Catherine Murphy (Kildare North, Independent) | Oireachtas source

I move: "That the Bill be read a Second Time"

I thank my parliamentary assistant, Mr. Eoin Wilson, for his help with this legislation, in which we have invested a great deal of time over a considerable number of months. I also thank Councillor Pádraig McEvoy who is in the Visitors Gallery for his input and sharing my passion about the planning system. The Bill's provisions are intended to be practical, but it seeks to reframe planning and development legislation in such a way that it would give much greater consideration to planning and development from the point of view of citizens and consumers. Most of the legislation in place was framed with the developer and planning authorities in mind. The citizen and consumer were left on the sidelines as though they were disinterested parties or adequately protected by legislation or their local authority. Based on the litany of failures we have experienced, the individual and the taxpayer either lives with the problem or picks up the tab. That has to change and if it is to change, everything must be done differently. It is not good enough to say it will not happen again. We must make sure the law is amended and new thinking applied to how planning and development laws function. Transparency is critical to putting the interest of the citizen and the consumer at the centre. There are thousands of unfinished estates, a small number of which are ghost estates. If one asks those living in them if they feel protected or asks those living in estates where a bond was put in place by local authorities to complete the developments if they feel protected or if one asks those who have found that they must wait up to 17 years before they can force the local authority to take their estate in charge if they feel protected, the resounding reply will be "No". The Bill is an honest attempt to outline some of the issues and even though it has taken time to draft, other remedies could be added. It is intended to provide in a timely way practical remedies for problems I encounter routinely.

There is a housing shortage in parts of the country, including in my constituency, although development has recommenced on a good number of sites. If finance was available to those who could sustain a mortgage, there would be a major pick up in the housing market. That is all the more reason to do things differently rather than picking up where we left off to ensure we do not end up addressing the same problems in a few years time. I meet residents' groups all the time and find myself telling them that this is my second time to picki up the pieces following a collapse in the construction sector. Those of us who were elected to local authorities in the 1980s or 1990s know unfinished estates were a major feature of our work, particularly in locations where there was significant development. Kildare County Council has 280 unfinished estates on its books, with a total of 19,683 houses that have not been taken in charge. There are houses to be built on only a tiny proportion of the estates; therefore, they are largely complete. Outstanding issues include construction drawings or vesting maps, but other issues require significant work in bringing the public infrastructure up to a standard to comply with the conditions of planning permission.

In addition to new laws, there is also an issue in some local authority areas in respect of the adequacy of staffing, both in terms of their number and skill sets. The Department is constructing a workforce plan, but this must be followed by recruitment in key locations. A failure to do so will cost us all in hard cash, but it will also cost those living with the consequences.

I refer to a number of the sections in the Bill, Part 2 of which seeks to construct a national compliance register. The number of planning authorities will reduce to 34 following the abolition of town councils. Under current law, each maintains its own compliance register, which is largely an internal process. Planning authorities such as city and county councils and some town councils keep their own register. Under the Critical Infrastructure Act 2006, a new law was introduced aimed at weeding out rogue developers. It enabled a planning authority to refuse permission if there had been non-compliance on previous projects. A council was given the right to refuse permission and if the developer was unhappy with the decision, he or she could appeal to the courts. The lack of a national compliance register means rogue developers can leave a trail of destruction across several counties.

A good example of that is the developer of Priory Hall, Tom McFeely, who also developed apartment blocks containing similar defects in Dundalk and Clondalkin, with disastrous consequences for those who bought and lived in them. These are high profile failures but how are planning authorities to track similar incidents if information is not captured nationally and easily searchable? A national register is needed if local authorities are to be able to weed out the rogue developers. It would be based on an enforcement notice issued by the local authority and, in advance of the enforcement, a warning notice would be issued giving sufficient time to comply with the directions. As what I propose is a public process, it will contribute to a change in the culture because developers will be more likely to take an enforcement notice seriously. It is critical that we change that culture and it may also save time and avoid costly court cases. It is an essential first step in rewarding good behaviour and weeding out rogue developers.

Part 3 of the Bill provides for stronger and more consistent language around proposed developments associated with local area plans or integrated area plans. These are the plans at the end of the food chain where land is zoned and applications are made on developments. The national spatial strategy sets the scene and plans go to regional and county or city level. It is important that local level plans are consistent. We have seen the consequences of building in the wrong locations, such as flood plains, or building excessive numbers of houses not only for those who live in these developments, but also in terms of providing public infrastructure and services.

Part 4 seeks greater transparency and accountability in respect of development contributions. The Bill is not aimed at self-builds, one-off housing or extensions. In theory, development contributions are paid in advance but in practice, and with the agreement of local authorities, they are often paid on an incremental basis as housing units are sold. Unfortunately, we saw what occurred to this approach in the context of a building crash. The reply to a parliamentary question tabled by Deputy Simon Harris earlier this year indicated that in excess of €312 million is outstanding in long-term legacy development contributions. Each local authority is required to operate a development contribution scheme which sets out the public infrastructure required, such as roads, paths, public lighting, water and leisure facilities. The local authority usually has to provide matching funding for major infrastructure works. Essentially, if there is a deficiency in the fund, the matching funds are not available. This is why we cannot allow somebody who has failed to pay levies in the past to come back into the system.

The Bill would also seek retrospective contributions for the preceding ten years to take account of the pre-crash situation. In most cases those who purchase a house will not be aware that the planning permission contained a development contribution which was built into the cost of the house. Development contributions are usually a condition of planning permission. Failure to pay means the developer is not in compliance and subject to enforcement proceedings. It is essential that clear liability is established because otherwise those who purchase could end up with double liability in that they could be pursued by the planning authority. This happened in Avoca, County Wicklow, earlier this year when Wicklow County Council pursued 24 home owners for unpaid contributions which were required in the planning permission. The council was of the opinion that unpaid development contributions were charges on the properties concerned rather than on the developer. The case was considered by the Ombudsman, who found that local authorities are legally entitled to pursue home owners for payments under section 152 of the Planning and Development Act 2000. It appears that local authorities may reach agreements with developers on phased payments at the expense of the purchaser, who ends up taking the risk. We need to close off that risk by making it clear where the liability resides. Section 49B does just that. A by-product of introducing a searchable list is that legal searches as part of the conveyancing process may become easier and more cost efficient.

Section 28 of the Planning and Development Act 2010 provided powers to extend the appropriate periods of permission. In practice, this means planning permission is extended for a further five years. The extension must be applied for within the timeframe of the first permission. This roll over provision may be in conflict with new provisions contained in the same Act which raise the bar on environmental considerations. Section 28 did not make provision for a consideration of citizen and consumer opinions. The provision as it stands is a private matter between the planning authority and the developer as if it had no consequences to anyone else. However, there are real consequences for others. For example, section 180 of the Planning and Development Act 2000 provides for the taking in change of housing estates by local authorities. The Act allows residents to petition a council seven years after planning permission has expired, or 12 years after it is first granted, to have the estate taken in charge. The 2010 Act extends that period to a potential 17 years. In many cases, the developer will be long gone by that stage.

Section 9 seeks the full transposition of the 1998 Aarhus convention on access to information. We are signatories to that convention. An application to extend planning permission should be a public process and subject to the same considerations and appeal options. The conditions for granting permission should include, where appropriate, taking earlier phases in charge, the level compliance with the original permission and the term of the bond. In other words, the planning authority must consider the impacts on those who live in an estate which has remained a building site for several years.

Bonds take the form of cash or insurance. Cash bonds are generally sought only where issues previously arose with the developer concerned. The vast majority of bonds are in the form of insurance policies. Most bonds are limited to seven years. The Anglo Irish Bank bonds were the only bonds issued in perpetuity and now the bank is in liquidation bondholders are essentially unsecured creditors. Bonds are required to guarantee that the public elements of estates are completed. Key issues include the adequacy of bonds. In recent years, most planning authorities have ensured the monetary value of bonds are adequate but we need to make sure this is fully considered. The bond must also remain in place until the development fully complies with the conditions of the planning permission. Even if the value of the bond is sufficient, it does not guarantee anything if a developer becomes insolvent and ceases to make payments to the bank or insurance company to maintain the bond. The result is that there are often no funds to complete the development. Local authorities are precluded from spending public money on what remains a private development. Typical problems include incomplete roads and footpaths; faulty sewers and drains; and a lack of landscaping.

The absence of a bond in an estate not taken in charge will often mean that a house or apartment cannot be sold. I am constantly asked by those who live in such developments why they are being asked to pay property tax, and I have no answer for them because there is not an adequate answer.

Calling in a bond is also a complex matter, and the balance is given to the developer. The planning authority must wait for the bond to expire before it can pursue the developer for non-compliance with the permission for not having a bond in place. Section 10 seeks to amend section 180 of the Planning and Development Act to ensure action is taken in advance of a time-limited bond expiring.

It seems there is more consumer protection for purchasing simple items such as food products, than there is for purchasing a house, and that urgently needs to change. The bond is critical for the home purchaser but also for the public purse. Section 180 of the Planning and Development Act allows the residents to petition to have their estate taken in charge after a specified timeframe. Clearly, non-compliance involves a cost for the home owner but it also involves a cost for the public, and we must address that issue.

Part 7 seeks to reduce, from seven to two, the number of years residents must wait after planning permission has expired before they can petition to have their estate taken in charge. It also seeks to address the further extension of planning permission to the developer, which in practice would mean, as I stated, that it could be 17 years before one could petition to have an estate taken in charge.

It is open to the local authority to take enforcement proceedings. This is a last resort. They usually try to work with the developer which can be a time-consuming and slow process and is administratively expensive.

As for the consequences for those who have been unfortunate enough to have a non-compliant developer, they are often consigned to living on a building site with many of the obvious services, such as roads, footpaths and lighting, not dealt with, or where there are constant problems with sewers and drains. The longer it goes on, the more likely it is that the builder will not complete the work, and timing is vital.

Part 8 refers to the Multi-Unit Developments Act 2011. There is a problem with the definition of a development containing residential units where it is intended that amenities, facilities and services are to be shared. That definition is vague and it is conceivable that it could include every housing estate and residential street in the country. It needs to be tightened up to mean the amenities, facilities and services to be shared between the residential units, not by the wider public.

I fully accept that a management company is needed for apartments where there are shared services, but the vagueness of the definition of housing development is now being interpreted to mean any housing development and we are back to the situation I had hoped was resolved in 2006 when planning authorities often included as a condition of planning permission a requirement to establish a management company, even in traditional housing developments where there are no shared internal spaces. I brought this to the attention of the Minister for Justice and Equality some months ago, but see no reason it cannot be resolved in the context of the Bill given the urgency of the situation. In parts of the country, including Kildare, building has recommenced. While it is welcome that big industrial developments are being constructed, there will be more housing development and we need to ensure we deal with this in a timely way.

Part 9 seeks to amend section 179, in effect Part XI, of the 2000 Planning and Development Act where a local authority gives permission to itself. There needs to be some recourse to an appeal because consultation can often mean that people are told what will happen but they feel that the local authority is judge, jury and executioner on that. I will leave it at that and use the remainder of my speech in the wrap-up tomorrow. I was told earlier that the Government did not intend to oppose this Bill. That is welcome.

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