Oireachtas Joint and Select Committees
Thursday, 9 March 2023
Joint Oireachtas Committee on Housing, Planning and Local Government
General Scheme of the Planning and Development Bill 2022: Discussion (Resumed)
Steven Matthews (Wicklow, Green Party)
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We will resume pre-legislative scrutiny of the draft planning and development Bill 2022. This is the concluding meeting of our series of meetings on the draft Bill. From the Department of Housing, Local Government and Heritage, we are joined today by Mr. Paul Hogan, acting assistant secretary, Ms Mary Jones, principal officer, Mr. Eugene Waters, assistant principal officer, and Ms Claragh Mulhern, acting principal adviser. The witnesses are very welcome. I thank the Department for its opening statement.
I will read a quick note on privilege before we begin. I remind members of the constitutional requirement that they must be physically present within the confines of Leinster House in order to participate in public meetings. Witnesses attending in the committee room are protected by absolute privilege in respect of their contributions to today's meeting. This means they have an absolute defence against any defamation action for anything they say at the meeting. Both members and witnesses are expected not to abuse the privilege they enjoy, 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 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 go straight to Mr. Hogan. I invite him to make his opening statement on behalf of the Department.
Mr. Paul Hogan:
I am the acting assistant secretary responsible for the planning division. I am joined by Ms Mary Jones, principal officer with responsibility for the planning legislation review unit, Mr. Eugene Waters, assistant principal officer, also of the planning legislation review unit, and Ms Claragh Mulhern, acting principal adviser.
I begin by thanking committee members for their commitment to this draft Bill, as demonstrated by the considerable time and scope of scrutiny undertaken since we last met at the beginning of February. The Department has listened with intent and openness to the discussions. As noted by the Chair, the fact that we are in the unusual position of scrutinising a draft Bill, as opposed to a general scheme, is not without its challenges, but also presents the opportunity to see the detail and intent of the proposed Bill in much greater granularity than would normally be afforded and, importantly, has provided visibility of the draft to a wide audience. We welcome that diversity of input as we now refine this draft in readiness for publication of the final Bill.
It is important to remind ourselves, as has been acknowledged almost universally by all parties over the past month, that the current Act, although functioning well in many parts, is widely considered to have become impractical to operate and impenetrable even to those with expertise in planning. It was therefore heartening to hear that many have found their initial reading of this draft Bill to be clearer and more coherent in its layout and usability, as this was one of the key aims in undertaking the review.
We must also remind ourselves at all times when legislating that we are putting in place a system to be future-proof insofar as possible, rather than bound solely by the limitations or challenges of the present. It is natural for interest groups to consider proposed changes in the context of the status quo. Some concerns have been expressed to this committee with regard to resourcing the proposed changes, and in relation to the level of management of transitional arrangements required to move from the current Act, over time, to the future Act. While neither are inconsiderable challenges, transitional arrangements are routinely managed by Departments and resources are always considered in the context of implementation of the legislation, rather than as part of the legislation itself. We are working to put measures in place to address these issues, which we do not consider to be insurmountable.
It is also essential to note, particularly in the context of the significant environmental challenges facing this and future generations, that we are increasingly asking citizens and communities to change their behaviour and do more in many respects: to engage in the circular economy; utilise renewable sources of energy; maintain biodiversity; change traditional forms of settlement and patterns of work and travel, all while we seek to accommodate a rapidly growing population and enhance living standards. This requires a careful balance of considerations in the context of the common good. It also requires a planning system that can mediate a multiplicity of complex factors and is robust. We must consider changes in terms of their cumulative effect on the outcomes that will be facilitated by the planning system and not, as can sometimes happen, lose sight of the bigger picture.
The Government’s Planning Policy Statement 2015 states:
Planning has a critical balancing role to play when competing interests put forward differing views on future development options. By focusing on the interests of the common good for proper planning and long-term sustainable development, the planning system can arrive at equitable, balanced and transparent decisions on the best way forward.
As stated earlier, the Department values the input of each of the various interest groups that have given their time before this committee and through the Planning Advisory Forum. Indeed, from the outset of the Attorney General’s review, engagement has been an integral component of the iterative process of policy formulation. The 30 members of the advisory forum represent membership groups running to thousands of members from a diverse range of communities and specialisms. Likewise, bilateral meetings with Departments, such as the Departments of Justice and the Environment, Climate and Communications, have provided valuable insights, as have meetings with those with on the ground with practitioner experience, such as the local authority senior planners group, facilitated by the County and City Management Association, CCMA. To this end, we have demonstrated an openness throughout to listen to all views, and we reaffirm that commitment today in relation to this ongoing process.
The Department’s role, as ever, is to consider the widest variety of input in the context of the implementation of Government policy and to utilise this experience towards delivering the best possible planning legislation, taking account of differing views. By way of example, in early February, departmental officials undertook lengthy in-person engagement with environmental NGOs, facilitated by our colleagues in the Department of the Environment, Climate and Communications. Where issues arose that could be practically resolved, such as provisions requiring organisations to pass a resolution in order to undertake a judicial review, the Department undertook to seek a remedy to these challenges by re-examining the wording of such provisions. Conversely, other policies, such as the introduction of a cost protection scheme, have been agreed by the whole of the Government in order to enhance access to justice through the reduction of costs for citizens in a reliable and predictable manner. These decisions come on foot of High Court judgments and long-running criticism of section 50B, which - as noted by some witnesses - relies on a "no win, no fee" model and has been subject to criticism in terms of access to justice as cost recovery occurs only at the end of the process and depends on finding representation that is willing to take the case on that basis. Therefore, the Government’s decision to put in place a model that is transparent and consistent for all, rather than relying upon a system that has been arrived at over many decades in an ad hocmanner, is appropriate and should not be waylaid due to concerns over the details of a cost protection scheme, which will be developed and administered by the Department of the Environment, Climate and Communications in the same collaborative manner that this review has been undertaken.
As noted in our previous session with the committee in February, adherence to the spirit and intent of important European environmental directives, as well as the Aarhus Convention, have been a central component of the review undertaken by the Office of the Attorney General. There is no tension between the aims of the three pillars of the convention - access to information; public participation; and access to justice - with the principles of good planning as outlined in section 1A of the draft Bill, which commits to sustainable development and the protection and improvement of the quality of the environment. Throughout the draft Bill, opportunities for such access and participation are consistently layered in key processes.
The proposed replacement of section 50B of the current Act, with a provision for costs protection for judicial review cases, provides that there will not be any order for costs in such proceedings. This is intended to reflect the recent Supreme Court ruling in the Heather Hill case, which found that all of the grounds in the proceedings challenging the validity of decisions to grant development consent should benefit from costs protection. Applicants will, therefore, continue to be protected from the risk of paying the costs of the defendants or notice party. Provision has also been made to bring forward an administrative scheme to protect appellants from incurring judicial review costs from the outset in respect of their own legal costs. This Government decision has been framed by a desire to ensure Ireland is improving its access to justice in a legal system that has been identified as having exclusionary high costs.
It has been said in numerous meetings of this committee over the past few weeks that the opportunity to amend and improve the planning system in such a comprehensive and meaningful manner does not come around often. Planning is by its nature complex and nuanced. Planning judgment is a form of mediation that relies on an ability to weigh up often competing demands in a clear, fair and proportionate manner before delivering a balanced and transparent decision, while taking account of all relevant matters and the available evidence and information. Reflecting this reality, there is an element of complexity to planning legislation. However, by increasing confidence in timelines, in addition to greater coherence to the overall legislative text for users and clarity on how an integrated, hierarchical plan-led system should function, we can take a significant step forward with this legislation. It is an opportunity we do not wish to temper by lack of ambition or constraints that can be overcome.
The draft Bill before this committee is not a series of separate minor amendments to the Act of two decades ago, but rather a coherent new Bill that is sufficiently robust to meet future challenges by reimagining a more plan-led system, framed in the context of the common good, while fully respecting individual rights related to the environment. We look forward to receiving the recommendations of the Oireachtas Joint Committee on Housing, Local Government and Heritage, as well as the many detailed submissions referenced by stakeholders over the past month. All of them will be evaluated and considered. We have no doubt that the shared aim of everyone who has given their time to this process is to deliver the best possible planning system for Ireland.
Steven Matthews (Wicklow, Green Party)
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I will go now to members' questions, of a round of seven-minute slots. I call Senator Fitzpatrick.
Mary Fitzpatrick (Fianna Fail)
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I thank Mr. Hogan and his colleagues for the work they have been doing. He is right. There has been broad support for reform of our planning laws. The hearings have been very interesting. I have a couple of housekeeping questions that have been raised by a number of witnesses who have attended the hearings. They asked why we are looking at a general scheme, why it is a draft Bill, and why an explanatory memorandum was not presented. I ask Mr. Hogan to address this.
Mr. Paul Hogan:
At the outset of the process, there was a very clear instruction from the Government to the Attorney General to undertake this review and to deliver a draft Bill, and that is what we set out to do. As we move through the process, having an explanation of the text would be of benefit. There are false narratives and a degree of misinformation about certain aspects. Things are also genuinely misunderstood in the context of the sheer complexity and extent of the legislation. We have committed to preparing an explanatory memorandum when the Bill is finalised. When we present the Bill to the Oireachtas, further to the deliberations of this committee and other inputs, and as we refine and finalise the final version, we will produce such a memorandum so that the Members of the Oireachtas can understand where the changes are being made.
Mary Fitzpatrick (Fianna Fail)
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This is really important. If we are going to make these types of changes, and we all want more clarity, certainty and consistency in our planning process and can all support a plan-lead approach to planning to achieve better outcomes for the greater good, we need to have confidence in the process. We need confidence not just among members of the Government but right across society. Society have been generally engaged with this subject and this is very welcome.
The issue of resources has been raised by many contributors. They support the objectives and the proposals but they question the ability of organisations, be it local authorities or An Bord Pleanála, to be resourced to implement in day-to-day practice the changes being proposed. Mr. Hogan has said that none of the issues are insurmountable and that is great, but on what basis has the Department concluded that they are not insurmountable? What exercise is the Department going through, with local authorities and An Bord Pleanála, to scope out the additional resources that will be required? Will the Department be making a statement on this? I know Mr. Hogan said it is not an issue for legislation and I agree with him on that.
It is very important for us as legislators, if we are going to make such changes, that we do so by building confidence in the public that those changes will be implementable and will practically benefit the citizens. Can Mr. Hogan kindly talk us through what is going on with that, please?
Mr. Paul Hogan:
Resources are a bigger picture issue for all professions, in particular the planning profession, planning and development, and all that goes with it. We are also very interested, in line with our broader planning responsibilities, to ensure that the planning system is adequately resourced to fulfil its functions. In parallel with this review, we initiated a review of resources with the local government sector. That review looked at both current and emerging responsibilities for the sector with a view to identifying resources. First, we cannot very much talk about resources until we know where the gaps and needs are. That was the first stage.
Other things need to be done on foot of that. We followed on and have secured funding for this year and we will be seeking to ramp this up in future years as we develop the programme but initial priorities are to fill the urgent vacant posts that can be filled around the country. A fund is available for that and we are discussing with local authorities how best to disburse that.
Part of the reality is that if one was to look to recruit certain professionals, particularly planning professionals, it is not an easy task because there are not the graduates and experienced professionals there. To a certain extent local authorities are cannibalising each other, which creates a degree of instability in the system. That is not the sole answer, which is why we are looking at working with third level institutions to consider how to broaden the intake of people into planning, in the first instance. The two undergraduate schools in Ireland have both increased their intake at undergraduate level to do that, but we need to look more widely at opportunities for people who are experienced in environmental-related professions to train as planners and to put a programme in place where those people can possibly be sponsored by an employer or secure employment for a time after they graduate, if the employer funds the education. All of those things are in the mix. The option of seeking to recruit people from overseas which was done in the past is a possibility but given that there is a worldwide shortage, as this committee has heard, it is not as straightforward. All those measures will be considered.
Finally, in the local government sector, there is also a wider strategic look at efficiency, productivity and all of that. There is a need, first of all, to consider the opportunities which come from legislation through things like e-planning and, perhaps, longer time periods, with the ability to focus on more important things. In that context, a strategic workforce planning review is being undertaken more widely in the local government sector. There is also the opportunity for training and development. The Office of the Planning Regulator has a function with regard to training and development. This is then to look back up the pipeline with regard to what existing professionals in local authorities, and indeed others, can do better.
An Bord Pleanála is next We are again working closely with the board which is developing - and which we are just concluding - a process to bring board membership up to 15 members. The Minister will be announcing those appointments very shortly. The board currently has a membership of ten, which is an increase since its chair appeared before the committee on a previous occasion. We have engaged in a process this week which is ongoing, and has not yet concluded, but which will very shortly bring the membership of the board to 15 members.
The board is also looking at its workforce plan. We have approved what it has asked for and, again, there has been some misinformation about larger numbers being asked for that have been approved. That is not the case. Everything that has been asked for by the Department has been approved in 2021 and 2022 for the next year’s workforce plan. The board is now up to 210 staff members.
In the context of the need to clear the backlog and to address the large workload, we will obviously be looking very closely, together with the new marine functions, at what the board submits to us very shortly; we have yet to receive that but, as I said, we are in contact constant contact with it.
Mary Fitzpatrick (Fianna Fail)
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I thank Mr. Hogan for that. This is very encouraging. The additional resources which have gone into An Bord Pleanála are very welcome. It is also recognised that we are dealing with a mess and a bit of a basket case there, for want of a better word. It is very important that there is an understanding and commitment, in parallel with this legislation and the making of these legislative changes, that the Department is driving on with the local authorities and with An Bord Pleanála so that we do not have a stop-start situation where the capacity planning and, more important, the capacity increases are actually being introduced after the legislation has been passed. We need to ensure that as this legislation progresses - it is more than 18 months in already which we all acknowledge and we do not know how much longer this will take - all of the work is taking place in parallel, because that is very important. I believe I am out of time, Chair, but perhaps I might come back in in the second round, if there is time.
Steven Matthews (Wicklow, Green Party)
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There will be, Senator. I will move on now and I call Deputy Ó Broin.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I thank the Chair. Mr. Hogan and I have had a relationship for almost a decade, both in our time in South Dublin County Council and since he has moved into the Department. He knows that I am very loath and reluctant to criticise officials. I want to say that at the outset before I make my remarks. I also want to acknowledge the enormous amount of work that he and his team have put into this piece of legislation and the work before it.
Having listened very carefully, particularly to the last five sessions we have had from a very broad cross-spectrum of professionals and interested parties on all sides of our planning system, which I am sure Mr. Hogan and his officials have listened to very carefully too, I have come to the conclusion that the Bill as it stands does not do what it is intended to do. There is universal support for the intentions behind the Bill but unless there is substantial amendment, I believe we are going to end up with a much worse situation than we are in at present.
It is also very frustrating for a number of us here today because this is a very important session and it clashes with ministerial questions, which a number of us have to attend. That gives us less time to interrogate the Bill and our witnesses. I ask them not to worry as I will be back because I have more questions but that is genuinely very frustrating.
What is most disappointing this morning is that Mr. Hogan’s opening statement does not address the core concerns raised across the sector. I will put those on the record and will then open with my initial question and I will return then with further questions.
There is a clear view from many of the people who have come to us in the past number of weeks that this Bill is being rushed. That is a very dangerous proposition. There has been heavy criticism of the mismatch between the forum and its high-level discussions and the very technical and, in many cases, very surprising detail that was in the Bill when published. That view was widely expressed by many witnesses.
There is a concern about omissions, the most significant of which is the development contributions. There are other omissions in there which we have written as a committee to the Department about, such as community gardens and other matters. There is a whole set of unintended consequences that other folks have raised which are very concerning. The fact that there was not an explanatory memorandum with the Bill has caused enormous confusion. I actually believe that having the Bill rather than a general scheme is helpful because we see the detail of it, as we should have had an explanatory memorandum. There is great concern about the policy statements both in further centralisation, diminution of local authorities’ policy-making roles and the potential for conflicts and satellite litigation when there are disagreements between different levels of plan making and policy-making. Exempted development has come up over and over again and there is almost a universal concern about what the Department has in this Bill with respect to the removal of the right of third parties to inquire in that regard. There is great concern about the timelines. I am a strong advocate of timelines and I want to see them in the Bill but there is a complete absence of clarity with timelines matching the complexity of the decisions, and other matters. On the issue of resources, if one cannot add additional resources, above and beyond what has already been requested, much of what is to happen in this Bill will never happen, even if it is commenced.
On Part 9, I do not believe that the comments of Mr. Hogan on page 5 of the opening statement are factually correct. We do not know what that administrative scheme will be like. If he had been at the meeting which the two Departments attended with the environmental non-governmental organizations, ENGOs, he would know that nobody knows what the scheme will be like. If it is anything like legal aid, it will not have the same universal applicability which a statutory scheme, on foot of the Heather Hill Management Company CLG and Gabriel McGoldrick case, has had. There is a real concern that between the policy statements and the changes to judicial review, JR, we will see an increase in litigation and satellite litigation creating even further delays in planning decisions which none of us wants to see. That is before we even talk about whether these are compliant.
Can Mr. Hogan give us any information in respect of the transitional arrangements which are intended to be inserted into the Bill, particularly with respect to section 28 guidelines and strategic development zones, and what does he intend to change in this Bill on foot of what he has heard? What does he intend to add to this Bill in respect of things we have not heard of as yet? What is the expected timeline for the publication of the Bill and the full explanatory memorandum?
Mr. Paul Hogan:
To quickly address some of the points and answer the questions, there was quite an extensive process of engagement, as we have outlined. In any consultation process I have been involved in, people want to see the final product before they will really commit and give their views. It was communicated to people that this was a fast-moving, urgent process, and that there was a need for people to tell us what they felt should change. People held back, in the main. They did not engage and respond to the point that we had very clear views. As a result,-----
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Is that a criticism? It sounds like a criticism of the people you consulted.
Mr. Paul Hogan:
No. As I said, it is reflecting experiences I have had. Every time we do the first stage of consultation and we ask people for their views on what should happen, they tell us that we are the people responsible and we are the experts, and they ask us to put our views forward and then they will respond. Unfortunately, it was made very clear, and people were facilitated to give their views. To give an example, as the Deputy has pointed out, the issue of the development plan timelines remains unresolved. We have been very clear that there is definitely scope, and to partly answer the Deputy's question, one of the things we would wish to change is the two-year process, because it is too rigid. We have been very open from the outset that there should be the capacity for additional time, within that two-year period, to extend it beyond as needs be. We have sought views as to how that should be done and it remains unresolved. It is something that we are going to work into the final version of the Bill. We did not get a very strong and clear view in the engagement, which meant that that position could not be nailed down at the outset.
The Deputy mentioned omissions. There is a very good reason - and Ms Mulhern might be able to explain it - sections 48 and 49 are not included. It is an omission and we absolutely intend to bring them back in. We are committed to doing that.
On the question of centralisation,-----
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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So, are you saying that was an accidental omission, or-----
Mr. Paul Hogan:
No, it was as a result of what was intended to be a parallel process with land value sharing, LVS, which also became quite complex and required longer time. Therefore, the bits that were to be in parallel were left stranded, as it were, in the LVS proposal, which is coming to the committee soon.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I fully accept the complexity of this, and I do not want to underestimate the Department's task, but does that not speak to the request that many of the external organisations have made that we need to take little bit more time with this? They have said that the urgency has almost created a set of problems, and that for the sake of a few extra months we could end up with a better Bill. Does the Department share that view currently, particularly in light of the point Mr. Hogan made?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I am out of time and I am conscious that Deputy O'Callaghan has the same difficulty as me. I will come back to the specific questions in a further round, if that is okay.
Steven Matthews (Wicklow, Green Party)
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I will facilitate anybody who has to go to the Chamber for questions and come back. I will make sure that everybody gets a chance to ask questions. Senator Boyhan is next.
Victor Boyhan (Independent)
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I welcome Mr. Hogan and the team from the Department. I agree with what Deputy Ó Broin has said. We acknowledge the enormous amount of work that has been put into this Bill. Clearly a lot of work has gone into it. I was thinking, as I was coming in this morning, that what everyone wants is concise, clear guidance around planning and a sense of certainty about it. I do not think there is an issue about reform. The biggest recurring theme for me and for people who have come in here is dispute resolution. If I was to sum up everything that I have heard in this process, it is the feeling that citizens, NGOs and other bodies that have appeared before the committee, or have engaged with us inside and outside the House, are concerned about dispute resolution. Nobody wants to go down the judicial review route. I said the other day, and I will say again that I do not like the phrase "serial objectors", which implies that it is offensive to object. Planning is about proper planning and sustainable development; end of story. The system should screen everything else out. Other decisions should be made exclusively on the basis of whether there is proper planning and sustainable development. That is the basic point, and it is important to make. There is a recognition that there is a need for reform and for a consolidated planning and development Act but dispute resolution is the recurring theme for me. There have been some imaginative suggestions about how we might look at dispute resolution, and I ask the Department to look at that. That is the key issue that is being raised all the time.
The NGOs, in particular, have raised the issue of the Aarhus Convention. They want to guarantee the rights of individuals for effective remedy in Irish and EU law. We know the significance of EU law in relation to the Aarhus Convention. The Bar Council of Ireland made a submission to the committee on the draft Planning and Development Bill 2022. I want to quote to that, particularly with reference to the Aarhus Convention. The witnesses will be able to read the submission themselves anyway. According to the submission:
There is an obligation therefore on Ireland as a Member State and of national courts in Ireland to guarantee the right of individuals and NGOs to an effective remedy under EU law, and this right includes that access to justice should not be unduly burdensome ...The role of national courts is one of the cornerstones of the proper functioning of the EU’s system of effective judicial protection. Where necessary, national courts must set aside any provisions that are contrary to EU law, even if these are of legislative or regulatory nature. Therefore, Irish legislation which is contrary to EU law, risks being set aside by Courts.
It goes on to talk about EU law requirements etc. I think that is the kernel of the issue. Looking at the cases that NGOs have taken, and the cases where people have gone to the courts to determine outcomes, many of them have been successful. No doubt, the Department has gone through all of that and has reflected on the reasons for that. I think it is a key issue. I ask the witnesses to touch on that in their response.
I agree that it is disappointing that we did not receive the explanatory memorandum. We, as legislators, were disadvantaged by not having it. The message needs to go out loud and clear that we are not planners or lawyers but we are charged with putting this legislation through both Houses of the Oireachtas. I think that message should go back clearly to the Department. I do not know if it was accidental or deliberate; somehow I think it might have been deliberate. I do not think it was a good strategy. It was a wrong one. It fed into a lot of confusion and misunderstanding. I think that message needs to go back to the Department.
Another issue I want to raise is that of the role of a chief planning officer. It came out in some discussions, particularly in relation to Scotland, that there is a statutory function of a statutory county or city planning chief. We have county architects who have a proper function. There is a situation in Ireland where we have effectively directors of service who are heading planning authorities and they have no planning skills. They have no training in planning. I am not saying that to be disrespectful of them, but that is a skill set. I think we need greater synergy between architecture and planning. We need to look at that. Every city and county council is effectively a planning authority. Every planning authority should have a statutory chief planner who cannot be pressurised by a CEO to tweak a planning application or determination in some way. That is important. I would like to see that in the legislation.
I ask the witnesses to touch on the issue of dispute resolution. We know all about the issue with An Bord Pleanála. We welcome the response and it cannot come fast enough. I know what Mr. Hogan is saying about increasing from membership of the board from ten to 15. That is all to be welcomed. We have been talking about the issue of e-planning for the last seven years. When the former Minister, Deputy Coveney, brought in Rebuilding Ireland that was one of the key objectives and we are no further on with it.
To stay focused, what are the witnesses' thoughts on dispute resolution? Has the Department given any thought to the matter? Clearly, the Department will have listened to all the proceedings here. I ask the witnesses to share their thoughts on that with us.
Mr. Paul Hogan:
I think I used the word "mediation" in the opening statement. The purpose of planning is to mediate between competing interests and the common good and to get the best possible outcome, in the context of lots of things, as I have said. There are really three stages of dispute resolution, as the Senator is aware. There are more if you go back up the pipeline to the development plan. In reality, if the development plan and the plan-led system does its work, we should not be in dispute. If a field is zoned beside your house, you should have a reasonable expectation of knowing what is going to happen in that field. Likewise, the risk and uncertainty that planning carries for the person who wants to develop on that site should be eliminated. Really, it should be about securing the best form of development rather than dispute resolution at the application stage. Lots of things have been done to try to enhance that in recent times.
Large scale residential developments have come in to replace the strategic housing development, SHD, process, for example. If that stage does not work or if it does not resolve the issue to the satisfaction of individuals, there is an appeal mechanism, and that considers the whole thing de novofrom the start again. Therefore, there is a fresh look at the whole thing by an independent group of people, again with strengthening processes in terms of how the board operates.
There is the third stage for decision-making, which is judicial review and which is enshrined in the Aarhus Convention in terms of access to justice at reasonable cost. We are reinforcing that by proposing a cost scheme as part of this whereby people's costs are paid to engage with that if they still feel a decision is unlawful. That is a three-stage decision-making process on top of the four-stage planning process.
The Senator made the point that groups challenging decisions are being successful and he asked what we have to look at. We have to question the robustness of the legislation as intended by the Oireachtas in the common good. Clearly, it is obviously not delivering what it should be if that is the case. That is partly what this review is about.
Steven Matthews (Wicklow, Green Party)
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I thank Mr. Hogan. I will go to Deputy O'Callaghan now because he is under time constraints as well.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I thank the Chair for facilitating me. I thank the witnesses for all the work that has been done on this. I welcome their comments that they are listening to and taking on board the views that are being put forward during our pre-legislative scrutiny and will make changes on foot of that.
With regard to cost protection, the legal practitioners who appeared before the committee and who have a huge amount of experience were very clear and unambiguous in their view that the statutory entitlement from the Heather Hillcase is much better than an administrative scheme. Is Mr. Hogan saying the legal practitioners with all their experience are wrong on this?
Mr. Paul Hogan:
That is a very bald way to put it. What we are saying is we have been advised by the Attorney General's office and others that section 50B, as interpreted in the Heather Hill case, is one way of doing it. We are proposing a more universally accessible scheme that will provide reasonable levels of funding for anybody who is directly or indirectly affected by a planning decision and wishes to challenge that decision.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Will Mr. Hogan explain "universally accessible"?
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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By saying that is universal, Mr. Hogan is saying people currently do not have access.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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In terms of the commitment Mr. Hogan has given on the development contributions that will be put back into the Bill, such as community gardens, is the Department giving commitments at this stage on any other areas that will be reinstated in the Bill?
Mr. Paul Hogan:
There are things at which we are looking. As I mentioned, there is clearly more work to be done on the timelines for the development plan process. We are considering the eight weeks that applies to all local authority consents. There is certainly a consideration of allowing a longer timeframe for more complex decisions at local authority level. We would think decisions that require an environmental impact assessment, EIA, for example, could perhaps be considered over a longer period , which is broadly in line with the principles that are being applied to An Bord Pleanála around decision-making.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Is the land value sharing and urban development zones Bill not going to come in as part of this now? Where is that at?
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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It is going to come in.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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To follow on as separate legislation.
Ms Claragh Mulhern:
As the Deputy is aware, they are currently being progressed as two separate pieces of legislation but the intention is that they will be linked together. In terms of the timing, as Mr Hogan mentioned, we will come back to the committee in the coming weeks on that proposal with the intention then of trying to consolidate it through the Oireachtas process at a later stage. That covers land value sharing and urban development zones, which are currently referenced in the draft Bill. We will be going into further detail on those.
To come back to the point on the initial intention of the development contributions, they are quite closely linked to the land value sharing proposal in many ways. It was never our intention they would not be included in the legislation. In terms of the two parallel processes, however, the clarity in terms of the direction of travel on how exactly we were dealing with section 48 in particular has developed over the course of the work on the land value sharing and urban development zones Bill. The intention is very clearly to put sections 48 and 49 back into the main Bill. The intention is that when the Bill is finalised and published, it will include provisions to reflect those and any changes we propose to make to them.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I thank Ms Mulhern. I have two final questions. In terms of section 5, that is, the new section 8 of the Bill, many people from different quarters have said very clearly during our pre-legislative scrutiny that they do not know why this has arisen and that they have not experienced difficulties with this. They do not know why this has arisen or what the purpose is behind this change. Has there been a change of view on that? Are the proposed changes as a result of Government or ministerial direction? Where has it come from?
Mr. Paul Hogan:
No. We were maybe a little surprised at the significance and attention this issue has received. We asked the team that drafted the Bill to give us a full explanation of the thinking behind it. We will make a detailed rationale that sets out the current situation and reasons for change on a range of fronts available to the committee after the meeting. There are five key areas for this. It is, therefore, a very detailed level of explanation that will assist members in their deliberations.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I thank Mr. Hogan for that. It would have been useful to have had it even before today's meeting. We could then have asked him about it. It is better late than never, however.
Satellite litigation and the potential for delays has come up a lot. We have heard this from a few different quarters, including from some contributors who would place themselves as being very pragmatic and so forth. Having heard that, does Mr. Hogan have views on or concerns about this? It is certainly something I would have very strong concerns about from what we have heard, as I think would a number of members. There could be very strong unintended consequences that were not envisaged and were not the intent but could lead to very significant delays.
Ms Claragh Mulhern:
From the outset, any new legislation, and certainly any large piece of legislation like this where there is a certain amount of change, will understandably create some uncertainty in terms of what has changed and where there is potential for people to seek further clarity on those issues. That must go without saying in terms of any legislation we bring through the Oireachtas. We have been very conscious of the need to reflect, as Senator Boyhan mentioned earlier, on the issues we have had in the courts in recent years, in particular challenges to the legislation itself and the downstream effects of that. The intention is to reflect on all those issues we are aware of through court decisions and judgments in the Bill we bring forward to the committee to take through the Houses.
In terms of satellite litigation, Part 9 and the judicial review provisions in particular have taken quite a bit of attention. Certainly, that is an area in particular on which we will reflect. We have been listening intently to the submissions that have been made by a range of stakeholders on those provisions and we will be reflecting on those as part of the overall process. We feel the position is very robust. As Mr. Hogan outlined, we have been working hard to make sure it is. The explanatory memorandum would be the opportunity to flesh that out a bit more in further detail.
We cannot avoid the potential of satellite litigation completely, given that people may seek judicial review. In the spirit of the Aarhus Convention, access to justice is a key cornerstone of the system, and correctly so. People have to have the opportunity to take issue with something if they feel there it needs to be resolved. Our intention is to try to limit those opportunities as much as possible through the review of the legislation. We will bring the Bill up to speed and reflect previous judgments, the Aarhus Convention and all other requirements under EU legislation so that we are satisfied that we are limiting potential avenues as much as we can.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I thank Ms Mulhern.
Steven Matthews (Wicklow, Green Party)
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I will take the next speaking slot. We do not have details on the proposed cost scheme but we know that the Department of the Environment, Climate and Communications will be responsible for establishing it. Without the details, it is difficult to assess whether this part of the Bill is deliverable or complies with the Aarhus Convention and so forth. Not having them is disappointing. What is wrong with section 50B as it stands and why not retain it?
Steven Matthews (Wicklow, Green Party)
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That clarified the section.
Steven Matthews (Wicklow, Green Party)
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In terms of managing cost protection.
Ms Claragh Mulhern:
Under the Aarhus Convention, it is a key requirement that someone engaging in the process of taking a judicial review needs to know it will not be prohibitively expensive. Even with the outcome of the Heather Hill case, we are not quite there. That is why we believe the cost scheme is essential and provides clarity. Anyone seeking to take a case will know that his or her costs will be covered.
Steven Matthews (Wicklow, Green Party)
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There is doubt over whether section 50B is compliant with the Aarhus Convention.
Ms Claragh Mulhern:
That has to do with its interpretation, further to the Heather Hill case. We are trying to ensure that the concept of no foal no fee does not present an ongoing issue and that anyone who justifiably has the grounds to take a case will have his or her costs covered, with a scheme in place to facilitate such in a transparent manner. That is the aim.
Steven Matthews (Wicklow, Green Party)
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Ms Mulhern is essentially saying that it will be a universally accessible scheme, whereas section 50B has what is almost a filtering system through the no foal no fee concept, where barristers and solicitors take a case based on whether they believe it is winnable.
Steven Matthews (Wicklow, Green Party)
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Let us turn to section 333 of the Bill and the details to be included in the planning register. Section 7(2) of the Act sets out what is to be included, but section 333 does not. Why is that?
Steven Matthews (Wicklow, Green Party)
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Why do that in regulation when the details are in primary legislation currently?
Ms Mary Jones:
There are elements throughout the Bill that we are moving to regulation. If we need to, this will allow us to include further matters via regulation. We took the view that it would be more appropriate to have some matters dealt with by regulation than by primary legislation. What needs to be done with the register will be set out in primary legislation and the details of what needs to be included can be included via regulation. The regulation can be changed as needs be, allowing us to update it. We have made the same provision in a number of places throughout the Bill.
Steven Matthews (Wicklow, Green Party)
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It can be done via statutory instrument. In other words, new primary legislation would not need to be passed by the Oireachtas.
Steven Matthews (Wicklow, Green Party)
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Under section 335, it is not clear if the register will be available online. Subsection (1) states "The register and documents referred to in section 334(1)shall be made available for". However, subsection (3)(a) states "a planning authority may, and shall where it is prescribed in regulations, make all or any part of the register or any documents referred to". Is it the case that what is prescribed in regulation "shall" be there, but the planning authorities will be able to decide what else will be available?
Steven Matthews (Wicklow, Green Party)
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Please. Why are we limiting it to 12 years under section 335(5)? Actually, the numbering does not seem to follow. My page numbering seems to have gone askew. Regardless, the information is only to be retained for a period of 12 years. Why is that? In digital format, the information could be there in perpetuity.
Steven Matthews (Wicklow, Green Party)
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The information could be available indefinitely. Often, there is a need to look back on a planning file for information.
Steven Matthews (Wicklow, Green Party)
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Part 11 is on enforcement. Would it be beneficial if local authorities reported to the Planning Regulator or the Minister where there were delays in planning enforcement or getting responses to warning letters or where the local authorities proceeded to enforcement? Would it be beneficial if someone had oversight of that?
Steven Matthews (Wicklow, Green Party)
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Maybe for the Minister or the Department.
Steven Matthews (Wicklow, Green Party)
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I am not referring to the Department having the details of cases or to ministerial involvement. Rather, I am referring to people being aware of where there are delays in enforcement proceedings.
Steven Matthews (Wicklow, Green Party)
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Does each local authority report on its progress on enforcement?
Mr. Paul Hogan:
The regulator is making recommendations to the Minister in that regard and can make specific recommendations. What the Chair is asking about is already there to a certain extent. We can examine whether it covers what he is referencing to the extent it needs to, but it strikes me that the matter is already addressed.
Steven Matthews (Wicklow, Green Party)
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Enforcement proceedings can be onerous on a local authority. They are complex. I am unsure about where decisions are made on which cases to prioritise and how to pursue them. A rolling register of enforcement cases that had gone beyond six weeks since issuing the warning letters and the investigations that followed would help to improve enforcement. We would all agree that enforcement could do with some improvement.
I would be interested in the witnesses' opinions on my next point. Strategic infrastructure development, SID, applications go to the board. Would there be any benefit in them going to local authorities instead or in giving an applicant the choice between an application going to the board or to a local authority? Our local authorities are close to meeting their statutory decision timelines whereas the board is having difficulty in that regard.
Mr. Paul Hogan:
It would be a short-term response. The SID process has been successful. Many of the projects concerned go across multiple local authorities, for example, pipelines, roads and rail infrastructure, and serve multiple local authority areas. It makes sense to have a centre of expertise and to have a single-focus capacity on what are complex projects.
In fact, the SHD process was modelled on the SID process because of its success, so there was a good intention. The solution is to resource the board, adequately and properly, to discharge those functions and to clarify timelines that reflect the complexity of projects. That is something we are-----
Steven Matthews (Wicklow, Green Party)
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The local authorities deal with complex projects as well. They can deal with wind farms up to a certain size and with environmental impact and other appropriate assessments. They have the ability to get in that expertise.
Steven Matthews (Wicklow, Green Party)
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To return to the issue of online information, does the Aarhus Convention require that planning documents be made available in an electronic, online format?
Ms Claragh Mulhern:
It does in the main, but not for documents that were not prepared originally in an electronic format, as I understand it, although I am not an expert on the Aarhus Convention. Certainly, in recent years, for applications that have been available online, it requires that where possible and appropriate, the planning authority should make them available online. Obviously, in practice-----
Steven Matthews (Wicklow, Green Party)
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Very few documents nowadays are not provided in an electronic format, including even drawings.
Ms Claragh Mulhern:
Exactly. In practice, it is happening in the main in any event. I do not think there is any practical issue with e-planning and the direction of travel or with other work we are looking to do to enhance that further and prioritise it. We are trying to make everything more accessible these days and there should be no practical issues with that.
Steven Matthews (Wicklow, Green Party)
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Two areas concern me. When you try to look a planning application online, it is often a scanned document. I accept that in the local authority, somebody has to scan these documents, but sometimes they just do not show up online or pictures or maps can be indecipherable. We have an opportunity here. I acknowledge the e-planning system is a completely different matter, beyond the scope of the Bill, but I am referring to documents that have been submitted and are available in the original, electronic format in which they were submitted, that is, not a printed and scanned copy. Additional work is created when the documents are illegible. Moreover, because of that requirement to scan the documents and not provide them in the electronic format, there can be a significant lag between when the application is lodged and when the general public has access to it online. Should the clock start on the five-week period in which an observation can be submitted as soon as those forms have been made available?
Mr. Paul Hogan:
We are subject to an Aarhus Convention compliance committee complaint on that very matter, so we do not really want to get into detail on it, but suffice it to say, the system has evolved over time. It has moved from being a paper-based system. People are notified in advance through newspaper and site notices and the file is available in the local authority office from the date on which it is validated, and that is where the system has come from. The electronic format has evolved since the Aarhus Convention was arrived at, although even it was not definitive because that was 1998 and ways of working were still changing at that stage. E-planning and the fee structure associated with it are an opportunity to encourage adherence to e-planning and ensure documents will be instantly presented in a legible format. By the end of June, 24 local authorities will be up and running with e-planning, so it is being rolled out.
Steven Matthews (Wicklow, Green Party)
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Okay. If we have the opportunity to improve that, we should do so. I find it very frustrating at times and I am sure others do as well.
Thomas Gould (Cork North Central, Sinn Fein)
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I join other committee members in thanking the Department for the work it is doing. This draft Bill is huge and complex. The Department is trying to cover so much. The various contributions that have been made to the committee over recent weeks reflect the scale of the work contained in the draft Bill. We all want to ensure the legislation is done right. It is probably a once-in-a-generation opportunity when it comes to planning. As Deputy Ó Broin said, we are not here to criticise the officials. We know they are doing their best. We just want to ensure this will be the best Bill we can deliver.
My first question relates to residents’ associations. Were they represented on the planning advisory forum? Could any formal advice or recommendations resulting from the forum be published?
Ms Mary Jones:
Residents’ associations, either individually or as a representative group of residents’ associations, were not included. We received some submissions from some residents’ associations, which we have seen, but the groups themselves were not represented on the forum. There was a wide group of representatives of various areas but not specifically of residents’ associations.
Ms Mary Jones:
Yes, that was the point. In many instances, there were umbrella organisations or representative bodies of various sectors but, as Ms Mulhern said, it would have been difficult to have a group representing the views of all residents’ associations. Nevertheless, we received some submissions and we have examined them.
Thomas Gould (Cork North Central, Sinn Fein)
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I understand what Ms Jones is saying, given that residents’ associations can be quite diverse and can come from various areas, whether rural or urban. In my experience of residents’ associations and judging by the contributions at Tuesday's meeting, they bring great value. Especially when it comes to planning in a local community, it is good to have people with local knowledge. There are concerns that the Bill, as drafted, will lead to people having less of an opportunity to make objections to planning. These community associations will have to have been in place for more than a year and their members will have to be named. That seems to be very formal. It nearly seems as though it will work to prevent community associations or groups from putting in objections.
Mr. Paul Hogan:
There are strong reasons for that. In providing a costs scheme whereby everybody is guaranteed access to justice in respect of a judicial review and to have their costs paid by the State, it is necessary for a person benefiting from that to be clearly identifiable and named. A "legal personality" is the term used. For that reason, it is almost like a balancing measure or mechanism. If such a scheme is being introduced, we need to clarify the standing rights, as they are called. The Aarhus Convention does not prevent that from happening, and the entire convention is subject to national laws and limitations, in adherence to the overall spirit of it. Some states will have far more onerous standing rights than we propose in this instance. It is a necessary quid pro quo to allow people that essential free access to justice.
Thomas Gould (Cork North Central, Sinn Fein)
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I have a problem with this because a lot of communities do not have organised residents’ associations. I said this the other day and somebody disagreed me, but I am going only on my personal experience. In some communities, there is a lot of social housing and people are busy with young families, while in others, there might be a lot of retired professionals who have more time, resources and ability.
Many community associations like that fought for years, and had the membership and the right constitution. It is different, however, if you are trying to put a group together. For example, a number of years ago, a new prison was built in The Glen, Cork city. It was done by an Act of the Oireachtas that took it out of the planning process. I accept that was a different situation, but the point is that community did not have an overarching residents' association. If something like that was to happen now, members of the community would not be able to take a legal challenge.
Thomas Gould (Cork North Central, Sinn Fein)
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Sorry, how could they as a group?
Thomas Gould (Cork North Central, Sinn Fein)
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The Department has clarified that.
Ms Mary Jones:
We got clarification. A judicial review or whatever can be taken by an individual. It can also be that piece where something is a company and has that, or the review can be taken by a group of named individuals. There is nothing to stop five, six or however many number of names being on a judicial review. The only reason residents' associations per se, or other community groups, cannot take it in the name of that organisation is they do not meet that test of being a company. That is solely for the reason of having legal personality. This leads back to the point that because we will have a cost scheme, it has been clarified to us there is nothing to stop an application with a group of names being put on it.
Thomas Gould (Cork North Central, Sinn Fein)
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They do not need to have been in existence for more than a year.
Ms Mary Jones:
No. Only if it the application for judicial review is in the name of the organisation. In that instance, the organisation has to be in existence and meet that legal personality test. For a group of individuals, however, each individual has legal personality. Naming the individuals gets around that.
Thomas Gould (Cork North Central, Sinn Fein)
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I thank Ms Jones for clarifying that because it is one of the major concerns I and many people had. That is some positive-----
Mr. Paul Hogan:
I will also highlight in respect of the situation the Deputy described, where a community may not be as organised, is newer or has other concerns, that this is one of the benefits of what we are proposing under section 50B. It means a community like that has access to justice in a way it would not under the current section 50B scenario.
Ms Claragh Mulhern:
As a general point, we are focusing particularly on the judicial review element but, as much as possible, the planning system is about bringing people in at the earlier stages. Communities can get involved and make their views known on the development plan, the planning application and the appeal. That is part of the overall balancing act we are trying to do as planners.
Thomas Gould (Cork North Central, Sinn Fein)
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I have another question, if that is okay.
Steven Matthews (Wicklow, Green Party)
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We will come back to the Deputy.
Thomas Gould (Cork North Central, Sinn Fein)
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Perfect.
Steven Matthews (Wicklow, Green Party)
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Only Deputy Gould, Senator Boyhan and I are in the room at present. Other members are in the Chamber with the Minister. I will continue on this issue for the moment. Representatives of the Dublin Democratic Planning Alliance appeared before the committee. One of its members who attended was a senior counsel. I asked this question regarding the applicant being a person. Subsection 249(10) of the draft Bill indicates those who can apply for a judicial review can be an applicant or a company. However, the suggestion is, and I do not know whether this is correct, it must be a person and cannot be a group.
Ms Mary Jones:
That was the piece we sought some clarification on before Christmas. The Bill was approved before Christmas but had not been published. We published a 13-page outline on the Bill. A couple of questions came in on the matter raised by the Cathaoirleach and we got clarification on it. The advice was it can be an individual or group of named individuals. There is nothing in this Bill to prevent a group of named individuals-----
Steven Matthews (Wicklow, Green Party)
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To be clear, if you put down four names representing some neighbourhood group on a piece of paper, that is then known as the applicant and it has legal capacity.
Steven Matthews (Wicklow, Green Party)
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Okay. Why do they have to be named? Why cannot it just be, for example, Knocksink residents' association?
Steven Matthews (Wicklow, Green Party)
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We also had references to organisations such as the GAA. If they wish to make an application, do they have to put down named people on the application? Can they apply as-----
Steven Matthews (Wicklow, Green Party)
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Do such organisations meet that test? I do not know.
Steven Matthews (Wicklow, Green Party)
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To clarify, there will be changes involving the applicant having legal capacity to bring proceedings. To have legal capacity, an applicant does not have to be an individual person but can be a group of named people.
Steven Matthews (Wicklow, Green Party)
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If you would, because that issue came up. There was also the issue of eligibility. In order to seek judicial review, unless an applicant is a company, that applicant must have participated in the submission stage.
Ms Claragh Mulhern:
Not necessarily. The draft Bill states the applicant must have "sufficient interest" or "may be directly or indirectly materially affected by the matters to which the application relates". If an applicant had made submissions in respect of the planning application or the appeal, that would be an obvious demonstration the applicant had sufficient interest. There is lots of case law on what sufficient interest means. You can also demonstrate sufficient interest, even if you have not taken part in the process. That is difficult to define here but, generally speaking, if somebody has engaged in the planning process, that person automatically has sufficient interest.
Steven Matthews (Wicklow, Green Party)
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It states somewhere in the draft Bill that in a judicial review, you can only raise the grounds you raised in your previous engagement. If you were to make a submission in the first week of the assessment of a planning file, how would you know that some part of the process would not go wrong three or four weeks into the plan? How can you anticipate a ground you may have to raise once the decision is made?
Steven Matthews (Wicklow, Green Party)
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Is it not? Okay. Essentially, the officials are saying you do not have to have engaged in the planning process at any stage and do not have to have put in a submission, but you still retain the right as an applicant, which could consist of a number of named people, or an individual, incorporated body or company, to seek a judicial review.
Steven Matthews (Wicklow, Green Party)
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If the four of us present live in close proximity to a proposed development, and feel the decision would impact on environment, water quality or whatever it may be, does that demonstrate sufficient interest?
Steven Matthews (Wicklow, Green Party)
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At this point, and I note discussion on the basis of an explanatory note would have been very helpful on this, we need a very clear explanatory note laying out who has standing at present, what is required to be presented as sufficient interest, and what "directly or indirectly materially affected by" means. If we had a table laying out who is eligible, what criteria they have to meet and what is being proposed with this, we could cross-reference it. There has been a huge amount of confusion about this, starting from right before Christmas. The media probably amplified some of the confusion on it. For anybody listening, a residents' association can apply for a judicial review, as long as it puts three or four names on the application, which could be the treasurer, secretary or chair of that association. We put that to residents' association representatives at the committee the other day and they said that would satisfy them.
Ms Mary Jones:
We also included in the draft Bill a provision that the company must have passed a resolution to apply for judicial review. An issue regarding time came up, particularly when we talked to some of the environmental NGOs.
It is probably too long in terms of enabling an organisation or group to take a judicial review because it can take more than 21 days. We are going to look at the wording in order that it will not be a resolution but will rather be done using either of the phrases "with the consent of" or "with the knowledge of". We have undertaken to look at that wording as well, to remove the formal resolution process but-----
Steven Matthews (Wicklow, Green Party)
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Could we apply a similar logic or a similar suggestion such that if residents associations are going to be able to be represented by their executive, then the company could be represented by its executive, which may be the board or the members?
Steven Matthews (Wicklow, Green Party)
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I have one more quick question before I go to Senator Boyhan. It is on section 133, which deals with extensions. There was a test previously whereby an applicant had to have commenced works, which is somewhere else in this draft Bill as far as I know. Under section 133, the substantial works test does not seem to be there. Is that covered somewhere else in the draft Bill? I have seen something and I am wondering what constitutes substantial works, what is the test and why it is not there.
Mr. Paul Hogan:
I do not think it is, and it is something that I would have looked at myself. One of the issues is that having commenced and started substantial works is, in itself, an area that has given rise to a lot of dispute and a lack of clarity. This allows for a wider range of factors to be considered in extending the duration of a permission. It broadly allows for the same thing in terms of the provision of up to ten years for a permission, which is the equivalent of extending one five-year permission for five years. It does include taking into consideration the extent to which the development has progressed on site. That is one of the factors but it is not as specific as having been materially or substantially completed.
Steven Matthews (Wicklow, Green Party)
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Would the Department consider that if somebody can show that substantial works have been done, the extension should be of a shorter timeframe?
Steven Matthews (Wicklow, Green Party)
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Perhaps it could be a two-year extension because the party is committed to it. I am concerned that we could have a really insignificant commencement of works or test for it and somebody is just seeking to extend the planning permission.
Ms Claragh Mulhern:
That is the issue with the current system. The intention with this is that there would be an acknowledgement that sometimes, for whatever reason, somebody might not be able to start on site until later and needs more time. Obviously, the applicant is required to go through a process where it can be considered whether the permission should be extended. In terms of public consultation, engagement, and environmental assessment, all of those sorts of considerations are very important. We want to make sure it is a robust system that is flexible enough to allow extensions where they are justified but not something that is an automatic right just because somebody may have started. It is very important to facilitate some flexibility where it is appropriate, so it is not a test; rather there are considerations that the planning authority must take into account.
Steven Matthews (Wicklow, Green Party)
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It is not really clear what those considerations are, and we may be opening it up to further subjectivity. Would we not spell it out for local authorities?
Steven Matthews (Wicklow, Green Party)
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I know every development is different but I think something needs to be included here.
Ms Claragh Mulhern:
We can certainly look at the wording in order to clarify, if necessary.
As the Deputy would be aware, sometimes there are situations where a decision is made under one development plan and then a new development plan is adopted. Obviously, the planning authority must have a look at whether there have been any changes in circumstances that would justify a different decision. The considerations are framed in that way, to have regard to what is the adopted development plan for the area and what----
Steven Matthews (Wicklow, Green Party)
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If somebody looks for an extension, that extension will have to be judged against the current statutory plans that are in place, such as the climate action plan. Is that correct?
Steven Matthews (Wicklow, Green Party)
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Something that may have been previously permitted will now have to be judged against the new and current statutory plans. Is that right?
Steven Matthews (Wicklow, Green Party)
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I call Senator Boyhan.
Victor Boyhan (Independent)
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I thank the Cathaoirleach. Clearly, we have a lot of time. There are very few people here because the Minister is on his feet in the Dáil Chamber and our colleagues are in there asking questions. I thanked the Department earlier but I failed to thank the environmental pillar and NGOs, many of whom are listening in this morning. They have done an amazing amount of work. It is important to point out that many of those NGOs and environmental groups are funded by the Department. This is an important fact that we sometimes lose sight of, as well as the fact that they are not always in battle with the Department.
Mr. Hogan touched on the Aarhus Convention. Some people know a lot about the Aarhus Convention and others know less. I am very familiar with the Aarhus Convention compliance committee. Mr. Hogan spoke about that committee and the fact that there are live complaints before it. Is he in a position to share the case book on Aarhus Convention compliance complaints? I am sure he is familiar with them. The complaints exist and we could learn a lot from them. How many complaints have gone before the Aarhus Convention compliance committee relating to Ireland? We should be learning from that. It is an important tool and an important matrix and we need to look at it. Indeed, it would be very beneficial for this committee to look at it. I appreciate that Mr. Hogan may not be able to comment on live cases but what is his knowledge of the compliance committee's work relating to Ireland?
Victor Boyhan (Independent)
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Does Mr. Hogan see the benefit of us looking at the case book?
Victor Boyhan (Independent)
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Clearly, it is an area of interest to this committee. Mr. Hogan mentioned the Aarhus Convention a number of times. It is obvious that it is of importance to the committee, and it is very relevant to this draft legislation. Is Mr. Hogan, as someone in a key position in planning, familiar with any cases?
Mr. Paul Hogan:
I am familiar with the current case. We have engaged on this issue with our colleagues in the Department of the Environment, Climate and Communications. We have also engaged on it with the European Commission because there are two European directives related to the Aarhus Convention. It is an overriding consideration for our planning legislation. The legislation has to comply in all respects. We are saying it is important, to be honest-----
Victor Boyhan (Independent)
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It is important, yes. I suggest that the Department looks at the casebook. I ask that officials in the Department would look at the casebook. I am surprised that anyone should even have to think about this. I would have thought the Department would already have had a look at it. Has the Department had a look at the case book? I ask Mr. Hogan to confirm that.
Victor Boyhan (Independent)
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Mr. Hogan may not be familiar with any cases, but has the Department looked at the matter? In the context of this draft legislation, can Mr. Hogan confirm to this committee whether the Department has looked at the Aarhus Convention compliance casebook related to planning? It is a very simple question, and I ask that someone would provide confirmation.
Ms Mary Jones:
The Attorney General and his working group, as part of their initial work, would have looked at case law in Ireland related to the issues we need to look at, as well as from a wider perspective. The Aarhus Convention was to the fore in the work that was done in relation to the planning review. In that sense, one could say that it was taken into consideration.
Ms Claragh Mulhern:
We also work closely with our colleagues in the Department of the Environment, Climate and Communications and obviously on any of these cases, we work jointly. To go back to what I said earlier, we are working to make sure that any issues that have been raised are being addressed but------
Victor Boyhan (Independent)
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Would the Department be in a position to share with us the cases that have been raised? I know it is the responsibility of another Department but there is cross-departmental work going on, with an holistic approach being taken by Departments. This is major draft legislation, and I believe these cases are relevant. I am familiar with some of them and I believe there are lessons to be learned from them. There are issues that could feed into this legislation. I am asking that departmental officials would look at the work, deliberations and case book of the Aarhus Convention compliance committee to see if there any insights there that could feed into this draft legislation.
Mr. Paul Hogan:
Yes, but to clarify, in providing an explanatory memorandum, there will probably be some reference to case law and precedent and that is where the reference to the Aarhus Convention would come in.
It is not our area of responsibility or one in which we have great expertise but, as Ms Jones stated, the working group is familiar with it in a broad sense.
Victor Boyhan (Independent)
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To put this piece to bed, I ask the witnesses to engage with other Departments on the issue and see what can be learned. I will organise for parliamentary questions to be tabled for reply by the Department in the coming days. In fact, I have draft parliamentary questions prepared and will send them on to a Member of the Dáil. We need to get the answers to those questions. There is a lot to be learned.
I received legal advice in respect of section 250, which provides for changes to the rules on costs. That advice states that section 250(1) would provide that the default position in environmental judicial review proceedings would be that the court could make no order as to costs but costs could be awarded against an applicant for proceedings that are frivolous or vexatious or constitute an abuse of process. The key point in the advice is that the draft Bill would give no power to the courts to award costs to a successful applicant and this conflicts with the general rule put in place by the Oireachtas in section 169 of the Legal Services Regulation Act 2015 that costs follow the event and a winning party is granted costs. What is the response of the witnesses to that advice?
Mr. Paul Hogan:
This is a matter for the lawyers but they have explained to us that costs do not follow the event in this case. That is why they are known as special costs rules. Section 50B is not a costs-follow-the-event provision. That is accepted and allowed for. We are staying in that territory of costs not following the event because of the access to justice issue.
Victor Boyhan (Independent)
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Is that really the case? The advice I received is that section 250 may be at odds with EU law, which seeks to provide the public with access to justice in environmental matters. It acknowledged that citizens may need assistance to exercise these rights. That is profound. That advice was received from a senior counsel who deals daily with planning matters in the courts. What assurances can the witnesses provide in that regard?
Victor Boyhan (Independent)
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What is the timeline for that scheme?
Victor Boyhan (Independent)
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There is a significant amount of concern in that regard. I thank the witnesses.
Thomas Gould (Cork North Central, Sinn Fein)
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To follow up on the point raised by Senator Boyhan, is the Department fully satisfied the draft Bill is in line with the Aarhus pillars?
Mr. Paul Hogan:
We are satisfied. The terms of reference for the wider group that prepared this draft legislation were that it would be compliant with the Aarhus Convention. We have no reason to believe it is not compliant. It inherently is compliant and clarity in that regard will be further enhanced when we reach the final draft. Rather than us having to justify its compliance, we would welcome those claiming it is not compliant explaining why or where they believe it is not compliant.
Thomas Gould (Cork North Central, Sinn Fein)
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If people or organisations come forward to highlight concerns, the Department is open to taking those concerns on board.
Mr. Paul Hogan:
Yes. That is a productive way to conduct business through the committee rather than suggesting we have to prove it is compliant but not telling us why it is not compliant and subsequently threatening legal action. We ask people to engage productively. We have certainly, through the team, sought to do that.
Thomas Gould (Cork North Central, Sinn Fein)
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The Office of the Planning Regulator, OPR, and many others have spoken out against the imposition of fines on An Bord Pleanála for delays in decision-making. Will that imposition now be removed?
Mr. Paul Hogan:
That view has been put forward by a number of people involved. The chair of the board has made clear her views on it. We are inclined to agree that it is probably not the best use of State funding to pay fines to developers or applicants but we believe there is a need for timelines to be adhered to and to have a satisfactory mechanism for that to occur. We are still discussing that with the board. There is a need to strengthen governance arrangements. Having a greater degree of accountability in terms of performance and output delivery will be important in that regard, notwithstanding the independent quasi-judicial role of the decision-making element of the board.
Thomas Gould (Cork North Central, Sinn Fein)
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There were many concerns raised when it was mooted first that An Bord Pleanála would be paying fines to developers or applicants for delays. I will not go into why that provision was included in the first place. I understand the Department wants to keep An Bord Pleanála to timelines but the board having to pay fines to developers sends out the wrong message.
Mr. Hogan referred to trying to be ambitious with the draft Bill. I know the draft Bill is about much more than housing but the crisis at the moment is in housing. What is in the draft Bill to tackle the thousands of uncommenced planning permissions that would, if developed, deliver an estimated 50,000 to 60,000 properties? If those were delivered, it would make a profound difference in terms of solving or reducing the housing crisis or emergency. Is there anything in the draft Bill to tackle that issue?
Mr. Paul Hogan:
The purpose of the draft Bill is to regulate and to provide a legislative framework for the operation of the planning system. The purpose of that planning system is to ensure there can be a steady pipeline of delivery when it comes to permissions and decision-making. There are many other mechanisms in that regard being pursued through other forums and means. The residential zoned land tax to encourage people to develop sites that are zoned and serviced is currently being rolled out. That is one of the measures. In terms of the follow-on legislation we will be bringing in, the land value sharing element and the urban development zone, UDZ, part of that will also encourage development to take place through greater State intervention.
Thomas Gould (Cork North Central, Sinn Fein)
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My apologies as I will have to leave the meeting to speak in the Dáil. There are tens of thousands of uncommenced planning permissions. These are sites that have received planning permission but are then just left idle. There are such sites in my constituency. We are in the middle of a housing crisis or emergency. This issue needs to be dealt with in planning.
Ms Claragh Mulhern:
That is what we are seeking to do. As Mr. Hogan stated, there are many other means. As these sites have permissions in place, they have gone through the planning process, which is the piece that is provided for in the draft legislation. Getting those permissions activated and built cannot be achieved by the legislation; it needs to be done through a variety of other means. The tax to encourage people to start developing sites that have permission is one such measure. There are many other measures the Government is currently considering and rolling out in terms of funding to encourage developments to be built out, such as the Croí Cónaithe cities fund, Project Tosaigh and many others.
Thomas Gould (Cork North Central, Sinn Fein)
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I hope to return before the end of the meeting.
Mary Seery Kearney (Fine Gael)
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I have been in the Seanad this morning and unable to listen to the proceedings thus far, so I apologise if my questions have already been asked. I will confine my questioning to residents, their access to object and appeal, and the perceived limitation on their ability to be within the process. There is a concern that a disproportionate amount of blame for delays in planning has been placed on residents' associations. They are not the cause of the delays. That was shown by statistics published on Tuesday.
There is an obligation to list members’ names and addresses and there are rules around unincorporated entities within the Bill that would appear to put the kibosh on anybody having an ability to appeal. I am sure the witnesses have seen the narrative on it and I would like to hear what they have to say or what the process is.
Mr. Paul Hogan:
We have certainly aligned this. We are clarifying standing rights for judicial review cases. We are talking about the final stage perhaps of a planning process. We have already outlined the need to strengthen the forward planning or Plean-IT system. People have rights at the planning application stage through the local authority. There is an independent appeals process through the board and then-----
Mary Seery Kearney (Fine Gael)
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Let us just slow this down. Anyone can put in an observation at planning stage. That is fair enough and it is agreed. Can residents associations put in an observation at planning stage? Okay. Who gets to appeal to An Bord Pleanála? Is there any curtailing of who those entities would be at that point?
Mary Seery Kearney (Fine Gael)
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Alright. Any residents association can appeal to An Bord Pleanála.
Mary Seery Kearney (Fine Gael)
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If it made a submission. Is there then a challenge to who gets listed? Is it the residents association? What level of detail of membership needs to be provided to substantiate the association's right to appeal at the An Bord Pleanála stage?
Mary Seery Kearney (Fine Gael)
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Okay. There is a perception that is a limited right of appeal that it would affect at that stage.
Mr. Paul Hogan:
It does not curtail anything. The issue is there is a need to clarify standing rights when introducing a cost protection scheme where the State is essentially committing to pay the legal fees of an applicant, a person or group of people who takes a judicial review case. We are basically saying that you need to be a legal personality to do that. Certain criteria need to be met in terms of environmental objections, duration of existence and membership. They are relatively low-bar thresholds. In not only other member states, but other states - this is wider than the European Union – they are more onerous. Essentially, it is a check and a balance on the fact that on the one hand, the State is covering people’s legal costs in accordance with Aarhus to ensure access to justice that is not prohibitively costly and giving that right to people. On the other hand, it is ensuring that it can be used for the intended purpose.
Mary Seery Kearney (Fine Gael)
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What I am hearing from Mr. Hogan is that for a residents association to be able to get into the judicial review and have that possibility of costs, they have to meet all of those unincorporated criteria.
Mary Seery Kearney (Fine Gael)
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Apologies that I am making Ms Jones repeat.
Ms Mary Jones:
No, that is fine. We clarified that if you do not meet that company test, as I will call it, if you are residents association or another type of community group, you can take it as an individual’s name or a group of individual’s names. There is nothing to prevent a group of named individuals taking a judicial review. That has been clarified. It comes back to the issue of that legal personality. You are a legal personality if you are an individual, a group of a named individuals or you are that incorporated company. Where a residents association is-----
Mary Seery Kearney (Fine Gael)
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So could a group of named individuals then be Kildare Street Residents Association, which comprises Mary Seery Kearney, Eoin Ó Broin and whomever?
Mary Seery Kearney (Fine Gael)
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The committee could. That was one of the issues on Tuesday.
Steven Matthews (Wicklow, Green Party)
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Can I just ask-----
Mary Seery Kearney (Fine Gael)
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Yes. Jump in.
Steven Matthews (Wicklow, Green Party)
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We should refer to section 303 when we are addressing this because that is relevant here. I apologise and I will give the Senator the time back.
Mary Seery Kearney (Fine Gael)
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No. Between us, we will do it. I want to tease this out.
Steven Matthews (Wicklow, Green Party)
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It states "An appeal referral or application shall ... be made in writing, [and] state the name and address of the person making it (including, in the case of an unincorporated association, a list of the members of that association ...)". In the example given, it could be the Kildare Street Residents Association in the name of Senator Seery Kearney. However, in order for them to make an appeal or an observation, they need to list everybody who is in that unincorporated association. That is what it says in section 303(1)(b). Does that then transfer to the judicial review stage as well? To go to the judicial review stage, everybody who is seeking the judicial review has to be those named people on the original appeal.
Steven Matthews (Wicklow, Green Party)
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If I go around my housing estate and get the names of 50 people and we put in an appeal, submission or whatever it might be, as is required here, it is in the name of my estate. However, if we then want to go to the next stage of judicial review, do all of those people also have to be named on that judicial review?
Steven Matthews (Wicklow, Green Party)
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I do not know.
Steven Matthews (Wicklow, Green Party)
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If people have dropped off, is that-----
Steven Matthews (Wicklow, Green Party)
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Why do they have to be listed? Why do you need to list everybody’s name in a submission? Why can it not just be on behalf of the residents association and the chair of the association?
Ms Claragh Mulhern:
When it gets to the judicial review stage, if somebody is then listing themselves as an applicant - as we explained earlier, an applicant could be more than one person - in order to be able to demonstrate that they have sufficient interest, you then have to be able to look back at what their interest in it was. However, we can certainly look at that.
Steven Matthews (Wicklow, Green Party)
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Back to Senator Seery Kearney. I apologise.
Mary Seery Kearney (Fine Gael)
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With due respect, if it is the Kildare Street Residents Association and the development is in the grounds of Leinster House, the two are clear - do we have to list all of the names? There has been a High Court matter that all of the names were not listed or one of the people was dead. Mr. Brendan Heneghan cited it here the other day. It got thrown out on the grounds of a lack of standing. However, in the case of a residents association that is coterminous with a development, it is very clear they have locus standi.
Mr. Paul Hogan:
I was going to come in on that very issue. Going back to my experience in local authorities, it was not uncommon for people to misrepresent the views of certain residents in some cases and speak on their behalf when they would not necessarily agree. In other situations, people would speak on behalf of vacant houses where it was understood that this could be another person or suggested somebody was in support of something; and deceased people, which cause great offence in some instances. This was not a one-off. This was a reasonably regular occurrence for very large-scale development that attracted multiple and significant concern or representation. It can get quite confusing as to who was talking on behalf of whom, who was representing whom, what people’s views are and who is included. It is to bring clarity to the situation.
Mary Seery Kearney (Fine Gael)
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But implied within that is that if a residents association is to put in for an appeal for An Bord Pleanála stage and it has to list all of its members, if it is to go on to judicial review, then every person who lives within that residents association area has to have exactly the same view. That is not reasonable. It is approaching residents with a "guilty until proven innocent" perspective, which is highly disrespectful.
Mary Seery Kearney (Fine Gael)
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Yes. It is reasonable that they meet criteria such as having a meeting and demonstrating that there is some sort of mandate of the committee of a residents association to put forward. However, it should be confined to that. If we hold it to the members, then people can die in the meantime. You will not be able to meet all those criteria.
Mr. Paul Hogan:
I think the Senator can see the intent though. Where we were clarifying the standing requirements, there had to be a resolution.
Resolution just means that there is general agreement that this is the course of action to follow. The intent of clarifying this was not to make it a convoluted or long legal process. It was just that there would be general agreement this is the course of action for this group of people.
Mary Seery Kearney (Fine Gael)
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Okay. Are we happy?
Steven Matthews (Wicklow, Green Party)
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There was an important point to thresh out. I am sorry, I took a bit of your time, Senator. Please go ahead.
Mary Seery Kearney (Fine Gael)
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I was happy to give time, as long as we got to the point. I understand that individuals can do it, but we cannot bar residents, particularly residents' associations. I am a little concerned about the longevity requirement there, if that attaches to residents' associations. It does not.
Mary Seery Kearney (Fine Gael)
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You can have a place where everything has been running tickety-boo. I live on a road that has been there for 60 years. They were active when people were younger. Everything is spot-on now, thanks to South Dublin County Council staff. In the face of a development, BusConnects or whatever that will materially change the quality of life for people, suddenly the residents' associations will spring up. They may have been dormant that they would not meet a criteria of an entity for years.
Ms Claragh Mulhern:
Certainly, the intention is not to limit people's opportunity to, as the Senator says, reactivate any previous associations or even to set new ones up. What we are trying to do here is clarify standing from the perspective of either an individual or a group of individuals who may feel that they are affected and to make sure that they can engage in the process. We can clarify that in the explanatory memorandum.
The other bit about being incorporated, etc., is a different set of rules or tests. That is in relation to the environment organisations. It is all about clarity so that everybody knows that if they want to engage in this process, in order to have standing they must either fit into this category or the other category. Certainly, in terms of the concerns the Senator raised, the ability for a group of local residents to enter into the process is absolutely a key aspect of it for us. It is certainly not the intention to limit their opportunity.
Mary Seery Kearney (Fine Gael)
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Okay. We need that very clear.
Steven Matthews (Wicklow, Green Party)
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I do not know if Senator Seery Kearney was here at the time, but I said it would be good, even around this section, if we had a clear flow chart of who can apply and what the changes are, and clarification about an applicant being a person and having legal personalities as clear as it can possibly be.
Mary Seery Kearney (Fine Gael)
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That is great. I thank the Chair.
Steven Matthews (Wicklow, Green Party)
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I am into the third round now. Deputy Ó Broin is up first on that.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I thank the Chair and apologise for my absence.
I want to take us back to the plan-making and policy portions of the Bill because if we get those right, we will not necessarily have to have as much discussion around what happens at the latter end. For me, these are crucial sections of the Bill. Can Mr. Hogan give us as much detail as he has about where we are with the transitional mechanisms, particularly for the existing section 28 ministerial guidelines, but also include strategic development zones if there is anything to comment on that at this stage?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Does that mean then, in line with section 22(1), the current position is all current section 28 ministerial guidelines and SPPRs at a point in time will just become the policy statements as outlined in section 23 or-----
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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-----what are we going to get in terms of that interaction?
Mr. Paul Hogan:
We would rather properly incorporate current guidance into the new format. That requires, in some instances, a more comprehensive look at existing guidance. In other instances, it is a case of something more procedural, such as the development plan guidelines, that would reflect the legislative outcome.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I would have sympathy for that approach. What then happens? How many section 28 ministerial guidelines do we have? Is it 30-odd that have been produced?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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If this Bill passes in some shape or form, what will be the standing of those 30-odd sets of ministerial guidelines at that point in time while, as Mr. Hogan outlines, the Department is working them into new policy statements as per section 23?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I presume that will take quite some time.
Mr. Paul Hogan:
It will. As I was starting to explain, some of the newer guidelines - they are the more recent ones we have done which do not have SPPRs - are written in such a way that we clarify where it is an important policy and objective for certain high-level things that would be the key policy elements.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Would it be fair to say then the ones that will get prioritised are the ones that have proved most problematic and the source of litigation and slowing down planning developments or how will the Department prioritise?
Mr. Paul Hogan:
Certainly, we would think ones that have a bearing on development that are core to planning: the development plan guidelines; the urban development guidelines, that are at an advanced stage of preparation under section 28 but will be adaptable; and the rural housing guidelines, which are subject to the consideration of Ministers at present and will be probably published under section 28 as well, and which are also adaptable.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Density guidelines, I presume as well, are in that category.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Is the plan for those is to publish them as section 28 guidelines rather than incorporate them as ministerial statements but then at some point in the future re-jig them into policy statements?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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The Minister likes giving the officials lots of extra work.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Particularly on those two sets of guidelines, I fully support the Department on that without prejudice to the content of them.
One of the other concerns is, in section 23, the definition of a so-called "national planning statement" is very broad. It states:
The Minister may, at any time, with the approval of the Government, issue a statement ... which shall comprise two parts as follows: (a) national policies and measures on planning matters to support proper planning and sustainable development ... .
I thought the Irish Planning Institute and the town planners made a compelling case that that was too broad and it could lead to further rounds of conflict, as we have had with some of the section 28 guidelines to date. They talked about possibly limiting the policy statements to things which relate to future planning rather than development management and that seemed a sensible approach. Has the Department considered their comments to the committee and is there a way of clarifying? Part of the problem with the section 28 guidelines, notwithstanding their legal ambiguity, is they cover so many different, highly technical and specific issues which relate to individual developments and more broader strategic long-term issues, for example, densities and rural planning. Is there a merit in that splitting and having policy statements on future planning rather than development management issues?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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That is not what it says in the legislation. I do not want to be awkward but Mr. Hogan and I both know if the legislation is not prescriptive enough, a Minister, irrespective of the advice of experienced professionals, can go off in all sorts of directions.
Mr. Paul Hogan:
No. The provision is there. It is certainly something that is absolutely critical to a Minister who has broad responsibility for a policy area to be able to define and issue policy at a national level in terms of that policy brief. That is something that planning has not had to date.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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It is something I support in principle. The issue is how you do it and the relationship between those and the local.
Mr. Paul Hogan:
The first check on that that we have introduced is the fact that, rather than them being ministerial guidelines, they must go to Government so that there is collective responsibility at Government level for these guidelines or, I should say, statements. That is an elevation of responsibility. What is brought to Government has to be generally acceptable to Government. That is the way policy can be strengthened.
The second is the adoption mechanism. It is intended to be primarily rooted through the plan system as opposed to the individual decision system but there may well be that bit of tension at the outset once something new comes out.
The mechanism is for it to be routed through the regional assembly regional strategies and the development plans, where appropriate. In each case, there is almost a review rather than an automatic change-----
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I am out of time. With the Chair's indulgence, we had quite an engagement with the Office of the Planning
Regulator who, in a previous life, was very involved in all these discussions and with the board, about the extent to which the Oireachtas should be involved. When there are significant changes to planning regulations, we have a mechanism in the Oireachtas which is that the officials come before this committee, we get to interrogate them and then there is a motion, which is taken without debate. The value of that mechanism is that it brings an additional layer of scrutiny, accountability and public clarity. That has been very helpful in the context of a range of matters. There is no provision anywhere in this section for a role for the Oireachtas. We have this system for less complex and maybe less controversial planning regulations, although some of them have recently been pretty controversial and we have dealt with them in a very sensible way. Surely there should be some role for the Oireachtas, which would strengthen the transparency, accountability and robustness of the statements in question. Is that something the Department could consider?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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We are very reasonable people in this committee.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I am not questioning that principle. It is just that is what the section 28 ministerial guidelines and SPPRs are for. Because of the way it was done and designed, however, it has not worked. That is why were are coming forward with this other proposition.
Ms Claragh Mulhern:
The intention is very much that it is national policy. Generally speaking, section 28 guidelines, particularly the ones we have been discussing, tend to be plan led. In planning hierarchy, the national planning framework, NPF, is at the top and then it goes down to the regional strategies, the development plans and the more local plans in that order. As the Deputy rightly stated, the plan-led approach is really important. The intention of those guidelines is that they are an extension of national policy set out under the overall high-level starting point offered by the NPF. That is the key: it is national and Government policy.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I understand that, but we have had a number of years of litigation regarding the mismatch and translation of those different levels of -----
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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For me, it is not the principle; it is the mechanism and the process. I fully support the idea of national policy guidelines. I also believe in regional and local guidelines. When the County and City Managers Association and some of its members came before us, their concern related to the process of transposition and how that works. This is because what we have seen with some of the section 28 guidelines is that you can have a policy at this level but how that is applied appropriately and successfully at local level is not as straight forward. Scrutiny on the part of an Oireachtas committee like ours might be of value in filtering out some of that.
I have eaten into the Chair's time. I will stop now and come back in later.
Mr. Paul Hogan:
We are in the process of moving from a unitary system whereby the development plan was where it was at. Many people have been very comfortable with that. It was one document and very straightforward. We now have an integrated hierarchical system. That sounds very complicated, but it is the fact that things move from the national to the regional to the local and there are that those different levels of decision-making. Each should be appropriate to the stage in the process. We have been transitioning for the past five or six years. It is not complete, and we are having this review on top of that. There is a tension in the system as a result. We are very conscious that things that are done at national level need to be national. In thinking about it, we were considering what was a good comparison and we thought it would be something like the rules of the road. The fact that everyone in every county drives on the same side of the road. We have the National Roads Authority. In that context, motorways that do not suddenly end at county boundaries. That sort of thing-----
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Ye we are also dictating to people on the residential side about size, the number of rooms, etc. That is why the distinction between development management and forward planning is really useful because we should have very clear rules. I accept that, but we should not be telling people - to continue the analogy - what colour or size car they should have; we should be telling them about the energy efficiency of the car. That is the tension that has not been resolved. I remain unconvinced that it will be resolved by what is proposed in the draft Bill.
Mr. Paul Hogan:
We want the Oireachtas to make its intentions clear in the final version of the legislation as to where it should be in order that we do not have this kind of uncertainty travelling through the system. There should not be risk uncertainty for people engaging with it because that is being exploited by some parties at present and has created difficulties with the delivery of infrastructure and housing simply because the evolved text of the 2000 Act has not proven sufficiently robust to deal with the sorts of issues we now face.
Steven Matthews (Wicklow, Green Party)
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If it were brought before the committee, we could look at the rationale, the reasoning and what is proposed to be achieved. The committee could have oversight of it. We would not vote on it or pass it, but just oversee it as we do with some of the regulations.
Local area plans are to be replaced by priority urban and joint area plans. I am not entirely clear on whether the Local Government Act sets out that local area plans are to be developed by the municipal district members or the full council. We do have any detail on what these new plans will involve. I am hoping that will answer the question as to how we can bring more involvement at the plan-making stage than at the application stage. When will we see the detail of what exactly those plans will involve and who will approve them? It is a bit ambiguous in this in that it says committee, council. I do not know if it refers to strategic policy committees, but I think it should be open to all the members of a locality to pass a local area plan. I would like to see that transposed into these plans as well.
Steven Matthews (Wicklow, Green Party)
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Okay.
Mr. Paul Hogan:
In fact, the intention is to move away from that sort of mandatory position whereby every settlement of more than 5,000 must have a local area plan. It is necessary in some cases but it may be less so in others. It is to enable focus to be brought. There is a bit of a misunderstanding here because there are three types of plans named that there is somehow more work and more complexity. What we are trying to do is more appropriately focus the efforts of the local authority to priority areas where development is likely to take place while retaining the option to do a whole settlement plan in the context of the full version. We already have a mandate under the existing Act that has to do with local authorities co-operating. There is a relatively small number of instances where boundaries are close and settlements straddle those boundaries where a joined area plan would be required. There have been various attempts over the years to legislate for that. This is trying to tidy that up as well. Other than that, it is a focus of local area plans into the three different types with a view to retaining many of the current features.
Steven Matthews (Wicklow, Green Party)
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It would probably be beneficial and constitute a better way to go, but it is a question of the detail involved, the guidance and who in local government approves these plans and at what stage.
Steven Matthews (Wicklow, Green Party)
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I refer to sections 56 and 57 in the context of varying a plan. We just spoke about the national planning statements and I think it is within six months that you have to make your development plan comply with the national. Section 56 refers to five-year reviews if we are going to ten-year plans.
Section 56(4), on page 143, states: "Not later than 5 years after the making of the development plan, the members of a planning authority shall, consider the interim implementation report from the chief executive and, by resolution, propose the making of such variation as recommended by the chief executive". What is meant by "as the members consider appropriate"?
Steven Matthews (Wicklow, Green Party)
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Section 56(5) allows them to say they accept the recommendation of the chief executive and they pass this or they do not, and then it goes to the OPR. I am just not clear about the wording and believe that the last five words are unnecessary as they add confusion.
Steven Matthews (Wicklow, Green Party)
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That is good. Section 57 provides the councillors with the ability to vary a development plan at any stage, not at the five-year review. At that stage, councillors have an opportunity to feed into the variation, make recommendations and pass resolutions on that. Am I correct that the five-year review is not for lodging new objections and is just a review, and that section 57 is where the local authority decides to vary its plan, which is more akin to the current development plan process?
Steven Matthews (Wicklow, Green Party)
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Will Mr. Hogan please explain?
Mr. Paul Hogan:
The variation process is set out. It is also possible under section 56(6) which states: "Where the members of a planning authority adopt a resolution under subsection (4), that resolution shall be deemed to be a resolution adopted under subsection (3)(c) of section 57." That provision means the plan can be varied at that stage.
Steven Matthews (Wicklow, Green Party)
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It is the chief executive who recommends the variations to the planned five-year review, not the members.
Steven Matthews (Wicklow, Green Party)
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Yes, the decision is made to adopt a review and then it goes to the planning regulator. Members cannot amend the recommendations made by the chief executive. They can only accept or reject.
Steven Matthews (Wicklow, Green Party)
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Section 336(3) states: "The Commission shall retain all other documents". Will Mr. Hogan describe what is meant by the words "all other documents", which are not available to the public? Section 336(4) mentions that "the documents and information referred to in subsection (3) ... shall be made available for inspection by the owner or occupier of the land". There seems to be a distinction made between two types of documents.
Steven Matthews (Wicklow, Green Party)
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No, there is no conflict. It appears that the documents held by the commission will be made publicly available. As the provisions are at the moment, the documents can be viewed. Section 336(3) states: "The Commission shall retain all other documents ... for a period of 12 years", and, therefore, these are not the ones referred to in section 336(1)(a), (b) and (c). However, section 336(4) qualifies it, stating, "copies of such documents shall be made available by the owner or occupier of the land" and not the public.
Steven Matthews (Wicklow, Green Party)
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Is that similar to planning files in a local authority where certain documents may be submitted with the planning application, which are not available to the public to peruse?
Steven Matthews (Wicklow, Green Party)
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We have covered section 5. With regard to section 8, it is our view that it would be more beneficial and open to reinstate those who can seek a declaration under the current section 5. The witnesses may have commented on that. Can non-statutory plans be used in a planning decision or a decision by the board or local authority?
Mr. Paul Hogan:
No, it is not advised. Certainly the courts would have held that if a plan has not been through a public consultation process or screened for environmental assessment, that is an issue. Where there is a non-statutory plan, often those elements are not present and, therefore, it should not be relied upon for decision-making.
Steven Matthews (Wicklow, Green Party)
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There is a local area plan but is an area action plan a non-statutory plan?
Steven Matthews (Wicklow, Green Party)
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Will the witnesses explain the two key tests if a plan goes through public consultation and is screened properly?
Steven Matthews (Wicklow, Green Party)
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Will the priority area plans or urban area plans replace these kind of different non-statutory ones? They sound like area action plans.
Mr. Paul Hogan:
That is the intention. A development plan should be a sufficient basis for decision-making. One of the things that has been problematic is that a local authority can spend two years considering the review of a development plan and, thereafter, a whole load of things are left for local area plans. When someone comes along and seeks to undertake development, he or she may not be able to and, indeed, a member of the public may not understand, even after the development is published, what is permissible. It is really important that the development plan process enables decision-making to occur at any stage. The programme for area plans may be set out therein but what they are supposed to consider should be broadly scoped. The timeline might be a bit tight for area plans and within a year or two is preferable. That is an issue we are prepared to look at.
Steven Matthews (Wicklow, Green Party)
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Yes, the planners might make the baseline.
Victor Boyhan (Independent)
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The Chair made a reference to, and I saw the officials nod their heads and say that they agree with, deleting the four words when Mr. Hogan talked about the ten-year county development plan. One of the major changes is moving the plan from a five to ten years. Broadly speaking, there seems to be an acceptance for that now having teased out the matter when we had the various representatives before the committee from the various county council bodies. Emphasis was placed on the meaningful five-year mid-term review. We need to be very clear about the role and functions, and this issue has been touched on by Ms Mulhern. The chief executive will bring a report but that is not enough. I would like to think, for which I seek assurances, that the councillors will have the opportunity to accept, reject or amend the chief executive's report. They are compromising a hell of a lot now to opt for a ten-year plan. We are talking about meaningful engagement with local authorities, which have a mandate, as these are democratically-elected representatives of the community. I would like the witnesses to tease out this matter.
On the deletion of the few words, Ms Jones mentioned leaving a little discretion for councillors but I want more than a little discretion reserved for them. I am not in favour of deleting anything until I see the impact of doing so. I want this matter noted and I have marked it off my list. I would like this matter teased out as I want to be concise because I have a few other questions for the witnesses. I seek clarity on the role, function and reserved functions of the elected members in terms of the five-year review.
Mr. Paul Hogan:
The members have a role to resolve to take action at the stage . In the context of a ten-year plan, at present we have a six-year plan with a review after two years, which is too soon to see anything.
It is a report and it does not have the same mandate for a resolution to vary the plan so soon after that time. It is a longer period of time here. If you take something like housing and the zoning of land, which is a prime function and comes up again and again, clearly at the development plan stage, it is important that the needs of the population of the area are set out. In many instances, local authorities will not run through the stock of zoned land to meet targets very quickly while in other instances, they will. The census is taken every five years and we look at that.
Victor Boyhan (Independent)
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We would like to see greater clarity on the role and functions. Mr. Hogan does not have to talk about the rationale now. I understand the process, as does he. What would be helpful to this committee is absolute clarity on the roles and reserved functions of elected members regarding the review.
Regarding prescribed bodies, we are familiar with An Taisce as a prescribed body. There are other prescribed bodies and there was a suggestion by the Minister that we might include other prescribed bodies. There may be local prescribed bodies that may be pertinent to a particular part of Ireland and not necessarily be a national prescribed body. Are there any plans to adjust or change the status of prescribed bodies under the Planning Acts?
Victor Boyhan (Independent)
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Could Mr. Hogan keep the committee informed because it is critically important? These prescribed bodies have been very active in engaging with us in this process and are listening in today so they will want to know. They will be somewhat alarmed so the earlier that is flagged, the better. Some people see prescribed bodies as a target but they have served us well. I am in favour of having additional prescribed bodies. I think of the Irish Georgian Society, which is not a prescribed body. It is linked to some of the other bodies but that is an area where a case could be made. I am somewhat concerned about what might be happening. It would be helpful, therefore, if Mr. Hogan could provide information to the committee in a memo.
Would the Department consider removing the proposal that NGOs should be registered companies? We know what NGOs are. They are registered NGOs. These NGOs go through the hoops, and rightly so. Many of them are receiving funding. Will the Department consider removing the proposed requirement that NGOs be registered companies?
Victor Boyhan (Independent)
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Would the Department consider dropping it?
Victor Boyhan (Independent)
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I am asking Mr. Hogan whether the Department would consider dropping it. I do not know the rationale. Mr. Hogan is not sharing the rationale behind the Department's decision to include-----
Victor Boyhan (Independent)
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I ask the Department to consider removing it. We will make a strong case for doing so.
Regarding curtailment of outline planning permission, outline planning permission gives a sense of certainty but I understand that small blocks of up to four houses will not be affected by this. I say that in the context of the rural housing guidelines. Despite all the promises, we still do not have rural housing guidelines. This has been going on for years. I need to be clear. What pressures were brought to bear on the Department regarding curtailing certain outline planning permissions? Can Mr. Hogan share that information with us?
Victor Boyhan (Independent)
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Will Mr. Hogan explain the rationale behind that?
Victor Boyhan (Independent)
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I know that. I am asking for the rationale for the Department's decision to curtail outline planning permission in certain circumstances.
Victor Boyhan (Independent)
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Does Mr. Hogan have statistics or data he could share with the committee?
Victor Boyhan (Independent)
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Would he share the data he has with us?
Ms Claragh Mulhern:
In respect of complex developments, environmental assessments and all of the work that is required for the planning authority to be able to make a judgment about whether something is acceptable or not, even at outline stage, to be honest, people are better off going for a full application at that stage. It concerns the utility of it.
Victor Boyhan (Independent)
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Has Mr. Hogan any idea of when the rural housing guidelines will be published?
Steven Matthews (Wicklow, Green Party)
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Let us stick to this one for the moment.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I wish to address timelines and penalties. As the witnesses are aware, I am very strongly in favour of timelines, particularly in terms of development consents in local authorities and the board. This is a part of the Bill we really need to get right because if we get it right, it will be very helpful to applicants, local authorities, communities, etc. Can Mr. Hogan at least give us some indication of what the Department's thinking is concerning the framework? The board made a strong argument that some timelines should be shorter while others should be longer and that there should be some clear correlation between complexity and a defence. That is good so long as it makes sense. Oonagh Buckley made a compelling case against penalties in the sense that there could be better ways of ensuring compliance. She set out some of those to members at our meeting.
Another issue is resources. This is not just about board members or statutory planners but also about the other staff. The County and City Management Association made very clear that the workforce plan involving 500 extra planning staff, which was indicated last year, was intended to meet what it had on its plate at that point in time. I know Mr. Hogan keeps talking about efficiency. I suspect if he was back in a local authority, he would have a different view. This legislation creates additional responsibility. There is no doubt that efficiency is important but there are new and additional areas of responsibility, particularly for timelines. Where are those three elements, namely, timelines, penalties and resourcing?
Mr. Paul Hogan:
I will ask Ms Jones to talk about timelines because that is an ongoing discussion. The principle of varying timelines relative to complexity is agreed. On the point about resources, we need to understand where we are before we look ahead. It is a combination of things. It is plugging gaps and identifying areas where there is a need for greater numbers and efficiency. A lot of people have talked about resources without explaining how this legislation will affect resources.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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My interpretation of that comes from Mr. Hogan's initial presentation. We want to move to a plan-led system. We want a plan-led system that provides the maximum level of certainty and that means moving towards more SDZ-type plans in terms of the dimensionality and visibility of what can or cannot be done. I am not saying they are all SDZs. We are also going to enter a period where we hope there will be a significant increase in applications for planning because we have a housing crisis. I am sure Mr. Hogan read the Taoiseach's remark about the 250,000 housing deficit in the newspapers today. We also have the maritime side. There is nobody who can sit here and say that, between what is in this Bill, with the increase in plan-making, and what is happening in terms of new residential developments and offshore, our planning system will not require more staff. I know Mr. Hogan cannot come to us and tell us "X " amount of staff will be given because that is determined by Government and budgets but the setting of the timelines is related to the volume of resources. That is the bit I want Mr. Hogan to tease out.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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It put it differently when we asked it a very straight question.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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It is but-----
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I am not saying Mr. Hogan is wrong, but that is not what the city and county managers said to us. We asked very clearly that question and they said it was not representative of the increased workload they believe this Bill would involve.
Mr. Paul Hogan:
Yes, but what I am saying is that we need to understand what increased workload people are talking about because what the Bill does is streamline the system as we have it. I did a sort of sense check from a resources perspective on this and the reality is that we are still talking about a better replacement, essentially, so we are talking about the hierarchical system, that is, the national planning framework and the national policy statements, as per section 28, to provide clarity and to eliminate some of the hand-wringing that goes on in chambers around the country about various things that really should be clear from the top. Then we are still having regional strategies and development plans. We are giving longer for development plan lifetimes to enable things to be done in that space.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I know all that, but the premise of this Bill, in addition to clarifying, is to have a more planned-out approach. That means we need more plans, and if we need more plans we need more resources.
Mr. Paul Hogan:
Yes, and the shift towards clarity and the shift towards longer arcs of time are part of that. We are still operating a system that involves planning applications, planning permission, an appeal stage and enforcement in the same way. All those things - plan-making, enforcement and dealing with planning applications - were considered as part of this review in respect of current and imminent requirements, so the numbers set out in that will get us a long way towards, if not all the way towards, what needs to be done.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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That is if we get those numbers, but that is a matter for the Government.
Mr. Paul Hogan:
Yes, and, as I said, we have secured an element of budget to bring that forward this year to start into it. We cannot accept that just because it is changed, reordered and different and some of the procedures are different, it automatically means we need many more people, particularly when we have already identified that we need many more people.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I have two other brief questions. I apologise for cutting across Mr. Hogan. I am not being rude; it is just that we have little time. I think he is the only planning professional who has come before this committee for consideration of this Bill who has taken that view. I say that because it is important. Both the public and the private sectors have given us a different interpretation, but it is completely legitimate for people to have different views.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I have two brief questions. Regarding exempted development and third-party requests for the old section 5 permissions, the witnesses will give us their explanation. It is a straight yes-no answer. At this point in time, despite the strength of opinion that has been presented to the committee, there is no suggestion that what is in the Bill will change. What the Department will do is just set out more clearly a rationale for the change. That is a yes, is it?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I seek clarity on the land value sharing tax and urban development zones legislation. I was not 100% clear on Mr. Hogan's answer to Deputy O'Callaghan. Is the intention to work on that Bill as a separate Bill but then to bring it in as, say, Committee Stage or Report Stage amendments to this Bill?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Is it there that the development contribution scheme will be or will it be in the final draft of this Bill when we get it?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I assume that it will not be the same text as the current development contribution scheme. There might be some changes in respect of that relationship.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I have one final question. Development contributions and a land value sharing tax are not the same thing. One of the things that was said - it could have been by one of the industry representatives - was that they do not want double taxation. This is not double taxation. Development contributions and a land value sharing tax are two very different things. Is there anything the witnesses can tell us briefly about the shape of those two things to give those of us who believe that both should exist in some form comfort that development contributions will continue to exist and that the land value sharing tax will be a separate policy tool? Is that where the Department is with that?
Ms Claragh Mulhern:
Yes, that is right. Again, we will very shortly publish the updated general scheme of the land value sharing Bill and will then come to the committee to discuss it in detail. Yes, the intention is that the development contributions will be retained, modified from their current wording, and that the land value sharing will be additional to that, related to the zoning.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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This is important because development contributions are contributions to the local authority in lieu of the impact of and infrastructure requirement of development. The land value sharing tax is about capturing a portion of the uplift in the market value of the land. They are not necessarily the same thing. Is it the witnesses' understanding that the Minister intends to seek or request pre-legislative scrutiny for that?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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What is the Department's notional timeline - not a date but a month or a quarter - for publishing the final version of this Bill? What is your hope as regards pre-legislative scrutiny of the other legislation, the bringing forward of this legislation and the integration of the two? We are almost at the Easter recess. Does the Department really hope that this will all be through both Houses of the Oireachtas by the summer?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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What is the witnesses' hope for the completion of this process?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Are the witnesses optimistic?
Steven Matthews (Wicklow, Green Party)
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It will fall to us anyway. I will bring in Deputy Gould.
Thomas Gould (Cork North Central, Sinn Fein)
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To follow up, I have a few further questions. The Botanical Society of Britain and Ireland has found that more than half of Irish native plants are on the decline. How will this legislation work towards conservation? There has been criticism of previous planning Bills and the failure to define sustainable development and ingrain conservation in that. Will this Bill present a change in that regard?
Mr. Paul Hogan:
In the opening statement we set out all the things that planning has to do and we mentioned biodiversity as one of the key considerations. This is about trying to reinforce that plan-led concept. I think one of the questions was what national planning statements would do. In an ideal world, where we had the capacity to address biodiversity and greening and so on, we would use the national planning statement process to give effect to those sorts of considerations in the system. We are at present negotiating a nature restoration law in the European context, and that may well have some bearing on how we approach and proceed with this. The way for it to come into the system is through either the national planning framework, as revised, or an appropriately sectorally targeted national planning statement that would then cascade into the development plan system. Within the development plan itself, the move towards those clear strategies is really important. We would then have a strategy for the environment element. The strategy that would address natural and built heritage in the development plan would be the way in which that would come into each local authority's development plan to inform development proposals.
Thomas Gould (Cork North Central, Sinn Fein)
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We have issues whereby the conditions on planning are not enforced and, in some cases, are actually unenforceable. Does the Department see the OPR as having a role in reviewing this situation? Recently, I put in a number of complaints to Cork City Council because electric car charging points were part of a planning process but were never delivered. I contacted the council recently and it said that after years of the issue not being resolved, it is resolved now. However, I got no outline as to how it was resolved or what happened. Is there a potential to create a more enforceable process? This was a condition of the planning process. For years the developer who built this just seemed to dismiss the conditions.
Mr. Paul Hogan:
Enforcement of a planning condition is and will remain a matter for the relevant local authority. The enforceability of the condition relates to how clearly worded it was and what was understood at the time. I do not know if it directly responds to this question but the revised section 8, with regard to declarations, includes a new element whereby a permission can be clarified. It is possible for a landowner or an applicant to seek clarity from a local authority as to what the intent of the permission was in cases where there might be ambiguity. What we are saying is that the condition needs to be clear and enforceable but we are looking at a mechanism for this.
Thomas Gould (Cork North Central, Sinn Fein)
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Mr. Hogan just mentioned that conditions should be clear and enforceable. Last week, planning permission was received in Cork for the development of student accommodation. We have a huge shortage of student accommodation. It is important that we get accommodation for students. I put in a number of submissions because I had concerns about the density and height. One of the developments has a rooftop garden, which students have to be off of at 10 o'clock at night, 4 o'clock on a Saturday and they cannot use it on a Sunday. Students will be living in accommodation that has a rooftop area with conditions such as these attached. Who is going to enforce that? Let us be honest. Residents in the area will be ringing the Garda and Cork City Council. I do not think such conditions are enforceable.
Ms Claragh Mulhern:
I refer to some comments made previously. The Minister and the Department cannot get directly involved in any matter that concerns the planning authority or, indeed, the board if it is an appeal under section 30. It is a matter for the local authority to weigh up in its assessment of the application. It that particular case, it is to do with the management and operation of the development after it has been constructed. The local authority would need to give consideration to that and we are not able to comment on whether it is or is not enforceable. In terms of the position in the legislation and the guidance that has been issued, it is essential that there are tests that conditions must meet in order to be reasonable and enforceable. That is as much as we can say here today unfortunately. We cannot comment on specific cases.
Thomas Gould (Cork North Central, Sinn Fein)
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I get that but the residents have been onto me. People know it needs to be delivered but we need developments that are sustainable and include communities.
There was another issue in regard to planning permissions. Is it right that developers can go for new planning permission applications when they already have planning permissions that they have not developed or they are sitting on derelict sites?
Steven Matthews (Wicklow, Green Party)
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I ask for direct questions and answers now. We have three members left to contribute with only 15 minutes left.
Steven Matthews (Wicklow, Green Party)
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I have to move on. I am next, followed by Deputy Ó Broin and Senator Boyhan.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I am happy to go last.
Steven Matthews (Wicklow, Green Party)
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That is okay. I refer to section 241, which relates to tree preservation orders, TPOs. If it appears to the planning authority that it is expedient to make a TPO, because it is often put that we do not have the resources or the finance to make TPOs, I would like the inclusion of a provision that members could, by way of resolution, request tree preservation orders. I ask the Department to provide details if there is a diminution of or changes to the requirement to include rights of way in development plans and if there is a reduction in what planning authorities are obliged to do at the moment. I also ask the Department to report back to us to check that the imperative reasons of overriding public interest, IROPI, test from the Natura directives is properly transposed from EU law. A person has contacted me who is concerned about sections 190 and 191.
Steven Matthews (Wicklow, Green Party)
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Section 249 (5), which I raised before, relates to the correction of any error of fact or law. It was agreed that we could insert something not material to the decision. Is that still the view of the Department?
Steven Matthews (Wicklow, Green Party)
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It is probably one of the most contentious sections that have come up.
I refer to section 139 (10) on page 305. If one were to revoke planning permission where a development has commenced, it is important that the test for commencement aligns with the test for commencement of extensions. In other words, what we do not want in cases where there is a revocation of a planning permission, is for someone to say: "I have started the development so you cannot revoke it." We need clarity on that revocation.
Section 203, on page 422, relates to the environmental assessment portal. I request that screening determinations by the board are also included in that if possible.
Steven Matthews (Wicklow, Green Party)
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It is to include a lot of environmental impact assessments and report. It is a really good idea to have an environmental assessment portal to which people can go. I am referring to screening determinations by the board that people could request.
Steven Matthews (Wicklow, Green Party)
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Section 277 is on the making of architectural conservation areas. I am not sure whether it is defined in the Local Government Act if that is for a municipal district or a full council. They are generally done for county development plans. It would be beneficial for local councillors to be able to make a determination on that.
Under section 325(2)(b), on page 579, the commission is required to make relevant information available for inspection at the offices or by electronic means. However, section 325(3) states that it "shall" be made available for inspection at the offices and "may" be made online. Why is certain information required to be made available online but discretion is provided in the second one? The documentation "shall" be made available but the decision "may" only be made available online. It should be. There is no reason the board cannot make that available.
Steven Matthews (Wicklow, Green Party)
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Is Senator Boyhan keeping an eye on the clock for me?
Victor Boyhan (Independent)
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The Cathaoirleach has two minutes left.
Steven Matthews (Wicklow, Green Party)
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I have two minutes. That is great. Section 234(1), on page 459, refers to exceptional circumstances. I am not clear on what "exceptional circumstances" means. Will guidance be provided in that regard? We had to clarify that when we were doing substitute consent during the planning and evaluation Bill. I ask that "exceptional circumstances" be clarified.
I refer to my last note. I think I have exhausted them all. I ask the Department to take note of these issues and come back to the committee.
Victor Boyhan (Independent)
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Similar to the Cathaoirleach, I am conscious of time. I will wrap up. I thank the officials for coming in. It has been a meaningful engagement.
Will Mr. Hogan give greater clarity on the addition to the record of protected structures? We have 31 planning authorities doing different things. Some local authorities have been told they cannot add any buildings to the record of protected structures during the life of a plan. We have had this in Dún Laoghaire, with a lot of ongoing correspondence from me and the Department on the matter. Terry Sheridan would be fully aware of the issues around that.
We need clarity on the reserved functions of elected members to add buildings to the record of protected structures during the life of a development.
The issue of the role of the Oireachtas in this Bill is really important, and I note that Mr. Hogan has said that the Department will look at that. I think Deputy Ó Broin has made a strong case.
Some have concerns about the prescribed bodies and what the Department might be doing on that. What I am hearing is that the Department is considering the matter, but I want to deal in facts and facts alone. It would be very helpful were the Department to provide us with a briefing note on that sooner rather than later. It is a stand-alone issue that we can pursue in the short term, but we need to know is being envisaged, planned or suggested in relation to changing the prescribed status of those groups in any way.
The Department should examine the possibility of having a chief planner and there is a strong case for it. There are currently statutory chief architects in most counties but there is a strong case for having a chief planner with the expertise and the skills to guide and steer the planning processes. There is a model in existence in Scotland. Perhaps the Department can look at that.
We should look at the environmental NGOs and the request for registration. The Law Society of Ireland and the Bar Council of Ireland have both suggested that there is a strong case for that. Perhaps the Department can look at their submissions. The Department has committed to undertaking a review of the standing rights and clarifying that issue. It is really clarity that we are looking for. Sufficient interest and clarity in relation to that would be appreciated.
Finally, I want to finish on the issue of the Aarhus Convention Compliance Committee. I am aware of some of the cases that have been taken and there is an opportunity for learning there. Let us not be resistant to learning from case law. We should identify the problems, the issues and outcomes of those cases. We must address them if we are going to address this planning and development Bill comprehensively. I accept, as Mr. Hogan has said, that it is a matter for another Department, but the Government is in a tripartite coalition. The Departments interact with one another and do not operate in isolation. In the meantime, I commit to pursuing the issue and sharing some of the information I have with the Department. I ask the Department to engage with us on that and let us know about the Aarhus Convention Compliance Committee's work. I know there are ongoing cases. We need to look at the cases taken and learn from the case law. We must weave that in through the policy.
Mr. Paul Hogan:
It is just that perhaps we do not have as much knowledge as the Senator might because we have all the other considerations as well. I think every point the Senator has made is valid and requires further consideration on our part.
On the chief planner post, there has been discussion about it over the years. It is something that has wider ramifications. There is a chief planning officer in Dublin city, but not elsewhere. It is something we will take back and consider. The whole resources issue may merit separate discussion.
Victor Boyhan (Independent)
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We could look at other jurisdictions in terms of best practice. A case may or may not be made for it. I want to hear both sides of the best practice arguments. I can see the facial expressions of our witnesses. Having said that, it is going to have to be resourced. If we are going to have this new, dynamic, robust and concise planning system, it will need resources. The Minister keeps telling us that resources are not the issue.
Victor Boyhan (Independent)
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I am going to give Mr. Hogan that in the remaining minutes that I have. We currently have directors of services in planning, who have no real knowledge, experience or qualifications in planning. The deployment of staff is a matter for the local authority CEO, and I understand that. However, there must be a certain level of skill, because the role of the director of services in planning is a very important one. I have heard from different quarters in local authorities that a certain amount of pressure has been put on people in relation to planning applications. Perhaps the chief planner could have statutory rights and equal rights to the CEO in respect of the planning functions. It is about proper planning and sustainable development. It is about having key skilled people leading those departments within the local authorities. I think it is a standard basic requirement. There may be different ways of dealing with it. I am not suggesting that I have the answer. I am suggesting that we need highly-skilled people, with a vast knowledge of the system and an understanding of the Planning and Development Bill, heading up our planning departments. I am not getting stuck on whether we call that person a chief planning officer or whatever. There is a model there that works and I would like the Department to look at it.
Mr. Paul Hogan:
I would speak up in favour of our directors of services, many of whom have wide experience across a range of different functions within local government. Likewise, in some instances they are qualified as planners. That again speaks to the multidisciplinary qualities of the planning profession, where people are capable of-----
Victor Boyhan (Independent)
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Hang on. We will not get into this argument but I make the point that this is a highly skilled area of expertise and we cannot be skilled in everything. We are not jacks of all trades. There is a real requirement to have someone who is highly skilled in place. That may be done through the appointment process of how that person is picked. I am just asking the Department to look at it.
Victor Boyhan (Independent)
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I thank the witnesses for their time and really appreciate it.
Steven Matthews (Wicklow, Green Party)
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I think Deputy Ó Broin wants to come back in.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I have three last questions. The first relates to Part 9 of the Bill. The big concern many of us have with administrative schemes is that when we look at the administrative schemes that exist already, whether it is legal aid or particularly the difficulties that children and women who are experiencing domestic violence face, an administrative scheme can often be very slow. You have to apply, there are criteria etc. What can the Department say to us that would reassure us that the administrative scheme that is being considered would be better than the post-Heather Hill case cost protection recovery scheme that is there? Related to that, the legal folks that came into us in our third-last session suggested that this issue of allowing the board to make corrections of error of fact could actually lead to a very significant amount of satellite litigation. I know that Ms Mulhern said that satellite or new litigation is always a possibility with a new Bill, but given the complexity of this and how long it took to get to the Heather Hill judgment, what can the witnesses say on that?
Second, can the Department confirm that both the density and the rural planning guidelines are completed, and it is now just a matter of when Government wants to proceed with them? Is there any notional timeline that the witnesses with share with us?
Third, while it is not part of the Bill, I highlight an issue that was raised during the course of the hearings. The Government introduced the Part 8 derogation at the latter end of last year. We understood, on the floor of the Dáil Chamber from listening to the Minister, that it would be up to managers to decide which Part 8 applications would utilise that, and that there would be a focus particularly on those applications that would be utilising the land aggregation scheme lands that were benefiting from the €100 million from the Department and that would be using new building technologies. The issue is that managers are of the view that they are now being instructed to use it for all Part 8 applications. I think that has some risks. We were told that this was about additionally, particularly those additional units on the land aggregation scheme. I know that I have received a response from the Department to a parliamentary question on the issue, but I want to be really clear. Is it the Government's position that every single Part 8 application from the passing of that Act or from its enactment have to go through the new derogation? Is any consideration given to some schemes that might be controversial that would be more likely to succeed in the long term if they were allowed to go through Part 8, not on land aggregation scheme land, but elsewhere?
Mr. Paul Hogan:
Given that we have not produced the administrative scheme, we understand what it needs to do. It will have to be better than section 50B. At a very general level, we understand that the concept of such a scheme will be even more compliant with the Aarhus Convention in terms of access to justice that does not involved excessive cost.
We have reflected on the correction of error of fact point. It is something that we agree is quite loose at present and does need to be resolved. Certainly, the legal drafting team is of the same view. That will be revised and looked at.
The matter of the current rural and density guidelines is a matter for the Minister. I can confirm that-----
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Just so we are clear, that means they are ready for the Minister to do with whatever he decides, when he decides to do it?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Is the delay in the rural ones just a courtesy because there is a new Minister of State responsible for that? Every time I put in a parliamentary question, it is a new quarter they are due to be published. I know that is not Mr. Hogan's responsibility, but-----
Mr. Paul Hogan:
There is an incredibly busy work schedule for all of us. Obviously, we have the Bill, but we are also engaging very productively with An Bord Pleanála, for example, on reform matters, and likewise bringing forward parallel legislation here on land value sharing. There is a full work programme.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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And on the Part 8 derogation?
Mr. Paul Hogan:
On the Part 8 derogation, Deputy Ó Broin is correct in what he is saying. Again, it is obviously separate to this process and is not something that will endure beyond 2024 for development that has not started on site. As I understand it, the legal position is that is the only option for development that meets the qualifying criteria.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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My concern is, and I will just put it on the record, as Mr. Hogan may not be in a position to reply, that is not what we were told on the floor of the Dáil by the Minister, and I do not believe that is what the legislation actually says. I do not recall anywhere in that very short piece of text a compulsion that all Part 8s were required. If I am wrong, please do correct me, because it is important we are very clear on this.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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That section of the Bill sets out the grounds upon which it can be used, and therefore it has to be consistent with the development plan etc. I do not recall, and please correct me either now or in a note to the committee, anywhere in the text of that amendment that it was a requirement for managers to use. I am not arguing for or against it being used. I am completely unconvinced that it will make any significant difference, but-----
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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There is still a significant amount of uncertainty within local authorities. There may be a case, and this is important, where a manager takes the view that a public consultation could assist the passage and the long-term success of the development, and therefore I would urge a level of, or a space for, flexibility. As Mr. Hogan will know from his time as a local planner, there are sometimes occasions where that little bit of give and take through Part 8 produces a more successful outcome for everybody. Proceed with caution, notwithstanding the fact there is an emergency and this change was required for something very specific. The Minister was very clear when he talked about the kind of schemes he thought this was designed for and what it was intending to achieve.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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The Minister did say that. I am sorry to labour this point, Chair, but I think you share an interest. The Minister gave a commitment when we pressed him on this that some kind of written guidance would be given to the local authority setting that out and that, in that, the requirement to involve particularly the elected members at some point, even when the derogation was being used, was the sensible thing to do.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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That has not gone to the local authorities yet, am I correct?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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If something is in the Part 8 process already but has not actually gone to Part 8, for example, schemes where there has been informal constitutional in the area committee or municipal district, would it proceed as a Part 8 in the guidance note or would it be subsumed into the derogation?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Even if the commencement is not the actual-----
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Even the publication of the Part 8, if they have started that informal, pre-Part 8 engagement with the elected members.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Perfect. That would be helpful for all of us.
Steven Matthews (Wicklow, Green Party)
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We are out of time now. We could probably go on, but it is appropriate to take a break. I thank the witnesses for their time. I know there is a considerable amount of work by their team going into this, as there has been by the Attorney General and his team. It is very important we get it right. The witnesses' attendance today has really helped, as has their previous attendance and offers of briefings throughout this process. We probably will avail of a briefing at some point to look at the progress of this as well. Specific items were raised on which we would like clarity and a very clear explanation. It would be very helpful.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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A briefing, when available, on any new provisions or the transition of provisions would be good.
Steven Matthews (Wicklow, Green Party)
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I have that here in my notes. We would like to hear about timelines on the urban development zones, UDZs, or the land value sharing and urban development zones Bill, because we do see that they are going to cross at some point here, and we as a committee will have to carry out the pre-legislative scrutiny on that. The transitional arrangements are critical to this as well, for example, if section 50B were to remain in place until that better scheme was decided and approved. That would probably be helpful to see as well.
I thank the witnesses for their time, and we are going to ask the secretariat to drop everything and concentrate for the next three weeks on getting a report. We have had a considerable number of public meetings and a lot of written submissions, so it is a huge body of work to take on, and then we have to agree on it as a committee. We will get it to the witnesses as soon as possible.