Oireachtas Joint and Select Committees
Tuesday, 12 July 2022
Joint Oireachtas Committee on Housing, Planning and Local Government
Review and Consolidation of Planning Legislation: Department of Housing, Local Government and Heritage (Resumed)
We continue our engagement with the Department of Housing, Local Government and Heritage on the review and consolidation of planning legislation. I welcome back to the committee Ms Maria Graham, assistant secretary, planning division; Ms Mary Jones, principal officer; Mr. Eugene Waters, assistant principal officer, planning review section; and Mr. Colin Ryan, senior planning adviser. I thank them for the time they have given to the committee on this. Members have been circulated the opening statement and briefing and the previous meeting documents.
I will 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.
I invite Ms Graham to make her opening statement.
Ms Maria Graham:
I thank the committee for the invitation to continue discussion on the planning review. I am joined by Ms Mary Jones, Mr. Eugene Waters and Mr. Colin Ryan. We will move to discussion paper 5 on environmental assessment, having already covered papers 1 to 4 in our previous two sessions, which related to plans and guidelines, consents, enforcement and planning bodies. Yesterday afternoon we met with the planning advisory forum to consider the same discussion paper. In addition to the standing members of the group, further representatives from the environmental NGOs, the renewable energy sector and colleagues from the Department of Environment, Climate and Communications attended the meeting to discuss this important topic.
It should be noted that this discussion paper discusses the technical process for environmental assessment as it relates to planning. Other issues concerning access to justice will be dealt with in a further discussion paper on the judicial review process. It is our intention to prepare a paper on this topic in the autumn which we will discuss with the committee.
Environmental assessment is defined by the European Commission as the procedure that ensures that the environmental implications of decisions, including those related to planning, are taken into account before the decisions are made. Three key directives are the driving force behind this process; the environmental impact assessment, EIA, directive, the strategic environmental assessment, SEA, directive and the habitats directive. The common principle of these three directives is to ensure that plans, programmes and projects likely to have significant effects on the environment are made subject to an environmental assessment, prior to their approval or authorisation. Consultation with the public is a key feature of environmental assessment procedures. In Ireland, the aims of environmental assessment are achieved using three key tools; strategic environmental assessment, SEA, environmental Impact assessment, EIA, and appropriate assessment, AA, pursuant to the habitats directive.
With this in mind, the challenge for the review working group, at its broadest level, is to balance our alignment with the European directives with robustly interrogating the current processes to identify any potential for increased clarity and streamlining and maintaining the appropriate levels of public participation and the ability of the system to make robust decisions in a timely and predictable manner.
The first theme of the considerations emerging from the review is clarity. As mentioned at our first discussion, much has changed in the landscape of the planning system in the two decades since the Planning and Development Act 2000 was passed. Not least among these changes is the emergence in importance, rightly, in the interaction between environmental assessment and the plan-making and project-consent processes. It is our view that there is a need to integrate more clearly the scope and role of environmental assessments into plan-making functions, especially the consenting process for projects. The question therefore arises, as is posed in the paper, of whether there is scope to further improve the carrying out, concurrently, of the various assessments of environmental reports for development proposals in order to reduce complexity in the decision-making process, while maintaining the robustness of the final decision.
The second theme is that of alignment. Any changes in timelines need to be in line with the relevant EU directives, without being made unnecessarily complex by overly-intricate national provisions. The planning system and the legislation that underpins it need to be agile enough to deal with the intersection of the various interdependent directives, such as the water framework directive framework directive, the floods directive and the Seveso directive. Planning legislation should reflect the wording and intent of relevant EU environmental directives. The AA process, especially AA in enforcement cases and imperative reasons of overriding public interest, IROPI, processes, needs to be reviewed to better reflect the intent of the habitats directive. We therefore need to consider what steps can be taken to enhance alignment between environmental provisions and wider planning and development policies, while better meeting the objectives of European directives.
The third theme is around future-proofing. The emergence at short notice of impactful policy changes, such as the EU Commission’s REPowerEU statement on moving to independence from Russian fossil fuels, demonstrates the need for agility within the framework of the new Act. The new Act needs to be structured to facilitate such new measures in a manner that dovetails with the system, rather than as processes that bookend a stand-alone planning process.
Environmental assessment and its implications have never been so important. It is imperative that we enable the planning system, through the review, to be equipped with the correct tools to effectively implement new European policy initiatives, especially in the area of renewable energy and supporting infrastructure. This needs to happen in a streamlined manner, rather than ad hoc, in reaction to emerging policies. Therefore, environmental assessment and its related considerations must be integrated into the planning system, in order to enable agility within the system to successfully meet future challenges.
We have covered four subject areas so far, namely, forward planning, development consent, enforcement and planning bodies. Today we will deal with environmental assessments in the planning system. Ms Graham mentioned judicial reviews for autumn time. That will be discussion number 6. Will we cover further headings or subject matter?
Ms Maria Graham:
Those are the broad themes. We then look at the shape of it all brought together. There is considerable work around transitional arrangements, but that is at a highly technical level. We hope to have material from the Attorney General in September and to look at all of the pieces together to see what the shape of the overall legislation looks like.
The committee, as ever, will be interested in participating in that when the material is available, at whatever stage in the process is best. I note from Ms Graham's opening statement that the Department only met on Monday on this module. I was looking through the membership of the advisory forum. I note that the Dublin Democratic Planning Alliance has written to the Minister of State, Deputy Burke, who is chair of the advisory forum, suggesting that it could have a role in or contribute to the forum. I support that and I think members of the committee would be of the same view. I ask that Ms Graham, in her role as vice-chair of the advisory forum, outlines that the committee supports the Dublin Democratic Planning Alliance as part of civil society engagement, which is an important part of the process.
I apologise for being a little late coming down from voting. I am not as nimble as some of my colleagues. I thank Ms Graham for such a succinct opening statement. As the Chair rightly said, we have gone through several of the pillars of planning. This pillar might have been the most difficult to digest or explain, but Ms Graham has set it out very succinctly and clearly. The key point I take from what Ms Graham has said is that it is very much a case of ensuring that we align with EU standards.
At the same time, we must robustly challenge the legislation we have in place to ensure that we are doing the best for our environment, while also aligning with EU standards. What are they key actions we need to take to enable the planning system to effectively implement EU policy initiatives? On the area of renewable energy and supporting infrastructure, is it fair to say that there is a commitment at EU level to pursue offshore rather than onshore wind energy?
Ms Maria Graham:
In terms of the first piece, it is to make sure that we are aligned with the directives as they are now, and to note that things do evolve, so that we can come up to speed as quickly as possible. Structurally, one of the ideas is that the environmental provisions would be a separate part in the Act so that they could be easily read and amended should new directives come about. In that alignment, we also need to ensure that there is a signposting, particularly around timelines and the processes, so that they all work together. One of the critical areas we are looking at is mapping them out to make sure those timelines are working well.
The Deputy mentioned the renewable energy. Yesterday, at the planning advisory forum, we had a presentation from the Department of the Environment, Climate and Communications on the EU proposals. Members of the renewable energy sector were also present, as well as environmental NGOs. We have to get extra discussion papers in, but one thing that struck about the debate was that there was a common view on being clear about the purpose of the directives. There was a discussion about how many of the documents have become elongated to the extent that it is very hard for people to engage with them or to be clear on what the purpose is. It was like the discussion we had on plans, in that there is a need to be more succinct and focused on the significant environmental effects are, for example.
The other piece is on timelines and certainty. Obviously, proposals are emerging on the European front, but for the renewable energy sector and other sectors it is about certainty of timelines and that has implications on resourcing, skills and whether we put statutory timelines into the new Act. This is something we touched on when we were talking about the consents.
At present, the renewable energy policy is set by the Department of the Environment, Climate and Communications, taking into account all the elements. They include onshore and offshore elements but, obviously, offshore will be a growing element of it. We need to make sure that the planning system, which is around the process, can deliver on whatever the policy objectives may be, including targets for onshore and offshore over time. I am not sure if that fully answers the Deputy's questions but there were some of the issues that struck me.
There is some concern with onshore wind farm protest groups, for want of a better description, who are motivated by the best will of their local community, that this is a backdoor effort to change the guidelines that are there to make it easier for onshore wind farms. Have Ms Graham seen anything done at either EU level or in making our guidelines more robust, that is changing the guidelines to allow that to happen?
Ms Maria Graham:
The EU is an evolving space but my understand of what is happening is around that certainty and timelines, and not about cutting short any of the environmental assessments, but perhaps considering where there are projects of overriding public interest. It is using processes that are allowed and provided for within the directives and how they are all brought together in order to deliver on the agenda. There is certainly no sense that there is a rowing back. That is my impression so far on the environmental directives as they stand.
Ms Maria Graham:
The directives tend to be at a broad level and the spatial implications of them are taken into account at a national level. It is about how they apply, in any national area, the implications of the environmental assessment. That can relate to different topographies, geographical areas and population dispersion. Similar to the planning Acts, the directives that influence planning are around the process and how these issues are surfaced, how the public participate in them and how they are dealt with rather than being prescriptive. Let me just check with Mr. Ryan on whether he would agree with that.
I thank Ms Graham and her team for coming before the committee again. There will be a confidence debate in the Dáil Chamber shortly, so I will have to leave after my contribution, for which I apologise.
I want to take a step back for a second. It is often expressed to us is that the State has a poor record in the transposition of EU environmental law across a range of areas historically. Even where the transposition of that law happens, it is often delayed, and the way in which it is transposed can lead to significant EU enforcement actions being taken against the State. This committee has dealt with at great length, issues about the water framework directive and the wastewater treatment directives. The committee has also dealt with substitute consent, the Derrybrien case, elongated enforcement action and consequential fines.
In advance of considering a consolidated environmental section to a revised planning and development Act, has there been an audit of the number of those enforcement or warning proceedings from the European Commission on environmental planning matters to try to inform the work of the Attorney General and Ms Graham's team? If so, will Ms Graham share the outcome of that because it seems to be that this would have been useful to do at the outset?
Ms Maria Graham:
We can certainly give the Deputy a note on that. At various stages, there can be different actions that lead, ultimately, to infringements but sometimes letters of formal notice. The question of infringements is a matter that is regularly considered by the ministerial management board within the Department. Even apart from the review, there would be an ongoing check on where we are with different cases. We can follow up with a note on that. It would be a starting point and a step back, as the Deputy said, from this review. One of the issues was the looking at the transposition of directives. Have they been correctly done? Have we over transposed? Have we over complicated? That step back is probably important in the sense that sometimes these things are done at speed. This is an opportunity for us to look at how they all work together and how they are operationalised.
One of the issues we are conscious of over this time is that we have a different legal system. We have a common law legal system compared to the European system. I talked about the purpose of the directive and when cases go before the European Court of Justice. The focus is very much on whether the purpose and intent of the directive is being met. That is a good starting point for us to look at in any directive. Is it clear that we are meeting the purpose of the directive? Are all the steps that are there necessary and do they align with other steps in the planning process? If it becomes over complicated, it becomes very hard for people to engage and easy for people miss a step in that process.
A note to the committee would be very useful. Without overburdening Ms Graham, could that note include an indicative list of where there have been those notices, infringements or enforcement, as well as costs to date?
That would be useful for the purposes of this, if the information is available. The second point relates to both EIA directives and our obligations under the Aarhus Convention, where there is a set of very clear requirements for public participation. In the piece of work the Department is doing around this module, what is the mechanism to ensure full compliance? I ask because this committee has heard from various people at various stages concerns that aspects of our planning system, in the past or present, are not necessarily as Aarhus-compliant as they could be. Is specific attention being given in the review work to ensure we capture areas where there may be a compliance issue or to ensure any changes are fully compliant and do not fall foul, intentionally or unintentionally, of those public participation and access to information standards?
Ms Maria Graham:
One of the underlying elements of the review is to ensure that we are meeting both EU and international obligations, to give that surety and to ensure any changes that might be proposed align with that. We will be very clear around the Aarhus elements. Obviously, access to information, public participation and access to justice are the three pillars of that. They are very clear components. As things evolve over time, you have to check that alignment is staying in place.
One of the most important areas of EU environmental law is marine protected areas, MPAs, and we are eagerly awaiting the legislation on that. Given the very considerable body of work being undertaken by the Department's staff and the Attorney General's staff, which a colleague of Ms Graham's suggested in a briefing to us yesterday would not be concluded for another six months, how is that going to interact with the production and then introduction of the MPA legislation and the processing of that? While the Department is trying to improve, streamline and clarify the existing Planning and Development Act and all the environmental elements of that, we have this other area looming, namely, our desire to move ahead with offshore wind to meet our renewable energy targets. However, we are very far behind where we should be with the MPAs. Is there a fear that the MPA element of the overall maritime planning piece could be delayed because of this other piece of work? Will it happen in tandem? How will the Department ensure the outworkings of the MPAs are adequately reflected in the environment section of a new planning and development Bill?
Ms Maria Graham:
There is a separate team working on the MPAs within the marine environmental section of the Department, so that legislation is proceeding in tandem. We have a number of pieces of legislation. As the committee is aware, we have been keeping it quite busy in terms of the legislative frame. There is nothing that is detracting-----
Ms Maria Graham:
-----from that element but we must ensure the planning system and these other pieces that are happening align. That, I suppose, when I touch on future-proofing, is always going to be an issue because there may be some MPAs that come in, similarly to SACs, and that evolves. The processes we set out in the Bill must be robust enough to allow for that changing landscape with the underlying environment. They would be taken into account, it is my understanding, at the environmental assessment stage. Mr. Ryan does a lot of marine assessments. He may wish to add something.
I thank the Chairman and the officials for being with us again to discuss this fifth element of the review. Strategic environmental assessments, SEAs, EIAs and the assessment on habitats have never been a more important component of the planning process as we all work to deliver action on climate change and to protect and enhance the natural habitats and biodiverse landscapes that exist within our communities up and down the country. I welcome this review because it is so important that we are continually reassessing whether what we are doing is having the desired impact and how our rules, regulations and laws fit in with the EU directives or could be adapted to include them.
Future-proofing was highlighted in the opening statement as a key component of the review. It is quite interesting to hear the officials speak about the impact the war in Ukraine has had with respect to independence from Russian fuel and how we transpose not just directives but also policy changes and statements of intent from the EU into our laws. I would like the officials to talk us through what kind of challenges they had to overcome on that issue in particular and whether having flexibility baked into our Bills would have helped to mitigate those challenges. I suppose I am really asking whether flexibility would provide future-proofing or whether it would leave Acts open to interpretation or misinterpretation and how we strike that balance.
The previous two contributors touched on renewable energy and supporting infrastructure. We as a committee have done so much work around maritime planning, maritime protected areas legislation and all the frameworks that come with that. I am interested in knowing how this review deals with that, not just in the context of the work this committee has done on our own national laws, but also in the context of European policy that might be coming down the tracks too. Those are my two questions.
Ms Maria Graham:
There are two aspects the Deputy has touched on that are important with regard to future-proofing. The planning Act is really around processes like how you plan, how you consent and how you enforce. What is important in tandem with that legislation is the robustness of the policy framework that sits around it and the degree to which the planning system can then take account of that. In the renewable energy space, for example, that is what targets we have, what our overall ambition is and how that translates down to regional level so it can influence local development plans rather than local authorities having to look at this against a national target. They will have some idea of what the regional target is as well. That is an area the Department of the Environment, Climate and Communications is working on. Similarly, it will be looking at updating its offshore renewables plans as well, perhaps to look at issues around the sequencing of development areas. We have a lot in the frameworks that allows flexibility if you have the policy. If you have a clear policy at national level, and perhaps a clear policy at regional level, that can then influence the local authority element.
The other element we will be looking at is that the environmental assessment tends to relate to whether projects are over an environmental threshold. I suppose over time you can look at whether those thresholds are fit for purpose and need to be reviewed. The habitats directive is slightly different with respect to the tests, if you like, but there is provision within that directive for projects that have an overriding public interest. If you discover there may be some damage, you look at whether it is a project of overriding public interest and at how to mitigate the efforts. We have had one project in Ireland, which was Lough Talt in Sligo, where the question involved public health and environmental issues. It was a matter of dealing with public health issues while trying to mitigate environmental damage. That is an area we have not used much in Ireland compared with other European countries. We may need to explore controversial issues or whether there is an overriding interest, for example. That is what the Commission pointed to, perhaps, in renewable energy. We will look at mitigation measures.
I am speaking in generalities, as Deputy Higgins will appreciate. From a legislative perspective, it is a matter of ensuring the provisions that allow that process or thinking process to happen are sufficiently robust, are aligned with the directives, allow for the public participation and allow one to come to a balanced decision. Finally, as I mentioned, if we have all the environmental parts in a single part of the Act, and if there are new changes to directives, we can more easily make that legislative change.
I am not going to a debate on a motion of no confidence but I am going up to the Seanad at 4 o'clock. I will touch on a few issues. I do not really have any questions. I acknowledge and thank Ms Graham and her team here for leading off on the discussion papers and documents with the Planning Advisory Forum. I note that we have dealt with the plans and guidance, the consents issue, enforcement and the planning bodies, and now we are on to the environmental issue. It is a big issue which was traditionally very controversial. I have been involved in a number of these challenges in my own planning authority and in bigger national issues, so I am quite aware of the issues.
The things I am hearing here again today are clarity and alignment, and I think we all agree on them. Then there is the transposition of the EU directives - or their overtransposition, as Ms Graham rightly says. Then there is our environmental law. The Aarhus Convention is readily quoted in the Dáil in debates on anything to do with planning or the environment, and rightly so, and in Seanad Éireann we have similar debates. Then there is the concern about people who participate in and are advocates for the environment. Traditionally, they were seen as troublemakers opposed to development. I do not agree with that. I agree that people have a right to defend their environment. We in Ireland have been assisted by the European Union over many years. If you poll Irish citizens on European affairs, the first thing you will always find is that they have high engagement with the European Union and greatly respect its institutions, laws, policies and advocacy, particularly in the area of the environment. There is a very strong connection. We almost seek the EU to vindicate our environmental rights.
Then we look at the case law. I know that the Attorney General is looking at a whole review of the planning Act. That is good. The Act needs to be consolidated. It is a huge document and has been added to over time. It is like the hotel with the hundred extensions on it that Francis Brennan was talking about last night. The Act is all over the place. We need to consolidate all that. I therefore see the logic in the work the Department is doing and I thank Ms Graham for that work.
Before I go any further, I will endorse what the Chairman said about whether it is possible to include at this stage the Dublin Democratic Planning Alliance. It has engaged with us. It is a really good organisation. It is constructive, helpful and knowledgeable and has been involved with a number of planning challenges. It is at the coalface of this and knows the issues as well as many of the people Ms Graham has on her forum.
We have talked about renewables. Yes, the Government has targets, and rightly so, and objectives and ambitions. Coming back to alignment, we want renewables. The renewable energy space is where we are. If we are not there, we are going there and should be there. We have offshore challenges and onshore challenges. It goes back to what Ms Graham said about the alignment of all those issues. We need the tools to interpret that.
In preparation for today's meeting, I looked at some papers that have been done on various international planning organisations. They refer to international SEA guidance and regulations, models and methodologies. They also refer to the alignment of national, EU and rural policy and to international best practice. They make it clear that in drawing on the practice of SEA, the aim is to provide a unique analysis of SEAs which have been undertaken, drawing in turn on a variety of methods and circumstances to illustrate how best practice can be achieved. There is a lot of work out there on this and many people are thinking the same thing. We have all come into this space slowly. It all needs to be consolidated.
There are the SEAs, EIAs and AAs, as well as the Natura 2000 sites, of which there are many. It is not that the Government or certain aspects of the Government may want to be seen to be pro-development. Of course we have to be pro-development, in the best sense of the term, but we also have to respect our environment.
We also have a lot of issues with built heritage and the built environment that are really challenging. I spoke to a number of senior counsel in the past few days about this. There is a significant body of case law. There have been a lot of successful challenges. People have put their homes on the line to take litigation against the State and to take it to Europe and they have been vindicated, so people are passionate about this. I therefore ask that we look at case law. We will see where the mistakes were made. No one is tripping anyone up, but there have been clearly stated and successful legal challenges in these areas, and we have to look there too. I have no doubt but that the Attorney General will do that. This is his area of expertise.
I wish Ms Graham and her team well. This is important. My sense of it, I think, is partly to do with the tripartite nature of the coalition Government. I acknowledge that there are different aspects, challenges and priorities. We definitely would not have had this conversation three years ago, when I was sitting as a member of this committee. We discussed the EIAs, the AAs and issues like Natura 2000 sites and so on and did not get quite the same response. We are all on a journey, including the Department and its officials. The different dynamics at play in the Government have made this a real priority. The brakes were put on. I think that negotiations in the Government and the different strands in the Government have helped this. I acknowledge that. I think we are going more slowly, more methodically, more carefully and more strategically, and that is right. The engagement with the forum and the listening to those stakeholders, who represent a broad group of people, is also very positive. I get a sense and a good feeling that we are going in the right direction, and I thank Ms Graham for that.
Ms Maria Graham:
I thank the Senator for his comments. They align with a lot of what I said. One of the things that struck me while he was speaking is that I think we have previously talked about guidance and its importance. These are complex areas. The Office of the Planning Regulator has produced guidance. The Department itself issued planning guidance on SEAs as well. Our team that deals in particular with EU and international areas participates in a lot of the Commission working groups in this area because learning from best practice and from other countries is an important part of that evolving landscape.
I will take the next slot. The EU directives that we have and that we have transposed into law are there to protect the environment and our health and are there for our protection. They are often held up as a reason for things not happening. I think we have become slightly disconnected from the purpose of those directives. Sometimes people get caught up in saying nothing can happen because of whatever bird or some species. The famous case that is always referred to is the snail on the M7. The snail was an indicator species of something else that was present at the time, namely an aquifer. The snail is always portrayed as having held up the road, but it did not. It was an indicator. That is an example of the disconnect we have.
I have a couple of questions for Ms Graham. I refer to the complexity for local authority planners or An Bord Pleanála when they are dealing with these applications, which are highly complex, with much crossover between environmental law and planning and EU directives. Does feedback go to each local authority when a judicial review is held or if something is refused because of a failure to assess properly an environmental impact assessment report or the compilation of that report in that something should have been in it that was not included? I refer to a briefing stating, "Here is where the mistake was made." It may become apparent, as such a mistake would in most organisations. Does that happen at local authority level or with An Bord Pleanála?
Ms Maria Graham:
It happens with the board, which has a process around it. It tends to be because the last step in the process of the judicial review would be at that stage. It obviously happens in different ways depending on whether the court findings lead to legislative change which would require us to make a change to guidance or to legislation, for example.
One of the issues the Office of the Planning Regulator has been looking at with the local authorities is more formal systems of learning and development. They have recently put proposals into us that we will be looking at in the context of this year's Estimates cycle. That is around a programme of what people need to have at different levels, so we can ensure a more consistent approach to planning. The first step in doing that exercise was looking to see what people felt their needs were. It is an ongoing process but we are looking at formalising it into a more distinct programme.
I would like to make a recommendation for the dissemination of information at the various different levels where it is required. If one reads a court judgment, one sees that it is fairly or highly complex. I have tried to read a good few of them. The executive summary aspect could just go out to the general public as well, so they would know that such a development failed or that something in an environmental impact assessment report was not done properly, for example. This would create a better understanding. I would like to see something along those lines.
There is a complexity now in the submissions for local authority planners or for the board to consider. These are aspects such as water framework directives, flood risk assessments, habitats and birds directives, and severe time pressures. Has there been feedback from local authority planners to say these things are getting way too complex for the planners to try to assess within the period of time?
Ms Maria Graham:
We have had discussions with the planners, with Mr. Ryan, Ms Jones and Mr. Waters coming in on those discussions. People are conscious of the time, and everything that they have to do in the time, but there has not been a general ask for that time to be extended. There probably have been questions around the resourcing, the learning and development, and the clarity of guidance. They would be in favour of legislation that is clearer and guidance that is clearer so they know the framework within which they are making the decisions.
Mr. Colin Ryan:
That is a good reflection of the position that we have been informed of. It is about clarity and the steps that need to be taken. It is about the access to expertise. It is about those operational-type things. At the end of the day, the system has to make a good and robust decision that is timely and effective as well.
An Bord Pleanála is bound by the time element. It cannot extend it to give more time. If more resources or expertise are provided, it can meet that requirement within that timeframe. Is that more or less the thought process?
Ms Maria Graham:
We spoke about that alignment piece. It is about ensuring the processes work seamlessly together so that one is not going in different places to look for what one should be doing. It would be clear from the legislation and well signposted in the legislation that at a certain point in the process one needs to do X, Y and Z.
Sure. The first question I asked about the feedback and the learning would feed into that as well. It would highlight a step in the process where consistent mistakes were made or a mistake was made. This is not to blame anybody but it is a complex process.
Ms Maria Graham:
The Office of the Planning Regulator has a specific role in that learning, development and research. They have a number of systems around that kind of research role or areas, and have produced practice notes in different areas. In consultation with the Department they have done a whole series of notes on various aspects of the planning system that are directed at the public. They would also be looking at practice notes and specific areas where they believe people need to look more closely. Another aspect of their role is a systems review they have done with four local authorities so far. Apart from looking at an individual authority, that work can bring to the surface these kinds of issues where there may be learnings that are required.
Thank you. That is good to know. When a Part 8 application is done by a local authority that requires an environmental impact assessment, the decision is made by the board and not by the local authority members. What is the rationale behind that?
Mr. Colin Ryan:
The rationale is that effectively the proponent of the application, which is the local authority or the person making the notification of the Part 8 application, cannot be the one making the decision in relation to the environmental side of the house where the decision was taken. The board would act as the final arbiter in relation to the environmental side of the house where the environmental assessment relates to that proposal.
We have a Part 8 planning system where we allow local authority members to make a decision that local authorities apply for. That is the Part 8 system. If it requires an environmental impact statement, it would go straight to the board. I never knew what the rationale behind it was but if a person is putting in a planning application that requires an environmental impact assessment, the person can supply the environmental impact assessment.
But it is the councillors who make the decision on that, based on the report from the chief executive.
We spoke about the offshore renewable development that is going to happen. A lot of the time we are worried about a lack of data and information on the marine environment, marine species and a lot of the habitats out there. Is there an opportunity there? All of these developments must go through stringent environmental impact assessments with a huge amount of data gathering. These data can add to the body of knowledge that we have on the marine environment that we do not have already. Is there an opportunity there for all of this data to be taken in by the Department, or whoever it might be, so we can start gathering a much larger database of marine environment data? Has this been considered?
Ms Maria Graham:
Certainly a lot has been done in the marine consenting space to look at what advantages we can garner. It is a new system with digital approaches looking at the different components and what the research elements are. We can certainly consider the data set, how robust that is, and how it can be looked at and brought together.
Mr. Colin Ryan:
Marine.ie has been set up in relation to the gathering of data in the marine environment. That is the space where available data can be transmitted in the public realm. Whether that evolves over time is something we will have to give thought to as well. That is in place at the moment with the latest data we have.
That question strays outside what this addresses, but I do believe there is an opportunity there. Rather than just getting environmental impact assessment reports back from developers there is also the environmental data that come back in. We could have all of the data and not just in a report. There is a benefit that would accrue to the State over ten, 20 or 30 years of offshore renewable development.
Ms Maria Graham:
We are looking at how all of the State's resources in the marine space are put to the best use. There will be the establishment of the maritime area regularity authority, MARA. The board will have planning functions. There are also bodies such as the Marine Institute out there with a lot of research and data. It is about how we use all of those resources together. It is very much a collaborative space, which is the direction of travel on this. As Mr. Ryan has said, that was the idea behind what we have at the moment with Marine.ie and the mapping layers we have. If you want a consent in an area, you should be able to go on and find out what has already been consented for dredging, offshore or protected areas. They will be delineated in time.
I endorse Senator Boyhan's comments on the Dublin Democratic Planning Alliance. They have a lot of experience, expertise and knowledge. A lot of the alliance members have professional experience of many years. Engagement with them would be very useful. In the overall area of planning, complex planning law is bad law. I completely agree that it leads to confusion, delay and litigation.
Clear legislation has many benefits. If legislation is clear, it is much easier for the public to participate and for people to hold the entire process to account. It also means a reduction in delays. In 2018, the Chief Justice made comments about the importance of clear legislation, especially in respect of planning law, in an environmental context. He suggested that if legislation was done better in Leinster House, it would lead to much quicker decisions with less litigation and fewer delays on projects. He was pointing to that as the issue rather than access to the courts and justice, which I think is absolutely correct.
When we hear words like "streamlining", there is concern that it could potentially be used to undermine people's access to justice. That has been particularly important historically, as Senator Boyhan was saying, for environmental NGOs. There have been great advances for the environment as well as in other areas including workers' rights and equality. They have happened because of access to justice through the courts and through people looking for European Union law to be properly upheld and transposed. Could Ms Graham talk us through the timeline for the overall planning review? What are her thoughts and expectations at the moment?
Ms Maria Graham:
The work is moving apace, with the Attorney General working on legal aspects and on drafting the Bill. The block we expect to receive quite shortly or in the near term is judicial review, which will be the final block we will want to talk to. The Attorney General is still working towards this process all being completed by the end of December. I think in September we will have to come to judicial review and what the shape of it is. We are very much working to that end of year target. We will no doubt be in the Deputies' hands as that process evolves. We would hope in September to have a shape of the overall piece. There are things around transitional issues, moving from one to the other, what is in flight, and how we deal with all of those issues. We have been through these different elements with the planning advisory forum. We take the points the Senator has made about the inclusion of the Dublin Democratic Planning Alliance. We have a couple of others that we are looking at so we will look at that one. On the environmental question, we broadened it out on the theme. We will look at that. The other area we are looking at in September is probably with the planning schools, the academic piece, to deal with that aspect.
In a way these documents, including the one today, are headline overview consultation documents. Will the officials be coming back to the committee on the conclusion of the process when they have more concrete detail? Will we be able to input at that point?
Ms Maria Graham:
I think we are talking about the wrap-up session probably giving a reflection of what people felt in summary, with a synopsis and the direction of travel. Essentially for each of the documents, we have the questions, and what we would like to give is a synopsis of what the different views were and the likely direction in terms of the shape.
The concern I have is that while today's document contains nothing I would disagree with and is really good, I may well end up disagreeing with someone about how it is interpreted and implemented, or I may not. The detail is the important bit. I am just wondering about the concrete detail on process. On the whole planning review including today's, are the officials looking at good practice and planning legislation in other countries? What countries are they looking at or what are they drawing from? Can Ms Graham give us detail around that?
Ms Maria Graham:
The Attorney General's group is looking with colleagues in other countries at those different elements. We have our own EU unit that can gauge us in a number of groups. We also participate in the so-called five planning administrations, namely Northern Ireland, Scotland, Wales, England and Ireland. Being common law jurisdictions, there will be clearer commonalities with them. We have met the European Commission and set out what we are doing. It was agreed that we would go back and talk to them in more detail in September, so as to give them a flavour of what we were doing, and they pointed to some other countries that would be useful to talk to in terms of experience. It is being dealt with in a number of dimensions.
Ms Maria Graham:
While planning is a national competency, obviously when we get into the environmental sphere it is very much an EU competency. Senator Boyhan referred to case law. We are very aware of what is coming from the European Court of Justice and the kinds of issues that have been coming up over the years. We are watching those directions of travel. In our engagement with the Commission, this idea came up of overcomplicating. The possibility that we might have overcomplicated things in some of the ways we have transposed directives - that actually we may have complicated things too much - was a theme that came to me from the discussion. The Chair referred to the purpose of the environmental directives. This would be my sense of where they come from. The purpose is to protect the environment. It is important to come back to the main purpose and then ensure it is being transposed correctly from that point of view.
One of the things that is common in the European legislation is the concept of recitals, setting out at the beginning of the legislation what the intent is in doing it. It is very informative in terms of the interpretations. That is one of the things that may be important for us in concepts like planning and sustainable development. I refer to the overarching terms. It may be useful for the Planning Acts to be clearer at the outset as to what is it that we are trying to achieve. I am not sure if there was anything else that came from the discussions with the Commission.
I do not think I will take all my time. I want to focus in on a couple of pieces. The Chair spoke about the marine area. We all know the targets out to 2030 in terms of the 5 GW. There is a special transition arrangement in place to allow for a number of projects to proceed through a process with the Department. All others will require MARA to be established to go through the marine area consent process. I am wondering where we are in that regard. When that Bill was being passed, the one concern I had was that the establishment of MARA could be delayed, which could have an impact down the line on our targets for 2030. I wondered if it was appropriate to allow for a number of additional projects to be admitted into that special transition arrangement. I am wondering when we expect to have MARA established and whether our 5 GW target to 2030 is still a realistic goal.
Ms Maria Graham:
We are on track with the development of MARA. We have set up a separate establishment unit within the marine planning area of the Department. The unit is headed up at principal officer level and has a number of staff in the expectation that they will be deployed to MARA in the first instance. We are starting an advance process. They are going through all of the different elements that are required to establish MARA. Shortly we hope to recruit the chief executive, put in place the board and assess the skills that are required for MARA, the accommodation and everything else as well as the processes. There is huge work in hand and the Department is well resourced to do that.
We will have regular and structured engagement with the Department of the Environment, Climate and Communications, which is leading on this. That Department is considering the MAP process for the transitional projects. We are also gearing up the board, which will have to take on the pre-application discussions in the latter half of this year for any projects, if any emerge. Both my Department and the Department of the Environment, Climate and Communications have talked to the board about its resourcing needs. The project is very much a priority and we are looking at that. In the meantime, projects remain with the foreshore arrangements. By and large, what foreshore is dealing with is a lot of the site investigations and there are numerous requests in there that we are processing for site investigation.
That is good to hear.
On environmental impact assessments, EIAs, for solar energy projects, they are not required per sebut a local authority can request an EIA to be carried out. What is the rationale for that? Is there an intention that guidelines similar to what is place for wind energy will be applied to solar energy? Are regulations being considered and, if not, why not?
Ms Maria Graham:
We are looking at regulations around exemptions for elements of solar power, which are smaller scale projects that encompass community buildings. The public consultation phase for that has just finished and findings are being finalised.
For large-scale projects, my understanding is that they are not mentioned in the directive and that is the rationale. A renewable energy guidance policy and the need for it would be defined, in the first instance, by the Department of the Environment, Climate and Communications. The planning system is around the process and the guidance that one gives to the projects. If it is determined that it would be useful to give guidance to ensure a consistent approach, whether that is for floods, childcare facilities or aspects of renewable energy, then we are happy to work through that process from a planning perspective but there must be a clear policy, which is articulated by whoever creates the policy, and an operational piece from planning. I ask Mr. Ryan to comment on EIAs.
Regarding consistency, a certain large-scale solar development may require an EIA whereas another may not or one local authority may determine where another local authority may not and communities are often left frustrated in such a situation. Many solar farm developments have been approved in my own county of Waterford. I do not oppose solar farm development but some people in the community are concerned that no EIA was carried out as part of the process.
Mr. Colin Ryan:
An EIA is governed by the annexes on uses that have been set out and a project must fall within the remit of an annex in order for an EIA to be required. Another consistency issue is consistency in decision-making, which points to what Ms Graham spoke about, which is guidelines and another matter entirely separate from the EIA side of the house.
I thank the witnesses for their numerous attendances at our committee meetings over the last two years, and particularly the last 18 months. I appreciate the volume of work done by the Department, the legislation that is passing through Ms Graham's office and the pressure her office is under to deal with the matter. I express my thanks now as our discussions can be robust, to put it mildly.
I welcome the opportunity to talk to the delegation because a lot of legislation, regulations and guidelines arrive in a piecemeal fashion or are drip-fed through various schemes, amendments or new guidelines so it can be extremely difficult to be up to date with them, especially regarding environmental assessments. That is why I welcome our engagement and appreciate all of the work done. I know that something which might be appropriate now may not be appropriate in five years' time, which is the angle we are coming at here. Future proofing is commendable and we need legislation to deal with that but is the Department looking at ways to ensure that changes and adaptations are quickly communicated?
Ms Maria Graham:
The Deputy's question probably speaks to our point about learning and development and the need for a consistent approach around some of those changes. Certainly that is something we are looking at with the Office of the Planning Regulator, OPR. We issue regular circulars and communication to local authorities when there are changes in legislation. I agree with the Deputy that sometimes one looks at these things in isolation rather than as part of the bigger picture.
Returning to the idea of being very clear about what the intent of legislation is and the purpose of things can be useful to ground any changes, which is why we will consider a deeper process of learning and development to be made available to local authorities in a more structured way so that it is not all on the individuals and individual local authorities to do that. We are exploring that piece at the moment because, particularly around case law and European case law, it is a changing picture. I mean cases come up and new aspects and clarifications come.
I think the organisational review of An Bord Pleanála mentioned that concepts change over time. I mean what we call sustainable development now may not be what we termed sustainable development ten years go.
Ms Maria Graham:
Concepts evolve, and concepts by societies evolve. We must strike a balance in legislation on the purpose and process yet allow for evolution that may come through the plan-making process, for example, for agreement at local level and at the national plan level in terms of identifying the key objectives for any period ahead.
When considering environmental impact assessment sometimes the language or jargon used can be complex.
I refer to EIA processes and imperative reasons of overriding public interest, IROPI, processes. It is a lot to wrap your head around, especially for an ordinary member of the public. A person like me would have a foundation or a basic understanding of the planning process, but a lot of people would not have, and it is complex even for me. Is the Department going to ensure that the language is suitable for the public and that it is straightforward so that people can read and understand what is meant and what they need? Ms Graham made a point earlier about what people need and what we have to do so that people can understand the legislation and that it speaks to everyone.
Ms Maria Graham:
One of the issues is that much of the language comes from directives. Deputy Gould mentioned IROPI. I always struggle myself to remember what is meant but we get used to the language. For example, what does "I" stand for? It is "imperative" and "reasons of overriding public interest" follows. We get used to using acronyms and it makes it a bit impenetrable for the public. One of the specific roles of the Office of the Planning Regulator is to produce planning leaflets that describe these different elements. That is an important piece. The degree to which we can be clear about the language within the legislation and that it means the same thing when it is used is important. Sometimes we say "take account of" and sometimes we say "have regard to". Is there a difference in the meaning? We are conscious of the jargon but there is probably a piece to make sure there is a plain speaking guide in terms of the leaflet.
That is it: plain speaking. There is one other issue. I will not go into individual cases, but it goes back to a point that was made earlier about planning. I was contacted by a person in a case where planning permission had been sought for a solar farm in an area. A second planning permission was sought for a second solar farm in a different area. Then a third application for planning permission was made which just happened to be in the middle of the two areas and connected them. Should that not have been the one planning application? Now there is another planning application to put in a substation. What happened when it went to public consultation was that people were consulted on the applications separately when they should have consulted people on all the applications at the same time if it was open and transparent. The reason there is sometimes a lack of trust in the public around planning is that they see things like this happening. These applications should have been presented together. Everyone should have had their ideas heard. I support renewable energy creation such as solar, wind and wave energy, but when we see things like that happening communities feel it is an act.
Ms Maria Graham:
I will hand over to Mr. Ryan. There is case law around project splitting and ensuring that the totality of projects is known. The leading case in Ireland related to a wind farm where the grid connection was not taken into account. That is a fundamental piece of planning at the moment because sometimes there can be cumulative impact. It can be difficult if the timing of the applications is different. I cannot go into an individual case.
Mr. Colin Ryan:
Similarly, I cannot comment on individual cases. Senator Cummins asked a question about the environmental impact assessment report, EIAR. The European annexes set out the uses that require an EIAR. If you do not fall within it then you are outside of that regime. That is not to say that you should not come together with one application. People make decisions in terms of making planning applications in their own interests. The planning authority is faced with having to make that decision on valid applications that are put before it. As Ms Graham said, there are issues regarding project splitting, and without going into detail, that can present itself over time. There is case law in that regard. It relates to EIAR applications as opposed to individual applications. You could make an application for one house today, then another house beside it and another house further down the street, so to speak. The planning authority makes the decision to validate the application in accordance with the regulations and the Act. If it is faced with a planning application today, it must deal with it, for better or worse, and make a decision. If a similar application comes in the next day in the field next door then it has to make a decision on that as well. It must decide on the individual applications before it. I do not know if that helps.
I note Ms Graham's interpretation of sustainability is something that has been stretched. There is the Brundtland description of it. An Irish politician describes sustainable development as development which must be sustained. I believe that is the case, although I never heard it said. A well-known Irish politician was credited with that interpretation many years ago.
To assist Deputy Gould with the issue of permission for solar farms. If farmers, for example, with a 100 acre holding release more than 49% of their land holding, they lose their single farm payment. What happens as a result is that three or four farmers come together. To make it viable to build a solar farm, you need between 180 acres and 200 acres with a high-power line. Often, a company goes to more than one farmer and by the time the process is finished there might be three or four applications from the one company trying to make the whole unit viable. That is a lot of the reason different applications go in at certain times. A company might get one farmer and then get a second farm that is close enough and then it might try to link two or three farms together to make one project in order to make it viable.
That is it. I thank the committee for all the work it has done. Planning and environmental issues are something I am interested in as I have been in construction all my life. My question is on solar farms. Up to what kilowatt level would the Department consider a small solar farm development to be exempt from planning? The reason I ask is following Covid and the high rise in energy costs. Is there a certain square metreage or kilowatt level of solar farm that will be recommended to be exempt? At present, no matter what business you are in, if you decide you want to put up a 90 kW solar farm, you are guaranteed there will be an objection from an objection company from outside of the area that is objecting to all solar farms at the moment regardless of their size. Objections are coming in even if it is only to produce electricity for one building. Then the application has to go through the planning process. In terms of the sustainability of a small business or a hotel or leisure centre, what would be considered an adequate size that would be acceptable within the planning framework?
Mr. Colin Ryan:
As Ms Graham said, there are exemption rules that are going through the process at the moment. They deal, first of all, with domestic cases to increase the capability for domestic housing to be exempt for solar projects. In regard to community, industrial and commercial activities, it is effectively the roof space that can be utilised for exempted purposes, subject to certain rules. I do not have the details, but I think it involves setback.
I am sorry to cut across Ms Graham, but I want to get this right. The question is if hotels and other such areas are included. Most solar farms at the moment are being put in fields because they are not recommended to go on roofs. Many of the roof designs are not capable of accommodating solar panels because of the wind that could be trapped which would cause vibrations. They are great for flat roofs with a slight slope, which is fine, but when you have an elevated roof at 25° or 30° many of them are not designed to accommodate them.
Often, if one goes out with a sheet of cardboard on a windy day, the wind has a certain amount of vibration. It can loosen slates on roofs. Many people are going to their fields now where they have a field. Can they transfer the same size of the area of their roof space to a field and look for an exemption?
Ms Maria Graham:
We will send them on because they are the technical details in the exemption. We will send on the link to the draft regulations that have been out for public consultation but, obviously, whatever comes back in, in terms of public consultation, will determine what the final regulations will be. We would expect that to be in September. We will send the link to the Chairman.
My other question is on the planning framework from an environmental point of view for County Limerick. From the details the Department has at the moment, it probably has a footprint map of Ireland as a whole. It can see the weak areas that do not have infrastructure and that are being taken out of the local area plans because of lack of infrastructure for forward planning.
In counties like Limerick, we are looking at it from the point of view that many areas do not have a proper adequate sewerage system. A recent report showed that the biggest polluters in County Limerick are the local authorities from the amount of sewerage that is going into the rivers. It is also stopping the planning and framework for rebuilding the likes of County Limerick in its entirety, however. It is only going to areas now where local area plans show towns and villages - mainly towns - that have sewerage capacity, which takes out two thirds of County Limerick from the point of view of infrastructure. It puts the rest of the county at a disadvantage when encouraging business into an area and bringing people home, having housing within an area and making it sustainable for sports, local businesses and local shops. These areas are at a disadvantage. In all the records it holds at the moment, does the Department have a detailed plan that shows the weak and strong areas within Ireland that need to be invested in and that could be put forward to the Government to show what the future could hold for Ireland if proper infrastructure was put in place?
Ms Maria Graham:
We start from the national planning framework, which looks at an increase in population of 1 million by 2040. That is paired then with the national development plan to look at the infrastructure and cost of investment that has to go into supporting that national planning framework. Obviously, the national planning framework is based on growth of regional cities and brownfields and also growth in other areas. There will obviously be a huge population increase to deal with.
I went to a conference a number of years ago in the OECD, during which the Secretary General talked about the importance of investment not being spatially blind and that any investment had to take account of the spatial impact. The idea of Project Ireland 2040 was that we brought the national development plan and national planning framework together.
In terms of specific infrastructure then within it, each of the different areas would be looking at what provision is required to deliver on the national planning framework whether that is education, transport or water services. My understanding is that Irish Water has done capacity reviews of where there is capacity and where it needs to invest, and that is reflected in its national development plan.
Obviously, when it comes down through the regional areas and into the local authorities when we get to the county development plan, there is an assessment to be made in the six-year timeline of where there is capacity, where there will be investment, where there needs to be development and how can that be sequenced. Therefore, it is always about trying to make the best we can of the resources to meet that. It will never be that 100% can be done but certainly from a planning perspective, we are anxious to ensure that sufficient land is zoned and serviced for the needs, whether that is residential or jobs, and probably that a second tier of land is zoned and serviceable in the period. We are then consistently looking at that period.
I know there are always challenges. We deal with the Town Centre First perspective in the planning side of the Department and I know Irish Water particularly has a towns and villages programme. We are really interested in that development in towns as well as cities to make sure they grow. We had quite a discussion earlier in the year around urban development. There will always be gaps but there is significant resourcing, which I think is in the region of €165 billion. There are a lot of resources going in; it is making the best use of those resources in the time available.
I will return to the points Senator Cummins made earlier. It is important to express the confidence we have in delivering 5 GW of offshore energy and likely 2 GW to 3 GW of solar capacity plus the 4 GW to 5 GW of onshore energy. We introduced one of the most complex and biggest pieces of planning legislation that went through this committee last year in terms of the Maritime Area Planning Act 2021 to be able to provide that fit-for-purpose planning system. In fact, the planning Bill today introduces changes that will facilitate the Maritime Area Regulatory Authority, MARA, and facilitate some of that design flexibility that is probably required in it. We just need to be careful that the environmental impact assessments can take account of that design flexibility. What we do not want to do is create further uncertainty in it. There is progress on it, however. Planning permission was given for the Youghal interconnector and recently for the onshore cable at Arklow Bank phase 2. There is, therefore, quite good progress in that area.
I will briefly return to some questions. This will probably be the final input unless Senator Cummins wishes to come in. Assistance to local authorities to deal with maritime area plans for their jurisdiction goes out 3 km or 3 miles. Have they put their hands up for assistance to deal with that? I know there will not be that many applications but what is the thought process for local authorities to be able to assess environmental impact assessments for an area with which they would not necessarily have been that familiar before?
Ms Maria Graham:
We are looking at that as part of the skills. First, we are looking more broadly at local authorities and their skills and resourcing needs but specifically, for example, the potential within that marine space for sharing of services to do that kind of work for coastal local authorities because, obviously, those do not include all local authorities. As the Chairman said, the frequency of application may be varied. That is one of the areas being explored with local authorities in terms of the kinds of resourcing they may wish to have.
As I said, we are also looking at what resources may be available to the State that could be used and deployed in that fashion without counteracting whatever the purpose of the organisation may be and whether there is some way the existing resources can be shared. That is ongoing at the moment.
On the question of strategic environmental assessment, SEA, then, each county carries out its own SEA with its development plan process. Has consideration been given that we could do it on a regional basis or sub-regional basis with maybe two or three local authorities, especially as we are aligning county development plans now as well? An SEA could be done to free up that resource. It is kind of resource heavy to do one for each county.
Mr. Colin Ryan:
The recognised environmental concerns, REC, are strategically environmentally assessed in the first instance. The second issue then is that each plan stands on its own two feet and requires an SEA to be done in relation to that proposal. The issue is that we might have to combine them, which poses issues from the point of view of the plan itself and the individual four walls of that plan, notwithstanding that there might be a number of plans taking account of one another.
Certainly, we would agree that skills and things like that would be utilised across local authorities to a degree. It poses more fundamental questions to do with the sanctity of the plan that is going through, however, because there are individual requirements, policies and objectives that relate to that particular local authority, notwithstanding that fact it obviously has a wider context it works within.
Ms Maria Graham:
We were talking about shortening plans and making them more succinct. Perhaps where national and regional policies have already been strategically environmentally assessed is the point from which we move off rather than the whole thing being subject again to an SEA.
There is a divergence there and a question of bringing it down to the next level of granular detail that is subject to an SEA. That is something with which we have to grapple.
There was discussion about county development plans possibly being extended, with suggestions that a ten-year timeframe might be more suitable. I cannot remember whether we discussed it with the departmental witnesses or with somebody else. Where one is trying to perform an SEA on a ten-year plan, we will see deteriorations in environment and we will not see action on climate emissions. Will it be necessary to have regular assessments of the SEA and how accurate it is if we are going to extend plans out to ten years?
Mr. Colin Ryan:
There certainly would be a review process and monitoring is also an issue. We brought this up in regard to the development plan guidelines that were recently published. They would reflect SEAs as well. The SEA must be done for the period of the plan. It is an assessment of the likely effects on the environment.
However, if one is assessing how the environment is to be impacted or how it may deteriorate for external or climactic reasons, then the assessment might be dated after five years of a ten-year plan. Will there be monitoring of the accuracy of the assessment of the SEA?
Mr. Colin Ryan:
There would be monitoring as part of the operation of the plan, which reflects a number of issues. There would be an assessment of the consistency with the plan objectives and the consistency with the environmental effects of those objectives being operationalised. That is how one would monitor the situation into the future. As Ms Graham said, there will be a review process and we will have to look at how the SEA would sit in that context, whether it relates to the changes that are taking place or if there is a need for more overall SEAs. We will have to give that some thought.
Is there a comparison of the reviews of counties' SEAs as to which have done it fairly well and which have not? I have in mind the reports we get from the National Oversight and Audit Commission, NOAC, on how local government is performing. Do we have something similar for SEAs for development plans?
Mr. Colin Ryan:
There is nothing so formal as that at the moment, as I understand it. However, local authorities, as they come to their new plan, would review where they stand with the previous plan. At least the previous two plan cycles would have included SEAs and even possibly the previous four, depending on the period. Certainly, the previous two to three plan cycles would have involved SEAs. The local authority would look at each one as it comes along and build upon information it has to hand from monitoring and considering the previous plan that is being reviewed as part of the SEA process.
A point that is often raised with me is that it is the applicant who is employing someone to do an EIA on behalf of the development for which he or she is applying. There is a question around whether the applicant is objective in respect of the findings, recommendations, mitigations or whatever it might be arising out of the assessment. In some European countries, I understand, the assessment is not done by the applicant but is carried out independently by a third party. Are the witnesses aware of that process? All member states are governed by the same EU directives but, obviously, local and national laws govern how the directives are applied.
Mr. Colin Ryan:
As I understand it, there is a requirement that the proponent of the application provides information on the environment, which is set out in the environmental impact assessment report, EIAR. The requirements as to what goes into that are governed by EU directives and set out in schedules in planning law and regulations. As I understand it, the requirement is the same across Europe but how it is assessed is a different matter.
It is a question that comes up time and again, especially where permission is given that people feel should not have been given. It is pointed out that the EIAR was done by the applicant. I am not questioning that process but some people do.
As I recall, the Netherlands is an example of a jurisdiction in which it is done in a different manner. The planning Bill we will be dealing with tomorrow refers to remedial EIARs. Is it set out clearly in the directives what an EIAR is in the context, for instance, of substitute consent applications?
Ms Maria Graham:
I would have to go back and look. I do not have the directive in front of me. We are happy that the system we are putting in place is compliant with the directive. We have had a number of conversations with the European Commission around the substitute consent provisions in the legislation. The Commission is familiar with what we intend to do. We had one trip to Brussels and a couple of Webex conferences in which we discussed the matter.
The committee carried out pre-legislative scrutiny on the substitute consent provisions, we had the witnesses in to discuss it and we did research on it. However, I do not know what has to be contained in the remedial EIAR. One of the concerns I have is how one assesses a site where there might have been unauthorised development for many a decade. What would the baseline condition be if an EIA had been carried out when it should have been?
I thank Ms Graham. I have received notification that the vote of confidence is happening in the Dáil. I do not want to miss that. I thank the witnesses for their attendance. We look forward to paper No. 6, which deals with judicial reviews, in September. As I said at the outset, we will be available to work with the witnesses on the legislation that is going to unfold from that.