms Graham might talk a little to that. I presume it is also in the context of the clarification of things that are mandatory and things that are discretionary. If Ms Graham fleshes that out a little for us, that could be helpful to us in understanding the plan.
Paul McAuliffe (Dublin North West, Fianna Fail)
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I will add one question, which might save time in the context of coming back twice. I will make one suggestion - in order to save it being made when it comes to introducing amendments - regarding to the issue of notification of those on adjoining sites. We have lots of complicated streetscapes in many of our cities. People could have a planning application with a notice in their garden, but the neighbours who live behind them and who are immediately impacted may never pass up and down their street. An obligation on people who are lodging applications to inform the adjoining site owners would be a very simple amendment to the planning legislation. This would save a lot of heartache because if people have an opportunity to participate, they feel far less aggrieved. They might not get their desired outcome but it is only when they find about a planning application once construction starts, when they never had an opportunity to contribute, that they feel very isolated from the process. It is a very reasonable suggestion that owners of immediately adjoining sites be informed.
There might be two or three owners and it can be delivered by hand or registered letter. It is a small suggestion and I intend to table an amendment on it.
Ms Maria Graham:
During this review, we have grappled with clarifying the roles at the national, regional and local levels, including the roles of Ministers and the Government, to ensure that planning policy is grounded as a role. One then comes to the issue of what is mandatory and what is discretionary. The language of the Act changes, with phrases such as "have regard to" and "take into consideration". The specific planning policy requirements were a way to deal with that. We ask if this flows from national policy, if it needs to be observed, and whether it is discretionary or best practice. If discretion is allowed in a plan, application or consent regime, clear reasons need to be given for diverging from the policy. Making those links would provide transparency. That is our thinking on the matter.
Paul McAuliffe (Dublin North West, Fianna Fail)
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While I do not expect Ms Graham to respond, she might take on board the matter of the proposed notification of adjoining sites.
Paul McAuliffe (Dublin North West, Fianna Fail)
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It is a small amendment that would save a lot of heartache.