Planning and Development Bill:...: 27 Mar 2024: Oireachtas Joint and Select Committees (KildareStreet.com)

Oireachtas Joint and Select Committees

Wednesday, 27 March 2024

Select Committee on Housing, Planning and Local Government

Planning and Development Bill: Committee Stage (Resumed)

SECTION 82

Question again proposed: "That section 82, as amended, stand part of the Bill.

Steven Matthews (Wicklow, Green Party)
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We commence with the question on section 82 which we discussed at length yesterday. I understand Deputies Ó Broin and O'Callaghan want to make two points on this. The Minister of State may wish to respond before I put the question on the section again.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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At the end of our discussion yesterday, we were talking about section 82(3)(a) and (b), which obviously is a restriction on who can challenge the eligibility of a planning application to the local authority. As members know, the section restricts that to the planning authority itself, the commission, the owner of the land or to a person who has a legal or beneficial interest in the land. My understanding from the conversation yesterday is that the purpose of this section is to avoid a situation where planning authorities are essentially being asked to adjudicate on legal title and land ownership. That is a matter at a later stage for possibly the courts or others. While I understand that, there are two areas on which I am asking the Minister of State to give a commitment he will talk to his officials about between now and Report Stage. The first is obviously cases where there might be a pending application for adverse possession with the land registry, and the second where there might be some other legal dispute over land titles that may be, for example, in probate. The only reason I am specifying those two, which are quite narrowly defined, is that there could be very legitimate reasons why somebody who is contesting title either in probate or through adverse possession with land registry might have a material interest in challenging the eligibility of a planning application. Will the Minister of State consider those?

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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While the example I will use relates to section 82(3)(a) and (b), this relates to subsection (3) and (4) in effect. The concern I have, as I outlined yesterday, is if, for example, a developer applies for planning permission that involves land they do not own but that is in public ownership - let us say a public park or open space. If the local authority executive has given the developer permission to do that but the elected members have not been consulted and have not had their say because the executive of the local authority could argue they only get a say at the point of a disposal, that would seem to be legitimate grounds for a member of the public who uses that park or lives in the local community to possibly question the eligibility of that developer to make an application. These provisions would prevent them from any recourse to the courts to do so because they are not one of the named interested persons but they are a person very much with an interest in it. I am not suggesting they should challenge this in the courts but my concern is these provisions absolutely prevent them from doing so. That is the kind of conflict where a member of a local authority may wish to challenge that in the courts if they feel they have not been consulted on the consent given to the developer to apply for planning permission but I do not think they would not be covered in this either. Would they have recourse to the courts?

Steven Matthews (Wicklow, Green Party)
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To add a clarification, this is to question the eligibility during an application or of an applicant. It is not in any way to impede the right to challenge a decision that may come from that application.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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That is it.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Just to clarify, a member of local authority may want to apply. Would they be covered under section 82(3)(b)(iv) "a person who has a legal or beneficial interest in the land"?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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In answer to Deputy O'Callaghan, the planning authority would cover the elected member in that case.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Would this be the case even though they are not the planning authority? They are an elected member of the local authority but they are not the planning authority.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Yes, as a member of the planning authority, they can ask the planning authority to do so.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Yes, but they would have no recourse to the courts. If they felt a decision had been taken by the council executive without consulting the elected members to give written consent for the use of a public park or open space to a developer, they would not have any recourse to challenge that in the courts if this goes through. Is that the case?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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What we will do with both queries from Deputies Ó Broin and O'Callaghan is to come back in more detail. Both are very important points raised by the Deputies. We will come back on Report Stage with some clarification on those.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Just so we are very clear, because I was confused yesterday, this section does not in any way restrict anything to do with the courts.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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No.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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This is solely about who can challenge the eligibility of a planning application to the planning authority.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Yes.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Will the Minister of State provide a note to us on it?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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We will look at it to see if it requires amendments to address the issues the Deputies have raised.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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It will be looked at to address the issues. I thank the Minister of State.

Question put.

Francis Noel Duffy (Dublin South West, Green Party)
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The division bell did not ring properly, Chairman.

Steven Matthews (Wicklow, Green Party)
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Did it not?

Francis Noel Duffy (Dublin South West, Green Party)
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No. The bell stopped ringing and you called the vote. There is normally a four-minute wait when the bell stops. I waited for the bell to stop before coming down. I would have made it if-----

Steven Matthews (Wicklow, Green Party)
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On that basis, we will have to retake the division. I do not want any questioning of the procedure here so we will redo the vote. Thank you Deputy Duffy for informing us of that. We will proceed to ring the division bell again as a division has been called on section 82.

Question again put: "That section 82, as amended, stand part of the Bill."

The Committee divided: Tá, 5; Níl, 2.

Tá

Cormac Devlin, Francis Noel Duffy, Steven Matthews, Paul McAuliffe, Malcolm Noonan.

Níl

Cian O'Callaghan, Eoin Ó Broin.

Question again declared carried.

SECTION 83

Paul McAuliffe (Dublin North West, Fianna Fail)
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I move amendment No. 593:

In page 193, to delete lines 27 and 28, and substitute the following: “83. (1) When making its decision in relation to an application under this section, the planning authority or the Commission shall be restricted to considering the proper planning and sustainable development of the area, regard being had to—”.

Amendment, by leave, withdrawn.

Steven Matthews (Wicklow, Green Party)
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Amendment No. 594, in my name, is quite important but I am happy to withdraw it based on the commitment that the Minister will return and pay proper attention to the climate Act.

Amendment No. 594 not moved.

Steven Matthews (Wicklow, Green Party)
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How stands amendment No. 595, Deputy McAuliffe?

Paul McAuliffe (Dublin North West, Fianna Fail)
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I will withdraw it.

Amendment No. 595 not moved.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 596:

In page 194, line 5, after “environment” to insert “, including carbon emissions,”.

Amendment put:

The Committee divided: Tá, 3; Níl, 6.

Tá

Denise Mitchell, Cian O'Callaghan, Eoin Ó Broin.

Níl

Cormac Devlin, Francis Noel Duffy, Joe Flaherty, Steven Matthews, Paul McAuliffe, Malcolm Noonan.

Amendment declared lost.

Steven Matthews (Wicklow, Green Party)
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Amendment No. 597 relates to a grammatical error that the officials have agreed to look at.

Amendment No. 597 not moved.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 598:

In page 194, between lines 6 and 7, to insert the following:

“(III) the impact or likely impact of the development or proposed development on the use of Irish within a Gaeltacht area or Irish Language Network, and the viability of Irish as the spoken language of the community,”.

Amendment put and declared lost.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 599:

In page 194, line 8, after “structure” where it firstly occurs to insert “or its integrity within the surrounding context”.

Amendment put and declared lost.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 600:

In page 194, line 10, after “structure” to insert “or its integrity within the surrounding context”.

Amendment put and declared lost.

Amendment Nos. 601 and 602 not moved.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 603:

In page 195, between lines 27 and 28, to insert the following:

“(c) in the case of development or proposed development which relates to land, in whole or in part, situated in a Limistéar Pleanála Teanga Gaeltachta or a Baile Seirbhíse Gaeltachta within the Gaeltacht, have regard to—
(i) the protection of the linguistic and cultural heritage of Irish language and Gaeltacht communities including the promotion of Irish as the community language,

(ii) any relevant Language Plan agreed pursuant to Acht na Gaeltachta 2012, and

(iii) in the case of a Limistéar Pleanála Teanga Gaeltachta or a Baile Seirbhíse Gaeltachta within the Gaeltacht, a language impact statement prepared by an independent expert suitably qualified in sociolinguistics or language planning which must demonstrate that a proposed development will have a positive impact upon the promotion and use of Irish as a language of the community in order for the application to be treated favourably,

(iv) in the case of a Baile Seirbhíse Gaeltachta outside of the Gaeltacht, or a Líonra Gaeilge, if the applicant for planning permission chooses to obtain one, a language impact statement prepared by an independent expert suitably qualified in sociolinguistics or language planning to demonstrate the proposed development’s positive impact upon the promotion and use of Irish as a language of the community.”.

Amendment put:

The Committee divided: Tá, 3; Níl, 5.

Tá

Denise Mitchell, Cian O'Callaghan, Eoin Ó Broin.

Níl

Cormac Devlin, Francis Noel Duffy, Steven Matthews, Paul McAuliffe, Malcolm Noonan.

Amendment declared lost.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I move amendment No. 604:

In page 196, to delete lines 7 to 16.

Amendment agreed to.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I move amendment No. 605:

In page 197, between lines 7 and 8, to insert the following: “(7) Neither a planning authority nor the Commission shall refuse permission for proposed development for reasons that the housing growth target included in the housing development strategy in respect of the settlement (within the meaning of Part 3) concerned has already been reached.”

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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We had a long discussion about this amendment. Since then, significant new information that is materially relevant to the amendment and the section has come into the public domain. I do not know about others, but I would like an opportunity to discuss that information before we take a vote on the amendment.

Steven Matthews (Wicklow, Green Party)
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We cannot discuss it again. It has already been discussed in depth. The information is out there in the public realm for people to make up their own minds on.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Before the Chair proceeds, I presume I will be able to discuss the section after the amendment is decided. The information-----

Steven Matthews (Wicklow, Green Party)
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Absolutely. When we come to agree section 83,-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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We will be afforded an opportunity.

Steven Matthews (Wicklow, Green Party)
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-----we can have that discussion and the Deputy can make that point. We just cannot do so at this time.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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That is perfect.

Steven Matthews (Wicklow, Green Party)
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I understand from discussions on this amendment that the Minister will look at issues raised in respect of amendment No. 605 by everybody in the committee. I understand that changes will be made in respect of amendment No. 605.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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That is my understanding.

Steven Matthews (Wicklow, Green Party)
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Is the amendment being pressed?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Yes. We have indicated that we may make further changes on Report Stage.

Steven Matthews (Wicklow, Green Party)
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Following on from what Deputy Ó Broin said, there was some very serious discussion about amendment No. 605. We accept that the Minister of State is going to press the amendment but there are changes to be made to this provision.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Yes.

Amendment put:

The Committee divided: Tá, 6; Níl, 3.

Tá

Cormac Devlin, Francis Noel Duffy, Joe Flaherty, Steven Matthews, Paul McAuliffe, Malcolm Noonan.

Níl

Denise Mitchell, Cian O'Callaghan, Eoin Ó Broin.

Amendment declared carried.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I move amendment No. 606:

In page 197, line 8, to delete “section,” and substitute “section”.

Amendment agreed to.

Question proposed: "That section 83, as amended, stand part of the Bill."

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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The section has been amended by means of amendment No. 605. It includes a provision that many of us felt was very controversial when we discussed it. The section states:

Neither a planning authority nor the Commission shall refuse permission for proposed development for reasons that the housing growth target included in the housing development strategy in respect of the settlement (within the meaning of Part 3) concerned has already been reached.

During the lengthy discussion we had on the amendment on 21 February, one of the questions I asked the Minister, Deputy O'Brien, was whether there had been a prevalence of these decisions and if he was aware of them. The Minister was quite definitive. At one point, he stated that his understanding was that there had been no decision made solely on the basis of those grounds. He referred to how he was trying to future-proof our planning legislation.

I have a full copy of the letter that the Attorney General sent not only to the Minister but also to other figures in government on 3 February. It has been reported in The Ditch and other newspapers. The concern I have is materially relevant to this section, which is why I asked to raise it. The Attorney General stated, after quoting amendment No. 605:

It is understood that this proposed amendment has been prompted by a refusal of planning permission for a strategic housing development of some 98 units in Greystones in County Wicklow in May 2023.

He also stated:

In its decision, the planning authority refused the planning application on the basis that, notwithstanding that the site was zoned, the housing growth target for the area had already been achieved.

The Attorney General went on to express some concern about the wording of the amendment because the phrase "housing growth target" was specific to the decision of Wicklow County Council and its housing strategy and is not necessarily commonly used. He went on to argue that the wording of the amendment may need to be changed.

The concern I have is that we were given the impression by the Minister that this amendment was not based on existing examples of such a refusal. The letter that the Attorney General sent to the Minister says the opposite. It flatly contradicts the Minister's testimony in front of this committee. I am concerned because the case in question related to a single development. We have had submissions from many industry organisations suggesting proposed amendments. That is entirely legitimate and appropriate. The Construction Industry Federation and Irish Home Builders Association made a long list of proposed amendments and gave them to all members of the committee. This was not one of the issues that the industry representatives raised. We know from the story in The Ditch that the Minister's adviser has met representatives from Cairn Homes on four occasions since the refusal by the planning authority. There is a genuine concern that this amendment has resulted from one specific planning decision, and possibly on foot of lobbying by the applicant in that case.

For accountability and transparency, it is important that this committee has truthful, accurate information about the origins of the amendment. To be clear, I have no issue with any member of this committee or the Government being lobbied by organisations. That is a function of democracy. I have no issue with organisations requesting that amendments be tabled. Many of us have tabled amendments that have been brought to us by organisations, but we declare that. We talked about Wind Energy Ireland, Conradh na Gaeilge and others. I do not believe the information we were given on 21 February was accurate. I do not understand why we were not given accurate information. I appreciate that I am putting the Minister of State in a slightly difficult position. I would have much preferred if the Minister, Deputy O'Brien, had been here for this exchange, but we have to work within the rules of the committee.

The provisions in amendment No. 605 are now part of this section. I would like the committee to be told the truth about whether this amendment solely arose from that planning decision of Wicklow County Council with respect to the Cairn case. Did Cairn lobby anybody connected to Government or the Minister in respect of the text of the amendment? I would also like to know why there is such variance between the content of the Attorney General's letter and the information the Minister gave to this committee on 21 February.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I have the same concerns. Does the Minister of State stand over what we have been told to date by the Minister about section 83 and amendment No. 605? Given the publication of extracts of the letter from the Attorney General, is he now updating the Government's position in relating to this amendment or does he absolutely stand over what the Minister has said to date in respect of this matter?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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In response to Deputy Ó Broin, absolutely not. The amendment did not arise out of any lobbying; it came about after a review of the published Bill by officials. The Bill has been continuously reviewed by the Department to ensure that it will deliver the best possible planning system into the future for the people of Ireland. While the reporting of advice alludes to perceptions and references lobbying, the reality is that the change proposed in amendment No. 605 is a result of the ongoing process. The intention behind the amendment is to support the plan-led approach whereby matters related to housing numbers, estimated capacity and zoning are determined by planning authorities at the development plan stage, but with an appropriate and proportionate element of flexibility, in line with statutory guidance. This flexibility is important in the context of the delivery of the housing and accommodation this country needs for its growing population. I gave a commitment that the officials will provide a note to members of the committee tomorrow morning and that we would come back with an amendment on Report Stage in respect of this matter.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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The truth always comes out in these matters. To put the Minister of State and the Minister on notice, I have already submitted detailed parliamentary questions and freedom of information requests to ensure that the full facts of this amendment come into the public domain. I appreciate this is not a matter that the Minister of State has been directly involved in but he is answering questions for the line Minister. It is not credible for this committee to be told that an amendment with wording so specifically related to an individual planning decision. That is not my opinion; it is the opinion of the Attorney General in his advice to Government on 2 February, with such specific language similarities, did not arise out of a discussion about that planning decision. Equally, this is not something that industry organisations lobbied this committee for. They made detailed submissions recently and this is not in it. It is hard to accept that there was not lobbying. That may be the truth and. Ultimately, when we get replies to the freedom of information requests and parliamentary questions, we will find out.

I will make the point again that what the Attorney General wrote in his letter to Government flatly contradicts the testimony of the Minister to this committee only weeks ago. That is deeply unsatisfactory. We have had a history in previous eras of proximity of developers to some politicians having a corrosive impact on our planning system. I am not in any way suggesting that is currently the case, and I want to be clear about that, but perception is as important as reality.

There is now a perception out there that the proximity is uncomfortably close. It is incumbent on the Minister of State and indeed on the Minister, Deputy Darragh O'Brien, when he gets the opportunity, to address this matter because in my view, the short statement the Minister of State has read out does not address the concerns I have raised here today.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I have a comment about the statement that there has been no lobbying in this regard. The senior Minister has stated this, as has the Minister of State who is present. According to the article that was published, there were four meetings between the developer in question and the special adviser to the senior Minister. Are any minutes or records of those meetings available? Will they be published?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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We are not aware of meetings between the adviser and-----

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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They have been recorded in the lobbying register.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Again, the amendment was instigated by the Department and it was discussed with the Attorney General. That is where the amendment originated from.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Yes, but the Minister of State is telling us definitively that there was no lobbying in relation to this amendment. There have been four meetings between the developer-----

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Not in relation to this amendment, no.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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-----and the special adviser to the Minister-----

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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But it was not in relation to this amendment.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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-----who is located in the Department. Were the minutes of those meetings to be published, we would be able to see what issues were or were not discussed during those meetings. Transparency around that would help shed some light on this.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I will state that there was no meeting with the developer in relation to this amendment. This amendment was instigated by the Department.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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But a minute ago, the Minister of State said he was not even aware that these meetings took place. They are in the lobbying register, so they did take place. If the Minister of State is not aware that the meetings took place, how can he tell us that there was no lobbying in relation to this? If he did not know that the meetings took place, then he does not know what took place in those meetings.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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The amendment came only from the officials in the Department. Again, the meeting with the adviser and the developers was separate. As I stated already, the amendment came independently from the Department-----

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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But the Minister's adviser presumably has interactions with the Department all the time. Is that not the case?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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No, not on this amendment. Absolutely not.

Steven Matthews (Wicklow, Green Party)
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I think the Minister of State has been quite clear.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I have a quick comment.

Steven Matthews (Wicklow, Green Party)
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Yes, very quickly. Then I want to comment on this amendment and then I want to move on.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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It is just a quick question. The response by the Minister of State is very clear that there was no lobbying between the developer and the officials. I fully accept the veracity of that. Can the Minister of State confirm whether there was no request by the Minister or advisers to the Minister to the officials to work on an amendment, which eventually took the form of amendment No. 605?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I can confirm that there was not.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Is it the case that this exclusively came from the officials, without any request from or conversations with the Minister or advisers in relation to that?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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That is the case. Yes.

Steven Matthews (Wicklow, Green Party)
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I will call Deputy McAuliffe and then I want to make a point on this.

Paul McAuliffe (Dublin North West, Fianna Fail)
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My comment is not on the substance of the matter because, to be honest, I have no more information. In fact, that is the point I wish to raise. It is difficult for me to be a member of the committee when there is a debate in which one member questions the contribution made by the Minister based on a document I do not have available to me. I do not have the Attorney General's advice. I do not believe it has been published. Regarding this processes, it is a difficult position for members of the committee to be in when a suggestion is made before the committee but we do not have the facts before us.

I am not asking for the Minister of State to make the Attorney General's advice available to me. I just wanted to point out it is a very difficult position to be in. I am not speaking to the substance of the amendment or to the comment. This is just about the process. It is difficult to make an allegation before a committee when other members of the committee just do not have the information available. I have not seen the Attorney General's advice and I do not know what else is in it. Often, legal advice is put forward where advisers would say “on the one hand” and “on the other”. I do not know what was said “on the one hand” or “on the other”. It is therefore a difficult position to be in. That is the problem.

Steven Matthews (Wicklow, Green Party)
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I note that. It is my understanding the Attorney General's advice is not published. How it would end up in the public arena is a matter for the Office of the Attorney General to investigate.

Deputy Ó Broin said this may be related to a decision that was made in Wicklow. For the record - this is a publicly available document - it is my understanding that the decision in Wicklow was not based solely on core strategy, population targets or housing strategy. It is and remains a peripheral greenfield site and is not contiguous to the built-up footprint. That matter was raised by the planners. Even if this amendment were to end up in its current form, that would not be a sole reason for refusal. People should not get confused about that.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I have the planning decision here. I take a different view to the Cathaoirleach on this, for the record. The issue of the housing targets is the primary, if not sole, reason for the decision. That is my reading of the planning decision.

Steven Matthews (Wicklow, Green Party)
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Well-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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We can have a discussion about that.

Steven Matthews (Wicklow, Green Party)
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The matters raised within the planners’ report do refer to a greenfield peripheral location.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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That is not in the decision. That is not the grounds for the refusal. Let us be very clear. I am happy to share that with the Cathaoirleach. I appreciate Deputy McAuliffe’s point and I am happy to share the Attorney General’s-----

Steven Matthews (Wicklow, Green Party)
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It is a public document. It is online, if anybody wants to have a look at it.

Question put:

The Committee divided: Tá, 6; Níl, 2.

Tá

Cormac Devlin, Francis Noel Duffy, Joe Flaherty, Steven Matthews, Paul McAuliffe, Malcolm Noonan.

Níl

Cian O'Callaghan, Eoin Ó Broin.

Question declared carried.

NEW SECTION

Paul McAuliffe (Dublin North West, Fianna Fail)
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I move amendment No. 607:

In page 197, between lines 12 and 13, to insert the following: “84. Planning authorities and the Commission shall, in so far as practicable, perform their functions under this Act and exercise any discretion in a manner consistent with—
(a) the most recent approved climate action plan,

(b) the most recent approved national long term climate action strategy,

(c) the most recent approved national adaptation framework and approved sectoral adaptation plans,

(d) the furtherance of the national climate objective, and

(e) the objective of mitigating greenhouse gas emissions and adapting to the effects of climate change in the State.”.

I withdraw my amendment on the basis of the Minister's commitment.

Amendment, by leave, withdrawn.

Deputy Paul McAuliffe took the Chair.

SECTION 84

Paul McAuliffe (Dublin North West, Fianna Fail)
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Amendments Nos. 608 to 611, inclusive, 617, 621, 622, 625, 626, 628 to 631, inclusive, and 640 are related and may be discussed together.

Steven Matthews (Wicklow, Green Party)
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I move amendment No. 608:

In page 197, line 30, after “is” to insert “owned or is”.

This is a matter I raised during pre-legislative scrutiny. The amendment refers to section 84(3)(a)(ii). I could not recall what answer I got during pre-legislative scrutiny or if I was satisfied with it, so I submitted this amendment. A condition can be attached to a grant of planning permission and there can be conditions attached to land that "adjoins, abuts or is adjacent to the land ... to be developed" and, as subparagraph (ii) says, that "is under the control of the applicant". If the land were leased by applicant, does it remain under their control, as set out in this Bill, or would an insertion referring to land that is owned or is under the control of the applicant make what can be done there more secure?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Amendment No. 608 seeks to change the reference in section 84(3)(a) relating to conditions regulating the development or use of land that "is under the control of the applicant" to a reference to land that is "owned or is under the control of the applicant". I am satisfied the intent of this wording is already captured by the current text, as "under the control of" would include "owned". I cannot therefore accept amendment No. 608. This has been checked with the Attorney General's office and the legal advice is that "owned" is covered by "under the control of", so there is no need for the change.

Steven Matthews (Wicklow, Green Party)
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I accept that. I just wanted to clarify it.

Amendment No. 609 relates to section 84 and specifically to conditions requiring the provision of open spaces. I had an amendment put into the Wicklow county development plan that where we were putting in provisions for open spaces that they be adequately located, centrally located and overlooked for passive surveillance reasons. That was accepted into the plan and I submitted it because in older estates the green space is often tucked away at the end of the road, possibly where the builders' compound was before they moved off site, and does not really offer much as a green space. My amendment would cause section 84(3)(d) to refer to conditions requiring provision of "appropriately located" open spaces. It gives a little bit of room there for somebody to decide what "appropriately" means. I am not prescriptive in saying it needs to be centrally located and passively overlooked.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Amendment No. 609 seeks to change the reference in section 84(3)(d) to conditions requiring provision of "open spaces" to conditions requiring provision of "appropriately located open spaces". It is a matter for the decision-maker to consider the provision of open space.

The purpose of this section is to allow for the provision of open space, the location of which will be based on a case-by-case assessment. The technical considerations of the location of open space are a matter for guidelines, or national planning statements as they will now be known, as there are a range of open space typologies, from small kick-about areas to large urban parks that serve urban districts. There are a number of factors to consider regarding open spaces, appropriate location being just one. I am not in favour of pointing out a single consideration in this regard. Therefore, I must oppose amendment No. 609.

Under the sustainable residential development and compact settlement guidelines, section 5.3.3, on public open spaces, states:

Public open spaces in residential schemes refers to the open spaces that form part of the public realm within a residential development. This is distinct from a public park. Open spaces provide for active and passive recreation... The spaces should integrate and protect natural features of significance and green and blue infrastructure corridors within the site and should support the conservation, restoration and enhancement of biodiversity. The public open spaces should also form an integral part of the design and layout of a development and provide a connected hierarchy of spaces, with suitable landscape features, including seating and provision for children's play.

This is reflected in policy and objective 5.1 on public open spaces. I am confident this issue is well catered for, both in the guidelines for planning authorities and in the Bill.

Steven Matthews (Wicklow, Green Party)
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I thank the Minister of State. With the Leas-Chathaoirleach's agreement and if it is okay with the Minister of State, I will speak on amendments Nos. 611 and 617 before resuming the Chair.

Paul McAuliffe (Dublin North West, Fianna Fail)
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I was just going to suggest that.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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That is fine.

Steven Matthews (Wicklow, Green Party)
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Where the Bill references provision for storage of recyclable materials, my amendments propose the inclusion of the words "and compostable" in both subsections (3)(l) and (3)(n).

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Amendments Nos. 611 and 617 seek to change the reference in section 84(3)(l) to conditions requiring provision of "facilities for the collection or storage of recyclable materials" to include compostable materials. While I understand the intent of the amendments, this is a matter that requires further consideration, particularly in the context of multi-unit developments. There are schemes throughout the country that include centralised compost facilities. I will consider this matter further and, if appropriate, I may table an amendment in this regard on Report Stage. I cannot accept the amendments today but I certainly will give them further consideration.

Steven Matthews (Wicklow, Green Party)
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I am glad to hear that. If the Leas-Chathaoirleach is agreeable, I will also address amendment No. 631.

Paul McAuliffe (Dublin North West, Fianna Fail)
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Go ahead, Deputy.

Steven Matthews (Wicklow, Green Party)
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We often see in planning applications a reference that details are to be agreed before commencement of works. I understand there is a default period. I am seeking in this amendment that when details are agreed, or deemed to be agreed due to the expiry of time, those details will be entered in the planning register. I have encountered situations where the conditions applying to a planning application are quite easily found. However, where details are to be agreed prior to commencement, it often is not easy to find those details or accurate information about them. It would be helpful if there were a requirement for the details to be entered in the planning register. I do not see that specifically stated in the Bill but I stand to be corrected.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Amendment No. 631 proposes to add a new subsection to section 84 to provide that points of detail agreed or deemed to be agreed should be entered on the register. While I accept the intention of the amendment, section 349(3) allows the Minister to prescribe matters that shall be entered on the register. I will look to provide for this in the accompanying regulations. I cannot accept the amendment but I will consider this matter in the context of the accompanying regulations.

Steven Matthews (Wicklow, Green Party)
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Did the Minister of State refer to section 349(3)?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Yes.

Steven Matthews (Wicklow, Green Party)
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Section 349 deals with the planning register. Is it specified anywhere in the Act or the current regulations the manner in which agreed details or details deemed to be agreed should be entered in the register? Is that currently covered within the regulations or legislation?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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No.

Steven Matthews (Wicklow, Green Party)
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Will the Minister of State consider its inclusion? It would be helpful for the process.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I will do so.

Steven Matthews (Wicklow, Green Party)
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I thank the Minister of State.

Deputy Steven Matthews resumed the Chair.

Steven Matthews (Wicklow, Green Party)
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Deputy O'Callaghan has a number of amendments in this grouping. He may address them in whatever order seems logical.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I thank the Cathaoirleach. There are two issues I want to address, namely, the taking-in-charge process and bonds. I will deal with bonds first, which I address in amendment No. 625.

Much of what is contained in the Bill is about planning ahead in terms of newer housing developments and so on. As a public representative since 2009, a lot of my time has been spent working with residents in newer developments and communities to address issues and deficiencies that have arisen, such as defects, and, in some cases, issues with incomplete developments, where the developer has sold the houses or apartments and moved on without completing the areas as per the requirements of the planning permission. In one area I represented in the past, a roadway that was meant to be built had not been completed by the developer, who claimed not to own the land. That developer obtained planning permission for a very large development based on this roadway being part of the provision. In another area, there were issues with drainage. The council had to put in a pumping station the developer had not provided to correct the problems. I have dealt with a whole range of such problems.

As a public representative, one of the issues that comes up is that when I ask the council, on behalf of communities, to draw down the bond to complete works, the council will often say the bond is completely insufficient. It has happened time and again that the bond that is meant to be lodged is utterly insufficient to ensure there are sufficient funds in place, if the developer walks away, goes bust or whatever, for the local authority to be able to draw down the bond and complete the necessary works in the public area to ensure the estate is completed. Issues identified with bonds include that they have not been index-linked and they have been insufficient to cover the costs of completing the works in public spaces as per the planning permission. There have also been instances where the bond provider is not properly regulated by the Central Bank, which means there is less recourse in those situations.

Amendment No. 625 seeks to address these issues by specifying that conditions around bonds set by planning authorities as a form of security will be index-linked, will be provided by operators regulated by the Central Bank and, critically, will be sufficient to cover the cost of satisfactory completion of the development. I urge the Minister of State to accept the amendment. I will address my other amendments in this grouping after he responds on this one.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I thank Deputy O'Callaghan for tabling this amendment. As some of the Minister of State's officials will know from their time in South Dublin County Council, this is a huge issue for what we might call Celtic tiger-era, legacy taking-in-charge cases. It is also a current issue. There is a small residential development that was built a number of years ago in my constituency for which planning permission was granted, and construction and purchase happened, after the economic crash. As part of the condition of planning permission, a developer was to provide a temporary access road.

A bond was provided for that. There was also a road opening required for wastewater connections from the main road and a bond was provided for that. The developer in question broke the terms of the road opening licence and did not adequately connect the wastewater infrastructure, with very significant negative impacts for the residents. The developer never completed the temporary road access and then eventually just stopped engaging. This was during the five-year period of the planning permission. Since that expired maybe two years ago, the residents have been in the most unenviable position of trying to engage the local authority in terms of releasing portions of the bond for the purposes of completing the works and making their lived environment adequate and appropriate. The local authority will not do that. Even if it did, the bonds that were laid at the time of the original grant of planning permission are nowhere close to covering the cost of the works that are required. Worse still, the developer in completing portions of the development did not comply with basic standards in terms of roads, footpaths, material, street lighting, etc. Uisce Éireann is currently taking the developer to court to try to cover the costs of fixing the wastewater treatment issues. The developer and taking in charge issues are live, however.

The reason I am giving a little bit more detail about this case is because it is current. This is not a matter of Celtic tiger-era developers that went bust during the crash and then receivers took over and there were long, protracted battles between receivers, residents and the council. This is still happening today. We received a report recently from South Dublin County Council on all the outstanding taking in charge issues. One of the questions I asked was about how many of those bonds are index linked and how many are not. The majority of them are not index linked. That means it is so far away from covering the costs for the Celtic tiger era ones you would not believe it. Even for the ones that are a few years post expiration of planning permission, the gap is huge. The local authority's position is that it is not its job to use taxpayers' money to fund work the developer should have done but did not. This amendment is, therefore, very good and timely.

We had limited discussion on this at pre-planning, but it is one of those areas, a little bit like planning enforcement, where this Bill could have been an opportunity to make some really good improvements and changes that protect both the people who move into these new developments and the taxpayer. I appreciate the taxpayer should not have to foot the bill every time a developer goes rogue, albeit at a lower level currently then we would have seen in the early stages of the Celtic tiger house-building boom. We are beginning to see numbers of developers not completing developments and people are spending very considerable sums of money. In the case of the residential street I am talking about, they are not palaces or mansions. They are very good quality starter homes that cost €400,000. These are working families and working couples, some of whom are not on big incomes. They have worked and saved for years, however, and two, three or four years into their homeownership, the quality of their lives has been so badly damaged by this entire conundrum. The indexing of the bond and the scheduling for taking in charge of works, as it currently stands, does not work in those kinds of cases. We have 25 or 30 of them in south Dublin. Mr. Ryan will know from memory that there are some quite large ones in Adamstown, Newcastle and Rathcoole. If the Minister of State is not accepting the amendment, this is one area in which work needs to be done between now and Report Stage or in the Seanad to take the opportunity of this Bill to deal with a really significant and important issue for a not inconsiderable number of people.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Again, these are matters I have dealt with in my local authority area over the years. It is hugely frustrating for residents who buy houses in estates in good faith. It is frustrating for local authorities too. I will speak to the note and then we can come back in with supplementary comments if that is okay.

Amendment No. 625 provides that the conditions requiring the giving and maintaining of adequate security for satisfactory completion of a proposed development, which is currently provided for, will specify that any bonds accepted by the planning authority as a form of security will be index linked, provided by operators regulated by the Central Bank and sufficient to cover the cost of satisfactory completion of the development. In 2013, my Department issued Circular PL 11/13 outlining and setting out key requirements to be adhered to by the planning authorities with regard to attaching of conditions to planning permissions regarding planning securities, including development bonds for the satisfactory completion of residential housing developments. This circular letter issued a number of forms the security could take and stated that it is a matter for the relevant planning authority to decide what type of security to require as part of the terms of the planning permission from the listed options. I am satisfied that this is the correct approach and, therefore, I cannot accept amendment No. 625.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I will press this. The situation to date has been an abject failure. It has put huge costs on local authorities and the public. As Deputy Ó Broin said, it is the new residents who move into areas who make the largest investment of their lifetimes. They put huge resources and work very hard to buy a home and expect that the public areas in the development will be completed as per the planning permission. When a developer fails to do that, people can spend years and even decades trying to get that rectified. The big stumbling block is that the local authority does not want to draw down the bond because often the bond is completely insufficient.

It is fine that circular has issued, but it is good practice in terms of bonds to make sure they are index linked, regulated by the Central Bank and sufficient to cover the costs. That is not always followed by local authorities and that leaves people who are completely unsuspecting when they buy a new home, take on a lifetime of work to pay off the mortgage on the home and do everything to the best of their ability completely let down by the local authority and by the Government, which is not insisting on these as conditions with regard to bonds. It is a very disappointing response for the thousands of people around the country who are affected by this that the Government will not accept this amendment, which would actually ensure that bonds are sufficient to cover this. If it were a situation whereby we did not have decades of this not working, I could say it is fair enough. This has been an ongoing problem, however, and it is continuing to cause problems. I have meetings all the time with residents and local authorities in which the local authorities say they cannot draw down the bonds because they are insufficient and that is not going to work anyway. It is a very disappointing response.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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What is the title and date of that circular?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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It is PL 11/13.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I concur with Deputy O’Callaghan. Here is the problem, however. The development I am speaking about in my own constituency is post 2013. In fact, the planning permission was after 2013. I cannot remember the number of years the residents have been there, but they have certainly been there for two, three or maybe four years and they moved in within the five-year time period for the planning. If the Minister of State's answer is that Circular PL 11/13 is fixing the problem, I can bring him to a row of residential homes where that has not made the blindest bit of difference. They are experiencing the same problems as those Celtic tiger-era legacy cases.

For me, there are three issues. Deputy O’Callaghan made the point very strongly about the inadequacy of the bond, particularly where the bond is not index linked. There is a second part to this, however, which is that as the Minister of State knows, the building control amendment regulations do not apply to the site on which the house is located. There is a certification and completion certificate process before somebody can move into the home to certify that the home is built fully in accordance with the planning permission. There is no equivalent process for the grounds upon which the estate is built. There is a secondary problem, as in the case I keep mentioning in Clondalkin, which is that when the local authority went out to inspect, some of the problems the residents were facing were issues around failure to comply with the planning permission.

The local authority took the view that it was not the function of the bond or its responsibility to use the bond to rectify a road surface and boundary wall. Therefore, the bond was insufficient. The local authority's position was that the bond was not there to complete all, but rather some, of the works, in particular things like wastewater treatment, in the context of Uisce Éireann, and the access road. The impact on people's quality of life is enormous. The Minister of State will not accept the amendment, but it is not credible for him or his officials to suggest that the circular in question has dealt with the problem. This matter needs to be re-examined. There needs to be a return to the core issues.

There is another problem with the process. I have the height of regard for the planning section in South Dublin County Council. It is professional, well run and well managed. In the context of taking in charge, it comes to it from the point of view of protecting the public interest and public expenditure rather than creating a perverse incentive for developers to not finish developments on a regular basis in the expectation that the local authority will pick up the tab. That is completely reasonable.

The taking-in-charge process and access issues in respect of the bond do not provide a mechanism to allow officials and residents to meet, discuss matters and agree a way forward. It is not only the case that it takes a long time for these issues to be addressed, residents also have to go to elected representatives, including me, Deputy O'Callaghan and others. We have to cajole, convince and, sometimes, battle with officials. There is no process in which residents can engage in good faith to try to resolve these matters. Where there is a helpful or flexible official dealing with taking-in-charge issues and-or politicians who understand the rules and the law quite well, residents might get a resolution. That will still take several years. Cases involving an official who does everything by both the letter of the law and the book and politicians or residents who do not understand this process can be even more difficult. This is an area in need of more than just a reiteration of an existing circular. It would be wonderful if officials could forward the circular to the committee. Some of us would like to read it.

In swathes of Adamstown, significant portions of Newcastle and Rathcoole and, to a lesser extent, east Lucan and Clondalkin these are real life issues. People moved into parts of Adamstown before the crash and their estates have still not been taken in charge. Right beside them, new estates which have been recently built, such as the Paddocks, a Celtic tiger development, and Gandon, a Cairn development, were never taken in charge. The access road and street lighting between the two estates is caught up with the taking-in-charge issue relating to one estate. Between 600 and 900 homeowners and social housing and private rental tenants are caught up in this. I emphasise the need for the Minister of State to give some kind of commitment that this will be examined. I urge Deputy O'Callaghan to press the amendment.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Regarding the circular issued in 2013, have the Minister of State or the Department carried out an analysis in respect of bonds or any issues arising from them in the interim? The Minister of State indicated that bonds are the answer. Could he show us the analysis which backs that up? Could he publish the analysis or share it with the committee?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I will respond to a couple of points. Again, the power ultimately lies with the local authority. The circular will back that up. I will give a commitment that we will give consideration to refreshing the circular in the context of the Bill, as well as the question Deputy O'Callaghan asked about in terms of the analysis of the impact of the circular. Is that what Deputy O'Callaghan is asking for?

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Has any analysis been done by the Department over the past ten years?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I do not know. We can certainly try to find that out what analysis, if any, was carried out since 2013, which is a number of years ago now. Section 84(3)(g)-----

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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What section?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Section 84(3)(g) refers to the conditions requiring the giving and maintaining of adequate security to the satisfactory completion of the proposed development. It is down to a local authority and the members of that authority to ensure that security is adequate. As already stated, the bonds are to be index linked and will be provided by operators regulated by the Central Bank.

The point Deputy Ó Broin raised regarding failure to comply with planning permission is a planning enforcement issue at local authority level. The Deputy also raised a valid point regarding a process whereby residents can engage. That is something we could examine in refreshing the circular. It is important that there is a process for residents to have a go to in the Planning Authority, and a role for elected members in respect of that.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Where a developer operates individual designated activities companies for each individual development, which is common if not the norm, and a company then fails, there is nobody to pursue in the context of planning enforcement. As site works are not covered by the building control amendment regulations, it is even more difficult. Ultimately, we are talking about court action. They are the case in point with respect to the developments I am talking about. Planning enforcement does not fix this issue. If it did, Deputy O'Callaghan and I would be involved in all sorts of planning enforcement. That is the problem. I think the Minister of State understands the point.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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We will issue the circular letter to the members. I will give a commitment that we will examine the issue in terms of the context of the Bill and updating the circular letter. It is an important issue. I am sure all Deputies could point to cases in their local authority areas. This is not something that is rare; it is quite common across the country, unfortunately. I again stress the point that local authorities have to be proactive in terms of the adequate security they seek in respect of development.

Steven Matthews (Wicklow, Green Party)
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I thank the Minister of State. I suggest to Deputy O'Callaghan that we take amendments Nos. 610, 621, 622 and 640 together. There are similarities.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I will make a comment in response to the Minister of the State and I will then speak to amendments Nos. 610, 621, 622 and 640. The approach being taken in the Bill on a range of other matters is not to leave things to local authorities. There is a great deal in the Bill that does not leave things to local authorities. When it comes to issues that affect thousands of people who buy homes in newer developments for years, if not decades, and leads to huge amounts of stress when people make a massive investment, it seems to be a case of leaving things to the local authority which will have to do better and reissuing the circular.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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It is its responsibility.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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In this amendment I am trying to make sure that the local authority does a better job when it comes to bonds. That is what the amendment would do.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I appreciate that.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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It would make sure that local authorities did not fail people on this. As legislators, it is our job to craft legislation in a way that does not leave things to the local authority but instead makes sure we address where there have been huge failings all over the country that are continuing. There is an opportunity to fix that in this Bill but the Government will not take it.

All the Minister of State has said is that he will reissue a circular which has not worked. We could change the legislation to fix this so that for the next 20 or 30 years we as public representatives and the communities we represent would not continue to face these problems. The view is that we let these problems continue for more decades, let developers off the hook and put new residents in these communities under these stresses.

The taxpayers, the public and the local authorities continue to be on the hook while developers walk away, with insufficient bonds. That is utterly unacceptable.

Amendments Nos. 610, 621 and 622 seek to set conditions around the taking-in-charge process so that there would be time limits specified on that process. The conditions would also specify the areas that are to be taken in charge. Amendment No. 640 is a better amendment and is the preferable one in the group. It would mean that in an application for planning permission, the developer or applicant would specify the areas that are to be taken in charge and that would be completed within the duration of the planning permission. Just as the developer has to complete the homes, apartments or duplexes, that developer also has to complete the public spaces up to the requirements of the planning permission and have them handed over and taken in charge within the duration of the permission. It is better than amendments Nos. 610, 621 and 622 which are more minimalist and allow this to be done through planning conditions.

I want to talk more broadly about the issue of taking in charge, which we discussed on when we were talking about bonds. There are housing estates in this country, in County Kildare for example, that were built in the 1970s where the public areas have still not been taken in charge. In my constituency there are estates that were built back in 2004 and 20 years later, the public areas have still not been taken in charge. Over a 20-year period, public areas begin to deteriorate, which potentially makes it more difficult for local authorities to take them in charge. The bonds are well out of date, not index-linked and their value is far too low to address the conditions. The developer would have been on site 20 years ago and it would have been much easier to get any problems rectified then and the areas brought up to standard. Over a 20-year period, defects emerge and there is wear and tear so there is more work to be done to get areas up to scratch. Children who were not born when these estate were first developed are now 18, 19 or 20 and leaving home and for their entire life in these developments, the public areas have not been taken in charge and maintained by the councils. Sometimes these public areas are handed over to management companies. The developer leaves and hands them over to the management company. Residents are paying property tax to fund the local authority to maintain public areas. In addition to their management charges for the private, resident-only areas like shared stairwells or lifts that will never be taken in charge, they are also paying through management company fees for the maintenance of these public areas. This is a completely unacceptable situation that these amendments seek to address.

Our entire system on this is out of step with a lot of other European countries. In some European countries there are no delays in taking in charge. In fact, there is no taking-in-charge process. The local authority or the municipality builds and maintains the public areas from day one and charges the developer. The developer makes a contribution towards those costs and there are no delays with taking in charge. We are an outlier in this regard. Our taking-in-charge process can go on for years, if not decades. We do not have a process that works for the public, the taxpayer, local authorities and newer residents in communities. We have a process here that just works for developers, especially the ones that walk away, do not finish the job and get away with it.

I really hope my amendments will be accepted, particularly amendment No. 640, which is the best one. It would put a bit of order on this and mean that we would not have years, if not decades, of newer communities trying to get their public areas taken in charge and maintained by the councils. It would also address the huge frustration among officials in local authorities. I am sure the Minister of State will say that this is an issue on which the local authorities must do better but what officials say to me is that the legislation around this is completely deficient and they rightly make the point that it is our job, as legislators, to fix it.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Amendment No. 610 seeks to insert timelines for taking in charge as a further matter that may be subject to conditions. This is not workable in practice. The local authority taking-in-charge process is set out in section 238 of the Bill and a number of matters can influence how long this process takes. The matter of taking in charge can be a complex undertaking. First, the developer has to offer the development for taking in charge. Then the local authority has to assess the development to see if it is up to taking-in-charge standard and if not, work with the developer or utilise the bond to bring the infrastructure up to standard. This can take time and I appreciate the frustration that both Deputies have raised in relation to this. To place a condition on the permission, as suggested, would not be reasonable as the time period is unknown until the infrastructure is built, offered for taking in charge, inspected and remediation works scoped out. Therefore, I cannot accept this amendment.

Amendments Nos. 621, 622 and 640 are similar and seek to insert the power to make conditions specifying the public areas and amenities that will be taken in charge and the timelines for the process as a new matter which can be subject to conditions under section 84(3) of the Bill. Amendment No. 640 seeks to provide that an application should outline the areas and amenities to be taken in charge and that the taking-in-charge process shall be completed during the duration of the development. As mentioned, conditioning timelines is not appropriate as there a number of matters that can influence how long this process takes. However, I would like to further consider the elements of these amendments relating to specifying the areas that will be taken in charge. If I consider it appropriate, I may bring amendments on Report Stage to address this matter. While I cannot accept these amendments, there is merit in amendment No. 640 and we will give consideration to how we might address the issues raised in it.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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It is positive that the Minister of State, in advance of Report Stage, is going to look at the possibility of specifying what areas should be taken in charge because there should be clarity and certainty around that. However, that is only part of the equation. There should also be certainty around the timelines on this. The Minister of State has said that the process can take time, the time period is unknown and that it is not appropriate to specify the timeline. I put it to the him, in the strongest way possible, that it is not appropriate to have people living in a newer housing development for ten, 20 or 30 years without these issues being resolved. It is not appropriate that the entirety of a child's lifetime in a home can pass by before public areas are taken in charge. When it comes to building houses, duplexes or apartments we do not say that the time to complete them is unknown and that it is not appropriate to put a timeline on it. We do not say it can take time and then just grant indefinite planning permission. Why do we take a different attitude to public areas of a development vis-à-vis the other aspects? Nothing is unknown, unspecified or not appropriate to put timelines on when it comes to any other aspect of a development. Why this differentiation for the public areas? Why do we regard the public realm with institutional disdain, such that it does not deserve to have certainty or timelines around it? Why not have clarity?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I draw the Deputy's attention to page 424 of the Bill and section 238 on taking in charge. Subsection (1) refers to cases where "the developer of, the owners’ management company of, or a majority of the owners of the houses in, a development requests that all or part of the public components of the development be taken in charge by the planning authority in whose functional area the development is located" and subsection (3) provides that the "planning authority shall endeavour to make a decision under subsection (1) within 6 months of the making of the request (or, where a notice is given under paragraph (a) of subsection (2), within such longer period as results from the extension of the period of 6 months by the period specified in the notice), but a decision under subsection (1) shall not be invalidated by reason that the decision was not made within that period.".

When the taking in charge process is initiated, the local authority "shall endeavour to make a decision ... within 6 months". That is there.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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When I was considering putting forward these amendments, I looked at this section and wondered whether to amend it. I thought that was not the correct angle to come from. The only timelines the Bill has in respect of taking in charge relate to a local authority's decision on a taking in charge request that is initiated by residents or a management company. The local authority may decide whether to commence the procedure and will "endeavour to make a decision ... within 6 months" of the request. However, there is no timeline thereafter. If the local authority decides to go with the taking in charge request, there is no timeline for how long it will take to complete - it could take years or decades - and there is no obligation on local authorities to decide to take those areas in charge. They can simply refuse to take them in charge but they need to make that decision within six months. This section, to be honest, is not worth an awful lot to residents who are struggling with these issues in newer developments. That is why I did not seek to amend the section. It is discretionary and includes no timelines. Rather than making small changes on section 238, we need to take public areas in newer developments seriously and treat them in a similar fashion to the rest of the development. There is no reason a developer can build houses, duplexes or apartments and sell them but neglect their duties under their planning permission in respect of any public areas. They should not be let off the hook. If they build apartments, houses and duplexes to sell, they should also complete the public areas to the standard of the planning permission within the duration of that permission. The public areas should then be taken in charge by the local authority within the duration of the planning permission. Anything else just continues the current situation, whereby some developers, though certainly not all, do not fulfil their duties under planning permission, walk away and leave the residents in newer developments and the local authorities to try to sort out the mess and the deal with the expense of it. That can mean issues last for decades.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I will go back to section 84 and the conditions that may be attached to a permission granted. Section 84(3)(h) refers to "conditions determining the sequencing of works and the period within which works shall be carried out" and section 84(3)(j) refers to "conditions for the maintenance, until taken in charge by the local authority concerned, of roads, open spaces, car parks and other public facilities or, where there is an agreement with the local authority in relation to such maintenance, conditions for maintenance in accordance with the agreement". It is provided for there.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Section 84(3)(h) could refer to the phasing of the development and the sequencing of works but it does not ensure timely completion of public areas and their being handed over to the local authority and taken in charge. It absolutely does not ensure that. Sections 84(3)(j) and 84(3)(k) simply allow for conditions around maintenance until such time as those areas might be taken in charge, whenever that is. I have not heard anything in what the Minister of State has said to justify the continuance of the status quo. Why not simply have a situation, as per amendment No. 640, whereby developers who are able to build houses, duplexes and apartments must also build out the other parts of their planning permission, meaning that public areas are handed over to the local authority and taken in charge? Planning permission should specify what those areas are so there is clarity. That would also offer clarity to people buying in those developments because they would know which areas are the responsibility of the management company, and for which they will be paying management fees, and which areas will be taken in charge by the local authorities. I am seeking to provide clarity and there is often a lack of clarity of that regard. Some people in my constituency live in what would be considered traditional houses and are paying management charges for the maintenance of the public areas around the houses. They do not have the kinds of shared areas, including stairwells, communal areas, lifts or anything like that, to warrant a management charge on an ongoing basis but they are paying management charges for the maintenance of public areas that should long ago have been handed over to the local authority. There is no clarity in the planning permission as to whether those areas ever will be handed over to the local authority. There are no timelines and there is no clarity around this at all. If developers can build the houses, duplexes and apartments and sell them, why can they not build out the public areas to the standard required under the planning permission, within the duration of the permission, and hand them over? Why is that so difficult? Why do we need this to be going on for years and decades, consuming a lot of time and energy? The residents in these new developments should be able to get on with building their communities, setting up a local scouts group, or getting involved in the GAA or athletics or whatever it is. They should be spending all their energy doing that good community-building work but instead they have to spend years chasing this sort of stuff. If they were living in the Netherlands or Sweden, the municipality would build the roads and footpaths and provide the public lighting from day one and maintain them. Why do we have to waste everyone's time and energy in this way? What is the Minister of State's rationale?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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It is provided for here. If it is okay, I might go back and consider how to address the points the Deputy has raised. I think we have addressed his points but it might be worth exploring further to see if there is anything we can do to strengthen the Bill.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I ask the Minister of State to consider, in particular, amendment No. 640. That is the one.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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We give a commitment in that regard.

Steven Matthews (Wicklow, Green Party)
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The points have been well made and the Minister of State will come back on them. Deputies McAuliffe and Flaherty have three or four amendments. Are they logically grouped? Could they speak to them all?

Paul McAuliffe (Dublin North West, Fianna Fail)
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I can speak to them all.

Steven Matthews (Wicklow, Green Party)
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Amendments Nos. 626 and 628 are in the name of Deputy McAuliffe.

Paul McAuliffe (Dublin North West, Fianna Fail)
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Amendments Nos. 626, 628 and 629 are in my name. Perhaps I could hear the Minister of State's response to those amendments.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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The Deputy is talking about amendments Nos. 626 and 628.

Steven Matthews (Wicklow, Green Party)
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Amendment No. 629 is also included.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Is amendment No. 630 also to be included?

Steven Matthews (Wicklow, Green Party)
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That amendment is in the name of Deputy Flaherty.

Paul McAuliffe (Dublin North West, Fianna Fail)
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The Minister of State can address all those amendments together.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Amendments Nos. 626 and 628 propose to delete sections 84(5)(a) and 84(6) of the Bill, which allow the planning authority or the commission to attach a condition requiring the construction or financing, in whole or in part, of a facility that would be of substantial gain to the community in the area of the development and the provision or financing, in whole or in part, of a service that would be of substantial gain to the community in the area of the development. The amendments maintain the ability to attach a condition for the payment of a contribution in respect of public infrastructure and facilities benefiting the area of the development. I believe the other options of providing a facility or service which would be of substantial gain to the community in lieu of a payment are important to maintain as they allow for flexibility in providing necessary services. They can be better sequenced with the development of the particular scheme and are a practical way of dealing with the need for services to be provided. I, therefore, cannot accept amendments Nos. 626 and 628.

Amendments Nos. 629 and 630 seek to amend the language of section 84(11), which provides for points of details to be deemed to be agreed after an eight-week period has passed and the planning authority has not responded or referred the matter to the commission. The language of these proposed amendments does not include the necessary cross-references to subsection (10) so I cannot accept these amendments. I am of the view that the current language is sufficient.

Paul McAuliffe (Dublin North West, Fianna Fail)
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Will the Minister of State repeat his response on amendment No. 626?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I will repeat it in full. Amendments Nos. 626 and 628 propose to delete sections 84(5)(a) and 84(6) of the Bill, which allow the planning authority or the commission to attach a condition requiring the construction or financing, in whole or in part, of a facility that would be of substantial gain to the community in the area of the development and the provision or financing, in whole or in part, of a service that would be of substantial gain to the community in the area of the development.

The amendments maintain the ability to attach a condition for the payment of a contribution in respect of public infrastructure and facilities benefiting the area of the development. I believe the other options of providing a facility or service that would be of substantial gain to the community in lieu of a payment are important to maintain because they allow for flexibility in providing necessary services. They can be better sequenced with the development of a given scheme. Moreover, they are a practical way of dealing with the need for services to be provided. Therefore, I cannot accept the amendments.

Paul McAuliffe (Dublin North West, Fianna Fail)
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On amendment No. 626, I think that may have been entered in error during the drafting process. I agree wholeheartedly with the Minister of State on the matter and will withdraw the amendment.

Steven Matthews (Wicklow, Green Party)
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Did Deputy Flaherty wish to speak to amendment No. 630, which is solely in his name?

Joe Flaherty (Longford-Westmeath, Fianna Fail)
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I will first hear what the Minister of State has to say in order that we might speed up the process.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I addressed amendment No. 630 with amendment No. 629 but I will reiterate my note. The amendments seek to amend the language of section 84(11), which provides for points of details to be deemed to have been agreed after an eight-week period has passed and where the planning authority has not responded or referred the matter to the commission. The language proposed in these amendments does not include the necessary cross references to subsection (10) and, therefore, I cannot accept them. I believe the current language is sufficient.

Joe Flaherty (Longford-Westmeath, Fianna Fail)
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I am happy with that. I will not pursue the matter.

Steven Matthews (Wicklow, Green Party)
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That concludes discussion on that group of amendments.

Amendment, by leave, withdrawn.

Amendment No. 609 not moved.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I move amendment No. 610:

In page 198, between lines 33 and 34, to insert the following: “(k) conditions determining the timeline in which the local authority concerned will take in charge of roads, open spaces, car parks and other public facilities;”.

Amendment put:

The Committee divided: Tá, 3; Níl, 6.

Tá

Denise Mitchell, Cian O'Callaghan, Eoin Ó Broin.

Níl

Cormac Devlin, Francis Noel Duffy, Joe Flaherty, Steven Matthews, Paul McAuliffe, Malcolm Noonan.

Amendment declared lost.

Amendment No. 611 not moved.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 612:

In page 198, between lines 39 and 40, to insert the following: “(m) conditions requiring to measure and address whole life carbon emissions and address whole life carbon emissions of new developments in line with the States carbon targets;”.

Amendment put:

The Committee divided: Tá, 3; Níl, 5.

Tá

Denise Mitchell, Cian O'Callaghan, Eoin Ó Broin.

Níl

Francis Noel Duffy, Joe Flaherty, Steven Matthews, Paul McAuliffe, Malcolm Noonan.

Amendment declared lost.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 613:

In page 198, between lines 39 and 40, to insert the following: “(m) conditions requiring the development to have regard to the ratio of infrastructure to buildings and homes to ensure a more efficient use of infrastructure and associated emissions;”.

Amendment put:

The Committee divided: Tá, 3; Níl, 5.

Tá

Denise Mitchell, Cian O'Callaghan, Eoin Ó Broin.

Níl

Francis Noel Duffy, Joe Flaherty, Steven Matthews, Paul McAuliffe, Malcolm Noonan.

Amendment declared lost.

Francis Noel Duffy (Dublin South West, Green Party)
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I will withdraw amendment No. 614 with the right to reintroduce it on Report Stage.

Steven Matthews (Wicklow, Green Party)
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Amendment No. 614 not moved.

Amendments Nos. 615 to 618, inclusive, not moved.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 619:

In page 199, line 13, after “development” to insert “, including requiring naming to be in the Irish language only, or in the case of bilingual naming, for the Irish name to be more prominent in signage”.

Amendment put and declared lost.

Steven Matthews (Wicklow, Green Party)
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I will withdraw amendment No. 620 and reserve the right to resubmit it on Report Stage.

Amendment No. 620 not moved.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I move amendment No. 621:

In page 199, between lines 30 and 31, to insert the following “(u) conditions specifying the public areas and amenities in the development that will be taken in charge by the local authority concerned, including roads, footpaths, bicycle lanes, open spaces, car parks and other public facilities and the timeline for this to be completed.”.

Amendment put:

The Committee divided: Tá, 3; Níl, 5.

Tá

Denise Mitchell, Cian O'Callaghan, Eoin Ó Broin.

Níl

Francis Noel Duffy, Joe Flaherty, Steven Matthews, Paul McAuliffe, Malcolm Noonan.

Amendment declared lost.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I move amendment No. 622:

In page 199, between lines 30 and 31, to insert the following: “(u) conditions specifying the infrastructure to be taken in charge by Uisce Éireann, including sewers, watermains or drains and the timeline for this to be completed.”.

Amendment put:

The Committee divided: Tá, 3; Níl, 5.

Tá

Denise Mitchell, Cian O'Callaghan, Eoin Ó Broin.

Níl

Francis Noel Duffy, Joe Flaherty, Steven Matthews, Paul McAuliffe, Malcolm Noonan.

Amendment declared lost.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 623:

In page 199, between lines 30 and 31, to insert the following: “(u) where the development includes the construction of not less than 2 housing units in a Gaeltacht Language Planning Area or Irish Language Network, conditions to

protect and promote the use of Irish within the community and the viability of Irish as the spoken language of the community, including but not limited to requiring—
(i) a language impact assessment prepared by an independent expert on language planning and/or sociolinguistics, with no link to any party involved in the application, to demonstrate that the proposed development will have a positive impact on the use of Irish compared to English in the area, and

(ii) a certain percentage, calculated based on the need to maintain or improve the use of Irish within the relevant area, of the development to be reserved for Irish speaking residents who demonstrate a minimum B2 level spoken Irish under the Common European Framework of Reference for Languages.”.

Amendment put:

The Committee divided: Tá, 3; Níl, 5.

Tá

Denise Mitchell, Cian O'Callaghan, Eoin Ó Broin.

Níl

Francis Noel Duffy, Joe Flaherty, Steven Matthews, Paul McAuliffe, Malcolm Noonan.

Amendment declared lost.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 624:

In page 199, between lines 30 and 31, to insert the following:

“(u) conditions requiring space within the development for culture, including artistic creation, performance, learning or enjoyment, accessible to the public, including persons with a disability.”

Amendment put and declared lost.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I move amendment No. 625:

In page 199, between lines 30 and 31, to insert the following:
(4) Conditions in subsection (3)(g) will specify that any bonds accepted by planning authorities as a form of security will be index linked, provided by operators regulated by the Central Bank and sufficient to cover the cost of satisfactory completion of the development.”

Amendment put:

The Committee divided: Tá, 3; Níl, 4.

Tá

Denise Mitchell, Cian O'Callaghan, Eoin Ó Broin.

Níl

Francis Noel Duffy, Steven Matthews, Paul McAuliffe, Malcolm Noonan.

Amendment declared lost.

Steven Matthews (Wicklow, Green Party)
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We have received notification that a member will be unable to attend or appoint a substitute. It would be really helpful if we had full attendance in the afternoon and evening sessions because we can get through these votes in a much more timely fashion.

Amendment No. 626 not moved.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I move amendment No. 627:

In page 201, line 5, to delete “benefitting” and substitute “benefiting”.

Amendment agreed to.

Amendments Nos. 628 to 632, inclusive, not moved.

Steven Matthews (Wicklow, Green Party)
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Before we move on to the question on section 84, on which Deputy Ó Broin has a question, I will suspend the meeting until 1.30 p.m. I thank the Minister of State, Deputy Noonan, for his attendance this morning.

Sitting suspended at 12.30 p.m. and resumed at 1.30 p.m.

Steven Matthews (Wicklow, Green Party)
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I welcome everybody back to the Select Committee on Housing, Local Government and Heritage where we continue with Committee Stage of the Planning and Development Bill 2023. I welcome the Minister of State, Deputy Noonan, back to the committee this afternoon. We will commence where we finished before the break on section 84 on which Deputy Ó Broin has a question.

Question proposed: "That section 84, as amended, stand part of the Bill."

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I have four specific questions. I will go through them and we can deal with them one by one.

Section 84(6) provides that:

A condition attached to a permission in accordance with paragraph (a) of subsection (5) shall not require such an amount of financial resources to be committed for the purposes of compliance with the condition as would substantially deprive the person in whose favour the permission operates of the benefits likely to accrue from the grant of the permission.

I have three questions on this subsection. First, is this a new provision or is it exactly the equivalent provision from the existing Act? Second, obviously, this relates to development contributions. etc. Does it apply to all categories of permissions, for example, a developer doing a residential estate but also a single household or single individual with a single housing planning permission? Third, how is it calculated? Will we deal with each question separately or will I list all four now?

Steven Matthews (Wicklow, Green Party)
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The Deputy might as well list all four now and we can go backwards and forwards if clarification is needed.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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The next question then is on section 84(9)(a), which states:

A planning authority or the Commission may, in addition to any condition that it may or is required to attach to a permission in accordance with any other provision of this section, attach to that permission a condition that the person who carries out the development agree points of detail relating to compliance with the permission—

Obviously, the remainder of that subsection, as well as subsections (11), (12) and (13), kind of deals with the outworking of that. Again, is this a current provision or is it new or changed? Could the Minister give us a sense of what we mean by "points of detail"? Does that refer to finer issues around the design, technology used, etc.? In particular, connected to that with respect to subsections (10) and (13), can the Minister of State explain those two subsections in a little bit more detail? Section (13), in particular, states:

Where no agreement is reached and the Commission has not determined the matter within the period of 4 weeks from the expiration of the period referred to in subsection (12), the Commission shall be deemed to have agreed the points of detail as submitted by the person carrying out the development.

I have been asked to clarify points with respect to the development. I have submitted them to the commission. If the commission does not make a decision within four weeks, it is assumed that those points of detail are approved. I am wondering if this is not at risk of creating a bit of an incentive to refuse if the commission has not been able to make an assessment of the conditions by way of resources or whatever. I am interested to hear the Minister of State explain the logic of that.

The four sections in question are 84(6), 84(9), 84(10) and 84(13).

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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The Deputy might give us a few minutes to consult.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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That is fine.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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One of the Deputy's questions is on section 84(10), is that correct?

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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The questions are on sections 84(6), 84(9), 84(10) and 84(13).

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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The Deputy's question with regard to 84(6) is that a new-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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First of all, is it new?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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It is new.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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The second question then is whether it applies to both schemes and one-off developments, for example, residential schemes and one-off houses?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Yes.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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How is it calculated?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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The question is on how it is calculated.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Section 84(6) provides that it "shall not require such an amount of financial resources to be committed for the purposes of compliance ... as would substantially deprive the person in whose favour the permission operates ... " How is that determined? I have a very specific question I am going to ask once I hear the answer to that.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Chair, we might go into private session on these questions, if that is all right, to give clarity and speed up proceedings.

Steven Matthews (Wicklow, Green Party)
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Absolutely. I propose that we go into private session. Is that agreed? Agreed.

The select committee went into private session at 1.39 p.m. and resumed in public session at 1.47 p.m.

Question put: "That section 84, as amended, stand part of the Bill".

The Committee divided: Tá, 6; Níl, 2.

Tá

Francis Noel Duffy, Joe Flaherty, John Lahart, Steven Matthews, Paul McAuliffe, Malcolm Noonan.

Níl

Cian O'Callaghan, Eoin Ó Broin.

Question declared carried.

Section 85 agreed to.

SECTION 86

Question proposed: "That section 86 stand part of the Bill."

Steven Matthews (Wicklow, Green Party)
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Deputy Ó Broin has a question regarding clarification of section 86.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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This issue was raised during private briefings with the officials on the earlier stages of the Bill. Section 86, particularly section 86(1), details the types and categories of developments for which a pre-application consultation can be secured. I had hoped that consideration would have been given in the Bill to a wider opportunity for more pre-planning, subject to available staffing and resourcing within local authorities. The more early discussions there are, whether in respect of a large development or a small one, the more issues or problems are ironed out. Ultimately, that will lead to better-quality planning applications and decisions. Was any consideration given to lowering the thresholds? Are there opportunities elsewhere in the Bill for applicants who do not fall within the categories listed under section 86(1)(a) to 86(1)(d) to have access to pre-planning?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Under section 86(1), a person shall not apply for planning permission under Chapter 3 unless he or she first requests a consultation under section 87. Section 87(1) reads, "Notwithstanding section 86, any person (in this section referred to as a "prospective applicant") who is eligible to apply for permission and intends to apply for permission for standard development may request a consultation meeting with the planning authority prior to making that application." It is mandatory to have a preplanning application.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I think I misunderstood the provision. Rather than a restriction setting out people who cannot apply for preplanning, this is talking about people who absolutely must have a prior preplanning application. It the other way around from what I had understood.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Exactly.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I thank the Minister of State for the clarification.

Question put and agreed to.

Steven Matthews (Wicklow, Green Party)
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I ask Deputy Duffy to take the Chair while I move my amendments in the next grouping.

Deputy Francis Noel Duffy took the Chair.

SECTION 87

Francis Noel Duffy (Dublin South West, Green Party)
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Amendments Nos. 633 and 692 to 694, inclusive, are related and may be taken together.

Steven Matthews (Wicklow, Green Party)
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I move amendment No. 633:

In page 204, line 15, to delete "is eligable to apply for permission and".

I will address this amendment and amendment No. 693 together. Amendment No. 633 relates to section 87, while amendment No. 693 seeks to amend section 114.

These provisions are about pre-application consultations. I am open to correction but, as far as I am aware, wording is being introduced that did not exist in the current Act setting out that an applicant must be eligible to apply for planning permission before being able to avail of a preplanning consultation. This could cause difficulties, primarily in regard to renewable energy projects. I have in mind somebody who is proposing, designing or trying to develop a renewable energy project, either on land or at sea, taking into account that a sea development will have a terrestrial element to it as well in terms of bringing cables ashore. Will having to be eligible to apply for planning permission mean such an applicant would need landowner consent in advance or, if a compulsory purchase order, CPO, is needed, that the applicant might be required to have CPO rights conferred to be deemed eligible?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Amendments Nos. 633 and 693 seek to delete the requirement for a person to be eligible to apply for permission under sections 87 and 114 to seek a pre-application consultation. This is an important provision that ensures the most efficient use of planning authority or commission resources. Without it, someone who is not the owner or who does not have the consent of the owner could seek a pre-application consultation, on a speculative basis, in respect of land in which that person has no interest. This is not the purpose for which planning authority or commission resources should be used. Therefore, I cannot accept the amendments.

I draw the Deputy's attention to section 82(1)(d). It provides that a person shall be eligible to make an application if he or she "has a power conferred by statute to acquire land compulsorily for the purposes of the development concerned whether or not any preconditions to the exercise of that power have been satisfied". Where somebody has the power to compulsorily purchase land, he or she may or may not exercise that power. Such an applicant may put in a planning application on that basis.

Steven Matthews (Wicklow, Green Party)
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We have discussed this already. Applicants need landowner consent to be eligible to apply for planning permission.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Yes, or they need the power to compulsorily purchase land.

Steven Matthews (Wicklow, Green Party)
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Okay. There might be a situation where there is a willing landowner, which means the applicant does not need to go down the CPO route and the consenting process is much quicker than it would be where a CPO is required.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Yes.

Steven Matthews (Wicklow, Green Party)
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I fully accept what the Minister of State is saying. We do not want to tie up planning services in either the local authorities or the commission with speculative meetings with applicants who are saying they might seek planning permission and requesting a preplanning application. I fully acknowledge that point.

My concern, on which we have spoken at length, is that we really need to accelerate the development of renewable energy across all types of sources, including wind, solar, anaerobic digestion, etc. Part of those developments requires the consent of the landowner on which the project is located and there may also be a cabling aspect. Applicants may not know what the exact route of their cabling will be and, therefore, may not be in a position to obtain consent from a landowner, or they might need consent from several landowners, depending on the routing and the location of the grid connection. We are seeking in this Bill to facilitate large-scale residential developments. Energy is another imperative for development in this country. Can the requirement for eligibility be removed for renewable energy development? Not many such applications are speculative. There is a commitment to develop those projects. It is not the same as people saying they might apply for planning permission on a particular plot of land down the road.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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On the pre-application consultation, section 86(1)(d) refers to "such other developments as may be prescribed" by the Minister. We will try to come back with clarification on the issue raised in relation to cable infrastructure.

Steven Matthews (Wicklow, Green Party)
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In terms of pre-application consultation, other developments may be prescribed in regulation. Is that correct?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Yes.

Steven Matthews (Wicklow, Green Party)
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I ask that we consider that in the formulation of the regulations.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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We will indeed.

Steven Matthews (Wicklow, Green Party)
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Clarification on cable infrastructure would be helpful because we all want to speed up the delivery of renewable energy. Those applications go through a full appraisal anyway.

Amendment No. 694 relates to section 114. That section refers to a "person who is eligible to apply", unless we were in regulations to prescribe developments this would not apply to. Subsection (3) states:

Where a request for a consultation under this section is made by a prospective applicant, and is accompanied by the required documentation and information in accordance with subsection (2), the Commission shall, as expeditiously as is practicable [...] enter into and carry out consultations [etc].

The concern is that regardless of how hard the commission is working, it has a considerable workload. We heard positive news from the Minister yesterday about sanction for recruitment in the commission. I suggest not later than four weeks would be an appropriate period for the planning authority or commission to respond. The commission or local authority would retain the right to say it would not enter into this pre-application consultation. Is it compulsory on a planning authority or the commission to grant a pre-application consultation, not in relation to LRD but in other cases?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Amendment No. 694 seeks to amend section 114(3) to add a timeframe of four weeks for the commission to notify the planning authority of a pre-application request and to carry out the consultations for developments prescribed under section 86(10)(d) as requiring mandatory consultations. A mandatory four-week timeframe to be put in place for consultations on direct applications to the commission is not workable in practice. Depending on the development, such consultation may require a number of meetings. For those reasons, I cannot accept this amendment.

Steven Matthews (Wicklow, Green Party)
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A pre-application consultation is part of the LRD process but there is a timeline on it. That does not take into account the workload of the commission. I suggest here we expand that to developments that may be prescribed by the Minister in order to address the eligibility criteria that prescribed developments would have a timeline of four weeks, or the same as an LRD pre-application consultation.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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The LRD timeline is related to the planning authority. It goes back to the capacity of the board, particularly with large-scale renewable energy projects. Many and probably all would require significant pre-application work. It is about capacity to do that. That is why this amendment is not workable.

Steven Matthews (Wicklow, Green Party)
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I take the point that the local authority is the granting authority for an LRD pre-application consultation, but the terrestrial aspect of an offshore renewable comes under the local planning authority as well. I simply request that, when looking at the possibility of the Minister prescribing by regulation types of development, the same attention be paid to energy projects as is paid to LRD projects for the aspect that applies to the local authority. We are building the capacity of the commission weekly and monthly. It would be beneficial to our climate action, energy resilience, surety of supply, etc., to apply the same type of attention to renewable energy projects as to LRDs.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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It is a fair point but it is a capacity issue at present. In terms of the pre-application consultation, it is dealing with the large volume of information that has to be compiled to allow the commission to carry out that work.

It is about capacity, given the scale and complexity of such projects. Section 114(4) states that, "subject to paragraph (b) of subsection (6), in any consultation under this section, the Commission ... shall advise the prospective applicant as to the procedures that apply in relation to the consideration of an application for permission under this Chapter". These include, in paragraph (ii) "the time periods and sequencing that will apply in relation to consideration and determination of the application". This is to give certainty to the applicant.

Steven Matthews (Wicklow, Green Party)
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That is if the applicant has been granted a pre-application consultation.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Yes.

Steven Matthews (Wicklow, Green Party)
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I have no doubt that a pre-application consultation would arise at one point or another. The reason for the amendment is to try to take the unknown quantity out expeditiously and apply a timeframe, as we do in large-scale residential developments. I take on board the Minister of State's points about the capacity issues. We will address them as time goes on. On that basis, I will withdraw amendment No. 694 but I ask the Minister of State to consider whether we should place the same imperative on large-scale residential developments and apply it to renewables. They are equally important to our future and economy, in terms of climate action. I will reintroduce the amendment on Report Stage.

Paul McAuliffe (Dublin North West, Fianna Fail)
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I would like to hear the Minister of State's response to my amendment No. 692.

Deputy Steven Matthews resumed the Chair.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Amendment No. 692 is a consequential amendment to amendment No. 695, which I have not accepted.

Paul McAuliffe (Dublin North West, Fianna Fail)
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We have not reached amendment No. 695.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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We have discussed amendment No. 695 and I have not accepted it.

Paul McAuliffe (Dublin North West, Fianna Fail)
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On that basis, I will not move amendment No. 692.

Amendment, by leave, withdrawn.

Amendment No. 634 not moved.

Section 87 agreed to.

SECTION 88

Question proposed: "That section 88 stand part of the Bill".

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Sections 88, 89 and subsequent sections deal with large-scale residential developments and I do not want to stop to discuss each section. I have a generic question. The legislation on such developments is relatively new. Does the Bill contain a literal transposition of this legislation or is there anything of significance that the Minister of State wants to bring to our attention? Is it a transposition of existing legislation?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Yes.

Question put and agreed to.

Section 89 agreed to.

SECTION 90

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I move amendment No. 635:

In page 208, line 23, to delete “at least 2 proposed approaches” and substitute “a description of not less than 2 approaches”.

Amendment agreed to.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I move amendment No. 636:

In page 208, line 33, to delete “the proposed development” and substitute “the part of the proposed development to which the aspect concerned relates”.

Amendment agreed to.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I move amendment No. 637:

In page 209, line 21, to delete “each” and substitute “a”.

Amendment agreed to.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I move amendment No. 638:

In page 209, line 24, to delete “each” and substitute “a”.

Amendment agreed to.

Section 90, as amended, agreed to.

SECTION 91

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I move amendment No. 639:

In page 210, to delete lines 13 to 15 and substitute the following: “(c) that the application shall, in addition to any other requirement imposed by or under this Act, include the description or statement referred to in the undertaking given in accordance with subparagraph (iv) of paragraph (a) of subsection (2) of section 90.”.

Amendment agreed to.

Section 91, as amended, agreed to.

SECTION 92

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I move amendment No. 640:

In page 210, between lines 31 and 32, to insert the following: “(3) An application for standard development shall specify the public areas and amenities in the development that will be taken in charge by the local authority concerned, including roads, footpaths, bicycle lanes, open spaces, car parks and other public facilities.

(4) The taking in charge of the public components of the development referred to in subsection (3) shall be completed within the duration of any planning permission that is granted.”.

Amendment put:

The Committee divided: Tá, 2; Níl, 6.

Tá

Cian O'Callaghan, Eoin Ó Broin.

Níl

Francis Noel Duffy, Joe Flaherty, John Lahart, Steven Matthews, Paul McAuliffe, Malcolm Noonan.

Amendment declared lost.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I move amendment No. 641:

In page 210, between lines 31 and 32, to insert the following: “(3) An application under this section may be in the Irish or English language.”.

Amendment put and declared lost.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 642:

In page 211, between lines 7 and 8, to insert the following: “(5) Where an application made under this section is in the Irish language, correspondence from the planning authority to the applicant under subsection (4) shall be in the Irish language.”.

Amendment put and declared lost.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I move amendment No. 643:

In page 212, line 3, to delete “retention” and substitute “retention permission”.

Amendment agreed to.

Steven Matthews (Wicklow, Green Party)
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Amendments Nos. 644, 645, 679, 680, 815 to 818, inclusive, 820, 821, 823 ,824, 826, 827, 850, 851, 853 to 856, inclusive, and 858 to 869, inclusive, are related and will be discussed together. These amendments are all technical amendments.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I move amendment No. 644:

In page 212, line 3, after “concerned” to insert the following: “(either individually or in combination with any plan or other project within the meaning of the Habitats Directive)”.

These provisions relate to the steps to be taken following the outcome of a screening for appropriate assessment. The proposed amendments are technical in nature. They provide for a change in syntax, with the phrase "(either individually or in combination with any plan or other project within the meaning of the Habitats Directive)" being repositioned directly after the phrase "development concerned". The amendments will not affect the substance of the provisions and are intended to make the provision more readable. Screening for appropriate assessment is provided for in a number of places throughout the Bill, which is the reason for having numerous similar amendments.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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That seems absolutely sensible. In plain English, what exactly does the insertion of the text in parentheses do? I am reading the paragraph to make sure I am completely clear. Obviously, in the first of these amendments it relates to an application for retention. Therefore, it applies to the application for retention individually in and of itself, or "in combination with any plan or other project"-----

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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That is a requirement under the habitats directive.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I am not disputing it. I ask the Minister of State to explain it. I take it that "plan" means any existing plan like a development plan, local area plan or co-ordinated area plan and that "other project" means any other physical development that is taking place in the area.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Yes.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Therefore, it is not just the retention application in and of itself - it is also that development in the context of plans and surrounding developments.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Yes.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Perfect. That is nice and clear.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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It is to give effect to the cumulative effect of the habitats directive - to look at the site as a whole but not all other developments.

Amendment agreed to.

Steven Matthews (Wicklow, Green Party)
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I thank the Minister of State, Deputy Noonan, for his attendance this afternoon. I welcome the Minister, Deputy Darragh O'Brien, to the committee.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I move amendment No. 645:

In page 212, lines 4 and 5, to delete “(either individually or in combination with other plans or projects within the meaning of the Habitats Directive)”.

Amendment agreed to.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I move amendment No. 646:

In page 212, line 9, to delete “retention” and substitute “retention permission”.

Amendment agreed to.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I move amendment No. 647:

In page 212, between lines 19 and 20, to insert the following: “(10) Notwithstanding any other enactment, where an application for permission for residential development situated in a Limistéar Pleanála Teanga Gaeltachta or a Baile Seirbhíse Gaeltachta in the Gaeltacht is made by an applicant who is competent in the Irish language, the applicant shall be treated as having a local housing need and that application shall be treated favourably.”.

Amendment put and declared lost.

Steven Matthews (Wicklow, Green Party)
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Amendments Nos. 648 to 650, inclusive, are related and may be discussed together. Will Deputy O'Callaghan speak to amendments Nos. 648 and 649? I will speak on amendment No. 650 after that.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I move amendment No. 648:

In page 212, between lines 19 and 20, to insert the following: “(10) When making an application for permission under this section, the applicant shall upload the application, and the accompanying documentation, on a website maintained by or on behalf of the planning authority.”.

This relates to when a planning application is made and the planning documents being published online. I am seeking in amendment No. 648 that when someone is making a planning application, the applicant would upload the application and accompanying documentation to a website maintained by the local authority or on behalf of the planning authority. We currently have a situation where what can happen with planning applications is the documents can be prepared, usually by a professional, and are then sometimes printed out from prepared PDFs and sent in the post or delivered in hard copy to the planning authority. Then, on receipt of the documents after a number of days, because it is labour intensive, the documents can be scanned into PDFs and then uploaded onto the planning authority's website so they are available to the public to see. That is quite labour intensive, especially in the case of large applications with amounts of documents, but also anyone who has looked at planning applications will notice the quality of the PDFs available to the public is often very poor. Therefore, even though the original documents prepared by professionals could be of high quality and you could zoom in on the documents and so forth, because these are scanned documents they are then of poor quality and it can be difficult for members of the public to zoom in on drawings, maps or whatever to get the detail. They are low quality, scanned PDFs which take considerable local authority resources to scan. Given we are in 2024 and this Bill is the legislation we are told will be in place for the next 20 to 25 years, surely it would be appropriate at this stage to have a modern system for the lodging of planning documents and one that is efficient in terms of local authority and planning authority resources and that improves public access to the original high-quality PDFs, drawings, maps and so forth. It can be an issue with planning applications sometimes, because if the PDF uploaded is a low quality scan, sometimes important details are illegible. This amendment would address that issue.

Amendment No. 649 is related to this and simply reads "The time period prescribed for making a submission will commence when the planning documents are made available [online] to the public". If amendment No. 648 is accepted, this would be instant so it would not cause any delays. There is an issue at the moment where planning lists sent out by local authorities can be up to two weeks in arrears between the application being submitted and the documents being scanned and making it onto the planning list. In terms of Aarhus compliance, it states that the clock should start ticking at the point when everyone is notified. When a planning list goes out, that would be the time the clock should start to tick, according to the Aarhus Convention. If my amendments Nos. 648 and 649 were agreed together, it would be an efficient, modern way to address this issue which would give the public better access to planning documents and would create efficiencies at local authority level. This issue came up during the pre-legislative scrutiny process and there was quite a bit of discussion on this and related matters.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I thank the Deputy for introducing the amendment. I will speak to amendments Nos. 648 and 649 together. I understand the rationale for them but we want to make sure, as the Deputy mentioned, there is also access for applicants. I will explain the rationale as to why I will not accept either of these amendments. The Deputy explained what he wishes to do with regard to when an application is made, which is "the applicant shall upload the application, and the accompanying documentation, on a website maintained by or on behalf of the planning authority". I get that but it is a responsibility of the planning authority to ensure all planning applications are published online irrespective of whether they are received in paper or electronic form. This ensures the documentation is available for inspection by the public through multiple methods. As the Deputy will know, someone can come into the planning counter, request the paper file of the application and look through it. It is right and proper that this happens. Where an application is made in electronic form, the planning authority is still required to process the application for validity prior to publishing online. Therefore it is not appropriate for applicants to upload documents directly to a local authority website. The planning authority needs to make sure the valid applications are the ones that are published. Eplanning will help in this. We expect the eplanning roll-out to be complete this year, in 2024. That will enable an applicant to submit planning applications online in all 31 local authorities. In addition, and this is where I will speak about access, the planning system must remain open to everyone and there should be no restriction on an applicant lodging a paper application as it may disadvantage certain sectors of the community. That is obviously not something the Deputy wants to do, nor do I. The move is towards eplanning, absolutely. It is more efficient. However, if an applicant is not tech savvy or has issues with connection, the ability for them to lodge an application in physical form through paper should remain.

We expect eplanning to be available in all 31 local authorities by the end of this year. While I get the Deputy's point completely with regard to access, there would potentially be an unintended consequence of his amendment for some sectors of the community. I am not being ageist in this regard but some people will be tech savvy at any age and others will not be. It would give the ability to lodge a planning application in paper format and, really importantly, that paper file would be there for inspection. Anyone who walks up to a planning counter can call for a paper file and that should remain. The move for efficiency purposes into the future is towards eplanning. The eplanning roll-out should be concluded this year.

With regard to the time period stated in amendment No. 649, this is related because if amendment No. 648 was accepted and then amendment No. 649 provides for the clock not to start until everything is uploaded, effectively, the period starts when the application is made. For people who are making a paper application or lodging one, the time period should be the same as if it was an online application. With online planning rolling out across the country, the speed at which files are available online is improving. Certainty is needed in the application of timelines to allow for the efficient and clear administration of the development management system. This amendment would potentially introduce a significant amount of ambiguity into what is a time bound system with substantial capability for third-party participation, including site and newspaper notices, that are required to be in place prior to making of the application. Weekly lists and other application alert systems are also run by local authorities. For those reasons I cannot accept amendments Nos. 648 or 649.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I thank the Minister for his response. When I drafted these amendments, I considered those issues around accessibility. Another way to tackle the issue could be that the provision could apply to applications for more than one unit. What sort of developer will put in an application for ten or 100 homes and not be able to do the application in this manner? I accept there will be some cases where applicants seeking planning permission for an extension or possibly one home might do the drawings manually themselves. I think this amendment would work for anything larger than that, such as multiple units. Will the Minister consider this in terms of planning applications for multiple units?

Certainly not all public participation but a lot of it is around larger applications for multiple units, and the illegibility of documents that are uploaded is a key issue. That often happens in larger developments with large drawings and maps being quite difficult for people. They get a poor quality PDF and are zooming in on them but are unable to read the writing and so forth. Will Minister address what is being done to tackle the legibility of poor quality PDFs that are being uploaded?

He might also let us know about e-planning, which is coming in this year. If the documents are uploaded electronically, what is the process for making paper files available for people at their planning authority counters?

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I will speak in support of amendment No. 649 and make three more general points for the Minister and his officials to consider separate to the amendment, on which he has made his position clear. My own local authority area, South Dublin County Council, has a very good online system. It is not just good for applications. There is a really good online mapping system where I do not even have to know the reference number. I can go online and find it on a map, which is useful. Notwithstanding that I am in a local authority with a good track record, there can often be a significant delay between when the application is lodged and is live, and when it is available. If you live any distance from Tallaght, where you have to go to the planning office, or if you are in another local authority where the distances are even greater, getting access to the physical files is more of a challenge. There is some merit in thinking, whether as an amendment by the Minister to this legislation or at a later point, about reconsidering when the clock on the public participation element of the process kicks in. If people genuinely cannot get access to the files, notwithstanding that they may be in one council office in one end of the county, that is a problem. We are talking about local authorities, but it is the same where the board is the primary decision-making body because people physically have to travel there. There is a significant difference in the online and software systems different local authorities are using. Some are incredibly user friendly and others are quite clunky. The Minister said that the introduction of online processing times is getting better. Is that something on which he can share information with the committee, either today or at a later stage? We are all supportive of this. I do not think there is any disagreement, but it is about trying to make sure the best quality information is available at the earliest possible opportunity to allow maximum public engagement in the interests of the planning system.

Paul McAuliffe (Dublin North West, Fianna Fail)
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There is an angle to this. Like Deputies O'Callaghan and Ó Broin, I have experienced this in the context of assisting people making observations on a planning application, and for myself. There is no doubt there are significant delays and that the scanning can be of poor quality. In essence, we are getting an electronic system outputting a printed format. We are then scanning the printed format and bringing it back into an electronic system. I have had some comments on it from the development side. They are saying this is unnecessary from their perspective. They feel there are additional costs for them in terms of providing large format hard copies and so on. I do not agree with all of that because there obviously have to be hard copies available. However, it seems strange that these documents exist in an electronic format, which is where they are created, and we put them through two paper formats and a scanning process before putting them back into an electronic format. It does not make good sense. E-planning is probably the solution and it might be helpful if there were more detail on that on Report Stage. I have some sympathy with the members. Both the people putting forward the observations and the developments find this archaic.

Steven Matthews (Wicklow, Green Party)
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I agree with a lot of what has been said. However, you would have to be careful. An applicant is uploading an electronic document. It gets stamped when it comes into the local authority. If you leave the power to the applicant to upload an e-document you need to be able to verify that the e-document up now is the same as the e-document that is there three weeks later. There has to be a validation aspect to it.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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It is a useful discussion and gives an opportunity to provide an update on the roll-out of e-planning. I will get specific details but speak now in broader terms for the information of Deputies. There are approximately 25 or 26 local authorities now operating e-planning. Fingal County Council, Deputy O'Callaghan's area, opened that up in the past week or so. I turn to the issue of a unique identifier and the stamp. You go into the local authority with your paper and it is stamped. On the e-planning system there is a unique identifier and an electronic stamp, so you know when that has been uploaded and the date.

I turn to Deputy McAuliffe's point. E-planning will deal with someone who is planning to submit paper copies. There is one application under e-planning, including maps and all the design. It is all uploaded. Access for individuals if they do not have access to a computer is probably the flip-side of what Deputy O'Callaghan is talking about. If I want to get something printed I can ask the local authority to print something for me. There is a charge for that. One thing I will bring forward is to try to further incentivise the use of e-planning by making the charge for lodging an e-planning application less than a charge for a paper format. As we transition to that, it is important we ensure there is access for all with regard to the planning system and applications. I take the point that it is probably highly unlikely that someone lodging for, say, 20 homes would not have the capability or capacity to lodge in e-planning. However, it was also recognised that an individual homeowner seeking planning permission to extend their house would not have that capability. We want to make sure the ability is there for someone to submit a paper application. As this is rolled out further, the Deputies will see that it will transition more and more. As an approximate figure, in the areas where e-planning has been rolled out, between 60% and 70% of applications are coming in through the e-planning portal. We can get a list of the 25 or 26 local authorities that have it. The general percentage, where it is open, is that between 60% and 70% of applications come through it.

I have explained the rationale for my not accepting the amendment. It might be something Deputy O'Callaghan wants to look at further on Report Stage if there is a refinement. We are moving towards e-planning and as we do that we still need to ensure an applicant can lodge a paper copy. The Deputy also raised an issue about the quality of the IT interface for people who are looking at the systems. Again, that will improve as the system is rolled out. I have seen that when I am looking at paper documents that have been uploaded. He should think about it this way. If between 60% and 70% of applications are now being applied for through the portal, that will deal with a lot of the issues of legibility and clarity around the detail. The e-planning portal drives you to put information in a certain format. I think that covers it and flows into the second one.

My official has mentioned a point relating to the information we will give. There might be a couple of outliers because the system is only being rolled out in some places, such as Fingal. You would see a lower percentage because that has only been up and running in the past week or so.

Steven Matthews (Wicklow, Green Party)
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Will the Minister respond on amendment No. 649, which deals with the issue of the clock starting to tick when the public has access to documents?

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I did respond, but I will respond again.

Steven Matthews (Wicklow, Green Party)
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It is basically a good idea in terms of fairness and access.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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No, not really. I will explain it again. You could effectively have two different timeframes. A planning application is a planning application, whether it is made online or in paper format. The Cathaoirleach is saying that you would only start the clock on public consultation once the documents have been uploaded. That matter will be dealt with, because the applications on which e-planning is rolled out will be uploaded through the portal itself. The amendment provides that the time period for making submissions commences when the planning authority makes documents available online. Our view, and my view, is that this would have knock-on effects on the time available for assessing submissions. The period starts when the application is made. With online planning rolling out across the country, the speed at which files are available online is genuinely improving. I will get the details on that. It is certainly needed in the application of timelines to allow for efficient and clear administration of the development management system. I know this is not the intention, but this amendment would introduce a significant amount of ambiguity into what is a time-bound system. There is currently substantial capability for third-party participation, including the site and newspaper notices that are required. Weekly planning lists will always be available too, as will other application alert systems run by local authorities.

If this amendment were accepted, there could effectively be different time periods for different types of applications, which is not something we want. As e-planning continues to be rolled out, it will deal with this issue. We want the legislation to be passed. When it is enacted, there will be a transition period. E-planning continues to be rolled out. The Deputy might be putting in a change here that may not be relevant at all but that would potentially lead to two different timeframes.

Steven Matthews (Wicklow, Green Party)
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Does Deputy O'Callaghan have a further point to make?

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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The vast majority of people get their information with respect to planning applications online. That is when they have the opportunity to look at the drawings, plans and so forth and take a view on matters. Until that information is available, it is impossible for most of the public to participate. The clock starts to tick when the public, for the most part, does not have access to information. In this day and age, most people do not have the ability to get to the counter in a planning office. This can result in delays in people being able to access the information for periods of up to two weeks. The Minister stated that he has stats on this matter and that he will share them with us.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Yes. There might be some approximations. There might be one or two outliers because the systems are only being rolled out.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Does the Minister have stats on how long it takes planning authorities to get the documents online?

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I do not have that stat.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Okay.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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On the e-planning system, when someone makes an application – I know Deputy Ó Broin wants to come in on this – the issue Deputy raised continues to be an issue in some areas where councils council scan documents to put them up online in order that people can access them. When people apply through the e-planning system, they are driven with the data fields to put the required information in. That is effectively there within 24 hours once it is verified. That is what the e-planning system will do. The problem the Deputy rightly raised – I have seen this occur – is the potential lag time when a paper-based application is being uploaded onto the system. My point is that will be dealt with through e-planning because people are effectively applying online. Those types of issues where there is a lag time between somebody submitting a planning application and all the documentation and someone in the planning authority uploading it onto the system will be dealt with by e-planning.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I am not trying to convince the Minister regarding the amendment. All I will say is that the delay is caused by two factors – the scanning of the documentation, as Deputy McAuliffe rightly outlined, and verification. There still an issue around delayed access to files and, as a result, there is a more limited time period for the public to engage. I hear what the Minister is saying in that the roll-out of the e-planning system will help. However, if a local authority has many planning applications in and if, for example, it faces a challenged in the context of staff recruitment – there are plenty of those throughout the county – then verification could also be a reason for delays. I hear what the Minister is saying on the amendments, but I still think there is a point at the heart of amendment No. 649 that needs addressed above and beyond or in parallel to e-planning. I ask the Minister to consider that further with his officials.

Steven Matthews (Wicklow, Green Party)
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Will the Minister read the note on amendment No 650 in my name? I think the amendment is fairly clear.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Amendment No. 650 relates to the procedural powers of a planning authority under section 94. It would add a requirement for planning authorities to notify any person who made a submission on an application when additional material is received. The Bill already contains public notification procedures. Those are sufficient in this regard. I do not believe there is a requirement for what is outlined in the amendment. It is provided for already.

Steven Matthews (Wicklow, Green Party)
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In other words, there is a public notification through a-----

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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We will just get this double-checked for the Cathaoirleach. If you are a party to an application and have made an observation on a planning application and additional information is sought, you will be advised of the latter. If there is a further material change– I have seen this happen, and it is under current procedures as well – that is deemed by a planning authority to be a significant change to the first application, it opens up another opportunity for a further submissions to be made on the additional information.

Steven Matthews (Wicklow, Green Party)
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I wish to get clarity on this because I have never been 100% sure. When you make a submission, you get a letter back. Actually, you do not get notice from the local authority if you made a submission, but you do on the decision.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Yes, on the decision. We will get clarity on this. If you made an observation and additional information is sought, you are advised that additional information has been sought.

Steven Matthews (Wicklow, Green Party)
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You are notified by the local authority that further information has been sought.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Yes, as long you made the original observation and you are a party to that file.

Steven Matthews (Wicklow, Green Party)
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For further clarification, if it is unsolicited information sent in by the applicant, are you notified as someone who has made a submission that further information has been received?

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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If unsolicited information was sent in that was not sought by a planning authority, it is unlikely that would be accepted. In that instance, however, no. The only time someone would submit further information in respect of a file would be either on receipt of a request for additional information or a clarification regarding additional information. There is an existing provision in this regard. If, say, based on receipt of the additional information, there was deemed to be a significant change to the original application by the planning authority, that would open up an opportunity to make a further submission in that regard.

Steven Matthews (Wicklow, Green Party)
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For clarity, if an environmental impact assessment report is part of the application and the local authority deems it to be deficient or missing information, it can seek further information from the applicant. In such circumstances, if you have made a submission, you will be informed when the information is received rather than when it is requested. Is that correct?

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Where a planning authority decides that an environmental impact assessment is insufficient and requires additional information, the person who made the submission to that planning authority will be advised that additional information has been sought. It is then up to the person who made the submission to follow that it has been submitted and to view it.

Steven Matthews (Wicklow, Green Party)
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That is fine. That concludes the discussion on the three amendments in the group.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I am pressing amendment No. 648.

Amendment put and declared lost.

Section 92, as amended, agreed to.

Section 93 agreed to.

SECTION 94

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I move amendment No. 649:

In page 213, between lines 18 and 19, to insert the following: “(2) The time period prescribed for making a submission will commence when the planning documents are made available to the public online.”.

Amendment put:

The Committee divided: Tá, 3; Níl, 6.

Tá

Denise Mitchell, Cian O'Callaghan, Eoin Ó Broin.

Níl

Francis Noel Duffy, Joe Flaherty, John Lahart, Steven Matthews, Paul McAuliffe, Darragh O'Brien.

Amendment declared lost.

Amendment No. 650 not moved.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I move amendment No. 651:

In page 214, line 1, before “the public” to insert “that”.

Amendment agreed to.

Section 94, as amended, agreed to.

SECTION 95

Steven Matthews (Wicklow, Green Party)
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Amendment No. 652 has been ruled out of order.

Amendment No. 652 not moved.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I move amendment No. 653:

In page 215, to delete lines 4 to 7 and substitute the following:

“(i) the date of the commencement of the part of the proposed development to which that aspect relates, or”.

Amendment agreed to.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I move amendment No. 654:

In page 215, lines 22 and 23, to delete “UDZ scheme or SDZ scheme,” and substitute “development scheme or planning scheme, or any planning scheme under Part IX of the Act of 2000,”.

Amendment agreed to.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I move amendment No. 655:

In page 215, line 27, to delete “UDZ scheme or SDZ scheme,” and substitute “development scheme or planning scheme, or any planning scheme under Part IX of the Act of 2000,”.

Amendment agreed to.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I move amendment No. 656:

In page 215, between lines 28 and 29, to insert the following: “(6) (a) Where a planning authority grants permission for a development comprising or for the purposes of the harnessing of wind power for energy production and an offer has not yet been made pursuant to subsection (1) of section 34 of the Electricity Regulation Act 1999 for the connection of the development to the transmission system or distribution system at a particular connection point, a condition shall be attached to the permission requiring that no works shall be carried out in respect of the development until—
(i) such an offer is made, and

(ii) permission is granted for the construction or erection of transmission or distribution lines and any ancillary development (including substations) for the purpose of making the said connection.
(b) In this subsection “distribution” and “transmission” have the meanings assigned to them by the Electricity Regulation Act 1999.”.

Amendment, by leave, withdrawn.

Steven Matthews (Wicklow, Green Party)
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Amendments Nos. 657 and 658 have been ruled out of order.

Amendments Nos. 657 and 658 not moved.

Section 95, as amended, agreed to.

SECTION 96

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I move amendment No. 659:

In page 216, line 2, after “section” to insert “passed by not less than three-quarters of the total number of the members of the planning authority”.

Amendment agreed to.

Steven Matthews (Wicklow, Green Party)
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There are five or six amendments in the next grouping. I invite Deputy Ó Broin to move amendment No. 660. We can then discuss the grouping in whatever order is logical.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 660:

In page 216, to delete lines 14 to 20.

This relates to section 96, entitled “Application for permission for development in material contravention of development plan or National Marine Planning Framework”, which states:

and

(b) in the case of development or proposed development referred to in paragraph (a) of subsection (1), the development or proposed development is consistent with such provisions of the National Planning Framework, National Planning Policies and Measures or regional spatial and economic strategy as deal with the matters dealt with by provisions of the development plan to which the material contravention concerned applies,

I would be interested in knowing what the specific function of section 96(2)(b) is. On foot of the Minister’s response, I may speak to the amendment further.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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For the information of members, I am looking at provisions relating to material contraventions. I will table some amendments on Report Stage, so I would be open to hearing members’ rationales for their amendments.

Amendment No. 660 relates to section 106, which deals with the decision of the commission on appeal and proposes the deletion of subsection (7), which Deputy Ó Broin went through. That subsection provides that the commission cannot grant permission on appeal for a development that is not substantially the same as the development that was proposed to the planning authority and was subject to appeal.

This is an important provision and highlights the difference between the commission's appeal role and its decision-making function for direct applications. An appeal of a planning authority decision is not a new application. Generally, when making a decision on a planning application-----

Steven Matthews (Wicklow, Green Party)
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We are on amendment No. 660.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Amendment No. 660 relates to section 96.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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This relates to the difference between a decision on appeals to the commission and to applications. The Deputy is seeking to delete section 96(2)(b), which provides that in order for the planning authority to decide to grant permission by resolution for a land-based development that contravenes the development plan, the development must also be consistent with such provisions of the NPF, national planning policies and measures of regional, spatial and economic strategy as deal with the matters dealt with by the provisions of the development plan to which the material contravention concerned applies. These are important provisions that maintain the plan-led approach. Under the Bill, the commission may grant permission in contravention of a development plan if the development is of strategic or national importance having regard to the policy of the Government.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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The origin of this amendment is the Irish Planning Institute, in one of its written submissions to the committee as part of its general concern over the role of the national planning policy statements, much of which we discussed when we dealt with those sections of the Bill, specifically making a case for the removal of section 96(2)(b). The logic of this is to try to keep a clear distinction between forward planning, which is the role of national policy and legislation, and development management, which is decisions on individual cases. It is a view I support. The argument made by the Irish Planning Institute is that these are mandatory requirements set down in legislation that essentially impose on a planning authority a certain sequence of decisions, which is highly problematic. In many of the successful challenges to decisions of the board, whether by Dublin City Council, for example, or by third parties, the courts took the view that the material contravention was not a legitimate ground for the decision. It is really just to be consistent with the arguments I made in respect of the national planning policy statements. I would like to hear a better justification for section 96(2)(b) than the plan-led approach. It is interfering in that division between development management, which should ultimately be the function and at the discretion of the planning authorities, and national policy and legislation, which is really about forward planning.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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The provision ensures there is consistency with a plan-led approach as well. It clearly sets out that, in the case of a development referred to, it would have to be consistent with the NPF, national planning policies and so on. It provides that it has to meet the criteria under section 96(2)(a)(i) and (ii) for that to be done. In the case of a development or proposed development, it is subject to “proper planning and sustainable development” or “to the objectives of maritime spatial planning”. It goes on to ensure not that there is flexibility around it, but that the decision can be granted on a material contravention as long as it is in line with the factors to which I referred, as well as the regional spatial and economic strategy, as deal with the matters dealt with by provisions of the development plan to which the material contravention concerned applies, and any such resolution passed without prior compliance.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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My concern is that the Minister is not dealing specifically with the argument I am putting to him. With respect, he is not dealing with the specific argument I am presenting, which is that this provision is a significant overstretch in permitting material contraventions of development plans. Let us keep in mind that these development plans have already been through what is now a rigorous assessment process by the Office of the Planning Regulator. At the end, they may be subject to ministerial directions on foot of recommendations from the OPR, and yet material contraventions are still being allowed. In fact, the Minister is opening a wider scope for material contraventions.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I am listening to the Deputy. I am just trying to get some things straight.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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That is okay. I get that this stuff is tricky.

However, to take the example of the cases brought Dublin City Council against An Bord Pleanála on grounds of material contraventions of plans, if this provision had been in place at that time, there would have been a very different outcome from the one reached under the existing provisions. That is what this is really about.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I think we may be speaking at cross-purposes here. This relates to the material contravention itself. The section provides that a material contravention to a development plan must be consistent with the matters referred to. That is a strong provision. In effect, section 96(2)(b) states that a material contravention brought forward for whatever reason, obviously through the planning authority itself, must be consistent with the national planning framework, national planning policies and measures.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Okay.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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It is the other way around, if the Deputy knows what I mean.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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To be clear, what the Minister is saying is in cases where the local authority itself is bringing forward a material contravention, that material contravention must be in line with the national planning policy statements. My understanding was this was with respect to consents by the commission. I may be incorrect and I am happy to stand corrected on that.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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This relates to applications and the making of material contraventions. They are, of course, related here. Basically, it is that the local authority and the planning authority would have to rightly refuse an application made in respect of a material contravention if the material contravention, as articulated in the development plan itself, did not comply with the national planning framework and national planning policies.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I apologise but that is not how I am reading it. Again, I am more than happy to stand corrected. How I read section 96(2)(b)-----

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Basically, what we are saying here is if an application is made to a planning authority, the planning authority must refuse it if it is not consistent with the provision to which I referred. The details for such refusal are detailed. Permission for such development within the functional area of the planning authority must be refused unless the planning authority decides to make a material contravention resolution, which itself must be consistent with the development plan and the national planning statement.

It is effectively saying if an application is made the application must be refused unless the local authority or planning authority bring forward a contravention, but that contravention must be consistent with the development plan and the national planning framework. It must be consistent with all of them - with what I have mentioned already.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Okay. It is important we have this clear. This obviously refers back to section 92 on applications for permission for standard development. An applicant puts in a planning application to the local authority. If I understand the Minister right, he is saying that where the application is in material contravention of the development plan at the point of application this provides a procedure whereby, notwithstanding the fact the application is in material contravention of the development plan, by way of a resolution an amendment to the development plan can be made which in turn allows the planning application to be approved.

Steven Matthews (Wicklow, Green Party)
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No, it is not an amendment to the development plan.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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No, it is not an amendment to the development plan itself, but it might decide a resolution to grant the permission under this section as long as by granting permission it is still consistent with the development plan, the national planning framework-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Not the development plan. With the national planning framework and the national planning policy statements.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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With the national planning framework, excuse me, and with national planning policies dealing with the matters dealt with by the provisions of the development plan itself.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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That resolution is to be voted on by the members of the-----

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Yes.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Okay. Again, just so we are crystal clear, let us say my application goes in. It is in clear contravention of the development plan. The management take the view this is worthy of progressing and in order to allow it progress and for them to approve the planning permission, they have to table a resolution to the elected members that notwithstanding the content of the development plan, in this instance this can proceed.

Again, just so I am clear, at the start of the Minister's answer he seemed to suggest there were some conditions attached, so what kinds of planning applications would this refer to? I fully understand the manager's report accompanying the resolution to the members would have to demonstrate the planning application and the material contravention to the development plan were consistent with the national planning framework and guidance, etc., including the national planning policy statements, but does this apply to any kind of planning application?

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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It could apply to any application if it was deemed to be of such import-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Okay.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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-----that for the development of an area, a facility or whatever that may be, it gives the ability for the executive to bring forward a resolution that would be voted on by members and accepted or rejected.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I may have missed this but where in this or the related sections does it indicate the planning application would have to be of significance or importance or could it just be with respect to any planning application?

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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It could be any planning application. It would have to obviously be a planning application that is of such import that, let us say, a planning authority says it believes the application should be granted for whatever reasons, but then it has to show that in granting that application the proposed development is consistent with the provisions of the national planning framework, national planning policies and measures that are contained in the development plan itself so that it is consistent with the development plan itself.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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The Minister refers to the application being of such importance or such import. Will that be set out by way of regulations? Will it just be left to the judgment of the director of planning services, the chief executive or-----

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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It could, yes.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Okay, so it might not necessarily be something that would be universally seen as of such importance, but if that individual or management team felt it was of importance they get to make the proposition.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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It would not be the individual, that is, the applicant, it would obviously be the planning authority.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Exactly.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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The other element to that is it would have to be brought forward by resolution and acceptance of that resolution.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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By the elected members.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Yes, exactly. It could be a development, a piece of infrastructure or whatever that is. The development plan is passed and it is done. It has gone through the OPR and the process. This gives the ability for the planning authority or the executive to bring forward a resolution on foot of an application that is made. I see this arising potentially in very limited circumstances as the development plan must be consistent with the NPF, but it could be post that process that an application is made. It is deemed of such import in a particular area and this sets the criteria down for what the process is, basically, and what it must be consistent with and it would require a resolution of the planning authority, namely, its elected members.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I am always trying to think of what is the logic or the rationale for these. Let us say this manager is sitting there looking at the planning application. They are of the view the application will fall foul of the development plan. If they refuse the permission it is likely to be appealed to the board and because obviously the board has a different relationship with the development plan vis-à-vis national planning policy the board would then approve it. Is it to avoid that? Is it to speed up that process? I am trying to understand what the logic of this is. I am not making a point against it at this point, but whenever I hear about material contraventions there is always a kind of nervousness to ensure the process is proper. I what trying to understand what the value of doing it this way is.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I would say it will be rarely used but it could be an application a local authority or planning authority wants in its given area. The zoning currently in place, for argument's sake, would not permit, potentially, that development itself but the executive of the local authority could deem it to be of such importance - this is just an example - that it believes it should be granted. You would not have to move forward with a material contravention itself, or a variation to the plan, should I say. On foot of a resolution accepted by the members you could grant that application.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Okay. I ask the Chair to indulge me for a second because this is important. It is not just that there might be some aspect of the development that contravenes the development plan, but it could include zoning, for example. This procedure could, therefore, be used to effectively alter the zoning of the land. Ultimately, you would not be changing the zoning, but you would be allowing a category of development that is not permitted under the existing zoning to proceed, which is kind of a default rezoning without the public participative process around whether that land should be used for this purpose or not. There are aspects of what we will see as national planning policy statements that are to do with areas of policy like density, etc. However, zoning is a different category in the sense the zoning matrix goes through a very comprehensive consultative process, there is a decision-making process and we agree a matrix. I had not for a second thought this would permit a development to proceed that materially contravenes not an aspect of the development plan but the zoning matrix itself. That is quite far-reaching.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I get the point. If the Deputy looks at paragraph (c) he will see what the process is. That states "The chief executive shall, within such period as may be prescribed, prepare, and submit to the members of the planning authority"-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I apologise, but what page is this on?

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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It is on page 216. It is section 96(4)(c). That details the process. I am just giving the example this could be for a structure or further piece of infrastructure that may not be permitted in principle under an existing development plan or part of a development. Then the local authority believes it of such import that it and the chief executive bring forward a report:

... stating the main reasons and considerations on which the motion to grant permission in material contravention of the development plan or National Marine Planning Framework, as the case may be, is based, including the main reasons for considering that granting the permission may be necessary or justified having regard to the proper planning and sustainable development of the area ...

Local authority members are therefore absolutely involved right the way through. Management produces the report, gives the rationale and that goes forward by resolution for debate and discussion within the local authority itself. Local authority members can obviously reject or accept it. There is public consultation there, as the Deputy will see. Subsection (3) states:

A planning authority shall give notice, in such form and manner as may be prescribed, to the public and to such persons as may be prescribed of any motion for a material contravention resolution, and submissions may be made in respect of such motion in such form and manner, and within such period, as may be prescribed.

Subsection (5) provides that, "A material contravention resolution shall record that the members are satisfied that the development or proposed development is necessary or justified having regard to the proper planning and sustainable development of the area and, where the proposed development is or includes maritime development, objectives of maritime spatial planning." This refers to developments on land or in the maritime area and there is a three quarter bar, by the way.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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The vote has a three quarter bar.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Yes, that is covered in subsection (6) on page 217. The support of three quarters of the members is required.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I have two additional, quick questions. Just to be clear, this procedure can be used to allow a category of development not permitted under the zoning matrix, as long as it fulfils all of those procedures. There is an element of backdoor rezoning - backdoor is probably an unfair phrase - or an expedited rezoning, if only for that one development but not for future developments on that land.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Yes, exactly and that is why it is not a rezoning.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Yes, it is only for that development.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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It is not changing the future use of the land that might be adjacent to it or other lands within an area.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Under subsection (3) on page 216 the planning authority "shall give notice". If it is going to utilise this procedure, there will be a notice. That notice will be "in such form and manner as may be prescribed". By whom may it be prescribed? The notice will be to the "public and to such persons as may be prescribed of any motion" and "submissions may be made". There seems to be a conditionality on that. For clarity, is it the case that the planning authority, when it is bringing forward this proposition, gets to decide whether the public and prescribed persons are given notice and invited to make submissions? Is that going to be done through guidance from the Department, a circular or a national planning policy statement? Would it be possible for the planning authority not to do that? Could it simply proceed without public participation?

I accept that this is not a rezoning but it is a de facto rezoning for this one development. That is materially significant and is a significant change to the zoning decisions that were made in the development plan process. It is important that there is at least a similar level of public participation guaranteed, rather than being optional and left to the manager or someone else to set out.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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First, the public participation process is not optional. Under subsection (3) the planning authority "shall give notice", meaning it is not optional.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Yes but the subsection goes on to say that the notice will be "in such form or manner as may be prescribed".

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I am going to explain that now.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Apologies.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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That will be prescribed in regulation. It will be set down in regulation but the authority must do it, unquestionably. It is not for the authority to decide if this is something it will do. It will be set out in the regulations.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Obviously, the regulations have not been written yet but if it is a very significant piece of infrastructure, for example, and it has a significant land use impact, I presume the regulations are going to ensure that anybody who will be significantly or materially interested or affected by the change will be given an opportunity to make submissions.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Yes.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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That is the intention with respect to the regulations.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Yes, absolutely and we reference submissions in subsections (3) and (4) as well. The chief executive "shall have regard to" submissions when preparing his or her report.

That public consultation process is there, as well as consultation with other prescribed persons. That will be covered in the regulations. Let us say it was a development within a community. That would be published and public notice would be given and people would make their submissions. The management team would obviously have to have regard to those submissions and they would be included in the report that is brought before the authority members. If the local authority decided this was something it needed to do, it would give its rationale but it would also list the submissions and their content or a summary of same.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Why this process as opposed to a material contravention? I think I already know the answer but I would like the Minister to put it on the record.

This puts the councillors in an unusual position. Let us say it is a large, economic development. This would be putting the elected members in a position where they are not deciding the planning permission but clearly the indication from the management, if it is triggering this procedure, would be for support if the resolution is to pass. For the first time, we are actually back in a situation like we had previously where elected members are making significant decisions impacting what could be significant commercial investments and planning decisions. While I am not in any way suggesting there is anything untoward in the motivation behind this, in another era and another location, it has some risks. How do we protect against those risks?

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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To answer the question directly, this is a material contravention. That is what this is. A resolution goes forward and it is the decision on the development.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Okay, so it is the actual planning consent.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Yes.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Wow.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Yes, it is because it was not zoned for it, but the authority is not changing the zoning. Subsections (7)(a), (b) and (c) outline what the planning authority shall do once the material contravention decision has been passed. It is a decision.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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It is effectively the planning decision.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Yes.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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How do we ensure, in the use of such a procedure - not in the current context, to be very clear, but hypothetically - that we can prevent a Liffey Valley scenario, for example, from arising? How do we make sure that investors who may have very significant commercial interests do not try to predetermine the outcome, through bribery or some other method? One of the reasons that planning reforms, including the Planning and Development Act 2000, made significant changes to the role of elected members was to prevent those circumstances from arising. I do not want to be alarmist because I know that is not the intention here but I am concerned.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Material contravention exists right now. This is not new. We had a good discussion yesterday about the role of local authorities and the input of local authority members. In other jurisdictions, the elected members make all of the planning decisions at planning meetings but that is not what this is. This sets a very high bar because it requires the approval of three quarters of the elected members.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I accept that.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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We had a good discussion on that yesterday, including why that is important in the context of consistency. This must meet very stringent criteria right the way through the process. Obviously the rationale for it must be brought forward by the executive and it must be agreed by three quarters of the members after a public consultation process has taken place. As I said earlier, one would not expect this to be used on a regular basis at all. It could be for a particularly important development or piece of infrastructure that is desirable and required in a local authority area. I understand the point the Deputy has made but given all of the checks and balances that we have in place now through our local elected members and local authority executives, this is not a return to anything in the past-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I am not suggesting it is and I want to be very clear about that.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Material contravention exists now and this is just an updated process.

Steven Matthews (Wicklow, Green Party)
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Thank you. We have had a good discussion on that. We will move on now to the Minister's amendments Nos 663 and 687.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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These are minor amendments of a purely technical and drafting nature and amend the layout of the sections by changing the text from being presented as two separate paragraphs (b) and (c) to being presented as two subparagraphs under a single paragraph (b). They relate to sections 97 and 108 relating to the notification of a decision on a planning application or appeal and the requirement for the planning authority or An Coimisiún Pleanála, in issuing its planning application decision, to comply with any notification requirements surrounding an imperative reasons of overriding public interest, IROPI, decision under Part 6. The amendments do not change the intent but seek to bring clarity to the text. Further, the amendments add a missing reference to section 200(8)(b) which is also an IROPI notification requirement.

Steven Matthews (Wicklow, Green Party)
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Deputy Ó Broin, do you wish to speak to amendment No. 682?

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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This is a stand-alone amendment but the next two are linked.

Steven Matthews (Wicklow, Green Party)
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Do you want to speak to amendments Nos. 682, 684 and 686 together then?

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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No, amendment No. 682 is a stand-alone amendment and I will deal with that separately.

Steven Matthews (Wicklow, Green Party)
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Okay, go ahead.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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This amendment relates to section 106 which deals with decisions of the commission on appeal and refers specifically to subsection (7).

The subsection states:

The Commission shall not have power to grant permission, on appeal from a decision of a planning authority in relation to an application made by the appellant, that— (a) is not substantially the same as the development or proposed development to which that decision relates, or

(b) in the case of an appeal that relates to part only of the development or proposed development to which that decision relates, is not substantially the same ...

I just do not understand how such a circumstance could arise. It could be just that I do not understand the relevant subsection. I am trying to understand what subsection (7) does and how it would arise that the commission would take a decision on appeal for something that is not the same.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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This is one we had started to address-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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One the Minister was starting on. Exactly.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Amendment No. 682 relates to section 106 of the Bill, as the Deputy has said. He proposes to delete subsection (7), which provides that the commission cannot grant permission on appeal for a development that is not substantially the same as the development that was proposed to the planning authority and was subject to appeal. That is on page 230 of the Bill. This is an important provision and highlights the difference between the commission's appeal role and its decision-making function for direct applications. An appeal of a planning authority decision is not a new application. Generally, when making a decision on a planning application that is subject to appeal, the commission is required to consider the proper planning and sustainable development of the area concerned and the potential effects on the environment of the proposed development, having regard to a range of matters specified in legislation, including the provisions of the relevant development plan, submissions or observations received and relevant ministerial or Government policies, including statutory guidelines. While the commission can seek revised plans under section 103 and make a decision with modifications to the proposed development, these actions are within the overall context of not substantially altering the proposed development. The provision is intended to further strengthen the role of the development plan as the key foundation for decision-making in a particular administrative area and, consequently, to reinforce the central role that planning authorities have in the planning system. What is submitted as a planning application is substantially what is being determined by the commission in the event of appeal. The purpose is that someone basically does not put in something substantially different on appeal. It differentiates between a direct application and an appeal.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Again, this might be just because I have never come across a case like this. Somebody puts in a planning application to the local authority; he or she is refused. The applicant then appeals it to the board. The board, obviously, is assessing the original application as refused. How is it that anything would be substantially different or not substantially the same? The Minister used the phrase "seek revised plans". I ask him to explain that because an appeal is an appeal of the decision on the original application that was refused, surely.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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They determine the appeal first. The appeal could be substantially different from the original application on foot of looking at the decision that was granted. Let us say an initial application goes in. The planning authority makes a decision and gives a refusal on a number of different grounds, and the different grounds are then addressed by way of the appeal-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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With additional information from the applicant.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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-----with additional information from the applicant. That differentiates between a direct application and an appeal. The appeal may be substantially different from the original application because it tries to deal with the reasons for its refusal.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Again, just so we are clear, where it states "not substantially the same", does that apply to the volume and type of documentation that is submitted with the appeal or the actual physical proposal of the planning application?

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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The actual physical proposal of the planning application.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Does that happen?

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Yes. I am told that it does.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Wow.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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This, I suppose, relates to someone trying to address the reasons for the appeal. This provision, in my view and in our view in the Department, actually strengthens the role of the planning authority-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Absolutely. It makes an appeal an appeal, not a consideration of anything new.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Yes.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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What the Minister is saying is that there are cases where the actual physical drawings, documentation, etc., would be substantially altered to try to influence the decision of the appeal.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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It could be, or it could be the location of certain developments within a particular site design or that type of thing, depending on what the original decision was. Effectively, we want to guard against it being de facto a wholly different application.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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This is my last question, Chair. Under the current system then, would the board - or the commission, as it would be called - be duty-bound to assess the appeal on the basis of all the new information?

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Yes.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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It could not just say, "Well, that was not in the original application so we are not considering it." It would have to-----

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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It would be duty-bound to assess the new one.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Everything. That is nice and clear. I thank the Minister.

Steven Matthews (Wicklow, Green Party)
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Do you want to take amendments Nos. 684 to 686, inclusive, together, Deputy?

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I do indeed.

Steven Matthews (Wicklow, Green Party)
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They are all closely related.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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They are indeed. They all relate to section 107 and different aspects of the appeal. I will just check my notes for a second, if the Minister does not mind. Again, not unlike the last amendment, this is in part because I am not completely clear as to how this process is to work or what its intention is. Section 107 is the "Decision of Commission in relation to development in contravention of certain plans". Subsection (3) states:

The Commission may grant permission under section 106 for ... [redevelopment] or proposed development to which subsection (1) applies if it is satisfied that— (a) the development or proposed development is of strategic or national importance having regard to the policy of the Government,

(b) the development plan contains objectives that conflict with one another or are ambiguous with regard to their application ... or

(c) the development or proposed development is consistent with such provisions of the ... [NPF], National Planning Policies and Measures ... [etc.]

I am instinctively cautious when something refers to granting consents that are in contravention of plans. I just want to give the Minister the opportunity to set out what this is intended to fix or what it is intended to do and maybe to convince us of the merits of it, if that is okay.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I will deal with amendment No. 684 first and then deal with the overall position with amendments Nos. 685 and 686.

Under the Bill, the commission may grant permission in contravention of the development plan if the development is of strategic or national importance, having regard to the policy of the Government, that is, our national planning statements and Government policy. Amendment No. 684 proposes to amend that to the development being "of strategic or national importance to the State". Linking the provision to the policy of the Government gives the commission a clear basis for contravening a plan, whereas linking it to the development being of importance to the State, I think, brings quite a large degree of ambiguity there. We know what the State is in geographical terms. What is the State? I think the provision is much clearer if it states "the Government" because people know where Government policies come from. In particular, we have discussed the national planning policy statements.

As regards amendments Nos. 685 and 686, the Deputy proposes to delete the other provisions which would allow an coimisiún pleanála to contravene a development plan. These provisions provide that the commission can contravene the development plan if there are objectives that conflict with one another or are ambiguous in their application or in cases where the development is consistent with the provision of the NPF, national planning policies and measures that deal with the matter to which the material contravention applies. These are important provisions for dealing with any material inconsistencies that may exist between adopted plans and national or regional policy. The current programme of review of draft development plans being undertaken by local authorities with oversight from the OPR will ensure that statutory local plans will comply with national and regional plans in addition to relevant ministerial guidelines. This should in future reduce the need for material contraventions of development plans in the case of specific planning applications.

It is not considered appropriate to specifically remove these material contravention provisions from planning legislation because doing so would reduce the options for consideration of proposals which may be in the interests of proper planning and sustainable development of an area and which are subject to scrutiny and approval. Further restriction of the commission's ability to consider material contravention in a development plan could potentially be counterproductive for significant housing developments, in particular where such proposals may be in the overall interest of proper planning and sustainable development of an area.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I have two follow-on questions. I will talk separately to why I would prefer a reference to the State rather than the Government. The language that is used in section 107(3), namely "the development or proposed development is of strategic or national importance having regard to the policy of the Government", is used elsewhere when a decision is being made by a Minister or the Government. A Minister or the Government, one would expect, understands the policy of the Government, and the Government would argue it is, at least, democratically entitled to make decisions about what is, for example, of national importance because it represents the majority of the electorate. We are giving the commission in this instance the role, if I understand it right, of adjudicating whether a proposed development is of strategic or national importance. How would it know that? On what basis would it determine that? It is not its function. That is the first question.

My second question, and I may have misunderstood the situation-----

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I am sorry to interrupt, but on the Deputy's first question, how would who know?

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I am asking how the commission would know.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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One would expect at that stage that either an application or an appeal is in.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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How would they know what is in the best interests-----

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Sorry-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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How would the commission know what is of national importance?

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I get what the Deputy means.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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What is of national importance is obviously a matter for debate. Government will argue it has a democratic mandate to make a call on something that is of national importance. We are now asking the commission to make a decision on something where it is determining that the thing is of national importance. Question one is how the commission is expected to do that. It seems to me something quite new though I could be wrong and it might exist already.

This is about permitting developments that are in material contravention of certain plans. The Minister and I discussed the process with the planning authority and talked about public participation, resolution to the elected members and submissions. The same process does not seem to apply here.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I ask the Deputy to look at section 107(5)(a).

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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It states, "the Commission shall give public notice". That is the same. It goes on to state that on public notice of an appeal "to which this section applies ... submissions may be made in respect of the material contravention". Will that be governed by a similar set of recommendations to the previous process?

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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It will be guided by regulations.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Section 107(5)(b) states:

The Commission shall not be required to give public notice of an appeal to which this section applies if— (i) the material contravention concerned is one that was the subject of a motion for a material contravention resolution within the meaning of section 96 ...

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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That is where the local authority has already done it.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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That is fine. The Minister's view is that what is contained in section 107(5) is comparable to the similar process for the material contravention decisions of a local authority.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Yes.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Perhaps the Minister will address the question as to whether it is appropriate to ask the commission to make the assessment of whether something is of strategic or national importance.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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It could be the need for a port, as an in extremis example, that is not designated in a development plan. We are seeing such things happening now on the offshore renewable energy, ORE, side, where we may need extensions to the footprint of certain ports as we develop our ORE capacity. An example could relate to that. Let us say a port authority makes an application for a servicing yard for offshore renewables that is outside the footprint of the port and an extension is needed. An application could be made and public notice would be given. If the application came through the local authority, it would be done through the other material contravention process. Public notice would be given that port A had applied for an expansion outside its current footprint because of the ORE need, which would be seen as of national importance. The commission would make that assessment and would be in a good position to do so but it would have to be consistent with Government policy. This applies to the first of the Deputy's amendments in this group whereby he is looking to move away from Government policy and include a reference to the interests of the State. All those considerations are related in this section.

Steven Matthews (Wicklow, Green Party)
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As it is 4.05 p.m., I propose that we suspend proceedings. When we return, we will recommence with amendment No. 711 in the name of Deputy McAuliffe. There are a few more amendments within the grouping to deal with. We thank the Minister for his attendance.

Sitting suspended at 4.05 p.m. and resumed at 5.01 p.m.

Steven Matthews (Wicklow, Green Party)
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We are dealing with a group of amendments starting with No. 660. We have spoken to several of them and are now moving on to amendment No. 711.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Amendment No. 711 seeks to amend section 122 to add a provision that the commission shall remain free to determine whether or not there exists a material contravention before the provisions of this section apply. This amendment is not necessary as it is the function of the commission to determine whether the proposed development is a material contravention of the relevant development plan as part of its decision-making process.

Amendment put and declared lost.

Amendments Nos. 661 and 662 not moved.

Section 96, as amended, agreed to.

SECTION 97

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I move amendment No. 663:

In page 219, to delete lines 13 to 20 and substitute the following: “(b) comply (if it has not already done so) with—

(i) subsection (13) of section 199, where the Minister issued a notice under subsection (10) or (11) of that section in relation to the development or proposed development to which the decision applies, or

(ii) paragraph (b) of subsection (8), and subsection (16), of section 200, where the Minister issued a notice under subsection (12), (13), (14) or (15) of that section in relation to the development or proposed development to which the decision applies, and”.”.

Amendment agreed to.

Section 97, as amended, agreed to.

SECTION 98

Steven Matthews (Wicklow, Green Party)
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Amendment No. 664, in the names of Deputies Flaherty and McAuliffe, is part of a grouping containing six or seven amendments. The Deputies are not here. We can speak to the grouping.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I will speak to amendments Nos. 668, 669, 671 and 672. Amendment No. 672 is a technical amendment consequential on the other three. If they pass, it is needed for consistency reasons. This is about where a planning authority seeks a time extension from an applicant and the applicant does not consent to that extension. This section says permission will be refused and the applicant can appeal this decision to the commission. The planning authority in these circumstances will refund the planning fees to the applicant and, if an appeal is made to the commission, will repay the fees made to the commission. This creates an incentive for the applicant to refuse the extension and eats into the resources of planning authorities which may already be under-resourced, which is an issue we have talked about before.

During pre-legislative scrutiny, there was input from Oonagh Buckley, then of An Bord Pleanála, and from a range of groups saying financial penalties were not the way to go. This is effectively a financial penalty on planning authorities, as well as creating a potential incentive for the applicant to go down this route. Why would we want to create that sort of incentive?

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I will speak to amendments Nos. 668, 669, 671 and 672. As the Deputy has outlined, amendment No. 668 proposes to delete section 98(5)(d), which provides that, where an application is deemed refused because the applicant does not consent to an extended decision-making period, any fees paid by the applicant are returned.

Amendment No. 669 proposes to delete section 98(6)(a), which provides that, where an applicant consents to a longer decision-making period and such a period is not met, the application fees should be returned and an additional sum of the lesser of three times the fee paid or €10,000 should be paid to the applicant in not more than five instalments. Amendment No.672 is consequential, as the Deputy said. Amendment No. 671 seeks to delete section 98(7), which also relates to extended decision-making periods and deemed refusals.

These provisions are important as they allow the planning process to adequately deal with complex applications over an extended period. They also ensure that, where these periods are not met, the applicant is appropriately compensated. There is a requirement to allow for the rare case where applications are not determined in the statutory time period. We hope they will be rare cases.

The alternative default system is not in compliance with the environmental directives. This provision is in place at present. From a governance perspective, the accounting office of the organisation would have to report the payment of such a fine to the local authority auditor and that would form part of the public reporting process, which is important from a transparency perspective.

The three things running through this Bill are certainty of timeframes, consistency of approach and clarity, which is badly needed in the system. I do not propose to accept these amendments for the reasons I have outlined.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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One of the strongest recommendations from pre-legislative scrutiny, which came from a number of areas, was the strong pushback against the idea of fines for late decisions. This section, in effect, means there will be fines. It means there will be penalties for the planning authorities for late decisions.

I thought the Government and Minister had listened to those recommendations from pre-legislative scrutiny and accepted them. As I said, that came from An Bord Pleanála as well as the Irish Planning Institute and a range of other organisations. Throughout the process it was said that could be counterproductive because it would take resources from an already stretched planning system.

The issue of planning fees from applicants not covering the full cost, the planning authorities and issues around that were raised during the pre-legislative scrutiny process. Why is the strong recommendation coming from a number of sectors, including the Irish Planning Institute, which represents planners across the system who are against fines and penalties, not being adhered to in this part of the Bill? Why should we be creating a financial incentive for an applicant to perhaps not agree to a time extension and appeal a decision to the commission? Surely that will clog up the system. Why is that a desirable thing to incentivise?

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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As the Minister knows, the background to this is the report from the CCMA of two years ago which identified more than 500 posts that needed to be filled in our planning authorities but which were not at that time. When the CCMA came before the committee on pre-legislative scrutiny, it made clear that the additional 530 posts were required to do the work it had at that time, not including all of the additional work that now exists.

Notwithstanding that there has been a significant increased sanction for staff at the board and recruitment has taken place, only last week it was reported that the board still faces a significant backlog in its decisions due to the recruitment challenge. Therefore, any discussion or consideration of direct fines or repayment of what are already inadequate fees has to be taken against the backdrop of the ability of our planning authorities to make decisions within the appropriate amount of time.

When Oonagh Buckley was the interim chair of the board, she made the most compelling case as to why the board should not be subject to any form of fines or penalties. She indicated that it would be an incentive for bad decision-making and there were much better ways to ensure compliance with statutory timelines of any kind.

I see no justification or reason we would require the planning authority, as set out in section 98, to return fees. In many cases, it may not be the fault of the planning authority that it cannot make a decision within the original timeline. It may go to a developer to seek a reasonable extension of time and that extension may not be approved by the developer. Despite the fact the planning authority may have done everything within its power and resources to comply with the timelines, it would be penalised financially. It makes no sense.

We had quite an interesting conversation with Ms Buckley. It was not just the fact that the proposal was inappropriate and improper. She was quite clear that she felt it would result in decisions being made to avoid fines or loss of income. The Minister appointed her to oversee the transformation of the board. Even though I was sceptical about the appointment of somebody from the Civil Service, she did an outstanding job. I am on the public record as having said that, notwithstanding the fact that she has gone to a very important position. It would have been great if she could have stayed for a longer time because she was making real progress. I hope her interim successor does likewise.

She made a compelling case, when we consider that she had extensive knowledge of the original Planning and Development Act and the planning process due to her background in the Department of the Environment, Climate and Communications. Having these kinds of financial penalties will perversely incentivise decision-making based on the avoidance of fines rather than the best possible outcome.

I am keen for the Minister to explain or justify why this is a good provision. What does it achieve other than putting a calculus into the considerations of the planning authority that it should not have to include in its decision-making, which is whether it suffers a financial penalty? Part of the purpose of planning fees is to compensate the planning authority for the work it has done. The planning authority will have done a lot of work on a planning application. It might not be able to meet a decision within the statutory timeline, but it will not have sat on its hands doing nothing. Therefore, the money will have been spent and will now have to come from somewhere else.

Notwithstanding the fact that very few of our amendments have been accepted to date, there needs to be a rethink on this. At the very least, the Minister needs to provide a better rationale on the record than the one he outlined in response to Deputy O'Callaghan at the start of this.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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The amendments tabled relate to the planning authority. There is a different section with regard to An Bord Pleanála, which we will come to and I will address that as part of the response.

The argument made by Deputy Ó Broin regarding there being a backlog in the board due to a lack of resources is something I would not completely agree with. I want that on the record. We are very aware of the issues in An Bord Pleanála and we need to stabilise the board and make sure it functions. At one stage, there were as few as five board members. Due to the actions we have taken, there are now 15 board members and a full-time chairperson, who is the successor to the interim chair. I use this opportunity to say that Oonagh Buckley did an exceptional job and has moved on to pastures new.

Through a new appointments process, an excellent chairperson of the board and 14 other board members have been appointed. They have engaged with the committee on the work it is doing to clear the backlog. It has advised me and the committee that by quarter 2 it expects to be back to a normal processing of applications for the first time in a long time, notwithstanding some cases that are, in effect, in abeyance. Some SHD cases are still awaiting further adjudication from the courts or a final judgment. In terms of normal applications and appeals, the board and what will be an coimisiún pleanála will be back to a normal processing time. They should be.

On resources, yesterday I gave details to the committee about the number of posts we have on the board. We have filled 261 posts and have sanctioned more than 300, which is a sizeable increase from what was there before. As I said, we will provide the Deputies with a breakdown of the additional planners in each local authority since 2020. There is a ramping up of resources, notwithstanding the fact we need to grow the talent pool. There is movement between the private and public sector and within the public sector.

The objectives of the Bill were to provide certainty around timeframes and decision-making, clarity within our planning process and consistency of approach. When timeframes are set, they need to be adhered to. I will be very straight about that. If we mention planning to the normal Sean or Mary Citizen, one of the first words we would have heard from them over the past couple of years would have been "delays". That is why timeframes are important, including the setting down of statutory timeframes, as will be the case with the board.

With regard to delays in the planning system, I will deal with the issue of someone who does not consent to an extension, which relates to a different provision. Deputy O'Callaghan raised this issue. There is no fine, rather a repayment of fees because there are costs to delays. Let us be straight about that. There are costs for applicants when there are delays to planning applications, in many cases significant costs. They are real. Delays lead to delays in the delivery of housing and infrastructure, including social infrastructure, which we know a modern state needs. We should not hide behind this in any way, shape or form. When we set down statutory timeframes, they should be met.

In my view and that of Government, there should be a mechanism for a small proportion of those costs to be repaid and for the information to be published. It should not act as an incentive for an applicant. However, it should certainly be a target for our planning authorities in this instance - because we are not talking about An Bord Pleanála here - to meet the timelines that are set. I have considerable regard for our planners throughout the country, as I know the Deputies present also do. I respectfully disagree that it would lead to poor planning decisions on the basis of making a decision to avoid incurring a penalty as such or having to repay an amount that would be a multiple of the planning fee that was lodged.

Deputy O'Callaghan asked about somebody who does not consent to an extension. Section 98(5)(c) states:

If the applicant fails to notify the planning authority, within the period referred to in paragraph (b), as to whether or not he or she consents to the extension sought in the notification under subsection (4), the applicant shall be deemed to have consented to that extension.

Section 98(5)(b) states:

If, within such period as may be prescribed, the applicant notifies the planning authority that he or she does not consent to the extension sought in a notification under subsection (4), the application shall be deemed to be refused, and the applicant may appeal that deemed refusal to the Commission under section 100.

That is very clear, and people will understand what the objective is. I do not agree that it would lead to a planner making a decision on the basis that it will go outside the statutory timeframe. Costs are incurred by applicants if decisions are delayed. I am not just talking about the development community; I am talking about anyone who makes an application. We have seen that; let us be straight about it. We have discussed where we have seen additional information, clarification of additional information and further letters going back to say that the decision dates have been put forward and put forward. That has a real impact on people. It can be families, organisations firms and housing developments as well. It is right and proper to have this provision in place.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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During our pre-legislative scrutiny, one of the things that came through very strongly from multiple sources, including practitioners within the system, was that any form of fines, the equivalent of fines or financial disincentives for planning authorities will inevitably lead to two things. First, they will lead to applications that may have been granted permission being refused because there will be an incentive not to go for an extension if there is a financial penalty for the planning authority involved, which is what the Minister is proposing in this section. Indeed, exactly as he stated, rather than going for an extension of time, a way to get an extension of time is to look for further information or additional information. That makes for a longer process. If the desire is to get a more efficient system, the clear advice we received during pre-legislative scrutiny was that these kinds of provisions with fines, the equivalent of fines, financial penalties or whatever for planning authorities will lead to a set of outcomes we do not want and that would not be desirable within a well-functioning planning system. That is what the people who represent professional planners and others working in the system told us. We should listen to people who work in the system on a day-to-day basis when they warn very clearly that financial penalties for planning authorities will backfire and will run contrary to what the Minister is trying to do with the planning system.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I will respond to a couple of the Minister's points about An Bord Pleanála board and will then speak directly to the amendment. An Bord Pleanála board had a backlog prior to the crisis in the year before last. That crisis made the backlog larger. It would not be correct to say that staffing has not been a problem for the organisation for quite some time because it has been. SHDs, legally questionable decisions by An Bord Pleanála and those decisions being challenged in the courts also created a significant backlog. The transitional mechanisms for large-scale residential developments and the massive number of last-minute SHD applications, which were a consequence of the Minister's legislation, further compounded the chronic under-resourcing of An Bord Pleanála board. We will obviously need to wait until quarter 2 to see where we are at. There will be significant delays with the existing backlog throughout the course of this year.

The information An Bord Pleanála is giving is that fresh decisions are increasingly made within the timelines set. However, we are now about to set a series of new timelines. I am a strong supporter of timelines. When the Minister was last before the committee, I made the comment that many of us had proposed statutory timelines by way of amendments to SHD legislation back in 2017. Fianna Fáil did not support them at the time, but that is a separate issue. I accept that An Bord Pleanála has got significant additional sanction. Before she left her post last summer, Oonagh Buckley met Deputies O'Callaghan, Bacik and me and told us that An Bord Pleanála needs more than 300 staff.

Specifically on the amendments, the problem is that our local authority planning sections have a staffing crisis. A submission from them to the Department at the Minister's request outlined that they are chronically understaffed. I welcome that an additional 100 posts have been sanctioned. However, I suspect that if and when we get the current figures for local authority planning officers, there will actually be a net loss of staff, notwithstanding the additional sanction, because people are leaving to go to An Bord Pleanála board or elsewhere.

The context of this amendment is planning authorities getting more work as a consequence of what is happening with increased levels of planning applications, which we all welcome, and on foot of the additional roles and responsibilities relating to plan-making, as outlined in other sections of this Bill. In a context where we know they do not have enough resources because they have been chronically under-resourced by successive Governments over a sustained period, we are saying that if they are not able to make decisions within a certain timeframe, they will be fined. Having to repay a planning fee is a fine by another name; it is a financial penalty for not making a decision. It seems to suggest that they have all the resources they need and should be making these decisions within a certain period and that if they do not, they should be penalised. I do not understand the reason for doing that particularly at this point in time. Nobody on this side of the room is arguing against statutory timelines. In fact, we have been among the longest standing and loudest advocates for statutory timelines; they are a really good idea. However, they only work if the authorities have adequate resources.

Planning fees are already too low. When Niall Cussen of the OPR gave testimony before the committee, he made a really strong case for a significant increase in the fees paid to local authorities because they are out of date and way below what they need to be. Not only would the fees have to be repaid in some cases, but it could be multiples of those fees. This is already happening. Last year, An Board Pleanála paid out about €1 million in penalties where SHD decisions were not within the relevant time period under the legislation. There are better ways to ensure compliance. The real issue here is not whether we want statutory timelines, but the best way to ensure compliance.

When Oonagh Buckley appeared before the committee, we asked what she thought would be a better way, albeit in the context of An Bord Pleanála but it applies to local authorities as well. As somebody with long-standing service in the Civil Service, she set out a bunch of propositions. She said that sometimes actually paying a fine is easier than, for example, having to appear before an Oireachtas committee or report publicly on a statutorily required basis as to whether a body is meeting its timelines. This will not do what the Minister wants it to do. If planners and the woman the Minister entrusted to try to sort out the mess with An Bord Pleanála are telling us that this would create a perverse incentive, they need to be listened to. They are the experts in this regard.

What Oonagh Buckley said was really important. She stated that if An Bord Pleanála board had a big caseload and is trying to manage different things and if it has the flashing red light of potential fines, management will try to direct resources to address that, which means other things will lose out. Where an organisation is under pressure and under threat of losing money, decisions not exclusively based on the planning requirements will be made and will be subject to the calculus of the cost implications of whether a decision is made within a certain timeline.

I know that the Minister is not going to listen to us or that we are not going to convince him.

This is one of those issues where he has got it wrong. I urge him to go back, talk to his officials, look at the testimonies the committee got and rethink it. This is one where, in a year's time, if he is not scratching his head and saying we got this wrong, his party colleagues in local authorities will be dealing with planning officials who will say, "Your guy put this through and it is causing us a real difficulty at a local authority level." Those colleagues will ask the Minister why he did it when he was advised, not just by the Opposition but by people far more expert and experienced in these matters than us, why this was the wrong approach to take.

Steven Matthews (Wicklow, Green Party)
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Will the Minister clarify a question from me on this as well? This will kick in following the process whereby an extension could have been agreed between the applicant and the planning authority. The planning authority will be well placed, when seeking that extension, to say it needs three, six or eight weeks. This is not something that will kick in within the eight weeks statutory or the-----

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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No.

Steven Matthews (Wicklow, Green Party)
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The local authority will assess how long it will take it and, if that is not met, then there is a penalty-----

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Exactly.

Steven Matthews (Wicklow, Green Party)
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-----or whatever you want to call it.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Yes.

I thank the Chair and Deputies. We discussed the matter of resources a fair bit yesterday so I will not labour the point. For the matter of record, however, it was said that the board requires more than 300 staff, which it does. That is why it has a full sanction of 330 staff. Since 2022, 93 new posts have been sanctioned, 78 of which are filled. That is good progress, which has to be recognised. I also gave numbers yesterday for the additional posts in local authorities, and that a further 100 will be approved there. We will deal with the board as well because both are relevant, but the 2000 Act also includes provisions in respect of planning authorities, where a planning authority fails to make a decision within the period. It is in the current Act. It is not something new. There needs to be a focus, including within planning authorities, that when deadlines are set, they are met. If they are not met within the statutory timeframes, that should be a rare occasion as opposed to the more prevalent occasions we have seen over the years. Some of that has been down to previous lack of resourcing but we are addressing that. When the Bill is passed and enacted, transitional measures will be in place.

I met with the Office of the Planning Regulator regarding fees. It has done a very good piece of work on the fees charged around the cost of processing applications. Should we bring forward proposals to increase those fees, I hope that we will get cross-party support for doing so. I agree that those fees need to be updated. A significant piece of work and research has been done on that so we now have a real basis on which to look at the length of time spent. On the flipside of that, for applicants who have made applications, there is also a very significant cost to them due to delays. In some instances, this is not just a monetary cost. I am sure all Deputies present have dealt with cases whereby individual families or individuals are experiencing, or have experienced, planning delays. That has an impact on them and their families.

When timelines are set they should be met. The large-scale residential development, LRD, legislation we brought forward is an example of where we have set timelines for the board that work. Under that legislation, by way of replacement of the strategic housing development, SHD, system, which I said I would abolish when I was in the Opposition and did in Government, all LRD timelines for housing have been met by An Bord Pleanála. That is good. I have engaged with the board on this, which also gives that focus. This is not about a stick to beat anyone with. It genuinely is not. It is to reinforce the importance of statutory guidelines that are set down. They are already there with regard to the planning authorities and will be set down in this legislation with regard to An Bord Pleanála. We have engaged with An Bord Pleanála on the timeframes and on what will happen. I met the board a number of weeks ago in advance of Christmas. It is now working to prepare for those timeframes and understands where we are coming from in that regard.

What we all want is an efficient and modern planning system. That is why we need the change in legislation to underpin that and, where we set timelines, to ensure those timelines are met. There will be exceptional cases where they are not. However, I respectfully disagree with the idea that there would be a file somewhere of planning decisions that still need to be made, and that in some way, shape or form, a planner, respecting the professionalism and the integrity of our planners throughout the country, will make a rushed decision on something simply on the basis a financial payment might have to be made for not meeting that timeline. We should be target driven. We are target driven on delivery of houses. All parties want to be, and we certainly are. We should also be target driven in relation to speedy and efficient decisions that are made.

I respect the points the Deputies made. I have outlined my position very clearly in that regard. I will not accept those amendments.

Steven Matthews (Wicklow, Green Party)
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Deputy O'Callaghan wants to make one brief point. I will then go Deputy McAuliffe because he is waiting to discuss his amendments.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I will make a couple of points. I want to respond to the Minister. There is an issue in that during pre-legislative scrutiny of the Bill we heard from people working in this area, who gave us advice on it. We are now in a situation where the Minister is not accepting their advice or view, and that he knows best over and above people working in the area. They very clearly said that the best way to address planning delays is to resource the system properly in terms of planners. The Minister quoted some figures. The business case for resources for the planning function of local authorities sought 541 additional posts for the planning sections of local authorities just to deal with their current workload, not to mention the additional workload coming from the Bill. Out of that, my understanding from the figures the Minister gave us yesterday is that 100 new posts have been sanctioned, 32 of which have been filled. There is a huge way to go just to meet that figure of 541. Thirty-two posts have been filled out of the 541 needed now. That is my understanding based on the figures the Minister gave us. It is a huge amount.

I will read one very brief quote from a report commissioned by the Government. Recommendation 25 of that report, on increasing the resources available to the planning system, states, "In order to ensure proper planning and sustainable development, it is essential that local authorities and An Bord Pleanala have sufficient professional planners available in relation to the development of planning policy and the operation of the development control process." That is from the second Bacon report in June 2000. Here we are 24 years later and, out of 541 additional posts needed in local authorities, 32 are filled just to deal with the current workload.

Steven Matthews (Wicklow, Green Party)
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Will the Deputy make new points please?

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Sorry, but if the Minister is addressing staffing issues, I have a right to respond.

Steven Matthews (Wicklow, Green Party)
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I want to try to move it along.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I have not come in on those issues previously.

Steven Matthews (Wicklow, Green Party)
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Okay, go ahead.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I have finished that point. I am just saying if the Cathaoirleach is not going to stop the Minister talking about it, why is he stopping me?

Steven Matthews (Wicklow, Green Party)
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I want to move it along. I am not picking on anybody in particular.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Deputy Ó Broin and the Minister addressed this issue. Why would I not be allowed address it?

Steven Matthews (Wicklow, Green Party)
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The Deputy has addressed it.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I have finished that point. My second point is there is a clear risk, and we were told this during the pre-legislative scrutiny process, that if financial penalties are conceded by a planning authority, it will not prioritise dealing with that case or application because it will prioritise dealing with other applications in front of it to minimise future financial penalties. That point also needs to be considered.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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For clarity's sake, and pre-legislative scrutiny was mentioned, the submissions on timelines and penalties that were made related to An Bord Pleanála. We have worked with An Bord Pleanála since then, as I outlined. The reason I responded to the point about resources was Deputy Ó Broin rightly raised the issue. I responded to that. Deputy O'Callaghan mentioned advices given from planners about this. The submissions received related to earlier proposals for An Bord Pleanála on what were called penalties at that stage. We have worked with the board since then, as I just said. We sat down with the board regarding the timelines that are set down.

The board members want to meet the timelines that are set. They are doing that under the LRD already, which is good.

Looking at the second Bacon report, we could probably see how many planners were in the local authorities in the year 2000 versus how many planners are in the local authorities now. When the Deputy talks about additional workload within the local authorities, we have excellent planners in the local authorities. We will ask the question, "What additional workload?" The additional workload relates to the additional planning applications coming in because things are moving again. We need to make sure there is not continued investment in housing or infrastructure if there are continued delays and timelines that are not being met. If we are serious about dealing with delays, and I am sure any one of the Deputies here who talks to stakeholders within all sectors will know, one of the biggest risks to further investment in areas is that there is no certainty around planning decisions, as well as inconsistencies. We are either serious about tackling that or we are not, and this is one part of tackling it. That is why I absolutely believe it is appropriate.

Regarding the local authorities, it is in the 2000 Act. The difference here is it will relate to An Bord Pleanála. We have engaged with the board on when it becomes an coimisiún pleanála and the members are very clear on what their obligations will be with respect to meeting the timeframes set down for them to make decisions.

Steven Matthews (Wicklow, Green Party)
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If it is helpful, we discussed briefly that the committee is minded to invite An Bord Pleanála back in with the new chair. I suggest we bring in the CCMA, the representatives for the local authority planners and the Irish Planning Institute. We will set up a meeting when we are finished dealing with this Bill. I think it will be helpful to all.

I will now bring in Deputy McAuliffe on amendments Nos. 664, 665 and 667.

Paul McAuliffe (Dublin North West, Fianna Fail)
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I move amendment No. 664:

In page 219, line 34, after “section 95” to insert “and subject to the limitations set out in associated regulations”.

All three amendments arise from engagement with Irish Water in advance of the amendment stage of the Bill and there is a concern. Obviously the premise of the Bill is about advancing the delivery of infrastructure, housing and so on. There is a concern on behalf of Irish Water that the proposed Bill appears to extend the current timelines from the status quo, and that appears to be inconsistent with the premise of the Bill. In particular, the concerns relate to the idea that if the applicant were to refuse multiple extensions, the application would then been deemed as a refusal. I am interested to hear the Minister’s response to amendments Nos. 664, 665 and 667. As I said, it appears it to be at odds with the premise of the Bill.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Amendment No. 664 proposes to add a regulation power that allows the Minister to prescribe limitations to the ability to extend the relevant period for making a decision on an application with the consent of the applicant. The Deputy may wish to come back in on the need for such a power because I am not 100% clear on it. He might like to give me further information and I can consider that. Deputy McAuliffe said it came about from his discussions with Uisce Éireann. I am not 100% sure about that but I am open to looking at it if there seems to be some contradiction with regard to other sections. Perhaps the Deputy can expand on that a little bit.

Paul McAuliffe (Dublin North West, Fianna Fail)
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This section was of particular concern to Uisce Éireann representatives because they felt that one of the few elements of the planning system that works well is their engagement with local authorities with regard to applications for infrastructure. There is certainty and there are solid timelines. Their fear - perhaps it is a misreading of the Bill on their behalf - is a concern worth raising here, which is that the Bill as proposed would actually disimprove the situation. I understand they have been engaging with the Department officials on it. On previous amendments that also related to their concerns, the officials indicated the Minister was taking on board some of Irish Water’s concerns. I do not know whether these sections relate to those discussions, but if they do, I am happy to withdraw the amendments on the basis of what comes back. Their fear is the Bill as proposed disimproves the certainty in the current system of engaging with local authorities. Therefore, their amendments attempt to reinstate the status quo, as such.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I have two related questions. We received documentation from a number of the public utilities – Gas Networks Ireland, Uisce Éireann, ESB and the Dublin Airport Authority. I am not saying this is correct but just to give the Minister a sense of it, to expand on Deputy McAuliffe’s point and to say it was not just Uisce Éireann, although he is absolutely right in that, they welcomed statutory timelines at the board level. They expressed concern they might gain some time at the board level but might lose some time at this juncture. When they spoke to some of us, I do not think it was even that they had a definitive view that was definitely the case, rather a question or a lack of clarity of how this would work. That is probably the best way to put it. Therefore, I support Deputy McAuliffe’s request for further information from the Minister.

From memory, we had a discussion on a set of amendments related to this which raised the question of where the planning authority requests the extra time, where that time is consented to and the impact on the ability of the planning authority to subsequently seek further information that may become relevant. This might be a useful time for the Minister to clarify that point. What, if any, are the consequences of the requesting and granting of additional time under this section for the ability of the planning authority to seek further information on foot of that? Are the implications of this the same as the sections we discussed with the amendments previously on whichever one of the many days we have been in here dealing with the Bill?

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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We have had discussions with State utilities, by the way. We will re-engage and not just with Uisce Éireann. I know there have been discussions with the Uisce Éireann, the airport authority, Gas Networks Ireland and so on right the way through in preparation. They are very important utilities and State bodies for the State. On this specific matter, I will try to understand it better with them and we will engage with them on it between now and Report Stage. We will come back to the Deputies on what the actual issue is.

To Deputy Ó Broin’s point, he is basically asking if there is a consent to extend the decision-making period, does that restrict the planning authority in seeking additional information or assessing-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Seeking further information but also – I do not think the Minister was here when we had the discussion on another section – I understand elsewhere in the Bill the planning authority could still seek further information but that request for further information would not materially impact the new deadline for the decision. Therefore, it effectively made certain kinds of FI requests redundant because the decision would still have to be made within the relevant period of time as agreed with the applicant. Apologies. It is 6 p.m. on week six, so we are sometimes a bit hazed on this stuff. I presume the same rule applies in this section as was discussed previously.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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There are two things. On page 219, section 98(4) is about where they have not made a decision and it reads “Where the planning authority fails to make a decision under section 95 in relation to an application ... within the relevant period (or such longer period as the applicant may consent to in accordance ... it shall notify the applicant thereof as soon as may be”. Section 98(4)(b) follows on from that with “identifying the additional period required by the planning authority to make a decision in relation to the application (which shall not exceed 4 weeks from the expiration of the relevant period)” It could be more than four weeks on the basis of when that is assessed but it states it shall not exceed four weeks.

Let me get this because there is another provision-----

Steven Matthews (Wicklow, Green Party)
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The discussion, as I remember it, was that a local authority can engage with an applicant and say, "We need an extra four weeks."

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Yes.

Steven Matthews (Wicklow, Green Party)
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It may not need further information to do that; it just needs more time. Otherwise it can make a further information request, but that puts it back to the applicant to return with the information, whereas this is just slightly tighter.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Chair, amendment No. 666, which obviously-----

Steven Matthews (Wicklow, Green Party)
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It is relevant here.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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-----is not in the Bill as published, states:

In page 220, line 3, after “weeks” to insert “, or such longer period as the applicant may consent to in accordance with subsection (2),”.

I do not think we have got to that amendment yet, but that is why that is not there. That will-----

Steven Matthews (Wicklow, Green Party)
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We have already discussed amendment No. 666.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Yes, we have, but it is not-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I just want clarity on the following point, and I think we are almost there. I am the planning authority, I am assessing a planning application and I come to a point where I will not be able to make a decision within the time period. I can use section 98. I go to the applicant and ask if I can have an extension. If they agree, the decision has to be made within a set period. One of the consequences of that is that, during that period, if some other issue arises in the assessment where, as the planning authority, I want to seek further information, I can ask for the further information but the decision still has to be made within the agreed period. I am just looking for the Minister to confirm that applies in this instance.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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It does, but that decision would be to seek additional information. Say you have agreed the extension in time for the decision to be made and the assessment is made. The planning authority is not precluded at that stage from seeking further information.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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This is only for clarity; I am not arguing the point. Am I correct in saying that if the procedure of section 98 is utilised, the decision has to be made? I can ask for all the further information, FI, I want but the decision will have to be made within the agreed time period-----

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Yes.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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-----whether that information has come back or not, and that decision is to grant or to refuse.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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The decision would be within the extended period. A planning authority may feel that it needs additional information, so it has not made a determination on the final decision as to a grant or a refusal, but there is nothing to preclude it in that extended period from saying, "Applicant Ó Broin, we require X further information." Then that comes back into the process.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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But that is only if that additional information is available or can be collated within the additional time. We know that one of the reasons there is a six-month time period for further information requests is that sometimes they are surveys of a seasonal nature or things where the information is not necessarily available. All I want to be very clear about - I think the Minister is saying this is the case - is that if the local authority seeks the agreement for extension of, let us say, eight weeks, four weeks or whatever and the applicant approves, and during that period an issue arises for the planning authority where it says, "Actually, we need some additional information", it can request that information. If, however, that information is not available - for all sorts of reasons which we know about - within the eight weeks, the decision will still have to be made to refuse or grant, even though that information will not be provided. That is the issue here.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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It would be. That is correct.

Paul McAuliffe (Dublin North West, Fianna Fail)
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It would be interesting to know why, given the focus of the Bill, we felt the need to so radically reform this section, this process. As I said, it is not an area of the planning system that would appear to add to the overall delays. In fact, the new process may actually lead to further delays. Does the Minister accept that?

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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It is actually not a radical change. It pretty much reflects what is in the existing Act, so I do not see it as a radical change, no.

Paul McAuliffe (Dublin North West, Fianna Fail)
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There definitely needs to be more engagement with some of the utility companies on it because-----

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Oh, on the utility front. Sorry. On the utilities side of things, and getting back to Deputy McAuliffe's amendments, I have already said that, specifically to try to understand what their concern or issue is relating to this section, we will engage with them again. To be clear with people, we have engaged with all stakeholders across the board, including public utilities. We will do that post Committee Stage.

Paul McAuliffe (Dublin North West, Fianna Fail)
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I know from the engagement - I am looking at my notes here - that their concern is that it essentially adds more time at this stage, and I think-----

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I get the point being made. I need to engage with them to work that through with them and we will come back on Report Stage-----

Paul McAuliffe (Dublin North West, Fianna Fail)
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On that basis, Chair, I am happy to withdraw the amendments. I will refer to that when we come to them.

Steven Matthews (Wicklow, Green Party)
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Deputy Ó Broin, you have a very minor point to make.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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It is not even a point. When we discussed this matter previously, there was some confusion as to whether this facility was already available. I cannot remember which Minister or Minister of State was with us, but I am pretty sure he said he would seek clarification and bring it back to the committee.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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For absolute clarity's sake-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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It was Kieran O'Donnell who was here.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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-----subsection 98(2) is a provision that already exists.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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My memory is coming back to me now. Correct me if I am wrong-----

Steven Matthews (Wicklow, Green Party)
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You are right.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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-----but Kieran O'Donnell was not able to answer clearly the question. Is it possible today, under the existing Act, for a planning authority to request an extension of time-----

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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It is

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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-----in exactly the same way as here, other than the penalty, or is the penalty in the existing provision? The Minister calls it a refund; I call it a penalty. Let us split the difference.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Let me get absolute clarity for the Deputy on this once I-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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That is what Kieran said when we were asking him the last time.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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That is what I am trying to clarify.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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A hundred per cent.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Subsection 98(4) is effectively a new provision, but the remainder of that section is an existing provision. The other provisions that are there-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Just so we have absolute clarity, subsection 98(4) is the procedure whereby the planning authority can ask the applicant for some extra time and the applicant can agree or not. That is new. That does not exist currently.

Steven Matthews (Wicklow, Green Party)
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It is the direction of travel. The applicant can seek an extension but the local authority-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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For the Minister's benefit, the conversation we had previously was that there was an earlier formulation and it indicated that the applicant could provide an extension but there was lack of clarity as to whether the planning authority could request it. Kieran O'Donnell gave an undertaking to come back to the committee with a note clarifying exactly what is currently there and exactly what is new, but it does seem the Minister is clarifying it, which is-----

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I did not know that point was made before. It might be helpful for the purpose of letting the officials speak, because they have some information which they cannot speak to in public session, if members wanted to go into private session for two minutes so we can get this clarified.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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This is quite important to clarify.

Steven Matthews (Wicklow, Green Party)
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Okay.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Yes. I think that would be useful, if that is okay with you, Chair, and the members.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Absolutely.

Steven Matthews (Wicklow, Green Party)
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We will go into private session.

The select committee went into private session at 5.58 p.m. and resumed in public session at 6.21 p.m.

Steven Matthews (Wicklow, Green Party)
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We had been discussing amendment No. 670, which is a very technical amendment.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Amendment No. 670 is just to remove a comma.

Steven Matthews (Wicklow, Green Party)
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I think we can live with that.

Paul McAuliffe (Dublin North West, Fianna Fail)
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I will withdraw this amendment on the basis of the discussion and with the view to revisiting the issue on Report Stage.

Amendment, by leave, withdrawn.

Paul McAuliffe (Dublin North West, Fianna Fail)
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I move amendment No. 665:

In page 219, line 37, to delete “Where” and substitute “In exceptional circumstances, where”.

Amendment, by leave, withdrawn.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I move amendment No. 666:

In page 220, line 3, after “weeks” to insert “, or such longer period as the applicant may consent to in accordance with subsection (2),".

Amendment agreed to.

Paul McAuliffe (Dublin North West, Fianna Fail)
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I move amendment No. 667:

In page 220, between lines 6 and 7, to insert the following: “(5) The Minister may by regulations provide for such situations where exceptional circumstances arise, either generally or with reference to any particular category of development scheme appeals, where it appears to him or her to be necessary, by virtue of exceptional circumstances, to do so and, for so long as the regulations are in force.”.

Amendment, by leave, withdrawn.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I move amendment No. 668:

In page 220, to delete lines 19 to 27.

Amendment put and declared lost.

Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I move amendment No. 669:

In page 220, to delete lines 28 to 39.

Amendment put:

The Committee divided: Tá, 3; Níl, 5.

Tá

Denise Mitchell, Cian O'Callaghan, Eoin Ó Broin.

Níl

Francis Noel Duffy, Emer Higgins, Steven Matthews, Paul McAuliffe, Darragh O'Brien.

Amendment declared lost.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I move amendment No. 670:

In page 220, line 36, to delete “subsection,” and substitute “subsection”.

Amendment agreed to.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 671:

In page 220, to delete lines 40 and 41, and in page 221, to delete lines 1 to 12.

Amendment put:

The Committee divided: Tá, 3; Níl, 5.

Tá

Denise Mitchell, Cian O'Callaghan, Eoin Ó Broin.

Níl

Francis Noel Duffy, Emer Higgins, Steven Matthews, Paul McAuliffe, Darragh O'Brien.

Amendment declared lost.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 672:

In page 221, to delete lines 21 and 22.

Amendment put:

The Committee divided: Tá, 3; Níl, 5.

Tá

Denise Mitchell, Cian O'Callaghan, Eoin Ó Broin.

Níl

Francis Noel Duffy, Emer Higgins, Steven Matthews, Paul McAuliffe, Darragh O'Brien.

Amendment declared lost.

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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I move amendment No. 673:

In page 221, line 25, to delete “section,” and substitute “section”.

Amendment agreed to.

Question put: "That section 98, as amended, stand part of the Bill."

The Committee divided: Tá, 5; Níl, 3.

Tá

Francis Noel Duffy, Emer Higgins, Steven Matthews, Paul McAuliffe, Darragh O'Brien.

Níl

Denise Mitchell, Cian O'Callaghan, Eoin Ó Broin.

Question declared carried.

Steven Matthews (Wicklow, Green Party)
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I propose to adjourn sine die. I thank the Minister, Deputy Darragh O'Brien, for his attendance at the committee. I thank all members and wish them all a good Easter break.

Progress reported; Committee to sit again.

The select committee adjourned at 6.59 p.m. sine die.

Oireachtas Joint and Select Committees

Wednesday, 27 March 2024

What are Committees?

Select Committee on Housing, Planning and Local Government

Planning and Development Bill: Committee Stage (Resumed)

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