Mary Upton (Dublin South Central, Labour)

I welcome the opportunity to speak on this Bill. A number of issues arising from the Bill are of considerable concern, not least among them the gaps in the proposals. The Government has missed an opportunity to address a number of issues and I propose to focus on several of these which relate specifically to much of the development under way in my urban constituency where the glut of apartment blocks and other developments continues apace. I will also address in general terms the reason strategic infrastructure projects are being delayed and the reasons this Bill will do little to address that delay. I also propose to discuss several short-sighted proposals contained in the Bill, for instance, the exemption from environmental impact statements requirements for certain categories of project and problems associated with An Bord Pleanála, which have not been reviewed or tackled in any significant manner to improve planning procedures.

I will focus first, however, on specific problems associated with new apartment developments. There is a major flaw in this regard which affects my constituency and its residents virtually on a daily basis. The management of multi-unit dwellings or apartment blocks has not been addressed and serious shortcomings persist with regard to the need to guarantee the rights of residents of such developments. This category of development differs from those consisting mainly of houses in that it is not usually envisaged that a local authority will take in charge the common areas of an apartment block or the private or public open spaces which surround it.

Hardly a week goes by without one or more of my constituents, either a short-term tenant, long-term leaseholder or owner of an apartment, contacting me concerning problems they must endure regarding the upkeep of the common part of their building. Similarly, I am contacted almost every week by constituents complaining about the increasing cost and diminishing return of paying a management agent to manage the common part of buildings containing apartments and the land surrounding them. For example, some of my constituents recently complained that the management agent of their block is seeking a 50% increase in the management fee demanded last year. The individuals in question are reluctant to pay this fee hike because the management company and agent have not maintained the building as they should. In the past year, for example, grass has been allowed to grow all over the place, with some areas now completely overgrown and infested with weeds, vermin have appeared and windows have not been cleaned as agreed. The complex is in a general mess.

In addition, a promise to provide a 24-hour management service turned out to be a myth. This only came to light when the fire alarm went off twice this year in the middle of the night without a response. So much for a 24-hour management service. Gutters are also blocked and water overflows on to residents' balconies, creating a source of stagnant water. The reason residents contacted me was to find out what could be done about the horrific smell this water had created.

Recently, I was in touch with another group of residents of an apartment block who are experiencing a similar array of problems. The residents of the two developments in question have managed to use existing legislation to have most of the difficulties they face resolved. It is possible to ask what is wrong with the system if the problems can be solved using existing legislation. The answer is that getting solutions to these problems is an expensive and complex process, with residents effectively forced to carry the cost and nuisance value of trying to find redress and have action taken on the management of their apartments.

I will describe the lengths to which the residents in question had to go. They had to obtain expensive legal advice, following which they were required to use company law to have the current directors removed from the management company. They then compelled the management company to provide access to its accounts. In one of the cases brought to my attention, the management company had not even bothered to draft accounts. In this instance, the residents were compelled to contact the Office of the Director of Corporate Enforcement to report the management company's failure to hold annual general meetings and draft accounts. These are complex, difficult and expensive processes and the only reason the residents were able to secure some redress was their capacity and ability to pursue these matters. There are many apartment blocks whose residents do not have the ability, resources or legal back-up to allow them to do that.

In another case, residents had to contact the Office of the Director of Corporate Enforcement to report the management company that was controlled by the developer. It had failed to consult the shareholders of the management company — in reality the residents — on the draft accounts. After much work, residents of one of the apartment complexes managed to appoint their own representatives, using provisions within the Companies Act, as directors on the board of the management company. Having done all that, the residents succeeded in firing the management agent who was dreadful. They have now appointed a managing agent who is considerably better. I am pointing out the complexity of the difficulties involved, including costs. These matters could have been dealt with in the new legislation but the opportunity to do so has been ignored.

Using current legislation, none of the residents in contact with me has succeeded in forcing the developers to hand over ownership of the common parts. Even when resident-controlled management companies are maintaining the common parts of their apartment blocks, these companies are not always the legal owners of the areas they are maintaining and paying to maintain. Discovering and executing the solutions I have just described to the problems faced by the residents of apartment blocks in my constituency has required an enormous amount of work, money, patience and co-operation between the apartment owners.

As legislators, we are responsible for the laws providing the framework within which apartment developments are allowed and their continued upkeep is regulated. We have an obligation to provide a much easier means of resolving the problems that residents of apartment blocks constantly face.

I wish to outline some of the solutions to the problems that apartment dwellers are facing. I have raised these issues in the House before but there is now an opportunity to incorporate them in the legislation. These points will be raised again on Committee Stage when I hope they will be addressed.

First, planning permission should not be granted for an apartment building unless there is a condition attached to such a permission which compels developers of apartment blocks to form management companies and grant shares in the company to all those who purchase units within it. There is a section of the Planning and Development Act 2000 that could be strengthened to include this specific stipulation.

Second, a planning condition must be imposed on developers — I know this has been discussed already — to complete satisfactorily within a specified period an apartment complex, regardless of whether the development includes two or more houses. Options could be introduced in this regard, so perhaps the Minister could examine them on Committee Stage to see how they might be incorporated in the Bill.

Third, as soon as an apartment development is completed satisfactorily, ownership of the common parts must be handed over immediately to a management company. My constituents tell me that, too often, developers are refusing, for one ostensible reason or another, to hand over ownership of the common parts of an apartment complex. The developer may suddenly apply for planning permission to add an extra storey or block, and then we learn why the developer was so reluctant initially to hand over ownership of the common parts. Amending section 180 of the Planning and Development Act 2000 would offer a mechanism for doing this. It would enable management companies, upon application to the court by a simple majority of individual property owners — that is, such an amendment must be drafted in such a way as to prevent a developer thwarting the desires of residents to take control of the common parts of their apartment complex simply by retaining ownership of the apartments within that complex — to gain ownership of the common parts of the apartment complex.

Fourth, developers must not be allowed to take control of apartment complex management companies. In Britain, where there is a much longer history of dealing with multi-unit apartment blocks, the solution that has emerged is called the Commonhold and Leasehold Reform Act 2002. Within that Act, a right to manage was established, which is vested in residents of multi-unit apartment blocks. To exercise that right, residents of buildings within two or more units do not even have to apply to the court. They simply have to serve notice to manage on the developer or the owner of the common parts of an apartment complex. The notice to manage provides that the residents concerned wish to manage the property instead of the freeholder or developer and that they have the right-to-manage company for the purpose of doing so. To exercise this new right to manage, residents do not even have to say that the developer is mismanaging the property.

However, if the property is being mismanaged, which is clearly the case in the examples I have outlined and that have occurred numerous times in my constituency, the residents can apply to the court to have the developer's interest in the property vested in the residents. In practice, the mere existence of this legislation on the statute book in the United Kingdom has led to a significant improvement in the conduct of managing agents, management companies and developers.

I have outlined some of the major difficulties that have arisen with ongoing developments in my constituency where we have what I would call a rash of apartment blocks all over the place. There seem to be endless apartments being built but there is a lack of infrastructure around them, which is the core of this debate. We talk about the need for housing, and more accommodation is certainly welcome in my constituency, but we must examine the quality of such housing. We must also examine the impact of such construction on the existing community, as well as the infrastructure provided for new developments. Sadly, in the vast majority of such developments there has been a lack of any significant quality of appraisal of what is needed for the existing community — I take a strong line on that matter because they are the people who will ultimately suffer on account of such developments — or for the residents who will move into those new apartment blocks. It is a big issue now and it will get worse unless significant standards are imposed on developers.

I reiterate the importance of some of the issues raised by my colleague, Deputy Gilmore. The so-called strategic infrastructure deficit in Ireland is not down to a few people, as he said, hanging off trees in the Glen of the Downs. We have problems for much more fundamental reasons. When introducing the Bill, the Minister, Deputy Roche, said: "Simply put, this Bill is the key to delivering the infrastructure we will need to sustain and improve our quality of life". Infrastructure is delivered through applying money to well thought-out solutions to well examined and identified problems.

This Bill is about trying to avoid a repetition of the same problems we have had in the past in Ireland, with one major difference. In the past when somebody had a slightly hair-brained idea, it was difficult to implement it, not because of the planning process but usually due to a lack of money. Now, with the availability of greater resources, if the Bill becomes law, anybody with a crackpot idea will have much less difficulty in implementing it.

The national spatial strategy identified many problems in a considered way but sufficient money was not provided for its implementation. However, the reasons there is a strategic infrastructure deficit are manifold and complex, and will not be addressed simply or comprehensively by the Bill before us. The reason the Government has not implemented the national spatial strategy is not because of delays in the planning process, it is because the action of the Government pulled the rug from under the strategy by inadequately funding its implementation. In addition, the Government announced a half-baked decentralisation plan that has been a disaster. The national spatial strategy was published three years before the national development plan but it should have been the other way around.

Cutting out local involvement in the development, planning and construction of so-called strategic infrastructure projects is an affront to democracy. If all the reasons Ireland suffers from a strategic infrastructure deficit were eliminated, perhaps a Bill such as this purports to be would be worthwhile. It would be a worthy sacrifice of democratic participation.

I also wish to raise the cost of planning objections. While a €20 fee may sound like very little money to impose on somebody wishing to object to a planning application, the issue must be addressed. While awaiting developments at European level on this matter, we have no reason to retain the €20 fee. This was introduced supposedly to stop vexatious objections to planning applications.

I will again reflect on what happens in my constituency where many individuals in the local community feel strongly about the development taking place in their immediate area. Many of these people are elderly or old age pensioners and while, for some of us, €20 may be little or nothing, for them it is a huge amount of money. They feel passionate about their area and community and the €20 fee is a block to their getting involved in the democratic process. There is no justification for retaining the €20 objection fee.

The exemption from the environmental impact statement should be reconsidered. The Bill gives power under section 4 for An Bord Pleanála to grant applicants an exemption from the necessity of preparing an environmental impact survey. This is unacceptable. It applies to electricity and gas providers and, in fact, to anyone who wants to carry out a project An Bord Pleanála deems to be of strategic importance. That is to give An Bord Pleanála a major decision-making role on what is or is not important from an environmental perspective.

The necessity for developers to draw up an environmental impact study was one of the great advances in the protection of the environment. The environmental effects of projects had been ignored for decades and the cost of that can be seen in the deficiencies in the quality of the environment in which we live. Thankfully, environmental impact statements were introduced but it appears there will be a rolling back in that regard if An Bord Pleanála can effectively decide which projects are of strategic importance and can make the running on what is environmentally significant. The Bill wants us to return to year zero. One could make the comparison with China, where dams are constructed without any reference to the environmental impact. None of us would want to believe we were comparable with such decision makers.

Pre-planning consultations are valuable and probably cut out much time wasting. The problem with these consultations in their current form is that they are effectively weighted in favour of the developer. The same provisions or facilities for pre-planning advice are not provided to the average resident when a development is to proceed. It is not acceptable that a lack of transparency will persist when pre-planning applications and discussions are weighted in favour of a developer but residents or residents' associations are effectively precluded from the process.

There is a lack of transparency and perhaps even democracy in the advice given to people in a community when a major development is about to take place. I accept that planning notices are erected but we know of many occasions when residents did not see the planning notices and did not appreciate their significance or the timeframe involved. There is a gap in terms of informing local communities specifically and definitely in this regard. It should not be left just to the planning notices, with which many residents would not be familiar and the relevance and timeframe of which many would not understand.

Each household and individual within a specific radius of any major development, including apartment block developments, should be informed by mail. It should not be left to chance that residents will be alert, observe a planning notice and be able to do something about it. This would not be a major burden in the context of a major infrastructural project, given the value of the project to the developer relative to the cost to the community if the application period should pass and the community did not have the opportunity to have a say.

While I support the idea of community gain, I am interested to know precisely what it means. We need a wider definition. It is important that community gain is not just a sop to the local community but a significant and valuable contribution to the area and its people. Every effort should be made to ensure the community gain is relevant and relative to the value of the major infrastructural project to be delivered.

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