Steven Matthews (Wicklow, Green Party)
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Good afternoon and welcome to this meeting of the Oireachtas Joint Committee on Housing, Local Government and Heritage, at which we will continue our pre-legislative scrutiny of the draft planning and development Bill 2022. We are joined today from the Irish Environmental Network, IEN, by Ms Attracta Uí Bhroin. Ms Phoebe Duvall and Dr. Elaine McGoff of An Taisce are both appearing with the IEN, as is Dr. Fred Logue. I thank them for their attendance. From the Royal Institute of the Architects of Ireland, RIAI, we are joined by Ms Kathryn Meghen and Ms Charlotte Sheridan. They are both very welcome. I am glad they could attend. We had invited them to attend with the planning institutes but we are happy to accommodate them at the session today. I thank the witnesses for their opening statements and briefings they submitted in advance of today's meeting.

I will read a brief note on privilege. Before we begin, I remind members of the constitutional requirement that members must be physically present within the confines of the place where Parliament has chosen to sit, namely, Leinster House, in order to participate in public meetings. Those attending in the committee room are protected by absolute privilege in respect of their contributions to today’s meetings. 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, and it is my duty as Chair to ensure that 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 and it is imperative that 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 will ask Ms Uí Bhroin of IEN to make her opening statement first and then Ms Meghen of RIAI to make hers. Before we move on to those statements, I will fill in the witnesses. This is the seventh meeting of our scrutiny of this Bill. We will hold another three meetings and then we will produce a report of recommendations, which will be informed by written submissions we have received and by these public sessions. We appreciate the witnesses giving their time to attend the committee and assisting us in getting this necessary legislation right in order that it serves us for the next decade or two and enables us to deliver the infrastructure we need and to be compliant with the intricacies and complexities of law that exists. The order we follow is that each member has seven minutes to ask questions and must receive the answers within that time. We then might have time to go to a second round.

I invite Ms Uí Bhroin to make the opening statement on behalf of IEN.

Ms Attracta U? Bhroin:

A Chathaoirligh and members of the committee, we wish to open by expressing our sincere appreciation for the invitation to engage with the committee in this hearing on this critically important draft Bill and for its recognition of IEN as a key constituency of stakeholders with an interest in, experience of and expertise in these matters. I am IEN’s environmental law officer. I represented the environmental pillar on the planning advisory forum, a stakeholder group for the Attorney General’s review of the Planning and Development Act. Ms Phoebe Duvall, planning and environmental policy officer with An Taisce, who represented An Taisce on the forum, joins me today and will give part of this opening statement. She is here with Dr. Elaine McGoff who is on the environmental pillar’s steering committee and is natural environment officer at An Taisce. We are delighted to be joined by Dr. Fred Logue, managing partner, FP Logue Law LLP. We hope his further expertise and experience will be of use to the committee in its considerations during the pre-legislative scrutiny process. We acknowledge the public interest served by his constructive engagements to ensure this Bill provides a legally compliant, sensible and robust legislative framework for planning and development in Ireland.

Ms Phoebe Duvall:

We naturally welcomed the concept of a review of the Planning and Development Act 2000, the publication of a draft Bill which promised clarity, consistency and certainty in how planning decisions are made; and a planning system which was more coherent and user-friendly for the public and planning practitioners. A key rationale for this overhaul is the need to support the urgent delivery of hundreds of thousands of homes and critical infrastructure, including for energy and transport. We are concerned that in many respects we see conflict, dysfunction and delay resulting from this draft legislation, rather than the much-needed coherence, efficiency and speed. We welcome the Bill’s objectives around a plan-led approach, as well as coherence and integration in land-use planning and policy hierarchies. These are fundamental principles underpinning key EU directives governing our approach to land-use planning and policies, including the strategic environmental assessment, SEA, directive and its hierarchical relationship to project level assessments under, for example, the environmental impact assessment, EIA, directive.

However, we are concerned at a further fundamental erosion of local government democracy and the further centralisation of power without adequate legislative safeguards on assessment, consultation and participation obligations or on democratic oversight and controls. This is particularly the case in Part 3 of the Bill on the overarching plan and policy framework, as well as in Part 4. It is then compounded by the erosion of environmental democracy and the rights of the public to information, participation and to hold public authorities to account before the courts, through rights of access to justice. As drafted, the Bill risks simply moving the battlefield upstream in the planning system, from applications to higher level plans and policies, if it does not seek to fairly and lawfully resolve all these issues. As it stands, the Bill fails to ensure compliance with environmental assessments or with effective participation obligations in forward planning and the realignment of plans, while the effects of central Government plans and policies cascade through the planning system. In addition, the untrammelled power of the Minister proposed under section 22 to perpetuate current section 28 guidelines is of serious concern. Ultimately, to address the crises in housing, energy, climate, biodiversity loss and so on, we must ensure lawfulness across the board, from individual planning decisions all the way through the hierarchy of plans. Otherwise we will end up with multiple Derrybriens. As many of the plans and policies will be controversial, it is all the more important to ensure they are compliant.

Ms Attracta U? Bhroin:

Furthermore, even with the best will in the world, given the scale of changes presented in this Bill and how it may be advanced, there will be errors in the legislation leading to flawed decisions. That risk is compounded by the massive deficit of at least 541 resources in planning in local authorities and serious resourcing issues in An Bord Pleanála, alongside all the changes it is experiencing, and concerns about its independence. Our courts are ultimately the great clearing house for all those flawed decisions. It is therefore entirely dysfunctional and counterintuitive to compromise access to the courts with this Bill.

Now, more than ever, we will need to be sure courts can be accessed quickly and efficiently, and add their important value to our planning system, as provided for under our Constitution, EU law and the Aarhus Convention.

However, alarmingly, in Part 9 in particular, with changes to judicial review, the Bill proposes a veritable cat’s cradle of obstacles making it more difficult for the public to hold a whole range of public authorities to account before the courts for the lawfulness of their decisions, via judicial review. Some of the obstacles are replicated for even making an appeal to An Bord Pleanála, which is to be called An Coimisiún Pleanála. Rather than speeding things up, this risks creating and adding to delays, as the legality of these new restrictions will inevitably be challenged and argued first. This adds to the complexity of any particular court case, and to its duration and costs. This is a phenomenon known as satellite litigation. The uncertainties arising from any such challenge will spread like a virus through the whole system. The resolution and determination of these matters may end up involving references to the European Court of Justice to clarify questions on EU law and to assist the national court in deciding matters, a process which typically takes at least 18 months or more.

The individual changes raise serious legal concerns, but they also need to be viewed collectively in terms of how they work together to compromise wide access to justice and make access to the courts excessively difficult. These changes raise serious issues of compliance with EU law, Aarhus Convention obligations, and our Constitution.

The programme for Government promised a review and reform of judicial review. Where is this review rationalising the changes to judicial review? Where is the evidence required to justify the proportionality of a response which impinges on EU law rights to an effective judicial remedy under the charter and under the treaties, and as required by the European Court of Justice? That is what is at stake here. Judicial review, and those who pursue it, have become unjustifiably subject to a toxic narrative. However, as the Planning Regulator highlighted to this committee, the recently published overview of planning for 2021 highlights that approximately 3% of An Bord Pleanála’s decisions were subject to judicial review when measured against decisions made, and that these were overwhelmingly justified.

Let us be clear: you do not want unlawful decisions being built upon. It is bad enough when the actual materials of buildings and homes are faulty, but when the very concept of the development itself, which is someone’s home or critical infrastructure, is unlawful, that is a nightmare, in legal and practical terms. Further issues arise when homes and infrastructure are built in places where they are unsustainable, due to flawed assessments and decisions.

We are concerned at the risk of these provisions causing delays and compromising our collective need to ensure lawful, and sustainable outcomes for a range of planning decisions. However, we also make no apology for defending the right of access to the courts to hold public authorities to account, and all the principles for effective access to justice. It is a fundamental element of the architecture of the rule of law in our democracy.

We recommend that Part 9 should be deleted, and sections 50, 50A and 50B of the Planning and Development Act 2000 should be maintained, with their outstanding issues of non-compliance corrected with a supplementary scheme to address legal aid obligations. We would welcome an opportunity to expand on the concerns on judicial review later.

We also wish to highlight fundamental concerns with the process for this legislation, including the limited input we have had to the Bill; the need for public consultation on this Bill; the need for multiple impact analyses of and for this legislation to support the Legislature's decisions; and the understanding of the systems changes the Bill will precipitate, and what is needed to implement them effectively.

Also of concern is how the Government unusually presented a draft Bill for pre-legislative scrutiny, meaning we all have lost the benefit of the explanatory rationale for each head which would normally be provided in a general scheme of a Bill, with changes highlighted. We recommend the rationale for the changes proposed be set out, and where required the detailed evidence base to support them be made publicly available well before this is advanced before the Oireachtas. Such omissions in the presentation of this draft Bill are unacceptable, given that it will govern practically every element of the physical world that the public experiences, and the state of the environment on which they and future generations depend. These omissions place a significant burden on legislators. This is quite apart from the fact there is no published outcome from the fitness check the Attorney General was charged to conduct.

Our final high-level recommendation is on ensuring adequate time is afforded to address this legislation, given the major issues identified through this pre-legislative scrutiny, the many corrections and inconsistencies to be resolved, and the further complex areas still to come. We would welcome an opportunity to elaborate on these and further concerns, including in respect of section 8 declarations and reliance on them under section 9; appeals; material contravention; information, participation and consultation; fees; extension to duration of permissions; and environmental assessments.

I thank the Cathaoirleach and the committee once again for this opportunity, we will endeavour to answer your questions to the best of our ability and to revert promptly with any details or clarifications sought in our furthermore detailed submission.

Steven Matthews (Wicklow, Green Party)
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I thank Ms Uí Bhroin. I am going to move on to Ms Meghen to make the opening statement on behalf of the RIAI.

Ms Kathryn Meghen:

I thank the Cathaoirleach, Deputies and Senators for the opportunity to address the committee on this important legislation. I am the CEO at the RIAI, and I am joined by Ms Charlotte Sheridan, president of the RIAI.

I would like to provide some background about the institute. It was founded in 1839, and has more than 4,000 individual members who are registered architects and architectural technologists. Our members work in the public, private and voluntary sectors, and they work on a daily basis engaging with the planning system in the delivery of places to live, work and recreate.

We believe the review of the Planning and Development Act provides a once in a generation opportunity to create a system which supports the needs and ambitions of the people. It is essential that the Oireachtas takes this opportunity to deliver a Planning and Development Act that is fit for this purpose. It must meet the true purpose of planning, which is to take a long-term view of the population, demographic and built environment needs of the country, and provide a system that proactively manages the development and use of land in the long-term public interest. The Planning and Development Act must allow all those impacted the opportunity to actively engage at an early stage to shape their communities in a productive, proactive and non-adversarial manner.

We need to take this opportunity to change the culture of how we plan. The RIAI welcomed the adoption by the Government of the national policy of architecture, Places for People, in 2022. This policy sets out the Government’s ambition to promote and embed quality in architecture and place-making, and to increase environmental, economic and social sustainability and resilience. This ambition needs to be embedded in the culture of planning and in the new planning and development Act.

The RIAI would strongly recommend that we look to our European counterparts, who have adopted a multidisciplinary collaborative approach between all stakeholders to deliver a design-led, three-dimensional system of planning. The RIAI believes that providing design-led plans that have had the benefit of public engagement and are delivered in a format that the public can clearly understand will create greater certainty, and could significantly reduce the number of objections and legal challenges, and enhance the quality of outcomes.

We would like to mention a research project, Irish Cities 2070, which is led by a group within the RIAI with colleagues from the Irish Academy of Engineering, and other disciplines. The project illustrates what a multidisciplinary, plan-led approach in an Irish context can deliver. We have provided a link to the project within the submission. There are previous Irish examples, such as Westport 2000, and the Dublin docklands planning scheme and SDZ. These projects had very good outcomes, but they should become the mainstream. At the moment, they are very much the exception.

We believe that delivering the clarity, certainty and consistency that the Bill intends will require a shift in focus from development management to forward planning, and this needs resources with the right skillsets. Architects' expertise is in the design and delivery of the built environment. Their expertise includes taking a holistic and three-dimensional approach to development, and to achieve the outcomes needed. There must be a multidisciplinary leadership that includes architects at senior levels within the process. The public sector has seen a diminution of the influence of architects over the last 20 years, and the position of city and county architects has been reduced, with some local authorities having no architects' department. This needs to be addressed, and local authorities empowered to work proactively on behalf of their communities.

We need to move to quality-focused development management and decision-making. RIAI members frequently encounter challenges arising at pre-planning, due to the lack of vision within the development plans in the first instance, and the lack of multidisciplinary engagement. This results in inadequate direction, and very often, despite significant costs in the development of detailed planning applications, they can conclude with an absolute refusal. This generates uncertainty, and each refusal undermines confidence within the system, discouraging investment and adding to the cost of homes. The pre-planning phase needs to be proactive, collaborative, and between the local authority, the applicant and the community.

In regard to the specifics of the Bill, the RIAI welcomes the provisions which are in line with delivering clarity, certainty and consistency. Specifically, we welcome the proposal to increase the duration of local authority development plans from six to ten years to create long-term visions, and to make more efficient use of resources. We welcome the proposal to create new categories of local area plans. Taken together, these proposals will help to move to a system which is plan-led and could provide better quality outcomes.

We support the deployment of new digital technologies within the planning process but these need to go beyond e-planning. We need to adopt technologies in gathering baseline data and the use of these to inform development plans and stakeholder engagement and to measure outcomes. The RIAI recommends that professional bodies such as the RIAI, the Irish Planning Institute, IPI, and the Royal Town Planning Institute, RTPI, would have a role in the promotion and assessment of new board members to An Bord Pleanála. The RIAI supports the proposal to strengthen the legal status of ministerial guidelines that help promote consistent implementation of planning law nationwide, achieving more certainty and consistency in decision-making. We support the statutory mandatory timelines, which could bring certainty to the consent process. However, we suggest that these timelines be nuanced to reflect the scale and complexity of applications. We believe that properly resourcing the system in a way that allows timelines to be met is preferable to the use of fines.

Delivery of housing is one of the greatest challenges facing the country. Before concluding, I would like to take the opportunity to mention a recent submission the RIAI made to the Minister for Housing, Local Government and Heritage for a new category of low-rise medium-density housing. We believe that were guidelines brought in to bring forward this type of housing, it would increase supply of quality homes.

Our current housing standards, rooted in century-old guidance, are delivering low-density suburban housing enclaves, often with less than 30 units to the acre. There is an alternative. We are suggesting that this model of low-rise medium-density housing should be introduced as a priority by a new ministerial directive for national housing planning standards. Throughout Europe, there are many exceptional, high-quality examples of this type of housing development but virtually none in Ireland. We would be happy to provide the committee with more detail.

Finally, on behalf of the RIAI, I would like to thank the committee for the invitation to appear and discuss the Bill. We are engaged in a more detailed review of the content of the Bill and will be making a further submission.

Steven Matthews (Wicklow, Green Party)
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On the paper the RIAI produced on low-rise medium-density housing, I note the committee intends to have one or two meetings, probably in April or May, looking at design, density, delivery and all the different factors that impact that. We will be exploring that further.

Mary Fitzpatrick (Fianna Fail)
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I thank all of the witnesses for attending. We appreciate their contributions to our work.

Everybody accepts that the ambition is to have a greater certainty, clarity and consistency in planning and that we would have a plan-led approach to developments, be they residential, large-scale or even small-scale. It is kind of a nirvana that we all aspire to. The RIAI representatives clearly stated their support for extending the development plans to ten years. From their professional perspective, what would the benefit of that be?

Ms Charlotte Sheridan:

On the benefit of the ten-year development plan, the discussions we have had on this and what we have experienced is there is a significant amount of data that must be gathered in the preparation of these development plans. Within that context, it is beneficial and valuable that you rely on that information for that longer period. It gives you the opportunity as well to have visibility on the outcomes of that. What is absolutely critical is that you have that baseline data and that you can ensure that you can re-evaluate and assess to what extent you are achieving the overall objectives. In the context of any development, a five-year time period is very short in terms of the time it takes making applications, delivering infrastructure to facilitate development and bringing that development through. The ten-year period will allow you to meet the aims, objectives and policies of the development plan. In that context, it could be a very useful use of resources and time.

Mary Fitzpatrick (Fianna Fail)
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Okay. That is great. I would be interested as well in the Irish Environmental Network’s view on the proposal for ten-year plans.

Ms Attracta U? Bhroin:

I might turn to my colleague, Ms Duvall, also to respond on this. In general, we understand the rationale for the ten-year plan. However, fundamentally, we share concerns that have been expressed to this committee about the time needed to prepare. More time is needed. We reflect similar concerns to the RIAI in terms of having proper information to inform the process. In the past 12 months, we have all seen extraordinary changes that none of us could have contemplated in terms of the invasion in Ukraine, the energy crisis and the cost-of-living crisis, which have huge implications. What is key to a land-use plan, like county development plans, is monitoring and it is something we do not do well. If we are planning on a long-term horizon, we need to be evaluating and monitoring the expectations and assumptions that we had and feeding that back into the process. We think there is merit in it, but there are also some downsides, which I think we will come to when we are talking about the different triggers from central government etc.

Ms Phoebe Duvall:

I definitely agree with that. On the need for a longer period and more information, one issue is that public participation in the plan is the linchpin of forward planning. One issue that we have found with the proposals in the Bill is around the interim review at the five-year point. It does not sufficiently provide for that public input on foot of any variations that come in. Given the proposed long ten-year timeframe, it would be essential to have a robust mechanism for public engagement again at that five-year point. As Ms Uí Bhroin said, the policy and planning landscape in a ten-year period is incredibly dynamic. It would be important to ensure robust engagement at that point.

Ms Attracta U? Bhroin:

One additional point is there is an overriding concern in terms of local government democracy and the voice of councillors basically to be able to represent their constituencies - as I am sure every member here will relate to - on those concerns and being able to feed that into the process. It is a balance in monitoring variation response. There is a concern in that regard and about the timescales for elected representatives and how some of them could effectively feel disenfranchised from the process of a county development plan. It is a complex one.

Mary Fitzpatrick (Fianna Fail)
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Will the Irish Environmental Network be making a specific proposal? A review was mentioned. There was an issue. We had the Local Authority Members Association, LAMA, and the Association of Irish Local Government, AILG, in here and they are engaged in the proposal for a ten-year plan but also on the quality, let us say, or format that any review would take. Will IEN be making specific proposals around that?

Ms Attracta U? Bhroin:

We are listening and learning from this pre-legislative scrutiny and the exchange of perspectives. In fact, it is somewhat regrettable this committee was not facilitating what has happened over the past 12 or so months. There has been an amazing amount of learning and exchange of perspectives throughout this. I compliment the committee for the manner in which it has engaged in the scrutiny and the different views it has brought out. We are listening and hearing all of that and we will absolutely revert on that.

Ms Charlotte Sheridan:

I wish to come in on that. It is important that we can learn from Europe as well and the type of plans that they have prepared. We have looked at cities such as Freiburg, but we are all familiar with the Copenhagen plan, which is rooted in 1947. That gave an overall strategic vision of what that city would become and it has continued to inform it. Freiburg, for example, has its charter, which was a 20-year plan and they see that being implemented. Of course, with all those, there is the facility to see to what extent the outcomes are being achieved and that is important. We would be very happy to follow on with the mechanism they use to ensure that they have the public engagement and the elected representatives as well in that context.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I thank everybody for the presentations. At the end of our last session with the Irish Planning Institute and the town planners of Ireland, we heard some strong testimony on their organisations’ views of what they saw was the lack of engagement and consultation during the planning forum. I ask both organisations to what extent they found that process satisfactory and to what extent the draft Bill in front of us is reflective of the discussions that did or did not happen in that forum.

Maybe Ms Uí Bhroin would respond first and then Ms Meghen.

Ms Attracta U? Bhroin:

I thank Deputy Ó Broin. Let me be absolutely clear that we very much welcomed being invited to attend on the planning advisory forum but one of the first issues that we had was the representation within that forum in terms of the lack of reflection of Irish society today in terms of diversity, different challenges, different backgrounds, everything. I was very much joined with Ms Duvall in this in terms of pushing for greater representation of wider civil society. There were some concessions made, but that is a fundamental issue in relation to the perspectives.

We would echo the concerns of the Irish Planning Institute in respect of this. The draft Bill that we see here has nothing like the level of detail needed. Indeed, some of the changes are completely new to us. For example, we were specifically told in discussion paper 6, in September, that there would be no change in respect of the special cost regime that applies in judicial review and it came as a bolt out of the blue that that has now massively changed.

Despite the terms of reference and despite the fact that there was supposed to be discussion on legislative proposals, we never saw them. There were very high-level discussions on conceptual issues but we never got any real sense of what the nature of the changes was.

Throughout, our call has been consistent that on something of this magnitude, to reflect the words of the Royal Institute of Architects of Ireland, RIAI, and many people who are saying the same thing, this is "a once in a generation opportunity". It will impact every soul on this island and beyond. We have colleagues in Northern Ireland watching these proceedings today.

It is incumbent on us to get this right. Public consultation is key. The public have been excluded from this process and that is unacceptable.

Ms Phoebe Duvall:

Can I come in there briefly? I echo Ms Uí Bhroin's concerns about the path of the planning advisory forum while also welcoming the fact that we were invited to be on it. Because of exactly what Ms Uí Bhroin has just said about the public being excluded, one of our very strong recommendations to the committee today would be that, prior to the Bill proceeding before the Oireachtas, a public consultation period be opened on it to include explanatory memorandums on the rationale for the changes where needed. That was something that, as Ms Uí Bhroin said, was missing for a lot of what the forum saw. It would be extremely useful to have the public view represented now that we have the draft Bill provided that there is an explanation of the changes and the rationale for them.

Dr. Fred Logue:

I might make a brief comment on that. There are a lot of nuances in the planning procedure that are quite impactful on the public, such as time limits and access to information, which have not really been taken into account. For example, if you make an appeal to the board and you do not pay the right fee, it is automatically invalidated. There is no opportunity to fix that, which is a very minor technicality that could easily be fixed. There are many such issues that the public will be aware of and will want fixed and it would be a great benefit if some of those issues with the current planning code could be quantified, documented and taken into account. They are easy wins for a new planning code.

Ms Attracta U? Bhroin:

If I might make just one last brief point, there has been a lot of talk that this Bill facilitates participation in this new plan-led approach and the challenges of engaging the public on what is sometimes an often more conceptual-type high-level plan as opposed to some practical application which they can immediately relate to. We are certainly starting off on the wrong foot if, in the very piece of legislation on talking about how can we engage civil society, we are not engaging them in the legislative process.

I would like to come to the following, hopefully, later in the session. I am conscious of time. We really need to recognise the diversity of Irish society in how we facilitate engagement throughout this Bill. There is a lot to be said on that.

Ms Charlotte Sheridan:

We very much appreciated the opportunity to participate in the planning advisory forum. As a mechanism, we felt that it would have been a useful means to have good discussion. We received presentations at the time. We were given good information in advance of meetings and the high-level questions were posed to us. There were opportunities to make further submissions to the forum. We understand as well that there was very significant input being given from the Attorney General and his office in relation to the responses from the forum but that was informing what they were doing.

Absolutely, it is important too that we are representative. From our own organisation's point of view, we represent 4,000 members. It is a broad church of people. I suppose the profile of the participants is an important thing to look at as well, and to what extent, and whom, are we representing.

We would say that the Bill is very long. There is a lot to take in and, I suppose, with a limited period of time to do that. We would hope to look in detail at various elements and aspects that we could positively contribute to.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Some of the other organisations that presented to us have informed us that they are making subsequent submissions to the Department. First of all, can the panel let me know if their organisations are doing that and if they would be in a position to share those submissions with the committee during the course of the pre-legislative scrutiny?

Ms Kathryn Meghen:

That is the intention. The RIAI is preparing a submission and we certainly will share it with the committee.

Ms Attracta U? Bhroin:

To be clear, we have received no invitation from the Department to make a submission to it. It was our intention to provide a further submission to this committee and we would hope that the Department would take that into consideration.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I thank the Chair. I will come in on the next round, if that is okay.

Steven Matthews (Wicklow, Green Party)
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To follow on that, it would be advisable, I would suggest, that Ms Uí Bhroin make that submission to the Department but, certainly, send it to the committee because we will be taking on board all of the written submissions we receive. We have received unsolicited submissions at this stage as well. We take them into account because they are from competent and experienced people and it is helpful for us on that.

Deputy Higgins will take the next slot.

Emer Higgins (Dublin Mid West, Fine Gael)
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I thank the Chair and thank everybody for being here with us to today and sharing their perspectives on what is a lengthy draft Bill. I appreciate a lot of work went into that. The witnesses have come here with detailed views and I thank them for that.

I suppose what all of us want is an efficient and effective planning system with transparency at its heart. What we as a committee are trying to get a handle on is the feedback of stakeholders out there into how we can make sure this draft Bill achieves that.

Obviously, there has been quite a lot of consultation already through the planning advisory forum and the submissions to it and now at this joint Oireachtas committee level. It has been great to have so many different groups in before us to consult with them to get their perspectives on the record. From our perspective, we will be taking those views, ideas, concerns and initiatives raised here and putting them into our own recommendations and report. As the Chair has said, everybody is free to make direct submissions to the Department but it would be great if we could see them too.

On the ten-year development plan, I fully agree with a lot of what people have said here today around the preparation time for it. Planning is more complex now. There are more assessments needed. There is more expertise needed. Sometimes those experts are in short supply and you have to wait for them to become available. I fully agree in terms of that preparation time needing to be a little more flexed.

From the review of the development plan, I would feel that the same is true that maybe we need to have an elongated process there. I would be keen to hear both organisations' perspectives on how the review should work. I am keen to make sure is that it is a meaningful review. It is the opportunity, in my view, for community, public representatives and the executive of the local authority to put forward new directions or new proposals based on a situation five years later. I do not know that the draft Bill provides for that. It seems to very much be leaning towards chief executives making directives and I would be keen to hear both organisations views on that.

The RIAI referenced Nordic and European counterparts twice in its submission. In one, the RIAI talks about it in the context of low-rise, medium density. I would be keen to learn more about what other countries are doing there and whose footsteps the RIAI thinks we should be following in.

The Irish Environmental Network, IEN, has articulated a concern that some provisions in this draft Bill may end up being counterproductive in that rather than speeding things up they may risk delays if they are opening to legal challenges or restrictions from that perspective. I would like to ask the IEN about that.

Another issue that has come up in the course of these discussions, and which was raised by the RIAI, is the e-planning system. While our guests are talking about the electronic system going a little bit further than what is currently envisaged and provided for, I would be really keen to know IEN's perspective on whether the current system, which varies from local authority to local authority in terms of how quickly planning applications can be scanned and put online for members of the public to see, is a barrier to public engagement when it comes to planning.

Dr. Fred Logue:

We need to look at the ten year development plan and all of the opportunities for it to be varied. The headline is ten years, extendable to 12, with a five-year review but there is also provision for it to be varied when national policy changes as well. Therefore, we could find ourselves in a situation where we have rolling variations which could actually create more work for the local authorities. We need to be very careful about the public participation opportunities in all of those variations. There is a suggestion that there will be an expedited variation procedure but EU law requires a strategic environmental assessment for the modification of a plan and only minor modifications that do not have a likely significant effect on the environment are outside of that. Therefore, it could turn out that in practice there will be much more work, with rolling variations of development plans that may not be very workable. The committee needs to look at this in the round. The headline is ten years but there may be a lot more variations than we are currently thinking about and there will need to be public participation at all of those stages.

The second thing to note is that the current judicial review situation is that developers are judicially reviewing development plans. One third of all development plans in the country are currently under judicial review by developers and landowners. Whatever about the public taking judicial reviews, it is the development plan that is quite concerning for the developers and we need to have a robust system to make sure that the plan that is adopted is secure.

In terms of access to information, I just got an email for a client. A planning application was submitted on 22 February, which was last Wednesday and I asked the local authority for a copy of the plans to be put up online. I got an email saying that the plans are not up yet but will be up in due course. We are one week into the five week period, meaning that 20% of the time is gone, and my client still cannot access the information.

Emer Higgins (Dublin Mid West, Fine Gael)
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Does Dr. Logue think the onus should be on the applicant to provide everything in electronic form so that it is available from the off?

Dr. Fred Logue:

Yes, absolutely because in this day and age, all planning documents are created electronically. The onus should also be on the local authority to make sure that all of the information is available in advance of public participation starting. They can take as long as they want to put it up online but the clock should only start ticking when people can access the information, not when the planning application is submitted. It is incredible that this is controversial. The authorities cannot say that the public can participate in the planning process if the public cannot access the planning file. There is Aarhus compliance case law which says that is a breach of the Aarhus Convention.

Emer Higgins (Dublin Mid West, Fine Gael)
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It could be argued that members of the public can go into the local authority office and request to see the file.

Dr. Fred Logue:

Yes, but the Aarhus Convention actually requires electronic publication.

Ms Attracta U? Bhroin:

It also requires non-discrimination so depending on which end of the county one is living or on one's personal circumstances, one may be materially disadvantaged. The obvious thing to do is to start the clock when the information is available, when people have been effectively notified and can effectively participate, which is our legal obligation. In that way, we do not end up in a situation where somebody falls foul of the process. What we are trying to do is get everything to run smoothly.

In terms of electronic access, we need to be conscious that we have a very diverse society with very diverse challenges. Not everybody has Internet access or access to printers and so on, so we do need to have a facility for such people. It is fair to say, however, that a lot of the information is available online. I would be anxious to let Ms Duvall respond with regard to e-planning.

Steven Matthews (Wicklow, Green Party)
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If we had time that would be fine but e-planning has taken up quite a lot of time already. Senator Boyhan raised it previously. We might get a chance to return to it later but I need to stick to the seven minute slots for now. I am going to take the next slot myself.

My first question is for Dr. Logue. At the moment, under section 8, which used to be called section 5, it was open to a member of the public or any person to seek a declaration on whether a development is exempted. That seems to have been removed from this draft of the Bill. I would be of the view that it should be put back in, as section 5 was. Are there other issues around section 5? We got no clear evidence from anybody connected with the system that there was an issue with section 5 as it is and yet here we see it being reduced.

Dr. Fred Logue:

The evidence from the Irish Planning Institute, IPI, was that section 5 was there from the start, from the 1960s, as a public right to get a declaration. It is an important part of enforcement because it is a time-limited procedure to get a declaration about whether a development is a development and if so, whether it needs planning permission and there is an independent referral to the board. It is a very effective way of enforcement and has been used to very good effect in enforcement of peat development. There are some slight issues in the fact that the courts have found that a section 5 declaration that is not judicially reviewed is final. This means that, for example, where a council or the planning authority makes a declaration that does not get referred to the board, that cannot be revisited in a subsequent declaration for the same factual situation.

Steven Matthews (Wicklow, Green Party)
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If further information becomes available there could be a different declaration.

Dr. Fred Logue:

Yes, if further information becomes available or a different question is asked then obviously there could be a different outcome. That is based on the Narconon case in Meath.

It is a mistake to throw out the public access and not to allow the declaration to be used for enforcement because that hollows it out. The procedure could be improved by greater transparency and greater public participation.

Steven Matthews (Wicklow, Green Party)
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We would be of the view that section 5 should remain as is but maybe we need to tease out one or two of those complications.

Section 28 deals with ministerial guidelines and has been well discussed previously. IEN refers to "untrammelled powers of the Minister". Indeed, I think I have heard the network use that phrase once or twice previously. At the moment the Minister can issue a guideline and under this legislation it is going to be called a national planning statement or a national policy statement. Do our guests think it would be better if the statement was in some way scrutinised within the Oireachtas to ascertain its intention, the problem it is trying to fix and the rationale behind it? Perhaps it could be brought to an Oireachtas committee like this one for just one session so that members could tease out all of the issues around what the Minister is trying to achieve. Would that allay some of those concerns around "untrammelled" powers?

Ms Attracta U? Bhroin:

Oireachtas oversight is critically important but it needs to be more than just a motion and a debate. It needs to be some sort of proper scrutiny and evaluation. I will defer to Dr. Logue in respect of broader EU law obligations vis-à-visnational planning policy statements. These have enormous implications, as he alluded to earlier, in relation to cascading effects throughout the whole system and the need for participation and assessment of those planning policy statements is absolutely key to help to inform the Oireachtas in terms of its considerations. Democratic votes are important. We live in a democracy and no one Minister should have that type of power because the potential for things to go wrong is really serious.

Steven Matthews (Wicklow, Green Party)
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Before Dr. Logue responds, I want to add to my question in order to get better value out of the answer.

There should be a level of oversight and scrutiny, akin to pre-legislative scrutiny, on the statements, with the committee making recommendations. Where a ministerial guideline is issued, local authorities must rectify their county development plan to comply with the national planning statement. That was one of the reasons that existed in judicial reviews where there was a contention between the ministerial guideline and plan. Is what is being proposed here going to rectify that issue? I also ask Dr. Logue to address the scrutiny issue.

Dr. Fred Logue:

Guidelines are guidelines and they are not detailed enough to determine individual applications. The problem that we had with the SHDs was that there was an attempt to impose guidelines that essentially would determine individual applications even if they materially contravened the development plan.

Again, there is nothing wrong with the approach per se. Obviously I agree that it would be good to have as much democratic oversight as possible but the challenge is to try to prevent an overreach or a centralising tendency in these guidelines. We are in a country that is growing. Traditionally Ireland did not have the local parish councils that the UK had when local government was established because our population was not dense enough.

It is ironic that as the population grows, our planning is being centralised, given that there are more people spread around the country. The thing is to try not to use these planning statements to impose centralised control over individual decisions. If that happens, that is where the tension arises. We still have the material contravention procedure which still has the problems that gave rise to the issues with the strategic housing development, SHDs and specific planning policy requirements, SPPRs. The devil will be in how it is implemented and not really the structure per se. Democratic oversight by the Oireachtas might be a way of constraining that kind of centralised tendency with these planning statements.

Steven Matthews (Wicklow, Green Party)
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If a proposal for a national planning statement is issued and the country development plan is corrected to reflect that, is that a positive move in Dr. Logue's view? There should be scope for ministerial guidelines in many things. Will it remove that material contravention issue?

Dr. Fred Logue:

The legislation as drafted does not remove that issue. The legislation still allows for a planning application to be granted in material contravention of the development plan, effectively based on a direct effecting of a national planning statement or even the national planning framework, NPF. I know the intention was to reduce material contravention but the legislation as drafted still allows it to some degree. One can be consistent with a national plan in a multiple of ways. It allows the board to directly apply a national plan or policy even when it has been implemented through the variation procedure in the development plan. I think that will cause problems.

Steven Matthews (Wicklow, Green Party)
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I am out of time now as well and will move on to Senator Boyhan.

Victor Boyhan (Independent)
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I thank the representatives from the RIAI, and the IEN for their very detailed and comprehensive submissions which are exceptionally well-laid-out and get to the point. Being conscious of time, I will put a series of three questions to the IEN first. I thought these are concise enough, and deliberately so, and the witnesses might give a concise response if they can. Do they have concerns on how the participatory rights are dealt with in the Bill and do they have recommendations on same? Do they have concerns about the recommendations in respect of how the consultation process is outlined in this Bill, particularly with an emphasis on the prescribed bodies? I know Ms Duvall is involved with An Taisce and others. There are a number of prescribed bodies but I ask about the impact of that in terms of this Bill, from the witnesses' experience in the past and what is being proposed. Finally, do they have concerns about the recommendations in respect of the Bill in relation to An Bord Pleanála? I am not suggesting we have an analysis of An Bord Pleanála because we will be here for a month but I ask in the context of this Bill. Will the representatives from the IEN give us three concise responses to those three questions?

Ms Attracta U? Bhroin:

Ms Duvall will start off.

Ms Phoebe Duvall:

I can talk to the Senator's first two questions concurrently. Dr. Logue has already brought up many of the key points around participation, and particularly effective participation, regarding the provision of information. This applies throughout the Bill. I can provide a more detailed list of these in writing because it is rather extensive. Information should be publicly available when notice is given and there are gaps of time within the five weeks, or four weeks if in relation to the board, where the clock is ticking but one does not have access to the information. Having the requirement for editorial electronic publication in the primary legislation would be central.

Victor Boyhan (Independent)
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Sorry, is this as opposed to the regulations Ms Duvall is speaking about in primary legislation?

Ms Phoebe Duvall:

Yes.

Victor Boyhan (Independent)
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I get that point.

Ms Phoebe Duvall:

Also, in terms of e-planning, which we talked about earlier, there are many issues around the accessibility of the documents, the way different counties format them, having word-searchable PDFs, and having electronic publication for the board. Currently, we find it to be a massive issue that documents are not published on An Bord Pleanála's website. Also in terms of decisions, these same issues around when the clock starts, versus when the information is available, apply. We get decision notifications sent in the post after the decision is made but then we do not necessarily have access to the actual decision online until later. There are a lot of these kind of issues, which I would be very happy to provide in a more detailed specific written response, but I think these really hinder ourselves as prescribed bodies but also the public participation, especially in relation to the board. If you are outside of Dublin, getting in to view a file could potentially be very difficult. Also the board stores files offsite so getting access to the paper file can take time. All of this eats into the public participation period and in our view, really hampers the ability of the public to engage on particular applications.

Ms Attracta U? Bhroin:

I echo Ms Duvall's concerns regarding the timeframes. The clock should start when the information is available. Participation is a much bigger challenge now than it has ever been. When the Planning and Development Act 2000 came out, it was actually really progressive legislation in respect of participatory rights. We are now in 2023 and the Bill has not moved on. We are still talking about newspaper notices and things like that. There should be much more diverse obligations specified in the Bill about effective participation to enable that and reach out to people, not just to the usual suspects, but recognising that we have a far more diverse society with multiple challenges in respect of language, learning, reading, writing, and all of these different types of things. I was talking to the chief commissioner in the Irish Human Rights and Equality Commission on Saturday and it has made a submission to the Joint Committee on Justice on the need for a fitness check; basically the need for a committee that works across all legislation, evaluating its fitness for purpose in order to be fair to people, to the ordinary public, in terms of their engagement. In respect of prescribed bodies specifically, what I found quite alarming in a number of sections of the Bill was the extent of discretion there is in respect of whether one does or does not consult prescribed bodies. It would be very helpful if the committee were to be make recommendations in respect of the need, particularly for environmental sector non-governmental organisations, ENGOs, and certain civil society bodies representative of wider bodies to be included.

Victor Boyhan (Independent)
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I apologise for cutting across Ms Uí Bhroin. Could she perhaps come back to the committee with some key suggestions?

I turn now the representatives from the RIAI. I particularly like the layout of its submission. We had a bit of discussion about a county planner and a country architect. They will know themselves that there are many county architects in counties. Regarding the relationship between these two roles - and we do not have a lot of country planners with exclusive statutory rights - there has been a strong case made that if we were to make a choice between a country architect or a country planner, we should opt for a country planner. The RIAI will not want to hear that, clearly, but there is a strong relationship with both. I would like to think we would have a country architect but I know of sitting county architects who are working on public pedestrian schemes. This is a terrible waste and use of a highly trained professional architect. They have not been building houses, or certainly not designing many houses. Can the RIAI make a case for a county architect to be retained and how it thinks there could be that synergy, cross-functionality and purpose with a county planner? I think there is a case for both professions.

Ms Charlotte Sheridan:

I am in full agreement with the Senator and in fact, have listened to the RTPI and the case it was making for that corporate level of the country planner, county architect or city planner. We would equally say that both architects and planners work hand in hand. That is how we operate. Any work we deliver is done through planning and we always engage with the planning departments and most often more recently as well, in consultation with planners. What is really important, and the thrust of what we are suggesting, is a change in the culture of planning where planning is no longer just a colour on a map and a wait and see what happens approach. It needs to be something that is much more proactive and I think that is the role the architect can play, namely, the envisioning and understanding what the vision of a place can be. The skill sets of both the architect and the planner work extremely well in that context. We have compatible skill sets but also both have essential skill sets in setting that agenda for a place. It is extremely important that such a position would be within the executive at that upper level, making decisions in terms of proposing key infrastructure and in proposing development to be brought forward in order to implement a place.

Victor Boyhan (Independent)
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I will wind up as I am conscious of time.

The RIAI needs to make a strong case for that as I do not think people are hearing that case about architecture. That is a key message for the RIAI.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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My first question is for the IEN. In their opening statement, which is strongly worded, the witnesses spoke about the Bill failing to ensure compliance with environmental assessments and effective participation. We have touched on many of the issues that relate to participation. Will they expand specifically on the failure to ensure compliance with environmental assessments?

Ms Attracta U? Bhroin:

The first area of concern is in section 1A of the Bill. The current Planning and Development Act sets out a raft of EU directives that are given effect to by the legislation. That is glaring in its omission from the current proposed Bill. As regards knowing what framework this Bill is transposing with respect to EU law and interpretation, it is a profound omission. There are some references to directives scattered throughout the Bill in various parts, but there is no coherence. The fundamental elements of environmental assessment which are participatory rights, access to information rights and access to justice rights should be included in that section. That section should also reflect issues such as the Bill giving effect to the Aarhus and Espoo conventions. I will ask Ms Duvall to speak about specifics on environmental assessment.

Ms Phoebe Duvall:

One of the issues we touched on briefly is the requirements for strategic environmental assessments, especially for development plans and interactions between development plans and national planning statements. Strategic environmental assessments are required for plans and programmes, including forward planning, especially where those plans are setting out criteria for development management, as development plans do. When major national level policy comes in, such as the new national planning statements, that constitutes a need for strategic environment assessments. The provisions in section 61 on the expedited amendment of the development plan on foot of a national planning statement, currently state screening is required. We are of the view that because it cannot be considered a minor change, on foot of major national policy, an SEA is required. Public participation obligations come with that. As proposed, the participation requirements in the expedited amendment procedure only kick in when an SEA is needed. There are some errors. Does Dr. Logue have anything to add?

Dr. Fred Logue:

It is not clear conceptually. If a variation is required by national policy it is not a minor amendment. The question I ask when I read the legislation is why a screening is being inserted for something that is not a minor amendment. The legislation does not reflect EU law. The other issue is that SEA is where EIA was ten or 15 years ago. There has not been much focus on it but that is changing. We do not have the lessons from a raft of litigation and enforcement against Ireland about how to properly carry out SEAs. The risk is that if we do not take a conservative approach to how it is implemented in the Bill, we might find out the answers to some of those fundamental questions the hard way. For example, a case has been referred to Europe from the Supreme Court on the basic question of how strategic alternatives should be assessed under the SEA directive. If the question is answered in the way the applicant wants it to be answered, it will mean we have not carried out a single SEA properly in Ireland in the past 19 years since it came in. A conservative approach should be taken. It is a mistake to take shortcuts to try to get around public participation at the plan level. If the intention is to have the debate and have everything worked out at the plan stage, we should err on the side of enabling public participation and not try to close it down in such ways as these expedited variation procedures.

Ms Attracta U? Bhroin:

There is an issue with us associating environment assessments with something that has the word "assessment" in the article. The European Court of Justice has been expansive in its interpretation of certain articles. It has asked how we can decide whether there is an effect or a need for something unless it has been assessed. Even where the word "assess" does not arise, there is an inherent obligation to assess. That was especially evident with respect to the water framework directive and the Weser judgment, C-461/13. The Article 4 obligation does not say "assessment", but it relates to many different environmental matters, such as derogation licences and so on, which require an assessment to understand the impact on various species whether under the birds or habitats directives. That is outside the scope of appropriate assessments and environmental impact assessments. When we talk about things that may have a significant effect on the environment, we must bear in mind they trigger participation obligations under the Aarhus Convention, to which we are a party. There are fundamental issues about the scope of the Bill as regards assessment and environmental assessment. It is too narrow.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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My next question is for the RIAI. Ms Sheridan mentioned that Freiburg is a good example of long-term planning and of a city that reflects environmental sustainability, walkability, permeability, cycling, reduced car use and the safety of public spaces that goes with that. Is there anything in this Bill that indicates that is the direction we are moving towards or that it could be facilitated? I have been looking at the Bill and trying to find examples of anything that would indicate that.

Ms Kathryn Meghen:

The ambition of the Bill appears to be to move in that direction, but we have not seen specifics in the Bill. It needs to be ambitious. The technologies and expertise are available to deliver to the kind of planning that Freiburg and other European cities have implemented. I believe the Freiburg plan was drawn up approximately 30 years ago. We must move toward those technologies and towards proper collaborative forward planning. We must understand the demographics and design places people want to live in. We do it in pockets here. Now we need to ensure the Act will support us in doing it in the mainstream.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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The RIAI has not been able to find anything specific in the Bill that points towards it. It does not stop it.

Ms Kathryn Meghen:

Nothing prevents it but I am not sure it is ambitious enough.

Steven Matthews (Wicklow, Green Party)
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If we have more specifics and detail around what an urban area plan or priority area plan is, could that lead to smaller pockets of more detailed planning?

Ms Charlotte Sheridan:

Yes, we should set an ambition in order that it becomes clear what things we are trying to ensure are part and parcel of this. Quality is one of the key things. Another key document we mentioned in our opening statement is Places for People, the national policy on architecture. It is not only about buildings. It is about creating sustainable places and good quality environments for people to live in. That needs to come through in the purpose of the Bill in the first instance and, as the Chair referenced, in those particular types of area plans. We must ensure we have the ambition. The Bill needs to allow for the resourcing we spoke about earlier. There are disciplines that can bring that type of thinking and cultural approach into the Bill. There are opportunities to do that. It is something we can look at again and bring forward to the committee.

John Cummins (Fine Gael)
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I thank the witnesses for their time. I agree with the RIAI that this is a once-in-a-generation opportunity to create a system that supports the needs and ambitions of the Irish people. As was mentioned by Ms Uí Bhroin, when the previous Act of 2000 was implemented, it was modern. In this Bill, we are trying to learn from the previous two decades. That Act has been amended so often at this stage that there is a lack of coherence to certain elements of it. It is positive that we are bringing forward this new Bill. It is important for understanding the process to know that it is the draft Bill that is before us and the engagement today and on Tuesdays and Thursdays over the past few weeks is the opportunity for engagement with sectors such as those the witnesses work in and for them to feed into the Bill.

Nobody in this room and nobody in the Department would say the draft Bill that is in the public domain is the exact version that will be brought to the Dáil and Seanad prior to the summer recess. We are trying to get feedback from all sectors to improve on what is there. The draft Bill is a good start and we are seeking to improve upon it.

I have two questions for the witnesses. Ms Meghen said in her opening statement that the RIAI supported the proposals to strengthen the legal status of the ministerial guidelines. I note what the IEN representatives said in this regard. There appears to be a conflict between the positions of the two bodies on this point. Will the witnesses elaborate on that? The second question then is, if the Minister does not have the ability to bring coherence to national planning policy, who should have that ability? I ask one of the IEN representatives to answer the second question. A representative of the RIAI might respond to the first.

Ms Charlotte Sheridan:

The value and benefit of the ministerial guidelines is in the ability they give to respond to changing circumstances. In the past 20 years, we have seen many varying circumstances, particularly when one looks at the nature of our urban areas and the populations we have been trying to accommodate. The guidelines for apartments and other types of housing, for example, were about responding to a particular need at a particular time. We see value in presenting guidelines for how we respond to such needs to facilitate the provision of homes in a particular format that responds to the particular circumstances at a point in time. At the moment, viability is one of the key issues. We are also looking at vacancy in town centres and suburban places. There are locations in which there are no spaces left over after the planning is set out. There are places where it is difficult to implement new development. That is why we see value in something, for example, like a ministerial guideline in respect of low-rise, medium-density development. It is about having a bespoke response; it is not about undermining the development plan. Looking to the future, if we consider the types of developments we are talking about, there should be a really clear vision of what that development will be. The ministerial guidelines should complement it. We see value in having oversight of the process whereby consideration is given to the guidelines and people's opinion on them.

John Cummins (Fine Gael)
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I thank Ms Sheridan. I ask a witness from the IEN to respond to my second question. If it is not the Minister who is able to bring coherence to the process and offer an agile response, who should be able to do so?

Dr. Fred Logue:

There needs to be some kind of evidence to show how the existing ministerial guidelines system has failed. We do not have that evidence. In common with many of the provisions in the draft Bill, we do not know why they have been included or why they have been drafted in the way they have been. I am not saying there is anything wrong or right with what has been drafted. We just do not know what the provisions are trying to do.

The two most controversial guidelines were the apartment guidelines and the height guidelines. They ended up producing apartment development that proved to be uneconomical and strategic housing developments, SHDs, that were highly unpopular. We must be very careful about what we do in the next iteration. We need to ensure we do not repeat the mistakes of the past and we need a clear statement of what exactly the guidelines are and are not meant to do. If they are meant to do a kind of end run around the development plan to impose some type of central control over individual planning permissions, we are at risk of repeating the mistakes of the past.

John Cummins (Fine Gael)
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There was a change made last year to include former pubs, for instance, in the provisions for exempted developments. In quarter 2 to quarter 4 of last year, that resulted in 169 residential units being brought back into use, including 53 former pubs, without the requirement to apply for planning permission. People are living in those units. That change was a quick and agile response by the Minister to a particular issue. Does Dr. Logue not see the value in the Minister having the ability to do that?

Dr. Fred Logue:

That was a legislative change, not a policy change.

John Cummins (Fine Gael)
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Does Dr. Logue not see a value in the Minister being able to bring forward a change in respect of some elements of the development process?

Dr. Fred Logue:

Absolutely. However, the question is how that is brought forward. I will put the question back to the Senator by asking what is a planning statement and what is it meant to achieve. There needs to be a clear statement of what the statements are and are not supposed to do. There is a risk of central policy being overly prescriptive in a way that creates issues. Ultimately, development must be acceptable to the people in whose communities it is intended to take place. It is a democratic, rights-based process. The suggestion is that when we tried this with the SHDs, it did not work because people did not want that type of development and it was not viable. I can fully buy into the RIAI's aspiration to have very high-quality urban development. That would be a very positive outcome of this system. However, if it produces stuff people do not want in their communities or that people cannot build, there will be a negative outcome.

John Cummins (Fine Gael)
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My time is up but perhaps we can get into that point in the next round of questions. There is an important follow-on discussion to be had regarding what Dr. Logue just said.

Steven Matthews (Wicklow, Green Party)
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I will put Senator Cummins down for the next round.

John Cummins (Fine Gael)
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That was just a hint.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I am going to continue this conversation. We will get to Part 9 of the Bill in the next hour. Part 3, and chapter 3, in particular, and how it relates to some of the expedited procedures is very important. For many of us, especially those of us who dealt with the legislation on SHDs and had to deal with the outworking of the mandatory ministerial guidelines on building heights and design standards, the issue is not that we do not think central government should have a role in setting Statewide policy. Of course the democratically elected members of Government should have the right to do so. The issue is how it is done, how it relates to local plans and other legal obligations, both domestic and European, and the question of what works in practice. That is where I want to take the conversation.

I go back to Dr. Logue's point around the definition of what I would call a ministerial policy statement, because it relates to the function of the Minister, not of the nation. Representatives from the Irish Planning Institute made some very helpful suggestions at our meeting last week, including the proposal that there should be a distinction made between a policy statement that is for forward planning and one that is for development management. They made a very strong case to separate those two aspects. Do the witnesses from any of the organisations represented today have a view on how we might define what these policy statements should be? That is my first question.

The second is around how the statement should then relate to the various expedited procedures for retrospectively amending the variety of plans that are out there, including the potential for retrospectively amending strategic development zones, SDZs. Is there a possibility we could end up with all sorts of satellite litigation, to go back to the point made in the IEN submission, whereby legal challenges start being made to plans or to the retrospective expedited amendment to those plans? Whether or not one thinks it is a good idea, how do the witnesses see all of that working in practice? I am interested in their views on those two points in the first instance.

Dr. Fred Logue:

I agree there needs to be much clearer language in the Bill about what exactly the planning statements are meant to do. One suggestion is to break them down into different categories, with statements for planning, development management and so on. The key is to have coherence between the tiers in the planning system. As we go from the highest to the lowest tier, the level of detail increases and the degree of freedom should increase. The national planning framework sets broad targets for population, the regional spatial economic strategies deal with more settlement-level policy, and then we get down to the development plans and local area plans. The level of detail increases as we go down through the tiers. We need to figure out what the planning statements are meant to achieve within that. We also need to prevent a system in which they get out of line with each other, which would create a conflict. Ultimately, for the people who live in towns and villages, the development plan governs their expectation.

When we are looking at what has been done in Copenhagen or Freiburg, for example, it is clear that what we need to do is stick to our plans. The issue with the SHDs is that we did not stick to the plan.

A total of 90% of judicial reviews of SHDs were on proposed material contraventions of development plans. I can only think of one or two examples where the board disagreed with the proposals to contravene materially. That kind of disrupted the system. Whether it was positive or negative, it caused a huge amount of conflict in the system.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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In the context of ten-year development plans and these new three categories of sub-plans within development plans, and given the very limited resources we have in our planning authorities and in the board, to what extent does Dr. Logue think we could we be opening ourselves up to not doing this in the right way, given all of those constraints? I would be interested in Ms Sheridan's view on that as well.

Dr. Fred Logue:

Obviously, you need the resources and the local knowledge for all of that planning because it is actually a huge amount of planning. We still have county level administration. We got rid of town level administration for a limited number of towns and boroughs. Where I come from in Meath, it is all done in Navan. We need to make sure the local authorities are resourced, structured and governed in a way that they can deliver that throughout their functional areas. The expedited amendments are risky because if we get the public participation wrong in it, that invites challenges or undermines the legal certainty in the plan both for the public and for other stakeholders, developers, landowners or whatever. As I have said, we have seen a huge number of landowner challenges to development plans, even today, which does not get much air time in the press. That is where the most extreme amount of judicial review in the planning system is at the moment.

Ms Charlotte Sheridan:

We have to look at the point in time where we are. A series of development plans have just been adopted. What we are looking at here is something that would happen after the current round of plans. We would hope we would have the right plans in place to ensure that where there is a need for a statement or policy direction, it has been informed by a well -prepared plan. When it comes to preparing those development plans and these city and town plans, it is essential we have the right skill sets within the organisations preparing them. We talk about the under-resourcing within the local authorities in respect of planners, but we also point to that need to have that multidisciplinary approach to preparing the plans. It goes back to Senator Boylan's point about the need for architects and planners at a senior level to get that strategic view. The Irish Cities 2070 project is looking at the overall city and getting an overall strategic view of how that city might progress to 2070. Within that, places can be identified for prioritisation in the various layers of local area plans. Within that context, we can get a very clear point as to which one to bring forward first. That can facilitate timely development. Also, when the statements come through, they can respond to that, the idea being that they are extremely robust and they are relying on that ten-year plan that is giving a very good strategic purpose.

Ms Phoebe Duvall:

I think another way potentially to reduce some of those conflicts the Deputy has mentioned is to ensure oversight and proper input into the ministerial statements. One specific recommendation I would make around that is in respect of section 24(2), which provides that the Minister may consult the public, other Ministers, public bodies etc. I would suggest making that a requirement. The more input we can get in the beginning, the fewer conflicts we will end up with in the end.

Victor Boyhan (Independent)
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I will direct my questions to the representatives from the RIAI. I will not rehash what has been said, but I think there is a strong case for a county plan and a county architect with statutory functions in order that managers and staff are not under the pressure. Anecdotally, I have heard of city and county managers putting pressure on or the staff feeling pressurised to deliver a result in the planning application that they are not comfortable with. We will leave it at that. I think that is an issue. I invite the witnesses to hammer home their case because it is an important one and I do not think it has been heard. Two CEOs met me recently to tell me that if they had the option, they would rather have a county planner. That is the background to what I am saying. I also think there is need for an emphasis on landscape architects. They are critical. We do not live only in buildings. We live in communities, the public realm and public space. I emphasise the importance of the environment around landscape. It is not all about trees, rows and shrubs and flowers. It is about a landscape and breathing and living biodiversity in our landscape. That is very important and should be part of this multidisciplinary approach. I am not asking a particular question about that.

I draw people's attention to HafenCity in Hamburg. Anyone who wants to talk about planning or architecture needs to go to HafenCity, which is an extended quarter in Hamburg, and see the building, the design, the consultation, and the mix of arts, culture and creative spaces. There is work, play and everything going on in the same space. It is an amazing opportunity and I ask everyone to look it up so they can see what I am talking about.

I will touch on the issue of e-planning in terms of architects, because my experience in local authorities is that conservation officers tend to work with the architects department and not the planning department. That all needs to merge in.

On protected structures, prescribed bodies like An Taisce have a huge role to play in monitoring protected structure applications. What I am hearing is that many councils do not even have colour scanners. There is a rich archive of information that includes conservation reports, inventories etc. That material is now lost. One of the great organisations is the Irish Architectural Archive on the other side of Merrion Square. I know it is taking in applications. I think somewhere in the Bill we need to cover with legislation what happens to it. So many hard copy applications, details of applications, and sets of drawings are lodged, but we need a repository and a national archive that is funded and resourced and takes in all this material.

In terms of the legislation, what are the challenges around protected structures? Other witnesses appeared before the committee and talked about protected structures. There needs to be a phasing down or listing of protected structures. It has been said that a necklace of protected structures is impeding development. What a thing to say, but I have heard that said. Will the witnesses focus their contributions on the challenges around protected structures and any watering down of powers to designate protected structures? I am also hearing a lot of language around empowering members to delete records for the protected structures. This is an area in which I have a huge interest, and it is a very sensitive area. I would like to hear the views of the representatives of the RIAI first.

Ms Charlotte Sheridan:

A protected structure should never be considered as an individual building in its own right. It needs to be taken within its overall context. That is where the architecture conservation area, ACA, definition is very useful. In terms of how that is implemented in the Bill, it would be useful if town centre heritage-led regeneration plans incorporated the ACA and the context within which the protected structure is considered. From our point of view, we would see the historic environment as being an enormous asset within any organisation or any local authority in terms of what it can deliver. It is a ready-made fantastic experience, a great place to live and a great place for people to enjoy. It can deliver very good quality of life. We saw the potential of these places, particularly during the pandemic. They started to be lived in again, and people started to use them as a focus and a point of interaction and engagement. In terms of this Bill, we need to be stronger in terms of the value, scope and potential of these heritage town centres. It is not just about the protected structure; it is the overall context within which it is placed. We need to be very clear. We should have a consistent approach within the local authorities. They are plans they should be creating for the various town or urban centres within those contexts.

Ms Phoebe Duvall:

I very much agree about looking at them in their context. That is essential. I want to make some specific recommendations around endangerment. The current 2000 Act is systemically ineffective in protecting a lot of protected structures and buildings and architectural conservation areas that are in danger of being neglected. We do not think the draft Bill provides enough improvement in that respect. Two key points around that concern the problems with the definition of endangerment under section 251. For example, an owner can leave a building empty with no heat or monitoring, which can lead to serious damage in terms of roof failures, damp, vandalism etc.

That definition could be greatly improved. The same goes for the definition of "occupier", which should include all agencies or entities with a title interest in the building or with responsibilities for management. I would be happy to provide additional information on that in writing. Those are two key ways we could strengthen the protection of protected structures. Dr. Logue may want to come in.

Dr. Fred Logue:

I remind everyone that protected structures and architectural conservation comes under an international agreement, the Granada Convention, and it is not optional. The experience has been that the protected structure legislation has not been applied properly in recent case law.

Another look should be taken at including a greater range of prescribed bodies, both geographically and thematically. For example, An Taisce is obliged to cover the entire country. It operates on a fairly thin budget. An Taisce does excellent work but it would be great if a local NGO - now that environmental non-governmental organisations, ENGOs, are recognised under the Aarhus Convention and are in a special position - could register with a local authority as a prescribed body for a locality. You have to be imaginative about it.

My final point is that the private owner-occupier duties under the planning legislation are not being enforced at all. There is nothing you can do if somebody lets his or her protected structure deteriorate. The existing provisions are unenforceable as far as I can see.

Steven Matthews (Wicklow, Green Party)
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We are out of time, but we will come back to that matter. There is a weakening when it comes to the protection of structures. We will come back to it.

I will take the next slot. I want to go back to the national policy statements. These seem to be matched. A national planning statement will be accompanied by guidelines for local authorities regarding implementation. Will that assist in this? Has there been misinterpretation of guidelines or of the SPPRs derived from them? Has that been an issue in the past?

Dr. Fred Logue:

I do not think so because guidelines are guidelines. The standard to date is to have regard to them. There have been issues with the misinterpretation of the SPPRs, particularly by An Bord Pleanála, and some recent litigation. I do not blame those involved. When something new and complex is introduced, it is open to interpretation. It is the courts, not necessarily the Legislature, that interpret legislation. What may have been intended is not necessarily what will result in the legal interpretation. I am not blaming An Bord Pleanála.

There has been some commentary from the courts that the SPPRs have lacked clarity, particularly where they materially contravene the development plan. If these things are to be used to materially contravene, there must be clear language relating to them in the context of how they are drafted. A great deal of thought has to go into that level of detail about making them robust, as the RIAI has stated. We have to have very good policy statements, not wishy-washy or vague ones. The more enforceable they become or the less the phrase "have regard to" is used, the clearer the language has to be. They are more like legislation than guidelines, which leave discretion to their application.

Steven Matthews (Wicklow, Green Party)
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Is it the addition of the requirement for guidelines or for guidelines on how to interpret the guidelines?

Dr. Fred Logue:

It could make things worse. The guidelines are not enforceable, but the policy statements are enforceable. if the drafting is not done correctly, there is a risk that the guidelines will make those statements less rather than more intelligible.

Steven Matthews (Wicklow, Green Party)
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Okay.

Ms Attracta U? Bhroin:

There is also an issue, if I could add, in relation to-----

Steven Matthews (Wicklow, Green Party)
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I was to move on to another part of it but if Ms Uí Bhroin wants to add to that, she may go ahead.

Ms Attracta U? Bhroin:

There is an issue with regard to the delay in bringing forward certain guidelines, particularly those relating to wind generation - a glaring case in point - and rural development.

Steven Matthews (Wicklow, Green Party)
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I thank Ms Uí Bhroin. I want to move on to Part 9. I have a question on who can take a judicial review. What do the witnesses think of the changes being proposed here as to who can take a judicial review?

Ms Attracta U? Bhroin:

If the Cathaoirleach might permit me, I might take a step back from that. It is not so much the changes in relation to who can take a judicial review; it is the way that they have compounded a number of different categories of the public, be it the public concerned or the wider grouping of the public, as we understand those groupings from the Aarhus Convention, and how that is set out in section 249(10).

I would hope that we would be able to take a step back in the context of looking at judicial review in general. I will ask Dr. Logue to take us through that. It would be helpful because we have extreme concerns in relation to section 249(10).

Steven Matthews (Wicklow, Green Party)
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We have concerns regarding different aspects of section 249. There were reports before Christmas, when this draft legislation came out, that certain groups would not be able to take judicial reviews. For the benefit of people who may be watching, can Dr. Logue explain what is proposed in as simple a way possible? Are restrictions on who can take judicial reviews being introduced here?

Dr. Fred Logue:

It is hard to understand section 249(10). I do not really understand what the restrictions are, to be honest. You can read them in a worst case scenario way where you would have to be materially affected by it or you would be very limited to the grounds you could take, or you could read it in a different way where, essentially, as with the status quo, if you made a submission you can take a judicial review. First, it would be important to clarify that. Second, the draft Bill does not really map onto the Aarhus Convention. Part 9 will implement Article 9(2), (3) and (4) of the convention. It is relatively complex. There are different types of people and different types of decisions, and different rules will apply to those different combinations of persons and decisions. The principle is that there is a fairly limited right of judicial review in respect of major decisions that are likely to have a significant effect on the environment. That is a limited set of the public but they have a fairly broad right of access to justice.

For other environmental decision-making, which would include regular planning permissions, criteria can be put in place. The problem is that the criteria are limited by two factors, namely, the provisions have to ensure wide access to justice and they also have to comply with Article 47 of the charter. They have to be done for public interest reasons and there has to be necessity and proportionality. I am not seeing that in the Bill. I cannot understand what they are trying to do. In particular, we reached a legal certainty in the past year or two where many of the key concepts of standing and of costs have been clarified by the courts, where there is much more stability in this issues. They are kind of being opened up again. When these are opened up, people will challenge them. That could lead to satellite litigation. A poor procedure can make a weak case strong.

I would be quite concerned about what is in there that does not comply with the Aarhus Convention. I provided a table that would help with that analysis if the Department would fill it out.

Steven Matthews (Wicklow, Green Party)
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We have the Department coming back in here for the last session. At that point, we will try to iron out some of the issues that have arisen. I do not think we will do it in three hours. That is the amount of time we have for the session. The Aarhus Convention unit from the Department of the Environment, Climate and Communications will also be coming in to address us.

Dr. Logue has been helpful. I cannot understand it fully either. The question that arises relates to what is involved.

Dr. Fred Logue:

It is very simple. The Aarhus Convention can determine who can litigate subject to those two criteria: wide-access justice and Article 47. In general, you cannot impose criteria in respect of what can be litigated. Therefore, it is more about the who than the what. The who has to meet a certain standard, and that standard is set out in the case law of the European Court of Justice.

Steven Matthews (Wicklow, Green Party)
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I thank Dr. Logue. I am out of time. The next time slot is for Senator Cummins. Can I let Ms Uí Bhroin in just to finish that point?

John Cummins (Fine Gael)
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Of course.

Ms Attracta U? Bhroin:

I completely support Dr. Logue's concerns in respect of that mapping. However, there is an additional level of granularity. For example, in the context of ENGOs and the associations of the public. New requirements are being specified in respect of entities being incorporated in order to work their way through some of the different avenues that they might be able to wriggle through in order to get to court. Being incorporated brings significant burdens to small organisations in terms of having audited accounts, applying for exemptions and all sorts of different practical things. For an organisation - for example, even some of the national ENGOs that would be incorporated - there are requirements about having to bring resolutions before their memberships.

Under most of the constitutions that requires convening an extraordinary general meeting. That means 21 days' notice with a day on either side. There are costs and burdens associated with that and it is all in the context of a 21-day window. There are also some ambiguous clauses in there with respect to how your constitution actually maps to the grounds on which you might take a challenge. It remains to be seen how viciously that will be litigated. All of these things are basically where there is a restriction of the lawfulness in the context of those two broad principles of effective access to justice and the rights under the charter and under Article 19 of the Treaty of the European Union. Thus, there are EU law rights we need to take into account in respect of access to the courts that are profoundly powerful and need to be read together with the Aarhus Convention. There is a double requirement there creating that imperative. When we look at how these things add up do they actually create barriers that mean it is excessively difficult for people to be able to get to court. That would be litigated and would cause delay.

Steven Matthews (Wicklow, Green Party)
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I suspect we will be coming back to Part 9 in further questions.

John Cummins (Fine Gael)
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I would like to tease this out a little further, especially with regard to the residents association element. It is not straightforward. Let us say there is a proposal to build 50 apartments in an area adjacent to a residential location where there are 100 existing units. There are 100 households in that development and 50 of them are in a residents association. You never get 100% of households involved in a residents association. You might get 100 out of 100 to attend a meeting aimed at addressing a particular problem at a particular point in time. What about the 50 households not in the association? They too reside within the locality and may have a different view. A submission is being made in favour of, or opposing, the development in the locality. Why does one group of households in that estate get more standing than the others?

Dr. Fred Logue:

The answer is they do not. The idea for associations under Aarhus is that people can act collectively. It is recognised by the EU as something that has benefits by reducing litigation and making procedures smoother. To use the Senator's example, if we say there are 50 households with 20 opposed and 30 in favour, the former group can form an association to make an observation or a take a judicial review and the latter group can form another association to support it. The Aarhus Convention contemplates that people can form ad hocgroups to participate in the planning system. The problem is we are somewhat mixing up residents associations with environmental NGOs and they are totally different things. The idea is if 30 or 40 people band together into "Concerned Residents of Wherever", instead of 30 people taking 30 judicial reviews we get one association taking one judicial review or making one submission. This strengthens the decision-making and reduces litigation. That is the idea. Excluding that entirely goes against that and I have severe doubts the Government can actually do it.

John Cummins (Fine Gael)
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Does this legislation not permit a group of residents to do as Dr. Logue has just said, provided they are named individuals? It could be John Cummins and Eoin Ó Broin of the Leinster House Residents Association.

Dr. Fred Logue:

If I go into the central office with 1,000 names-----

John Cummins (Fine Gael)
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We do not own houses here, by the way.

Dr. Fred Logue:

If I go into the courts office with 1,000 names to be entered into the system there, the staff will throw me out. What then is the difference between 1,000 named residents and one group?

John Cummins (Fine Gael)
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That is the question I am asking Dr. Logue.

Dr. Fred Logue:

They are entitled to associate. The burden must be on the legislation to say why they cannot do it, because the Aarhus Convention allows them to do it.

John Cummins (Fine Gael)
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I doubt the Attorney General would advise on something that would not be in compliance. Maybe that can be proven wrong and I suppose that is what we are teasing out here, but my question to Dr. Logue is what the difference is between John Cummins and Eoin Ó Broin of the Leinster House Residents Association and the Leinster House Residents Association itself.

Dr. Fred Logue:

The difference is the group is acting collectively. We have freedom of association. We have a long history of people forming associations. The Catholic Church is organised as unincorporated associations. A GAA club is organised as an unincorporated association. What is the difference between 100 people who play Gaelic and the local Gaelic club? We have a long-standing practice of people forming associations. It is not something new. People have particpated in planning as associations since the beginning and there have never been issues with it. The official position is one cannot get a costs order in litigation against an association, but I think there has perhaps been one such order against an applicant. It is something that rarely happens because there are not cost orders against applicants in judicial review, so it is a disproportionate response to a problem that does not really exist. If there is an issue with costs then legislation to deal with that can be brought in that does not exclude associations from participating in the planning system.

John Cummins (Fine Gael)
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Perhaps others will tease out the cost protection element.

I ask our guests from the RIAI to elaborate a little further on the reference in their submission to going beyond e-planning. It would be helpful.

Ms Kathryn Meghen:

It might pick up on some of the points Dr. Logue has been making. One of the issues is we are having to spend so much time talking about the legal actions that might result from planning Bills when we need to be talking about having proper planning such that we do not end up with as many legal battles. Modern technologies are available and in use in other European jurisdictions that allow a member of the public to be able to see in the development plan that there is going to be a development of 100 houses or an apartment development of six storeys. People will be able to know the scale and mass of the buildings that are proposed within their area. If they can see that at the development plan stage it will remove an awful lot of the uncertainty and worry. If people can engage with the system at the development plan stage we will not end up with costly and lengthy legal battles. There are technologies that can be employed at that level but there are also ones Ms Sheridan would be experienced in where you can gather the data around the information to support the planning, including the geographic information system, GIS, data sets and whatever.

Ms Charlotte Sheridan:

That is what we are talking about in terms of robust planning applications. It goes back to the protected structures as well, but it is about that layer of information we can have about a place such that someone can look to their area and see what the existing contexts are, what the proposals are within that area and what they can anticipate. In an ideal world, people would embrace development for the added value it can bring to their community, see it can enhance and improve that place and be supportive of it. It is important we hear all voices and active engagement is really critical. We want to have a well-informed public when it comes to what it is they understand about their place. That helps to inform the applicants, but it also helps the local authority in assessing projects. It would all work collectively. The potential is there.

Steven Matthews (Wicklow, Green Party)
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I thank Ms Sheridan. That is the end of this round. For the third round Deputy Cian O'Callaghan wants to come back in, as do I, Senators Cummins and Boyhan and Deputy Ó Broin. We will go in that order.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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On Ms Sheridan's point, at the weekend I was talking to residents of an area who said when they bought their home they were promised by the developer there would not be apartments going onto the site next to them.

They felt very let down when the application for planning permission went in regarding apartments going up. I frequently have this experience with people who have not been able to get this detail from the local area or development plans and have not been able to access this information. If they were able to do so, then there would be less disappointment, conflict and everything else. These people were not opposed to the development per sebut they were sold something based on it not happening.

Going back to the proposed section 97, regarding the Bill proposing changes to the appeals process in terms of An Bord Pleanála, do the witnesses have any comments on these changes or their implications?

Ms Phoebe Duvall:

This section is concerned with what is currently section 37(4) of the Planning and Development Act 2000. It refers to the right of appeal of NGOs, especially when an EIA should have been done for an application but was not. The proposed section 97 seeks to apply the same criteria as some of those we just discussed concerning judicial review in respect of getting leave to take an appeal. These would be around an organisation's incorporation, a ten-member minimum and having to get a resolution of members in this regard. Under this proposed section, all this would have to be done within the four-week appeal window. To give the Deputy a practical example of what this would look like for An Taisce, as a prescribed group which undertakes appeals, to get a resolution of our members to take an appeal under this section we would need to propose an extraordinary general meeting, EGM. As Ms Uí Bhroin mentioned, this takes 21 days, plus one day on either end of the process. Effectively, then, this makes it impossible to get such an appeal submitted within that four-week window. By the time we get a planning decision, which takes a couple of days after it is made by the local authority, prepare a case for taking an appeal to present to our members, get that resolution and then get the appeal in, these requirements effectively make it impossible to be able to do this. We do, therefore, have strong concerns about this section of the legislation.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Is that not a massive overreach in terms of the legislation? Surely it is up to the NGO, such as An Taisce or whatever the organisation, to decide its own policies and procedures concerning how it decides whether to submit appeals to An Bord Pleanála. Is it not a massive potential overreach for us, as legislators, to seek to insert measures in legislation that effectively prohibit ENGOs from being able to decide their own policies or exercise their rights in this regard?

Ms Phoebe Duvall:

Potentially, yes it is. Additionally, there is no reasoning that I can see which is informing this provision. What problem is this proposed section attempting to address in respect of appeals being submitted under these provisions? I have not seen anything justifying the need to bring in these kinds of restrictions. Given the potential practical impacts of this section, it is incredibly important to have the reasoning behind this proposal.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I ask Ms Uí Bhroin to respond briefly on this point because I wish to turn to another section of the legislation.

Ms Attracta U? Bhroin:

In the context of appeals, it is worth looking back to the OPR's planning a review as well in terms of the small proportion of decisions subject to appeal and the extent to which those appeals are vindicated in the context of decisions being changed. An appeal represents value for money in terms of catching things early. This brings us back to something Senator Cummins spoke about regarding involving people in the process and creating a level playing field for different views. We have a fee-based structure for appeals. In the session with the representatives of the OPR and An Bord Pleanála, there was discussion regarding fees. One of our concerns is that we are basically requiring people to pay a fee. In this context, will people say they are in favour of undertaking something and pay their €20 or will they only pay their €20 when there is actually a problem? We create a contentious planning system with the use of fees and it is similar with appeals. An additional point regarding appeals, therefore, is that we must look at the fees and doing away with them for participation.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Moving to Parts 12 and 18 of the Bill, do the witnesses have any comments on these sections dealing with the OPR?

Ms Attracta U? Bhroin:

This is a welcome question, especially in light of the recent development where we saw an important investigation by the OPR into certain systems and procedures within An Bord Pleanála. One of our concerns regarding this Bill is that one of the problems we have had with the current situation is that An Bord Pleanála was left as Paddy last of all the local authorities in terms of the review. It would be helpful if the OPR was obligated to review An Bord Pleanála and to provide information and independent oversight on this and feedback, to this committee for example.

Additionally, there is concern regarding the handling of complaints. There are specific provisions concerning a person having to have an interest in a complaint. I think we could have a very civic-minded person in this regard. In one of the earlier sessions, I think the Deputy referred to a complaint made by Mr. Frank McDonald. He would not have an interest in the complaint and there would be an issue in respect of proceeding with such a complaint under these proposals. There is also merit in having an appeal in this regard.

It is also worth bearing in mind, harking back to judicial review, that any of the decisions of the planning regulator would now fall under section 249(1) of this proposed legislation. In this context, undertakings in this regard would be subject to an eight-week judicial review window, and all the other constraints now associated with judicial review. The requirements, therefore, are moving from a three-month window to a much tighter and more constrained timeframe. There is a great deal in this respect concerning a role for the OPR, so we must ensure we do not end up in the situation with deficient resources-----

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Finally, before I run out of time, mention was made in the opening statement of the issue of the extension of the duration of planning permissions. What is the concern there?

Ms Attracta U? Bhroin:

This picks up on something that Deputy Cummins said. I will record-----

John Cummins (Fine Gael)
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I am only a Senator but I will take that description.

Ms Attracta U? Bhroin:

I am sorry.

John Cummins (Fine Gael)
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The people in County Waterford will be delighted.

Ms Attracta U? Bhroin:

I was trying to concentrate on the time issue. I will go on record as saying that the Attorney General is not infallible. Before Christmas, we were in front of the Aarhus Convention compliance committee and its members were taking issue with an action plan Ireland had put forward to comply with certain non-compliances in relation to the extension of the duration of planning permission. There was a fundamental test. A member of that committee basically said that Ireland had got this wrong and was not reflecting the test required in the Aarhus convention. This refers to the need to understand when participation is required based on an impact on the environment. Ireland has narrowed this aspect down to EIA and AA and this is being done again in these proposed provisions. It was stated in December that this was wrong and it is wrong again in this Bill. These are fundamental issues where we have the gravest of concerns regarding Aarhus Convention compliance regarding multiple aspects of this proposed legislation. From the transcript of the session with representatives of the Department, I note there has been no independent review and no proper assessment of this proposed legislation's compliance with the Aarhus Convention. There are just general principles of what is supposed to be done. Well, I am supposed to be on a diet but am I keeping to it? Look at me.

Steven Matthews (Wicklow, Green Party)
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I thank Ms Uí Bhroin. On the aspect of the resolution of an organisation, it stated that this is required "in accordance with the constitution of the company". Is it the board or the members that would be considered in this situation?

Dr. Fred Logue:

I think it is the members.

Steven Matthews (Wicklow, Green Party)
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It is the entire membership.

Dr. Fred Logue:

It should not be forgotten that in Irish company law a shareholder is a member of a company limited by shares.

Steven Matthews (Wicklow, Green Party)
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Okay.

Dr. Fred Logue:

It actually, therefore, discriminates against larger organisations and-----

Steven Matthews (Wicklow, Green Party)
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They would have many more members.

Dr. Fred Logue:

If a group has the minimum ten members, who are friends and neighbours, then it is easy to get everybody together. There is not the 21-day deadline for a unanimous decision. The time limit can be waived. Large organisations, though, like An Taisce, cannot do this. The Companies Act 2014 sets down what a resolution is generally needed for, which are usually big decisions around financial risk, a change in the organisation's constitution or these kinds of decisions within companies. I do not understand, though, why an NGO whose daily business is taking planning appeals needs a members' resolution every time it wants to appeal.

Steven Matthews (Wicklow, Green Party)
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I would not have thought so either. It would not make sense. I thank Deputy Cian O'Callaghan. I call Senator John Cummings, if he wishes to come in on this third round of questions.

John Cummins (Fine Gael)
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My colleague, Senator Seery Kearney, sends her apologies. Regarding the links from the RIAI, those are not working for us. It would be good if we can rectify this because it would be useful. I will use this time to tease out the low-rise medium density element. This is an imminent issue in the context of the density guidelines the Department is due to put out for consultation shortly.

I subscribe to that view. It is important that the developments we are granting permission to are viable first of all and then that people want to live in them. That has been quite problematic in recent times. We can achieve own-door density. I live in the centre of Waterford city in a terraced house. I step out on to the street and I am on the square. The shop is across the way and the dentist, the doctor, the butcher and the bike shop are nearby. Everything is in close proximity to me. It is not an alien concept. I know Ms Meghen mentioned that we have not seen much of it in Ireland. I would argue we probably have but it is many years since we have seen it in Ireland. If Ms Meghan could elaborate, I would be grateful.

Ms Kathryn Meghen:

Historically, we have had this type of housing and we have it in many of our suburbs in all of our cities and many of our towns. In more recent times, there have not been guidelines to support the delivery of this type of housing. There is one key aspect to what the RIAI is putting forward. It is about the type of housing. Apologies that the link did not work and we will send that on to members. It is about the types and the scale of the housing but of critical importance is the place. It is about the quality of the urban fabric around those places. We see instances in some of the newer developments where we are seeing this type of housing, that the individual houses are being delivered but the landscaping, the public space and the roads around them are not of the quality that they could be and that would be seen in other European jurisdictions. Places in Sweden, Germany, or in the Netherlands have this really high quality. There is quite a number of places in the UK - but again, they are exceptions rather than supported by guidelines - that provide phenomenally good places to live. They use the existing infrastructure that is there, which obviously in terms of sustainability is critical, but it is high-quality development. It cannot be done by value engineering the schemes. That will not deliver what we are putting forward. The public realm has to be of a very high standard.

John Cummins (Fine Gael)
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What are we talking about in terms of setback distance and garden spaces in order to achieve this? Obviously we need a higher density but it is the type of density that is important. Does the RIAI have recommendations in that space that would be helpful to the committee?

Ms Charlotte Sheridan:

When one looks at the conventional model that everyone is familiar with, that is, the standardised suburban type development, the type of densities that are achieved there are in and around 30 dwellings per hectare. This model we are talking about can potentially achieve 50 to 80 dwellings per hectare. As Ms Meghen said, it is very much focused on a neighbourhood-based approach and is design-led. The type of things we are talking about is starting to reduce the reliance on the car to promote behavioural change. We are suggesting a reduction in the number of car parking spaces to one. That in itself then frees up space and that then goes towards the public amenities space. We are also talking about looking at the design manual for urban roads and streets as integral to that and that is a good case in point where we have had guidelines that had really positive results but were not necessarily implemented throughout the country due to lack of awareness of it. Those types of quality spaces are absolutely essential. In terms of the dwellings themselves, we are suggesting there is absolutely no diminution in terms of amenity or privacy and the buildings are designed in such a way that this can be achieved. We have very good examples of them from other jurisdictions where there can be reduced separation distances between dwellings while still ensuring privacy is maintained. That there are no overlooking windows is a bespoke design response to a particular context. The private open space is readily accessible to the dwelling and it is really valuable open space and well used.

John Cummins (Fine Gael)
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Are we talking in practical terms about backs and sides in order to prevent that overlooked element mentioned there?

Ms Charlotte Sheridan:

There is potential as well in this unit type for a format of duplex arrangement. There is an own door to the street but it has configurations of courtyard spaces, terraces, and a variety of ways in which to provide that open space but that it is very much usable and very much enhancing the amenity of the dwelling. I suppose what is really valuable about this type of format as well is that you get a variety and typology so that you are getting that diversity, multigenerational living, potential for people within an existing neighbourhood to downsize, or indeed for families to expand and to grow into their own neighbourhood. They continue to live in it and you get those really integrated vibrant neighbourhoods. What we would envisage is that this provides a very positive, passive surveillance - these are really safe places - and that it maximise the use of the space between the buildings as well. We have a lovely example of a project in Marmalade Lane by Mole Architects, which shows the value of those spaces between the buildings are as important as an amenity to the dwelling too. That in itself can create really positive vibrant neighbourhoods.

John Cummins (Fine Gael)
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I subscribe to everything Ms Sheridan has just said there and she has described it brilliantly. I will ask one final question. Does this equal higher cost and does it bring viability concerns into the mix? My view is not necessarily, but I would be interested in her view.

Ms Charlotte Sheridan:

What is really valuable about this model as well is its conventional construction potentially. It also facilitates smaller-scale contractors to deliver these types of homes. In that sense then, in terms of viability, that is very beneficial. It also facilitates incremental delivery and that is key. It is not a case of trying to provide something on a very large scale and are waiting for the finance for that.

John Cummins (Fine Gael)
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That is the biggest issue.

Ms Kathryn Meghen:

I will add just one other point. Existing infrastructure is being used for an awful lot of these developments so the cost of putting in infrastructure is obviously very substantial. By using the existing infrastructure, the whole life-cycle costings of the dwellings is much reduced.

John Cummins (Fine Gael)
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I hope the Department was listening.

Steven Matthews (Wicklow, Green Party)
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I am sure it is. I have the next slot. This question is directed to Dr. McGoff, who has attended the committee previously during our meetings on water quality. Does she think there is enough in this planning legislation as proposed to give enough protection to water quality, to our environment and to biodiversity? Are there ways we could strengthen it? I know we have a whole load of water framework directives and we have biodiversity action plans. We have all of those things but is it captured enough in this? Is there anything we can do, say, around tree preservation orders? We know the procedures for identifying, preserving and conserving sites of certain European designations etc., but we have those local sites of importance that may not be covered under anything here. Does Dr. McGoff think there is scope for us to do something within this Act?

Dr. Elaine McGoff:

I would say our focus should primarily be on the water framework directive. Protecting local water bodies is obviously important but first and foremost, let us implement the EU law. It is interesting that the Cathaoirleach asks that because I word-searched water framework directive in the Bill. It is mentioned four times. The habitats directive is mentioned 49 times but actually in terms of the obligations on relevant authorities to protect water quality, it is almost equivalent between the habitats directive and the water framework directive. There is mention of the water framework directive in the heads of the Bill. The wording talks about the "promotion of compliance" with the water framework directive, which is essentially meaningless; it is just words on a page. To compound that, as there are no planning guidelines, local authorities do not know what to do with the water framework directive. We know that. I have talked to local authority decision-makers - this is no slight on them - and they have not been given guidelines from the Department of Housing, Local Government and Heritage on what to do. They are told to protect the water framework directive and to take it into account. How do they do that? We have been chasing the Department of Housing, Local Government and Heritage for what feels like years at this stage, for those planning guidelines. It keeps telling us the guidelines are forthcoming. There is still no sign of them. Local authorities are essentially making decisions in a void and this Bill provides no legislative direction to them, which is a huge failing. As long as this is not addressed in the primary legislation, we are going to keep falling afoul of the water framework directive and inevitably, it will come back around and bite us in court cases.

It is inevitable.

Steven Matthews (Wicklow, Green Party)
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Is there scope to improve the consideration that must be given to things like tree protection, hedgerow protection and other vital things that are missing from the planning Act? There is scope to do that. I know we should do it and they are sort of peripheral, but it is not set down that such conditions can be applied to a consent.

Dr. Elaine McGoff:

I will pass that question to Dr. Logue.

Dr. Fred Logue:

There are tree preservation orders but they are not used. It may be worth considering the introduction of a policy to state that local authorities must have certain tree coverage. A survey carried out of Dublin's tree coverage was quite good and exposed where the trees are and where they are not. In general, development plans have policies and objectives relating to trees and hedgerows but they are more honoured in the breach than in the observance. We have taken cases in respect of whole sites having been completely cleared of trees even though the development plan stated that trees should be preserved where possible. The attitude is that the phrase "where possible" means where it does not conflict with development, which is not-----

Steven Matthews (Wicklow, Green Party)
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There is very little protection for urban trees once development has been granted.

Dr. Fred Logue:

It is probably a statutory requirement to have objectives relating to trees, hedgerows and biodiversity. Most plans have what, to the common observer, seem fairly strong guidelines stating that they are to be preserved where possible. The definition of "where possible" has kind of melted into where possible insofar as it does not conflict with building out a site or whatever. Much of planning is actually in how it is used and governed. Somebody should be governing local authorities and asking why a particular local authority has only one tree preservation order in its entire county. What is really needed, however, is a proper tree preservation system.

Steven Matthews (Wicklow, Green Party)
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Once has to dig deep into the development to find the tree preservation orders. They should be separate.

Dr. Fred Logue:

Exactly.

Steven Matthews (Wicklow, Green Party)
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There is scope in this regard. When the plan was originally written in 2000, we were not aware of the climate and biodiversity crisis. Now, 20 years on, we have a lot more knowledge. We can strengthen that. It is important that people are aware of those local sites of importance. That is not about curtailing development but, rather, focusing the mind when the area is being developed. It is not European designation but it is locally important.

It is somewhat unfair of me to ask my next question with only a minute and 50 seconds left. Section 249(5)(a) states that "any of the bodies concerned may make an amended decision, correcting any error of law or fact contained in that decision". I read the phrase "any error of law" as being without limits in terms of what one can do. Under the current section 146A, however, clerical errors can be corrected. It is kind of defined there. Can the witnesses suggest a definition for "any error of law"? It is limitless; is it not?

Dr. Fred Logue:

The language is limitless. In essence, what one gets when the board makes a decision is a draft decision, not a final one. It is open to being amended unilaterally by the board within eight weeks.

Steven Matthews (Wicklow, Green Party)
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Only by judicial review-----

Dr. Fred Logue:

If there is a judicial review, it can be at any time. Two things may happen. Within eight weeks, the applicant may contact the board to point out errors in the decision and ask the board to amend the decision. It is unfair to the public, who have eight weeks to prepare for judicial review. They do not know whether the decision is final. In a proposed Bill that is meant to increase legal certainty, this provision sticks out as inconsistent. I heard what the Department said about this. First, it said it is a minor amendment, which is not reflected in the draft Bill. We already have section 146A, which deals with that. It is in a different part, namely, the administrative part. It is definitely there to deal with judicial review. The problem is that the decision is the written decision. It does not matter what the board thought it was deciding. Just like it does not matter what the Legislature thought it was enacting; it is the words on the page that are the decision. The idea that the board took a matter into account but forgot to write it down and will go back and fix that is completely contrary to any concept of good administration. If the board needs eight weeks to check its decision, it should do that before publishing its decision. It should not publish a temporary decision and then try to figure out what is wrong with it. That would be bad administration. It opens it up to the board being asked whether it actually decided a matter or it is just changing the words to get rid of the judicial review. It kind of relegates the decision to a formula of words to avoid judicial review, whereas case law and general legal principles are that the written decision has to record what was decided and the reasons for it. If that is now a fluid concept that can be adjusted when a mistake is spotted or a decision challenged, that completely undermines the administrative system and will give rise to a significant amount of litigation.

Steven Matthews (Wicklow, Green Party)
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That is something we want to avoid as one of the principles behind the Bill.

Victor Boyhan (Independent)
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There are two or three issues in respect of which I wish to follow up in the context of the witnesses' engagement here rather than what they submitted in their written statements. Ms Sheridan touched on the importance of data but she did not do so in great detail. There is a lot in it, however. One of the things that has echoed through the evidence given by professional planners and others who have appeared before the committee is that there are so much data and somehow they are all dispersed, with 31 planning authorities. There is a significant amount of data that does not really change. It evolves and grows and there are aspects to it. This is an important tool in the context of planning, including town planning. I ask Ms Sheridan to touch on the significance of that and how we can capture its importance in the legislation.

Ms Charlotte Sheridan:

It is a matter we must consider because there is significant duplication of effort. As plans are prepared, data are gathered but there is no central place for them to be held. Plans sit on shelves and the value of that effort gets lost. There is a significant amount of information we should be gathering. There should be a centralised means for so doing. The GIS facilitates us doing so. That can provide us with great information in terms of developing proposals for particular areas. It goes from including information on trees and nature within cities and towns, as well as landscape assessments, which is very important, right through to the building fabric. An important issue we all talk about is vacancy and the levels thereof. One can have layers of information that can provide a sense of what we have now and the levels of vacancy. That can be a great way of measuring the extent to which policies are working effectively. We can look back to a particular point and assess the data in order to see where we are now, whether improvements have been made and whether the policies and objectives have been effective.

Victor Boyhan (Independent)
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Ms Sheridan makes an important point. She may wish to echo it in the further detailed submission to be made by the RIAI to the Department. It is an important point in the context of data and duplication. We need to hear more on it and tease it out further.

I wish to raise several issues with Dr. Logue. He referred to the options of prescribed bodies and expanding that array of prescribed bodies. It is a wonderful idea. I ask him to flesh it out.

I am familiar with the Granada Convention, which is an important instrument. In fact, the Granada Convention and the Aarhus Convention were included as preambles to the Dún Laoghaire-Rathdown county development plan at my request. I pushed them in. I suggest that they should be included in the preamble to the Bill. We should be adhering to them in all circumstances. Is it a good and strong recommendation to the committee that the Aarhus Convention and the Granada Convention should be embedded in their broadest meaning in the preamble in terms of setting out clearly the objectives of the legislation?

Dr. Fred Logue:

I will first deal with the conventions. I agree 100% they should be recognised in the Bill, not just formally but in substance. There should be documentation to explain how they have been embedded in the Bill. Along the lines of the point made by the Chair in respect of the Aarhus Convention, the Department is proposing the Bill should include some kind of explanation about how it has been done, in letter and in spirit. As the Senator is aware, the 2000 Act has very good provisions on built and architectural heritage.

There is an opportunity to strengthen that.

In terms of the prescribed bodies, with the ratification of the Aarhus Convention by the EU and Ireland in 2012, the ENGOs and environmental organisations now have a special role to play in the planning system. Unfortunately, that is not really recognised in the draft Bill. Those who drafted it are actually trying to reduce the scope of their actions through both the appeal restrictions and judicial review. Even at a local level near where I live, a member of the public contacted me about a significant decision with very serious environmental consequences that the local authority had not notified to An Taisce or the National Parks and Wildlife Service. There would be a benefit to doing this, even if it was only a very small development. An Taisce may not even have come up on their radar. There is a benefit to looking at circumstances-----

Victor Boyhan (Independent)
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Yes.

Dr. Fred Logue:

-----where local organisations can be prescribed and not have An Taisce shouldering the burden for the entire country. That is the intent of the Aarhus Convention.

I will come in on the data as well. We already have legislation that requires that on the SEA directive. A really important part of the SEA directive is monitoring the significant effects on the environment of the implementation of a plan or programme. Again, this is an area that is not really being implemented correctly. If the SEA directive was being implemented, the RIAI would not be asking for improvements because they would already be happening. It goes beyond data.

Monitoring obviously relies on data but it also requires analysis and a kind of feedback as the plan is implemented. Now that we have ten-year plans, maybe there will be more time to look at how they are being implemented. We look at the environmental monitoring and see where it is going red on the dashboard, which is when it is supposed to trigger feedback to do something in order to mitigate that harm. It is a kind of a macro point, but we do not know the regulations. All these assessments are being implemented through the regulations, not by means of the primary legislation. Some of it is more or less in the primary legislation. Until we see the regulations, we will not actually know how these important European directives are being fully implemented. It is very difficult to actually see whether there is proper provision for monitoring in the proposed legislation.

Victor Boyhan (Independent)
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I thank Mr. Logue.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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To stick with some of the Part 9 changes in the context of judicial review, when we were teasing out some of this stuff with both the Irish Planning Institute and Wind Energy Ireland at a previous meeting, the Irish Planning Institute was kind of indicating that if such a provision, that is, correcting the decisions on the basis of errors of fact or law, were to remain, there should be an automatic assumption that the board is responsible for all costs because it is responsible for the error. I am interested in Mr. Logue's view on that, notwithstanding his broader concerns around the provision that he outlined earlier. Wind Energy Ireland's legal advice from Arthur Cox made a distinction between errors of fact and errors of law in that errors of fact should be correctable whereas the situation with clarifications on points of law is different. I would be interested in Mr. Logue's thoughts on that. We have not so far discussed the wider implications of the Bill in terms of cost protection and cost recovery, and this mysterious issue of the legal aid scheme for environmental cases. Any views on any of that would be more than welcome.

I will go back to Mr. Logue's observation on the RIAI because the committee is probably universally in agreement with him on this. The more we get the plan-making right and upstream stuff correct, the less of a discussion we will need to have around legal challenges. We will be doing what everybody presenting to the committee wants to see, which is a really good functioning planning system with full public and sectoral participation. Is there anything Mr. Logue would like to see added to the Bill to facilitate that?

Obviously, we know about the resources issue. That point has been well-made by the bodies that have to look after that role. However, what else does the Bill need to have to assist and accelerate that? While it is not related to the Bill, Mr. Logue is absolutely pushing at an open door in terms of cross-party support in this committee, not only for low-rise, mid-density housing but also, for many of us, mid-rise, high-density housing, particularly in inner urban cores. I would encourage Mr. Logue to push that door wide open because we need to shout a little bit louder if the Department is going to listen.

In some sense, that is an interesting example of where guidelines sensibly applied could be really helpful, not unlike, for example, the design manual for urban roads. We could have central government policy that sets a broad long-term strategic framework in terms of densities and the kinds of levels of densities we need in different locations. Local authorities could then map those out in their development plans, as is appropriate, according to local need. Then, they can design manuals with the guidance documents coming in to give everybody options, for instance, plot of land X requires a density of Y, therefore, here are a number of different ways of dealing with that, whether it is low-rise, mid-density housing or whatever. I encourage Mr. Logue to pursue that matter, particularly as, in my view, there would be universal support for him across the committee in respect of it. Mr. Logue might perhaps start with those first few questions for the Irish Environmental Network and then come back to the plan-led approach afterwards.

Dr. Fred Logue:

On the costs relating to the amendment, we already have a procedure to fix a decision that is wrong. This is referred to as quash and remittal. What happens is that the court quashes a decision and the matter then goes back to the board. The advantage of that is there is a proper decision-making procedure that follows the error being identified, whether it is by the board or by the court. That gives the board the procedural flexibility, for example, to get more information and do more public participation. The way I read this is that the board will just change the words on the page. It does not open up a new procedure. It is merely a textual change. Therefore, I do not think just paying the lawyers will make a very unfair procedure fair. Obviously, lawyers like getting paid; that is our job. The underlying procedure is unfair, however. There is already a solution in place, and nobody has really explained what is wrong with it. In fact, there are many benefits because 95% of decisions relating to planning that are quashed go back to the board, which makes new decisions. It has the procedural flexibility to deal with it properly, however, and it is not just a mere textual change. People will not trust or believe there was just a mistake in typing up the decision. I guarantee that. What will happen is that board members will have to give evidence and swear affidavits about what happened. They will have to be called to give oral evidence. Inspectors will have to give evidence. It is not even clear whether the inspector's report can be amended because that forms part of the decision. I do not see a clear line between fact and law, because these are mixed. This is application of the law to the facts. One cannot say, except, maybe, in very particular situations that are not dealt with in the draft Bill, that there can be a clear distinction between fact and law.

On the section on the cost provisions, which Ms Uí Bhroin will talk about, from a legal point of view, on 10 November 2022, we got legal certainty from a judgment relating to Heather Hill. There had been a massive amount of litigation. Whole judicial reviews on planning were being held up because of this issue. We finally got legal certainty that it was not an issue anymore and there were no disputes over it. Then, literally two months later, it was decided to throw it in the bin, for want of a better word, and replace it with something and nobody can actually explain how it works or how it is going to work. This is the issue. Why abandon something that has reached some kind of stability after 13 years of litigation and go back ten or 15 years to start the process all over again and end up in the same place?

What I think should happen is that we should keep what we have and build on it rather than abandon what we have got to at this stage for want of something new. It is like of you have a leaky tap and basically decide to demolish your house because you have a leaky tap. You fix what is broken; you do not throw away what actually works or has been proven to work.

Ms Attracta U? Bhroin:

To add to what Mr. Logue said in terms of the first point on changing the decision, it incentivises careless decision-making. It is fundamentally bad practice. How do I manage to ring Mr. Logue up and encourage him to help me look through a decision? On what basis would he get paid? It is extremely difficult. I cannot see that we could actually incentivise being able to engage a lawyer on this basis in terms of the effort he or she would need to put in to evaluate and correct the error of the board.

Turning to the costs, to expand on what Mr. Logue said, the problem with head 250 is not only does it throw everything up in the air all over again at a time when we absolutely need clarity and certainty but we have not got a clue what we are getting here. What we have is a situation, and it is really important that everybody here and those listening understand, is how the current cost rules actually work and why they were introduced. Ireland has obligations under EU law and the Aarhus Convention to make sure it is not excessively difficult and not prohibitively expensive, effectively, to be able to take a judicial review.

This was a big issue in Ireland because we all know that, basically, if a person goes to court and loses, he or she could lose everything. The loser pays. With our very high costs of litigation, that means a person could be exposed to very high costs.

When Ireland decided to ratify the Aarhus Convention, it was the then Minister, former Deputy Hogan from Fine Gael, who actually drove the changes to facilitate that. He amended a rule that was brought in which left each side holding its own costs to say that litigants could win some of their costs. They would not be exposed to costs but could win some of their costs if they were successful as a person or an organisation pursuing judicial review, and this could be used to pay their lawyers. That has been key and has facilitated a model called no foal, no fee where a person can engage with a lawyer, and if that lawyer thinks the person has a decent case and a good chance of winning, that lawyer is prepared to engage with the person in question. That has the added advantage for the State in that the lawyers are screening out nonsensical cases in the first instance. Therefore, that is a win.

What we are being presented with here instead is some scheme, about which we do not have any of the details, which says in the first instance that there will be no order as to costs. How do litigants then cover their own costs? How would such people actually deal with the massive legal bills they would need to pay to their own lawyers? This is the fundamental issue. What we know from the Bill is that it is intended the Minister for Public Expenditure, National Development Plan Delivery and Reform will have a final say on it. We have very little else. That leaves something entirely to the discretion of the political regime to be able to titrate a scheme, which is not clearly specified in primary legislation, will not necessarily be specified there, and will be subject to political control to be tweaked. On Friday and Saturday last weekend, I attended the civil legal aid review, that is, the Chief Justice's conference associated with that. I was moved to tears hearing the stories about people and the challenge they had with legal aid on the most emotive cases around family law, child law - just horrendous cases. The regime we run in this country is appalling. We have members of the Judiciary, the legal profession, and civil society NGOs reflecting upon it. What hope is there for the environment if we cannot look after the most vulnerable in our society, namely, our children and our families? That is the type of scheme we are effectively proposing we would put this in. We have a system that works and what is needed are additional measures to provide for that broader concept of legal assistance. That is fundamental.

We have not been consulted on this as part of the planning advisory forum. The wider public has not been consulted on it. We do not have a clue what we are getting. We are getting a pig in a poke and that is no way to legislate on something as profound as this and which will drive huge issues. What do people do? Do they apply for legal aid first?

Steven Matthews (Wicklow, Green Party)
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I apologise to Ms Uí Bhroin but we are well over time, so if she could be concise.

Ms Attracta U? Bhroin:

I will continue on this one really important point. Do people apply for legal aid first and then have to appeal that? What does that do to the timeframe? Do they have to go in with chilling uncertainty, which would be immediately problematic in terms of EU law and the Aarhus Convention in terms of only getting clarity after the fact? What happens about injunctive relief? The decision is live until it stands and if a person is pursuing a claim for aid so that he or she can take a case, what happens in the meantime with the development and the status of that permission? We also do not provide for injunctive relief that is not at prohibitive cost. That is a requirement of the convention.

Steven Matthews (Wicklow, Green Party)
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There are many questions there that are unanswered because the clarity is not there in the Bill. There is a section there which states there is an administrative costs scheme to be introduced.

Ms Attracta U? Bhroin:

Not on our watch.

Steven Matthews (Wicklow, Green Party)
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It highlights the fact that this is not a complete piece of legislation at the moment.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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To follow up on that, am I correct in saying that what is being said is that this section of the Bill could potentially lead to ten to 15 years of litigation and uncertainty simply to get us back to the point we are at or to the levels of certainty we have now? That is a possibility.

Dr. Fred Logue:

It is a probability. In fairness to the courts, they are not forcing people to advance cases while there are cost risks. They are allowing them to have the issue determined as a preliminary matter and to have that finally determined before the case goes on. If there is uncertainty over the costs at the start, people will just make applications either to invalidate the legislation or to find some other remedy. We found with the Heather Hill case there was a parallel case called Enniskerry Alliance v. an Bord Pleanála which almost ended up in a preliminary reference to the European Court of Justice, ECJ, because there was another parallel cost regime called the Environment (Miscellaneous Provisions) Act 2011. Whatever about the scheme, there has to be reasonable predictability of costs.

The issue is not environmental litigation. The issue in Ireland is that our costs are extremely high, and that goes across the board and in all types of legal proceedings. This is not specific to environmental litigation. What is specific to environmental litigation is that the costs cannot be prohibitively expensive and there has to be fair and equitable procedures. That is what is different. What we have is a system that kind of works and has achieved a kind of stability. The fear is, when we do not know what will replace it, it is very hard to imagine something different when we actually have something that is stable and people can use. We also have to remember that costs are so high in Ireland that developers cannot afford to take judicial reviews. If we look at all the developer litigation, they are also relying on cost protection. The only people who can really afford to take these judicial reviews are very big developers, very wealthy people and public bodies or sometimes the State. It benefits everybody actually to have good cost rules that do not prohibit litigation.

The thing to avoid is any kind of uncertainty or any hard parameters that give rise to somebody needing to make an application to have the issue resolved. What we have now today means it is almost automatic. All judicial reviews under the planning and development Act benefit from cost protection regardless of their substance. There is a kind of safeguard in that if it is frivolous or vexatious or if there is contempt of court or some other bad behaviour involved, there is a potential for some kind of a cost order. That rarely, if ever, happens, however, as people are generally quite well represented so they can afford to hire lawyers and the cases are quite good. As Ms Uí Bhroin said, there is a kind of selection bias so that we generally take cases we can win. Obviously, that is how we get paid. There is also a kind of disciplining bias in cost recovery from the public body. I think the committee is well aware of the amount of legal costs the board incurred. That shows up on its annual report. It has to account for why it spent a lot of money losing cases. That has another positive benefit in the board conceding cases early to avoid cost and making good decisions so that it does not have to show a huge legal spend when it loses cases.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I have a question for the representatives from the RIAI in terms of the discussion earlier about the public realm, medium-density and low-rise and how it is very important to get a high-quality public realm as part of that. In my constituency, there are areas that were built 15 years ago that would have been built on a low-rise, medium-density type of a model with a promise of high-quality public space, but it has not turned out that way. What needs to be done to ensure that promise or vision actually happens. I am asking preferably in relation to this Bill. Are there things that need to be in the planning and development Bill that ensure we get that high-quality public realm which is needed to make more compact development attractive for people to live in and stay in? In my constituency, people who bought into these areas ten or 15 years ago and moved in on a quality vision are now saying they want to move out as soon as they get the opportunity, that it is not working out for them as they did not get that high-quality public realm. In legislative terms, is there something that could be done to address this?

Ms Charlotte Sheridan:

This goes to the part of our submission where we spoke about quality decision-making and the collaborative approach in that. What we see as being very valuable is that there would be a proactive discussion with the local authority and that we would both be working with a view to achieving a high-quality development. We have suggested in our submission that engagement with the local authority can sometimes be quite challenging when in actual fact we should be working for a common purpose.

To get that kind of direction from the local authority can be helpful in developing planning applications. However, a robust and strong application is needed that has the level of quality to which we aspire. Therefore, the local authority itself must have a good awareness of the quality of the application. That is where we see it as very important and valuable to have input from other disciplines when the planner is making a decision. The planner is balancing all of those issues and will often rely on reports from the engineer or a conservation officer. We would push for decisions also to be informed by reports from the local authority's architect's department and, equally, that the planners have a clear vision at the outset of what they are trying to achieve. That is the important thing, that the application is doing that. Of course they need to follow up on those.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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We are all agreed that, if local authorities were better resourced, this would be more likely to happen. Does the legislation need to be explicit in talking about the goals of good planning, high-quality public realm and multidisciplinary approach? Is that potentially a weakness in the draft Bill that it is not explicit that this is the aim? If the legislation does not explicitly state that is the aim, how can we be confident we are going to get that?

Ms Kathryn Meghen:

We would welcome that being stated in the legislation. I am not sure whether we would get to that level of granular detail but the local authorities should be charged, through the Planning and Development Act, with delivering developments to a very high standard. In regard to the schemes the Deputy mentioned in his own neighbourhood which have not been finished, that comes down to enforcement. We possibly do not see the level of enforcement to ensure projects are completed.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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There are also the issues are around taking in charge.

Ms Kathryn Meghen:

Yes. The aspiration at the outset has to be for a high standard. It needs people who understand what they are looking at.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Yes, but it is not just about the aims. It is about the resources and the detail around-----

Ms Kathryn Meghen:

Following through.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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-----taking in charge and enforcement. If they are not all done, we can have all the great aims and vision but we will continue not to get it. That is the problem.

Steven Matthews (Wicklow, Green Party)
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I want to go back to correcting any error of law. It was said that what exists at the moment is the quash and remit, in other words, we put our hands up, admit we made a mistake, and it is a case of quash and remit. If we were going back to a 16-week decision process, we could say that is not a massive penalty to pay. In fact, with the quash and remit, is it going back into An Bord Pleanála's heavily backlogged system and possibly not seeing a result out of it? Is that something that is being tried to be fixed here whereas it is actually a resources issue to meet timeframes?

Dr. Fred Logue:

It is another one of the mysteries of why this is so. This is actually not a new provision. This was proposed in July of last year and the amendment was withdrawn. It is something that seems to exist outside of the overall planning reform. What it is aimed at has never been explained. We hear noises about efficiency or whatever. The way to avoid this is to make sure we make good decisions. There is much focus on timelines but hard timelines can introduce biases into the system. This is what happened with SHDs, where the largest developments took the shortest amount of time. It removes flexibility, which then, through no fault of any competent authority, results in poor decision-making, because they are under pressure.

Steven Matthews (Wicklow, Green Party)
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Can I come in again briefly? The planning applications can be incredibly complex. They can pull in so many different strands that a planner, inspector or board member has to consider that I have no doubt issues can be missed or mistakes made. Do we need to have a level of significance in that mistake? A planning decision is not like a mathematical equation. There is subjectivity in what decision a planner will come to. There is so much in it that there could be scope to say something is a mistake or an error, albeit insignificant, but a good barrister would say it is still a mistake in the process and the judicial review would be upheld.

Dr. Fred Logue:

The judicial review is process and substantive law. It is not just about the process. Substantive law would be, for example, compliance with the development plan or proper assessment and things like that. Legally, the board has to make the decision so it has to be given the resources. For example, as we know, the board has only recently, for the first time in its almost 40-year history, advertised for an in-house legal adviser. The question has to be asked if the lack of in-house legal advice one of the reasons. Are these accelerated timeframes another reason? Something like this, that is to be brought in, while only a few words on a page, procedurally is quite disruptive, and instead of making matters more efficient, it could probably make things worse because people would start to challenge these amendments.

There is actually not that much of what is legally significant, because where the board has wide discretion, the courts will not intervene. However, where the board has no discretion, they will intervene. For example, the court is not going to intervene in such matters as a judgment on whether the massing of a development meets the development plan criteria. However, if the density is capped at 35 and the developer asks for 40 and the board grants it, that is a material change. The risk is that if the board just changes the words on the page, people will not believe that the actual decision was something that was not written down. EU law, Irish law and international law relies on written decisions and reasons for legal certainty. The idea that if the board changes its mind or identifies a mistake after the fact or somebody takes a judicial review that triggers a textual change, that is orthogonal to legal certainty. It means a board decision cannot be trusted. What about the decisions that are not challenged? Does it mean they are trustworthy if they have never been amended because a judicial review has never been taken?

Like many of the issues in the Bill, we need to understand the real reason this has been proposed. Why does quash and remit not work? As I said to Deputy Ó Broin, it is because quash and remit puts it back into the board’s procedure. This amendment today is after the board’s procedure. It has made a decision, it says that is its decision, it is going to publish it, its members have signed it and put the board’s seal on it, and then eight weeks later it can say it made a mistake. That is not consistent with good administration. It will actually encourage poor decision-making. Often developers get wind of a judicial review. The possibility remains that a developer will be anxious that a judicial review might be in preparation. It might start reviewing the decision and might go to the board or write a letter. I have seen it happen on planning files that have been decided where the developer has written in saying a mistake has been made on their application and asking if it can be fixed. There are many ways of looking at it but it now involves the developer, or any member of the public, in reviewing a decided decision and trying to get it changed. It blurs the lines between the board’s procedure and the court’s procedure. The board can now intervene in a court procedure and have it stayed while it tries to fix its decision. It takes away discretion from the judge who is in charge of his own procedure, and there is already a solution to the problem through quash and remit. The question again is, what is wrong with quash and remit?

Steven Matthews (Wicklow, Green Party)
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The problem is you can end up waiting another 52 weeks for the board to kick off the process.

Dr. Fred Logue:

That is a problem with the board, not with-----

Steven Matthews (Wicklow, Green Party)
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Again, it is about resources. We need proper resources, first, to make good decisions, and second, to be able to deal with quash and remit in a timely manner. However, is there scope for something more than 146A allows but something that is a lot less than the words "substantive" or "legally significant"? Is there room for something here that is not to the same extent as what is written?

Dr. Fred Logue:

I do not believe there is because it is just too vague. If I was looking at this as a lawyer I would ask why it was not written down that the decision should be made properly. It is complex but the instances where things can go legally wrong are actually limited. There is a skill involved and that is why the board is an expert decision-maker. Obviously, there are advantages and disadvantages but we must have a proportionate reaction to anything.

It would undermine the certainty of the decision-making and encourage poor decision-making if a board had a get-out-of-jail-free card. It would also be grossly unfair to members of the public who are trying to rely on this decision for them to then have the goal posts moved on the last day for example, after they have hired me or a barrister to look at a planning decision. The work would need to be thrown away and we would have to start again and spend another eight weeks on it. The question is why they cannot get it right the first time. I acknowledge again that only a small number of planning decisions go to judicial review. When SHDs are removed the number is only 1%, so why put in something like this to solve a problem that is quite small in the grand scale of things?

Steven Matthews (Wicklow, Green Party)
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A very low percentage of planning decisions are judicially reviewed but a very high percentage of those that are, are upheld.

Dr. Fred Logue:

That is true in recent times. It is in the board's report.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I will return to plan-making. I asked what changes or additions to the Bill Ms Meghen and Ms Sheridan think will be required to strengthen plan-making. I will add two additional points. I am a fan of the limited amount of 3D plan-making we use. I have been through a full strategic development zone plan. They are not without their problems, but they have real advantages both from the point of view of the council, the public and landowners. What is their view of the provisions of the Bill and those new elements of plans as regards the extent to which they will allow public and wider community participation and the multidisciplinary participation they mentioned?

Specifically on planning permissions, the more I listened to the witnesses' responses to Deputy O'Callaghan, the more I thought that strengthens the role for strong preplanning processes. However, with public participation at the preplanning stage and cross-sectoral involvement, we can do a certain amount of 3D planning. It will take time and resources. If we had stronger provisions in the Bill for statutory preplanning requirements and a high level of public participation to deal with some of the issues Deputy O'Callaghan mentioned, we would have the best of both worlds. Will the witnesses share their thoughts on that range of issues?

Ms Charlotte Sheridan:

One of the key issues in all of this is certainty which can emerge from proper plan-making. There is a huge benefit in the proposal we are making of the three dimensional development plan preparation as regards the vision it can bring to a place. It can allow development quantum, placemaking, street hierarchies, building heights and all those issues that often lead to concerns among communities to be understood. Emphasis can be given to that format of plan-making. We will look at where that phraseology might come into play in the Bill. We agree that active engagement with the community and community buy-in are essential in all this. We need to maximise the ways in which we engage with the community. There is scope for that. We are trying to propose inventive ways to do that. In addition to judicial advertisements, we can use technologies as a means to allow people to have their say in their local area. We also need to look at different age profiles so that we are not only reaching a certain cohort of people. We want to engage people at a younger age when they are in education and schools. We can set out the types of places and areas we think this could occur.

Ms Kathryn Meghen:

We agree with the need to strengthen the preplanning phase. There are many issues around SHDs but one of the measures our members found to be beneficial was meeting the cross-disciplinary group at an early stage instead of individual conversations taking place that can end up conflicting with one another. Where there is extensive engagement at preplanning, a huge amount of time and effort is put into designing and preparing for that detailed discussion. Sometimes it then has no consequence and the planning decision is totally different. As Ms Sheridan has said, it is about clarity and certainty. We must start bringing it in. There is far too much focus on legal challenges now. It is understandable that is happening but we need a system that moves away from that.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Sure. If we reflect on the failures not only of the SHD process, but of the section 28 ministerial guidelines that drove many of those judicial reviews, it is clear that if we had far more 3D planning in place in those locations, it would have removed many of the conflicts. Both the public and developers would have known that the parameters in location X were density Y and height Z. In some senses those two conversations are related. We should do far more of this. It goes back to tree protection orders. Ms Uí Bhroin and I have an SDZ in our constituency. We were looking at Clonburris. There are important historic eskers and hedgerows that run through it. A 3D master plan indicates whether or not they are being protected. When elected members got that plan and saw that a huge part of the historic esker would be destroyed, we forced the reconfiguration of the plan. That benefits everyone. The more of that we can work in, the better. It is not either-or; the two go hand in hand.

Ms Kathryn Meghen:

That kind of planning also enables us to look at what kind of infrastructure is needed. We often find planning applications get approval and the infrastructure is not there to enable the plans to move forward.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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One of the benefits of the last strategic development zones was the statutory phasing requirements, that is, the infrastructure had to be built in parallel. A point is reached where no more residential units are possible until the infrastructure moves on. That forces public and private landowners to share the responsibilities of timelining the infrastructure. There is a lot of good residential development in Newcastle, Rathcoole and parts of Adamstown but pre-crash planning permissions are being built and we are getting all the same problems in the mismatch of amenities and infrastructure that Deputy O'Callaghan spoke about in respect of new residential developments.

I have one small question for Dr. Logue. He might remember that a figure was mentioned of 70,000 units being delayed in the planning process in one of the earlier sessions and in some media coverage. I know Dr. Logue is an avid tracker of these things. There was a small dispute between two of the industry representatives. The Construction Industry Federation used the figure of 70,000 but Irish Institutional Property reckoned the figure was much lower because some of the SHDs in question had been judicially reviewed and the reviews were upheld. For the accuracy of the committee, as a person who tracks these things, does Dr. Logue have any information about the number of units that is stuck in delayed An Bord Pleanála decisions and,or is under judicial review?

Dr. Fred Logue:

The first thing to say is that the greatest number of units is either vacant or underutilised. That number runs into hundreds of thousands. My understanding is that approximately 70,000 units have permission for which building could be commenced but has not been. That comes from the Housing Agency's data. Regarding planning, what happened is that because of personnel reductions, the board was unable to grant permission or to handle SHDs. Approximately 90 SHDs were stalled. That accounted for approximately 35,000 units. There are problems with many of them because the development plan has changed since the application went in.

On judicial review, from my reading of the evidence, they used my data. There are 98 judicial reviews and 46 are pending. They counted quashed decisions in the number of delayed units. I estimate that approximately 15,000 units are under judicial review.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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That is in addition to the 35,000 delayed in the board.

Dr. Fred Logue:

Yes, in addition to those delayed or pending before the board. The success rate must be factored into those under judicial review by multiplying by 0.2 to get the number that will come out the other end. If we add it up, it is probable that only approximately 5,000 will get through the judicial review process. Judicial reviews have also been delayed because of uncertainty about costs. That is the biggest cause of delay in judicial reviews.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Decisions for a significant number of units are still delayed but rather than 70,000 units, Dr. Logue believes the number is more like 40,000 between those delayed and those likely to come out the other side of judicial reviews.

Dr. Fred Logue:

It has not been said but judicial review is a measure designed to protect the environment. The European Court of Justice has been clear about that. The case law said this was a political decision that Ireland signed up to as a member of the European Union.

The delay caused was the price that was worth paying to protect the environment and human health. Gemeinde Altrip is the name of the case. We have to have some delay as the price that is worth paying for protecting the environment. The judicial review system was the one piece of the planning system that actually worked over the last five years. It did what it was supposed to do. It quashed unlawful decisions. It did them at scale. It did them efficiently and it did them fairly. It exposed a lot of stuff that might not have been exposed if those judicial reviews had not been taken. Most of the judicial reviews were won on fairly substantive grounds to do with overdevelopment, because the development was either too high or too dense or there was not enough open space, there were traffic issues or a lack of public transport capacity or daylight. These are very real issues, all of which are things that lead to a poor-quality development. That cannot be underestimated.

We are talking idealistically here about very beneficial development. The point is that in development, the bad drives out the good. If we do not have a system of stopping the bad development getting pushed through, we will never get the good development that my colleagues in the architectural profession are talking about. You need the public to do that because they are the ones who are motivated. The Aarhus Convention recognises the overlap between private interests and the public interest in environmental protection. We need public environmental NGOs and activated members of the public who will do that job of clearing out the bad to make way for the good. I can give numerous examples where that has happened. Most recently, in Drogheda a developer-led development plan was quashed by the court and the council now has to go and take the plan-led approach. There are numerous examples of this. If we say judicial review is bad or that it causes delays, that means in essence that we are accepting a lower standard of environmental protection, that we want the bad to get through because housing is merely about numbers and not really about quality. Public participation primarily, and then judicial review as a last resort, is a way of making sure housing is about quality and quantity, not just quantity.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I thank Mr. Logue for that.

Steven Matthews (Wicklow, Green Party)
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That brings us to the end of this session. I thank all the witnesses for their participation today. It has been really helpful. We will have another meeting on Thursday with the Bar Society and the Law Society and no doubt we will tease out further aspects of the law then. We intend to produce our pre-legislative scrutiny report on this by the end of March. If there is supplementary material to be provided or anything else that has arisen today, I ask the witnesses to get it into us as soon as possible as that will make it easier for us to put the report together.