Fergus O'Dowd (Louth, Fine Gael)

Very well. Perhaps the Minister has seen the statement from the President of the High Court describing exactly what he will do, although I have not. It is very important, and I accept that it will be addressed.

A review of the board's decisions on applications has shown that it does a damn good job. Current delays stem from poor project design and management and other technical difficulties, the Dublin Port tunnel and the Luas being examples. Delays in such projects as the Corrib gas field and the completion of the final stage of the M50 related to the National Monuments Act 1930.

Other aspects of delay are not connected with this issue but with the fragmented nature of the planning process, the role of the courts and wider questions. For instance, I might apply for my project's designation as critical infrastructure but then have to go through other, separate procedures. I would have to secure a waste management licence under the Waste Management Act 1996, an integrated pollution prevention and control licence, a compulsory purchase order, a licence under the National Monuments Act 1930 and so on.

The Minister has missed the opportunity to put the ideas in this Bill out to public consultation and discussion, which would have allowed him to benefit from those views. In the Bill, he has no other way of dealing with the other significant delays caused in the planning process. When this Bill has been passed, they will still be there. His response is therefore one-dimensional and inadequate. It is not comprehensive and does not consider the entire system.

One of the key criticisms of the Bill relate to discussions between An Bord Pleanála and applicants. An Bord Pleanála is being fundamentally and radically changed regarding how it considers such issues. I support the Minister's view that local democracy and the opinions of local authority members are not being compromised in this Bill; I agree that they are being enhanced. For the first time, the manager is required to send a report to An Bord Pleanála in which he must mention elected members' decisions by resolution. I am a little concerned at the phrase "by resolution", since if 51% of councillors are in favour and 49% against, they may resolve that they are in favour. We can discuss on Committee Stage whether, if people are opposed to a project, they should be able to have their reasons recorded in the minutes of the council as at present.

Different views will be represented on local authorities and it is important that all of them, disparate, distinct and contradictory, go to An Bord Pleanála. I accept the principle that there has been no diminution and all major infrastructure projects ultimately go to An Bord Pleanála in any case. Having a one-stop shop is a good idea in principle, provided that we examine the problems that I envisage. The pre-planning discussions are fine since they happen already and are recorded in writing so that anyone can find out who was present, what happened, what was said, and our current position. Those discussions are mandatory rather than optional as in the 2000 Bill.

The board is being accorded wide latitude regarding whether the development, if carried out, would fall within the scope of the Act, the procedures involved in making and considering a planning application and considerations relating to proper planning and sustainable development which might have a bearing on its decision on the application. It is clear the wording gives the board very broad latitude in terms of the nature of the advice it may furnish to prospective applicants. The manner in which the board will exercise its options in giving this advice remains to be seen. It is evident developers will welcome the introduction of this provision. However, others will see it as ingraining inherent pro-development bias into the planning application and further undermining the credibility of the board as a neutral and independent body. The board is required to keep a record. The kernel of the issue is how the board will be viewed by members of the public who might be opposed to this.

It appears the board, more or less, has an executive authority or power to intervene in this whole process. Let us say the Minister is for the incinerator in Wicklow and the Green Party and Deputy Timmins are against it. The danger in that process is that while the board has the option to meet the developer and the objector and must record what is said, there is no obligation on it to meet the developer if it meets the objector or vice versa. For transparency and openness in the process, there must be equality of treatment before the board. If the board decides to meet the supporter of a plan, it must meet the objector. Traditionally, that happened through the oral hearing. However, this provision goes beyond the oral hearing and gives new authority to the board which it should not welcome and should not have.

When an issue goes to the board there should be transparency and openness in respect of all its meetings. I have no problem with the pre-planning process and I see the advantages of meeting the developer, submitting the plans properly and ensuring the project is not delayed. However, objectors and applicants should be treated equally and the oral hearing has ensured that up to now. It would bring the board into disrepute if it had private meetings with developers, which may be minuted, but not with objectors. There will be many objectors to this provision. That is the core of the criticism.

It appears there is no specific right for an applicant or an objector to request a meeting with the board but there is nothing in the Bill to prevent that from happening nor, as I pointed out, does it appear the board must hold a meeting with objectors even if it has one with the applicant. That is the key issue. With all its faults, the current process is transparent, open and consistent. One makes one's case at the oral hearing, as does the other side, and the inspector and board make decisions. That is a better system. We propose to table amendments to remove those extra powers to An Bord Pleanála.

As it stands, the system operates to maintain professional distance between the applicant and the decision-maker. However, the decision-maker will be compromised by becoming too closely engaged with the applicant during the course of what the Minister proposes. The provision seems to envisage a degree of negotiation between the applicant and the board to be conducted at such meetings. This process will occur in private and it appears in the absence of objectors and third parties. If the board, on a routine basis, exercises its power to hold meetings with developers during the course of applications, this will lead to it being identified too closely with developers and will operate to undermine its independence.

The provision also operates to emasculate the public oral hearing process which permits the board, through its inspector, to engage proactively with the developer and all interested parties in regard to all aspects of the development. The provision is unnecessary in the light of the express powers to seek further information during the course of the application procedure and the extensive powers of the inspector conducting any subsequent oral hearing.

Further, one would have to question the wisdom of empowering the board to intervene in disputes between an applicant for planning permission and third party objectors. This aspect of the Bill appears to involve the board engaging in a quasi-mediation role. Development consent not dispute resolution is the proper function of the board. That bears much thought and it is what the board has been doing up to now and which it should continue to do. By empowering the board with this function, one is inviting it and placing pressure on it to become involved in conflicts between developers, objectors and local communities.

Currently the board is under a general obligation to have regard to the policy and objectives of Government, a State authority and other public authorities and cannot ignore them. This provision has proved significant in appeal outcomes in waste management, in particular. Now the board must have regard to them in making its decision and also to national interest and any effect its decision may have on issues of strategic, economic or social importance to the State. However, by requiring the board to have regard to such broad and general policy objectives as the "national interest", the Bill will provide further ammunition for those who argue that it lacks independence and is merely a tool of Government and developers, a point of view expressed strongly.

The Minister addressed the question of a judicial review. In one way, he is making it easier to apply for a judicial review and the application can be ex parte — in other words, one can seek an injunction straight away. At present it is on notice only. That is constructive. One of the key battles is to balance the need of a modern economy to develop and infrastructure with the need to give greater rights to the public, NGOs and to properly constituted environmental groups. Making it easier to apply for a judicial review is one way to do that. However, the Bill precludes the right, which currently exists, for any person involved in the planning process to go to the High Court on a point of law. An individual can only go to court under a judicial review. That narrows the options.

I also take exception to the following issue at which I ask the Minister to look again. The Bill makes it a statutory requirement for the courts to ask for a damages undertaking from applicants. In 1987 I, along with other people, went to court under the planning legislation when the local authority refused to act following the illegal demolition of Drogheda Grammar School in the middle of the night. If we had been asked to give undertakings as to damages, we could never have gone to court and the developer who knocked down one of the most historic buildings in the country would have got away with it. As a result of our High Court action, we were successful in getting the building rebuilt. When the Minister visits Drogheda shortly, he should go to see the building. The only reason the building is there is because of our High Court action. The only reason we took that action was because we believed in the justice, honesty and integrity of our case. Currently the courts have the right to ask the objector to give an undertaking as to damages if he or she loses the case. The Minister is now making it mandatory for a court to ask for an undertaking as to damages. That will have a very negative impact on communities with genuine convictions about their issues which are based on broad support and real arguments. The Bill will negate that.

On the one hand, one can take a judicial review but on the other, one will need millions of euro to be able to give an undertaking as to damages. I have no problem hammering those people who want to re-route roads and initiate legal cases and have no problem asking them to cough up money. I know I am being subjective but I do not believe they have a sustainable argument. The way it must go now will mean environmental NGOs will take these actions. In light of this Bill, it is incumbent on the Minister to better fund NGOs in terms of education, awareness of the law etc. There is certainly an argument for that.

In balancing the competing rights in the Bill, the Minister is wrong to insist that courts order one to give an undertaking as to damages. If one takes an action in the public good and does not have to give that undertaking, or is not asked to do so in certain circumstances, the judge can request one to do that, but the Minister is making it mandatory which is bad.

An bhfuil mórán ama fágtha agam?

See this speech in context