Joe Neville (Kildare North, Fine Gael)
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Today we are meeting officials from the Department of Public Expenditure, Infrastructure, Public Service Reform and Digitalisation and the Office of Public Works for a briefing on the arterial drainage amendment Bill 2026. The objective is to decide if the committee would like to engage in a formal pre-legislative scrutiny process on this proposed Bill.

I welcome, from the Department, Mr. Fionn Jenkinson, principal officer, Department of Agriculture, Food and the Marine Vote, and Mr. Andrew Gray, assistant principal officer, OPW Vote. From the Office of Public Works, I welcome Ms Lorna Dempsey, principal officer with responsibility for flood and coastal erosion policy, and Mr. Stephen Manning, assistant principal officer with responsibility for flood and coastal protection policy.

Witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable, or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in relation to the identifiable person or entity, they will be directed by me to discontinue their remarks. It is imperative that any such direction is complied with.

I remind members that they will be afforded a six-minute speaking slot for questions and answers, with a second chance to contribute at the end if they wish. Regarding the questions members might have, we have officials here from the Department. They will not be able to give opinions. What they are doing is setting out what the proposals are. Their own views on this are irrelevant. They cannot give an opinion. That is not part of the process.

I now invite Mr. Jenkinson to make his opening statement.

Mr. Fionn Jenkinson:

I thank the committee for the invitation to my colleagues and me to brief it on the proposed arterial drainage amendment Bill 2026. To give context, it is important to say that the progression of this legislation relates directly to the mission of the Department of Public Expenditure, Infrastructure, Public Service Reform and Digitalisation to deliver improved infrastructure across Ireland by enhancing governance. The legislation also aligns with the ongoing programme of work being led by the Department to accelerate the delivery of infrastructure over the coming years.

I will give a brief overview of the history of the delivery under the Arterial Drainage Act before setting how the legislation has evolved over time. I will then outline the intended purpose of the general scheme and the extent to which it will impact the wider legislative framework underpinning the delivery of arterial drainage schemes.

The Arterial Drainage Act was passed in 1945. Under the Act, the OPW was tasked with carrying out a programme of large-scale arterial drainage schemes on a catchment basis. Between 1948 and 1992, the OPW implemented 34 catchment arterial drainage schemes and five estuarine embankment schemes. Arterial drainage schemes progressed under the 1945 Act provide drainage outfall for 242,800 ha of agricultural lands. Importantly, there has been significant development in these areas since the schemes were completed and the land drainage schemes also provide a level of protection from flooding to property, infrastructure and communities including in excess of 21,000 properties, 2,400 km of roads and 77 towns and villages. There are no plans to undertake further large-scale arterial drainage schemes. Since 2005, eight flood relief schemes have been completed under the arterial drainage Acts with construction under way on the Glashaboy and Crossmolina schemes. Currently, there are two schemes submitted for ministerial consent under the Arterial Drainage Act - the River Bride-Blackpool flood relief scheme and Raphoe flood relief scheme.

It should be noted that the majority of flood relief schemes that have been initiated in recent years have been progressed under the planning and development Acts rather than the Arterial Drainage Act. The decision on which planning framework to utilise for a given scheme is a matter for the OPW and the relevant local authority to consider following the completion of the preliminary design phase. In instances where there are a large number of private landowners in a proposed area of works, the powers of access provided by the Arterial Drainage Act can enable more efficient delivery of schemes. To preserve the beneficial objectives served by the schemes that have been completed under the 1945 Act, the OPW has a statutory duty under section 37 to maintain the schemes in proper repair and effective condition. Failure to do so would result in an increased flood risk to benefiting areas and communities.

The Arterial Drainage Bill was enacted in 1945 and was aimed at improving land for agricultural purposes and mitigating flooding. The legislation was amended in 1995 to extend the powers of the Commissioners of Public Works to undertake drainage works on a more localised level rather than the previous focus on large-scale, catchment-wide schemes. This has enabled the OPW to use the powers provided by the Act to provide targeted protection of property particularly in urban environments. The legislation was most recently updated in 2019 via the European Union (Environmental Impact Assessment) (Arterial Drainage) Regulations. These regulations transpose the EIA directive for the purpose of confirming arterial drainage schemes whereby the Minister of Public Expenditure, Infrastructure, Public Service Reform and Digitalisation acts as the competent authority. The new obligations introduced in 2019 and developments in associated case law since then have resulted in increased complexity in discharging this process. It is important to state that there is a clear rationale and benefit behind the environmental assessments and protections that have been put in place at EU level and at national level. It is to ensure that we protect our unique flora and fauna and avoid scenarios where actions would significantly harm species or even contribute to their demise. The provisions of EIA legislation underpin the rights of citizens to participate in decisions that impact their environment and to access justice in accordance with the Aarhus Convention. At the same time, there is a strong desire to ensure that this policy goal is delivered as efficiently as possible so that it does not unduly hinder or delay the delivery of necessary public infrastructure which this Government has clearly set out to do through the national development plan.

The primary intention of the arterial drainage Act (amendment) Bill is to move the consenting power from Minister for public expenditure and reform to An Coimisiún Pleanála. At present, there is a lack of technical expertise in relation to the environmental assessments required under the legislation within the Department of public expenditure. Given the limited number of schemes that progress under the arterial drainage Act, it would not be cost efficient to retain such expertise in-house. This results in tendering external expertise to carry out the required examination of environmental impacts of the schemes. This adds time, costs, additional administration and a risk to the schemes being progressed. An Coimisiún Pleanála possesses significant capability as regards the carrying out of relevant environmental assessments for infrastructure projects in other sectors of the economy as well as flood relief schemes progressed under the planning Act. This will provide confidence to all stakeholders that future arterial drainage schemes will be subject to a thorough assessment that complies with relevant national and EU legislation. This is intended to improve the process by which flood relief schemes are progressed through the arterial drainage Act resulting in more robust decisions and therefore quicker delivery of this much-needed infrastructure. The key policy objectives therefore are to transfer the competent authority function from the Minister for public expenditure to An Coimisiún Pleanála with a view to accelerating the timelines of the confirmation process; to ensure that the continued maintenance of flood relief schemes is compliant with EU environmental regulations and better align the confirmation process of schemes submitted under the Act with the Planning and Development Act 2024; to provide clarity regarding the timelines for confirmation processes through the introduction of statutory deadlines for decision-making; to ensure that material amendments to confirmed drainage schemes are subject to independent environmental scrutiny by An Coimisiún Pleanála, maintaining the integrity of the original consent and compliance with EU law; and to ensure the Act provides effective mechanisms required for the provision of flood protection measures in response to future adaptation requirements that may arise from the effects of climate change.

A summary of the main heads of the general scheme was provided to the committee in advance of the meeting. The main elements of the general scheme are as follows: head 3 seeks to reassign all relevant consenting authority functions for confirming schemes from the Minister to An Coimisiún Pleanála. Head 4 introduces a structured pre-application engagement process and an optional formal scoping process with An Coimisiún Pleanála. Head 5 provides a new statutory framework for decision timelines that aligns with similar timelines in the Planning and Development Act. Head 7 introduces subsection 7K, creating a proportionate mechanism for post-completion amendments to confirmed schemes. Head 8 amends section 38 to confirm that the commissioners’ powers include the operation and maintenance of contemporary flood relief systems, including automated, digital and demountable technologies with safeguards for land access, reasonable notice and emergency flexibility. Head 9 introduces section 43A, giving the commissioners a statutory power to delegate delivery, construction and implementation and maintenance functions for confirmed schemes to local authorities. Heads 10 to 13, inclusive, provide for transitional arrangements, consequential amendments and judicial review alignment ensuring legal certainty and continuity. In developing this Bill, we consulted directly with a range of relevant Departments and agencies namely the Office of Public Works, the Department of Housing, Local Government and Heritage and An Coimisiún Pleanála. My colleagues and I would be happy to take members through that in greater detail and respond to any questions they might have.

Joe Neville (Kildare North, Fine Gael)
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I thank Mr. Jenkinson. I call Senator Cathal Byrne.

Cathal Byrne (Fine Gael)
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I thank the witnesses for coming in. My home town is Enniscorthy. It has experienced devastating floods. The town flooded in 1924, 1945, 1965, 2000, 2002, 2009, 2014, 2015, 2016, 2021 and most recently in February. It has flooded 16 times since 2000. In 2000, there was an agreement that a flood scheme would be delivered for Enniscorthy. It went through various guises right up until an application was sent in to the Department under the Arterial Drainage Acts in March 2020. At the time, there was a lot of hope and expectation in the town, having received approximately €55 million towards the scheme, given there were no local objectors, there had been quite a lot of consultation on the ground, the local community and cross-party political support for the scheme but ultimately it was refused. There was a back and forth with further information requests and it dragged on for two years until the then Minister made the decision under the principal Act to refuse the scheme. One reason given at the time was the negative impact this flood scheme would have on the freshwater pearl mussel that live under the old bridge in the town. There is huge anger in the community I represent about how a cross-party supported and fully-funded scheme could encounter legal and legislative difficulties in securing planning permission.

I am familiar with this Arterial Drainage Act far more than I would ever like to be. How is this new law going to change the situation we are currently in, where schemes cannot get through the planning process? I might be wrong on this, but the Enniscorthy scheme is the only scheme in the history of the Arterial Drainage Act to be refused ministerial consent. For the people I represent, how will this new law get the flood relief scheme in Enniscorthy and other places across the country built? That is my first question.

Mr. Fionn Jenkinson:

As regards the Bill and what is being proposed, the consenting function is transferring from the Minister for public expenditure to An Coimisiún Pleanála. It obviously has the kind of expertise in-house to assess these schemes, but the requirements to comply with the existing EU directives will remain. However, there is one element, for example, that will help.

Head 4, which is the pre-application consultation with An Coimisiún Pleanála, is a new element of the Act being brought in. This will allow the developer to make a request for a pre-application consultation with the commission. Part of the intention there is to try to address issues before they come up. You will not go through the entire process and when you get to the end of it, we say, "It is a no because of this reason here." This pre-application process, which mirrors what has been put into the Planning and Development Act, is trying to pre-empt that so that the developer and the OPW will engage early with An Coimisiún Pleanála, which has the in-house expertise to guide them on what is required. That is one specific way for how it might try to stop that issue from happening. It is obviously very frustrating for the communities that go through a long process and then at the end find out they have not done something. We are trying to be very clear at the pre-application stage on what is required with those who are developing it.

Cathal Byrne (Fine Gael)
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Will there be an opportunity under this new legislation for local residents, businesses and the ordinary people whose houses are getting flooded to go to An Coimisiún Pleanála and tell their stories, to explain to the decision makers the real-world impact repeated flooding is having on their house, their property and their village, as well as the overall economic impact it is having for businesses in the town where people are nervous about investing in certain streets? We have got the balance wrong in this country between protecting protected species and protecting the common good and ordinary people, their businesses and livelihoods. Will there be an opportunity in that process for hearings to be held, where people can come forward and tell their story about how the delays in this scheme being developed have had an impact on them?

Mr. Fionn Jenkinson:

Regarding citizens' rights, a key pillar in the Aarhus Convention is consultation with those who are being impacted in the delivery of infrastructure. That will remain the case here, so those rights will not be impacted. The Bill's primary aim is to transfer responsibility from one public body to another. The legislation currently provides for public participation on these decisions affecting the environment, as well as access to justice regarding such decisions. There is the opportunity for submissions to be made as part of the consultations in this process. That is there at present and will also be there with An Coimisiún Pleanála.

Joe Neville (Kildare North, Fine Gael)
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That is great. I thank Mr. Jenkinson for that.

Réada Cronin (Kildare North, Sinn Fein)
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I thank the witnesses for all the reading they gave us, most of which I have read. Document three is on the summary of the main heads. The Bill's core reform is the transfer from the Department of public expenditure to An Coimisiún Pleanála. The witnesses mentioned environmental law. We have communities waiting years and decades - 100 years in the case of the Senator just before me - for flood relief schemes, while the flooding is getting worse and worse every winter. What guarantees are there that this Bill will not weaken environmental protections or reduce the community's right to be heard?

An Coimisiún Pleanála has been before different committees. While it says there is always room for more resources, putting these time limits on it means it is really going to need more resources in place.

Mr. Fionn Jenkinson:

With regard to a reassurance that it will not weaken environmental protections, the EU directives will still be there. The habitats directive, the EIA directive and the water framework directive all still need to be complied with. The purpose and intention of the Bill is to try to deliver these schemes more efficiently. An Coimisiún Pleanála has the skills required in-house in terms of ecological expertise, hydromorphology expertise and the capacity to deal with these. It is not the case that there is any kind of weakening of environmental assessment. It is about streamlining it and putting it in a place where we have the expertise and the economies of scale to maintain that expertise in-house.

Regarding the Deputy's question on resourcing, we have obviously consulted with our colleagues in the Department of housing and An Coimisiún Pleanála. They are supportive of the Bill because they are aware this aligns with their remit. They have large demands on them across a range of different areas, but they deliver a lot of outputs in this area. Typically, we would have one of these schemes every two years, which is the rough amount for demand. We have had 11 schemes since 2005. Some additional resources will be needed and that has to be reflected in the annual Estimates process. However, that is something An Coimisiún Pleanála was satisfied it would be able to incorporate into its negotiations during that process.

Réada Cronin (Kildare North, Sinn Fein)
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Head 3 reassigns relevant functions of confirming schemes to An Coimisiún Pleanála, while retaining limited exemption power with the Minister. Could Mr. Jenkinson provide an example of where he believes an exemption power might be exercised by the Minister in the case of a flooding defence scheme?

Mr. Fionn Jenkinson:

That is more of a fallback in the event there was some kind of emergency. It is not that we have something specific in mind. It is just in the event that there was a specific national emergency where that was needed. It is more of a standard inclusion for a Bill like this. We do not have something specific in mind there.

Réada Cronin (Kildare North, Sinn Fein)
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When the Department talks to the experts, is there a good level of expertise around environmental law, particularly EU law that we have to adhere to? You hear the case of the freshwater pearl in Enniscorthy and all these homes being flooded time and again, but in many cases where environmental law is ignored it can cause further problems down the line. Is the Department convinced it has that expertise and listens sometimes to voices it does not want to listen to?

Mr. Fionn Jenkinson:

An Coimisiún Pleanála is satisfied it has those skills to implement this by shifting these schemes into the wider work it does. It has the economies of scale and capacity there. Instead of having this work split in different areas across the system, we are streamlining it and putting it into the one agency that has the remit and skills and can develop those over time. Currently in the Department of public expenditure, we have a relatively small unit and are focused on the OPW Vote as a whole. When these schemes come in, we do not have the skills and we tender for that external expertise. That is just the reality of how we have had to deliver on these requirements. However, with the transferring over to An Coimisiún Pleanála, it has the skills in-house and the capacity and demand there to maintain them.

Réada Cronin (Kildare North, Sinn Fein)
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It has a huge workload though, with planning. In terms of the local authorities and giving the OPW statutory power to delegate tasks to local authorities, my local authority in Kildare is currently under-resourced. We are limited to 40 councillors, even though we should have something like 65, and all of the staff involved-----

Joe Neville (Kildare North, Fine Gael)
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That is fine Deputy.

Réada Cronin (Kildare North, Sinn Fein)
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I have 12 seconds left.

Joe Neville (Kildare North, Fine Gael)
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We will come back to you, Deputy. I just want to give everyone an opportunity.

Réada Cronin (Kildare North, Sinn Fein)
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I will come back in on the next round.

Tony McCormack (Offaly, Fianna Fail)
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I thank the witnesses for coming in today and for the opening statement. Given global warming and more storms and flooding events, we must get ready. I am particularly interested in how this legislation can improve delivery timelines, reduce unnecessary delays and ensure flood relief projects can progress more efficiently for the communities that need them most. If we look at communities such as Senator Byrne's hometown, which he so eloquently described, in terms of the flooding and what has happened, this work needs to happen an awful lot quicker because lives are at risk in extreme cases, as well as livelihoods and the fabric of communities and societies. With that in mind, my questions are for the OPW. The briefing refers to increased complexity in the consenting process in recent years. I ask the witnesses to outline how this Bill will simplify and streamline the processes in practical terms. The question is for the OPW but if Mr. Jenkinson wants to respond, that is fine.

Mr. Fionn Jenkinson:

I will make a quick comment and then pass it over to the OPW. In terms of reducing the timelines on the Department of public expenditure side, at the moment we have to tender for external expertise and there is a back and forth between ourselves and external experts. That will be cut out now because it will be with An Coimisiún Pleanála, which has the expertise in-house so that process is gone straight away. There are also set decision periods set out in the timelines, up to a maximum of 48 weeks, which aligns with the Planning and Development Act. That gives a bit more certainty in terms of what is intended with regard to timelines. That certainty is not there at the moment. The Bill aligns with what has been put into the Act. From a policy perspective, on the Department of public expenditure side, that is going to help to speed things up.

In practical terms, my colleagues in the OPW will be able to elaborate further.

Ms Lorna Dempsey:

I thank the Deputy for his question. From the OPW's perspective, what we anticipate speeding up is the actual consent process. As Mr. Jenkinson set out, it is a 48-week timeline but it is taking a lot longer at the moment. Once we can reduce that period, that obviously reduces the overall delivery time for schemes.

Tony McCormack (Offaly, Fianna Fail)
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Do the witnesses think 48 weeks is appropriate? Should it not be shorter, particularly in an extreme situation where people are being flooded and there is the prospect of another flood event coming along very quickly afterwards? These events are happening on a more regular basis. We have seen places being flooded and three months later, or even a couple of weeks later, they are flooded again, so 48 weeks is still very long.

Mr. Fionn Jenkinson:

That is a fair point and it is something we discussed ourselves internally. We also discussed it with An Coimisiún Pleanála. One point to note is that 48 weeks is the limit or maximum. Some schemes might be very complex and need that time but it is the maximum and we will absolutely be trying to deliver projects as quickly as possible.

Tony McCormack (Offaly, Fianna Fail)
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One of the core objectives of the legislation is to transfer consenting powers to An Coimisiún Pleanála, as Mr. Jenkinson said. What benefits does the Department expect this change to deliver in terms of efficiency and consistency, apart from the actual timelines being reduced?

Mr. Fionn Jenkinson:

At the moment we are tendering out for expertise. We will not have to do that anymore and will not have the costs associated with that. An Coimisiún Pleanála is dealing with a lot of these schemes and has the expertise in-house. It will be able to turn these things around quickly if it is doing them more consistently. An coimisiún is doing schemes under the Planning and Development Act as it currently stands so if it is also doing schemes under the Arterial Drainage Act, it has the expertise and experience and will be able to apply that to these cases. We expect it to be able to turn these around quicker than consultants looking at it-----

Tony McCormack (Offaly, Fianna Fail)
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I am sorry but I am running out of time. On the proposed introduction of statutory timelines, what guarantees can the witnesses give that An Coimisiún Pleanála will adhere to them? We have heard from An Coimisiún Pleanála previously that it was going to stay within certain timelines but I can see it moving outside of those timelines already. What kind of guarantee can the witnesses give that these timelines will be adhered to?

Mr. Fionn Jenkinson:

The requirement as set out in the heads of the Bill is that it publishes statistics on these timelines. An Coimisiún Pleanála is required to set out in its annual report every year the extent to which it has met these requirements. In reality what that means is that An Coimisiún Pleanála is going to have to publish that data. It will be publicly scrutable and I expect the Oireachtas to look at it. I am sure An Coimisiún Pleanála will be held to account. It is putting itself under public pressure and will have to report on it, setting out whether it has met the requirements. I am sure An Coimisiún intends to try to meet these timelines. It does not want to open itself up to criticism by publishing statistics showing that it has not met the timelines. An Coimisiún Pleanála will have to report on it and will be looking to comply on that basis.

Peadar Tóibín (Meath West, Aontú)
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I will begin with Midleton, which had Storm Frank in 2015 and was promised flood defences at that stage. The town experienced a massive storm a couple of years ago and was again promised flood defences. Right now, there is an elderly gentleman down there who watches the level of the river. When it rains really heavily, he stays awake at night to warn the other people in the town if there is a danger to life. We have this crazy situation whereby we have a human water gauge who is protecting life in the context of that flooding situation. No planning application has been submitted to Cork County Council as of yet. How would this Bill resolve that?

Mr. Fionn Jenkinson:

There is an option to decide whether it goes through the Planning and Development Act or the Arterial Drainage Act. If it goes through the latter, essentially there will be a limit of 48 weeks on the-----

Peadar Tóibín (Meath West, Aontú)
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So it would not go through the council for the planning process. It would go through An Coimisiún Pleanála. Is that correct?

Mr. Fionn Jenkinson:

I will let my colleague from the OPW respond to that.

Ms Lorna Dempsey:

I thank the Deputy for the question. I would just say that I am not from the delivery side of the OPW but from the policy side but I know that the Midleton scheme is going through the Planning and Development Act. It could go through this Arterial Drainage Act if it were ready but I think the Midleton scheme is expected to be submitted for planning in quarter 3 of this year

Peadar Tóibín (Meath West, Aontú)
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I am trying to understand whether the authority that grants planning is likely, under this legislation, to change to An Coimisiún Pleanála for applications or whether it will still be the local authorities.

Ms Lorna Dempsey:

It is currently An Coimisiún Pleanála for Planning and Development Act applications and it will also be An Coimisiún Pleanála for the Arterial Drainage Act applications.

Peadar Tóibín (Meath West, Aontú)
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Projects like Midleton will always go to An Coimisiún Pleanála under both scenarios.

Ms Lorna Dempsey:

Yes.

Mr. Fionn Jenkinson:

Yes. Under the old scenario, if it had decided to go through the Arterial Drainage Act, it would have come into the Department of public expenditure.

However, it will now just go to An Coimisiún Pleanála. if the decision is made to go through the Arterial Drainage Act under this proposed Bill.

Peadar Tóibín (Meath West, Aontú)
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My colleague mentioned Enniscorthy and the pearl mussel. We all want the pearl mussel to do well in life for sure, but we would probably rather that it was further up the river than in the particular location in which it was found. The habitats directive and similar directives are making it difficult for the State to build infrastructure. I do not think they have the right balance in the context of human needs and the needs of wildlife. This proposed Bill is not going to do anything in relation to rebalancing that at all. We will still have the same strictures in terms of European directives. Looking at the process as it stands, is it the case that much of the problem is with these directives? Does the fact that they are so stringent mean that it is difficult to get around them in terms of building infrastructure?

Mr. Fionn Jenkinson:

The Deputy is right that the EU legislation is there. It will remain there. It does create constraints, but there are probably conversations that need to be had and that might be had in terms of those directives in different contexts. What we are trying to do here is control the controllable. There are things we can do better here in this process by trying to align what we do in terms of this planning and basically shift it into where we have the expertise to do it as efficiently and as fast as possible, but do it robustly. We are not trying to throw the baby out with the bath water and get rid of all kinds of flora and fauna. We just want to do it effectively and efficiently.

Peadar Tóibín (Meath West, Aontú)
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I have spoken to a couple of Ministers about this matter. The default response is "Well, the habitats directive is there from the European Union". We are seeking to produce a Bill to change the law on this, and European law can also be changed. We are going to have the European Presidency. There is a lot of language coming from countries like Germany to the effect that there are too many restrictions on development and that this is making Europe very uncompetitive internationally in the context of energy development, for example. Is it the view of the OPW or the Department that we need to start to reform some European law on these issues.

Joe Neville (Kildare North, Fine Gael)
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Are we straying into opinion? The witnesses can speak to their experience, but I do not want to go into that area. The witnesses are experienced enough to know how to answer the question, but just know that if we are going into giving their views, I do not want to have that.

Mr. Fionn Jenkinson:

Yes. What I can say-----

Peadar Tóibín (Meath West, Aontú)
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Is there a plan on the part of the Department to try to tackle European law in this area?

Mr. Fionn Jenkinson:

We have the accelerating infrastructure agenda that looks at international best practice in a general sense around what is done in other countries, and how we can do this effectively. There probably is a general agenda around trying to simplify regulation. The Minister has talked about not wanting regulation to be gold-plated, so there is a desire to ensure that this is not the case in looking at what is there. That is part of the accelerating infrastructure task force's work, and there is an agenda around that. The Department is looking at that to a degree, but it is not going to be directly dealt with through this proposed Bill. What we are trying to do with the proposed Bill is to do what we have to do as efficiently and as fast as possible, and to have people who are best placed do it.

John Clendennen (Offaly, Fine Gael)
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I thank the witnesses for joining us. I acknowledge and appreciate their opening statements. In essence, the whole objective here is around timelines, deadlines, various processes, including the planning process, and legal robustness. Have the witnesses done any analysis of financial cost efficiencies?

Mr. Fionn Jenkinson:

We have, in a basic sense. There is a cost to the Department of public expenditure of carrying out this process and tendering for external expertise. Between 2021 and 2024, there has been a €31,000 cost for tendering to consultants. That cost will no longer be there when we transfer to An Coimisiún Pleanála, which has in-house expertise. There will be a cost-benefit analysis done regarding individual schemes. If we are able to deliver schemes quicker, will be able to realise the benefits faster. What specific kind of-----

John Clendennen (Offaly, Fine Gael)
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On the approach in terms of the proposed amendments, is there really nothing being done around financial analysis?

Mr. Fionn Jenkinson:

This is more of a procedural kind of amendment in terms of the proposed Bill-----

John Clendennen (Offaly, Fine Gael)
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With a change of procedure, would there not be a measurement around the actual metric of finances and efficiencies?

Mr. Fionn Jenkinson:

It has to be evaluated at some point. We will have to see what the ultimate impact will be. We do know. We have set out what we expect in terms of the cost savings in the Department of public expenditure's Vote. We know what those costs are. We are hoping to deliver these schemes quicker. A small number of schemes have been delivered to date. They are all quite different and have all involved different timelines and unique profiles, so it would be hard to discern from them what the projected savings might be in the future.

John Clendennen (Offaly, Fine Gael)
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From my perspective, this touches on the environmental impact and on the statutory timelines. Regardless of what the amendment is or what the Act is, we probably need to talk more about the actual financial efficiencies involved and how the system is going to perform better. Rather than just looking at the income, what will be the outcome?

Mr. Fionn Jenkinson:

We are very much focused on trying to speed up delivery. That is the intended purpose-----

John Clendennen (Offaly, Fine Gael)
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But not at any financial cost.

Mr. Fionn Jenkinson:

We would expect there to be cost saving by speeding up the-----

John Clendennen (Offaly, Fine Gael)
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What analysis has the Department done to expect that there would be a cost saving?

Mr. Fionn Jenkinson:

It is kind of obvious in a sense in that if we can deliver a project faster, we are going to spend less time and less resources trying to progress it. That is kind of self-evident.

Mr. Andrew Gray:

At the moment, we do not have sight of what schemes in the OPW tranche will be under the arterial drainage Act or the planning Acts over the next five years. It is very difficult for us to do a discrete piece of analysis to say that one scheme is going to cost €50 million and that it will be with us in within a certain time, so we can save maybe a year in terms of the planning process. As Mr. Jenkinson said, if we feel we can reduce the overall consent procedure from two years to one year, then, just through the impact of construction inflation alone, we think there are substantial savings to be achieved through a quicker process, which might be achieved through the proposed Bill.

John Clendennen (Offaly, Fine Gael)
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But there are no actual fundamental calculations or analysis, as such.

Mr. Andrew Gray:

Not at this time, no.

John Clendennen (Offaly, Fine Gael)
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From the perspective of the catchment flood risk assessment and management, programme, CFRAM, which is used to identify areas where there are flood risks, etc., many of the scenarios identify the environmental impact, what the cost will be and the economic viability of doing what is necessary. Sometimes, when we look at what is economically viable, it is found that the environmental impact is going to be too high. If those are two of the fundamental areas involved from a CFRAM perspective, surely it should relate, to some extent, to this area as well.

Mr. Andrew Gray:

Is that in terms of the costs of the environmental impact?

John Clendennen (Offaly, Fine Gael)
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Yes. For example, in order to get around or to mitigate the impact from an environmental perspective, there may be an issue of economic viability when it comes to delivering a project.

Mr. Andrew Gray:

That will be dealt with through the cost-benefit analysis at the design stage by the OPW.

Ms Lorna Dempsey:

For each scheme, the OPW carries out a cost-benefit analysis. The scheme has to pass that cost-benefit analysis, so I am not sure-----

John Clendennen (Offaly, Fine Gael)
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It is the efficiency. This goes back to the cost benefit. The cost benefit is fantastic. I understand the impact of it, but are we seeing efficiencies as a result?

Ms Lorna Dempsey:

If we can deliver the schemes more quickly the benefits would also be realised more quickly. There has not been a specific analysis carried out on construction inflation, but we would expect-----

John Clendennen (Offaly, Fine Gael)
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So, time is the fundamental issue.

Ms Lorna Dempsey:

Yes, time savings.

Joe Neville (Kildare North, Fine Gael)
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We are back to me at this stage. Can the witnesses explain what is the fundamental reason for this proposed legislation?

Mr. Fionn Jenkinson:

Yes.

Joe Neville (Kildare North, Fine Gael)
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I know the witnesses have outlined it, and I have read the submission. They should not get me wrong in that regard, but, at the same time, I would like them to explain it to everyone.

Mr. Fionn Jenkinson:

Since the introduction of the EIA directive in 2019 and case law since then, it has become more complex to deliver schemes under the Arterial Drainage Act. Essentially, we do not have the skills in-house. It would not be cost-effective for us to have the skills in-house in the Department of public expenditure, but the skills are present in An Coimisiún Pleanála, which delivers similar schemes.

Joe Neville (Kildare North, Fine Gael)
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Why has the Department persisted in doing it for so long? Basically, in simple terms, Mr. Jenkinson is saying that the Department does not have the skill set, but how was it getting by? What was happening?

Mr. Fionn Jenkinson:

It has been evolving since 2019. There have been a number of different schemes, various issues with the schemes and the case law associated with the schemes. Essentially, we have had to tender for external experts who have been advising us and the Minister. Over time, it has become obvious that it is not the most effective way of doing this when we have the expertise in another agency that is dealing regularly with these types of schemes. It has become an obvious solution. That is why we have engaged with our colleagues there. They support the proposed Bill. They think it makes sense to bring it under the coimisiún's remit.

Joe Neville (Kildare North, Fine Gael)
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What Mr. Jenkinson says sounds very logical. I am not against anyone, but the Department does not have a specific skill set in that regard. There is no reason why it should have people with that skill set, but, at the same time, this responsibility has been with the Department since 1945. People sometimes do things because that is the way they have always been done. If anything, we need to move away from that. I am fine with that. Was it a case of going to the planning authority of the State and asking it to look at this and saying "This is kind of what we do"? In simple terms, is it the case that the responsibility is now going to that authority? All this would seem very logical and sensible. I cannot find any holes in the argument. What would be the main pushback? Has there been pushback? We are doing that here today, but what are the questions that have been asked? I am not looking for Mr. Jenkinson to pick holes in the general scheme, but what would he say was the rationale of having it in the Department as opposed to having it with the planning authority for that period? What could have been the perceived benefits of having it in the Department?

Mr. Fionn Jenkinson:

The reason is because we were the parent Department of the OPW. The legislation at European level has developed and evolved and become a lot more complex, and the requirements have built up over the years. They were not there previously, so it was possible to discharge the function on a simpler basis in the past. Over the past 20 years, particularly the past five, six or seven years, it has become much more complex.

We have engaged with An Coimisiún Pleanála and the Department of housing. They are supportive of the general scheme, and they have been helpful in terms of including additional elements, like the pre-consultation piece, as I set out for Senator Byrne. Originally, we did not have that in it. They suggested that would be useful, as it is something that is in the Planning and Development Act. It could help address some of the issues that in the past seem to have only been caught at the end of the process. There is that specific head.

Joe Neville (Kildare North, Fine Gael)
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That is one thing that struck me. There is more of a pre-planning phase in county councils. We have pre-planning meetings to identify any dangers, a bit like what Mr. Jenkinson outlined to Senator Byrne regarding the pearl mussel. That issue was only flagged at the end, whereas it might have been flagged before the process was entered into. That is just one example. I do not want to keep going back to it, but is that the type of issue envisaged? The Department is switching the responsibility, but is it also changing the flow of how things are done as well?

Mr. Fionn Jenkinson:

Yes. We are putting in some additional elements. There are also pieces around maintenance and future amendments, if needed. There are some other elements in there which will help with the overall delivery of arterial drainage schemes and their maintenance.

Joe Neville (Kildare North, Fine Gael)
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We know that a lot of work has to be done. A great deal of funding has been put aside from the State's point of view. We are planning for spending in the order of billions. It is really important that we get value for money for anything the State does. Would the witnesses consider this to be the best way of ensuring that we get value for money and that things can be done quicker? Speed would ensure there is a benefit. Mr. Jenkinson referenced that in response to one of Deputy Clendennen's questions. Again, it makes sense to me. It is obvious that if we can get things done quicker, it is more cost effective.

Mr. Fionn Jenkinson:

Yes, absolutely. We think it is going to be a more efficient system. We have people who have the expertise in delivering it. We are not tendering things out. We do not have the admin. We do not have the kind of risks associated with outsourcing and, potentially, communication issues. We are streamlining the whole system and getting the people who have the expertise to deliver it as quickly as possible.

Joe Neville (Kildare North, Fine Gael)
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That makes sense. In the three seconds remaining, can Mr. Jenkinson think of any unintended consequences that might come up, not that he would tell me now?

Mr. Fionn Jenkinson:

Not that I am aware of.

Joe Neville (Kildare North, Fine Gael)
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That is always the danger with something like this. You realise there was a reason why it was done the way it was in the first place. I am sure it has been game-planned and modelled. That is all my time. We will limit the next round to two minutes if members can do that.

Cathal Byrne (Fine Gael)
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I have a couple of quick questions. Obviously, if we go ahead, change the law and move flood relief applications to An Coimisiún Pleanála, there will be an increase in the number of applications it has to deal with. Has the Department considered if the coimisiún will need additional resources to deal with the extra volume of applications?

What will happen if the new statutory timelines are breached? I have seen previously with statutory timelines for planning permission that when a local authority is up against a deadline, it simply sends out a request for further information in order to buy more time. Has that been considered in the context of the general scheme?

Mr. Fionn Jenkinson:

In terms of the resources, An Coimisiún Pleanála will naturally need additional resources to carry this out. It already has a certain set of resources and skills in-house. This was flagged when we engaged with it last year. We had flagged it internally with colleagues in the Department of public expenditure and it was discussed as part of the Estimates process. It has been incorporated into its Estimate for this year. An Coimisiún Pleanála did get a relatively large increase in its allocation for 2026. It will just have to be reflected in future Estimates negotiations. As I said earlier, typically, we have had approximately one of these schemes every two years, so An Coimisiún Pleanála is fairly confident that it will be able to manage the workflow over the coming years.

In terms of timelines, it has to publicly report statistics around compliance with the timelines every year in its annual report. That will be subject to public scrutiny and it will be a matter for An Coimisiún Pleanála to answer as to whether or not it is living up to those commitments. I am sure it is very conscious of that and will be looking to comply with the timelines as best it can.

Cathal Byrne (Fine Gael)
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I thank Mr. Jenkinson very much. This is more of a question relating to the Department. It relates to flood schemes in general and looking at the balance between environmental protections and protection for people and their properties and businesses.

Is the Department doing any work to develop legislation to try to put the public good back at the heart of these flood applications? Is there any work going on in the Department or the OPW regarding legislation around this?

Mr. Fionn Jenkinson:

It is something I will need to come back to the Senator on. Colleagues are doing work on accelerating the provision of infrastructure. The Minister has spoken about the public good and the need to rebalance things on that basis. In terms of specific legislation, I am not sure. I would have to check with colleagues and come back to the Senator on that. The Critical Infrastructure Bill concerns prioritisation and co-ordination between different regulators and things like that.

Joe Neville (Kildare North, Fine Gael)
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Is it specific to the Bill or is something we can do outside the scope of what we are-----

Mr. Fionn Jenkinson:

It is not specific to the Bill.

Joe Neville (Kildare North, Fine Gael)
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Perhaps that is how we should treat it. If witnesses have information that is not specific to the Bill, they can provide it to the committee at a later stage. As I said, it is not specific to the work.

Cathal Byrne (Fine Gael)
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I am happy. I thank the witnesses.

Joe Neville (Kildare North, Fine Gael)
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I am happy with all of that. Is everybody happy with it?

Réada Cronin (Kildare North, Sinn Fein)
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It is unusual for a Department to transfer consenting powers to another group. The answer makes sense.

Joe Neville (Kildare North, Fine Gael)
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Yes.

Réada Cronin (Kildare North, Sinn Fein)
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It is unusual.

Joe Neville (Kildare North, Fine Gael)
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If that is where the knowledge is, that is what we should look to do to ensure responsibility lies where the knowledge is rather than outsourcing it.

Mr. Fionn Jenkinson:

It is a historical issue. It dates all the way back to 1945.

Réada Cronin (Kildare North, Sinn Fein)
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It was not the Department of the environment back in 1945.

Cathal Byrne (Fine Gael)
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I have one further question. At the climate committee last week, the chief executive of Wexford County Council discussed the Enniscorthy flood scheme. The committee examined a number of stalled flood projects to try to get to grips with the reasons for why they had stalled. One of the points the chief executive brought up on the day was that if the OPW and Wexford County Council made an application under the Arterial Drainage Act, which is the existing law, it would give them extra powers to enter private properties in order to carry out surveys and so on in advance of submitting an application for ministerial consent for planning permission. Does the new legislation uphold those powers to enter properties to carry out surveys and so on? That is important.

Mr. Fionn Jenkinson:

Essentially, it those powers are retained. My colleague might have a little more detail on that.

Ms Lorna Dempsey:

Under the Arterial Drainage Act, the OPW can issue interference notices and go onto land for design and maintenance purposes. Those functions remain under the Act, but the consent processes has moved. There is power to delegate to local authorities where they are carrying out those works and with their consent.

Joe Neville (Kildare North, Fine Gael)
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We have to move on and waive pre-legislative scrutiny.

Réada Cronin (Kildare North, Sinn Fein)
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I think we should waive pre-legislative scrutiny, but I do not think it is a habit this committee should get into.

Joe Neville (Kildare North, Fine Gael)
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Okay.

Réada Cronin (Kildare North, Sinn Fein)
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Can we talk about it next week?

Joe Neville (Kildare North, Fine Gael)
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Yes. We can wait until next week. There are three of us here, and we can wait.

Réada Cronin (Kildare North, Sinn Fein)
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We can talk about it next week.

Joe Neville (Kildare North, Fine Gael)
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I am happy to go with that.

Cathal Byrne (Fine Gael)
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Was there a request to-----

Joe Neville (Kildare North, Fine Gael)
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We could have done so. It is within our remit to waive pre-legislative scrutiny now. We could leave it until next week. The three of us could have agreed. That is not a problem. If three of us are happy to do so, that is fine. I am happy to go with that. We will make a decision on it next week. My colleagues and will I be happy to take members through that in greater detail and to respond to any questions they might have.