Tommy Broughan (Dublin Bay North, Independent) | Oireachtas source

I am delighted to have the opportunity to speak briefly on the Planning and Development (Amendment) Bill 2016. It is welcome that the Bill is finally before us and provides for an office of the planning regulator, which was a key recommendation of the Flood-Mahon tribunal. Ordinary constituents and citizens welcome the idea of a regulator because we often have a situation in planning where some crass development is proposed which is not sustainable or is totally out of sync with its immediate district. Perhaps when people register their opposition to it they are supported by the council but when it goes to An Bord Pleanála, it overturns the decision and permission is granted. As it is now, the only recourse is to go to the High Court on a point of law. At least we will now have a regulator to whom our constituents can make a complaint. At that basic level, the idea of a regulator is welcome.

The Mahon tribunal's final report was published early in 2012 and made 64 recommendations to the then Government. Ten of these 64 recommendations were on the planning system and the key recommendation was the need for an independent planning regulator. This Bill is part of a series of Bills introduced by the Government in a feeble attempt to address the housing crisis through the Construction 2020 strategy. While the steps taken by these Bills are to be welcomed, it is a very slow process. At the end of 2016, in my constituency and many other urban areas, the desperate need of families for housing is acute and despite the roll out of the HAP programme, it is worsening.

For most citizens, over its 15 year lifetime, the Flood-Mahon tribunal revealed a history of brazen attempts to subvert the democratic planning process. Failure to implement the Kenny report of 1974 allowed the hoarding of huge land banks around the greater Dublin region and similar practices around other cities and towns in Ireland. When development plans came along, councils were subjected to immense pressures. Councils used to be in charge of water before Deputy O'Sullivan's party was in Government. We were the water authority. It is very striking that while elected councillors are not the planning authority, housing authority or drainage authority, they had a unique power to rezone land in their functional area at the time of development plans. It is an extraordinary and important power but it was open to very severe pressure. We had the careers of lobbyists like Frank Dunlop and agents for the developers allegedly seeking to influence zoning and the shape of development plans. While some conclusions of the Flood-Mahon tribunal may be rolled back, the tribunal clearly revealed very disturbing practices in the making of development plans. It also demonstrated a planning process for the development of our towns and cities which compares very unfavourably with the far more democratic and publicly controlled land zoning and planning systems in countries like Sweden, Norway, Finland and indeed the UK. In my region of the north fringe of Dublin city or the south fringe of Fingal, we were shown comparisons with the cities of Stockholm and Amsterdam when they developed new huge urban regions like we were hoping to develop of 20,000 or 30,000 homes with ancillary social services, schools, health centres and so on. The process in Sweden and Holland was much more publicly controlled.

On a number of occasions in the Thirty-first Dáil I asked the Tánaiste and Minister for Justice and Equality, Deputy Frances Fitzgerald, and the Taoiseach to report on the current situation with regard to the investigations by An Garda Síochána and the Director of Public Prosecutions into the findings of the Flood-Mahon tribunal. The Minister told me in May 2015:

As the Deputy may recall from my reply to his further question No. 491 of 24 March, the position is that following the examination by An Garda Síochána of the report of the Moriarty Tribunal, the advice of the Director of Public Prosecutions was sought with a view to determining whether or not a full Garda investigation should be commenced. The Garda authorities have also been engaged in an examination of the Report of the Mahon Tribunal, which was referred to the Garda Commissioner by the Government. This examination is ongoing at present.

The Minister for Housing, Planning, Community and Local Government, Deputy Simon Coveney, has just left the Chamber but perhaps he might refer in his reply to the examination of the report of the Mahon tribunal and whether the Government has received a report from the Garda Commissioner. Will he indicate if the examination is continuing, whether full Garda investigations are proceeding and whether any file has been sent to the DPP?

Chapter II on the establishment, functions, organisation and staffing of the office of the planning regulator is the heart of the Bill. In section 31P, the key functions of the regulator include the evaluation of development plans, variations of plans, local area plans and regional spatial and economic strategies. They are all very important aspects of planning. The key power in section 31P(1) is to bring a plan which the regulator considers deficient to the attention of the Minister for Housing, Planning, Community and Local Government. The office also has important research, education and review functions and has to produce an annual report and statement of strategy. I agree with Deputy Jan O'Sullivan about the importance of sustainable planning in creating a humane society in which people can live very comfortably. It is a critically important subject.

The regulator has to take cognisance of the policies and aims of the Government, the public interest, EU directives on environmental impact statements, the habitats directive, the birds directive and especially the national planning framework, which is given statutory basis in the Bill, which I welcome warmly. The planning regulator is appointed by the Minister as provided for in section 31W for five years following a competition by the Public Appointments Service. Its accounts will be audited by the Comptroller and Auditor General and its annual report sent to the relevant Oireachtas committee. Two committees in this House, the Committee of Public Accounts and the Joint Committee on Housing, Planning and Local Government, will have the opportunity to question the regulator. They can send the regulator a note asking him or her to attend. Deputy O'Sullivan feels that the Bill got things right on the public control of planning.

The helpful Bill's digest prepared, very well as always, by the Oireachtas Library and Research Service staff, notes that the Mahon tribunal recommended establishing a post of independent planning regulator, as Deputy Joan Collins mentioned, and that the Minister’s powers of enforcement and to issue directions to planning authorities should be transferred to that new office. The Oireachtas Joint Committee on the Environment, Culture and the Gaeltacht, in its pre-legislative scrutiny in response to the former Minister, Deputy Alan Kelly’s general scheme of a Planning and Development (No 2) Bill, agreed with his recommendation that the final power to issue directions following assessment of local plans should rest with the Minister. However, given the history of the Flood and Mahon tribunals, I fundamentally disagree and agree with other colleagues who have spoken tonight. The planning regulator should be fully independent of the Government. After all, and I emphasise this point for my colleague, Deputy Jan O'Sullivan, when I asked the Minister for Finance, Deputy Noonan, about car insurance prices going through the roof, and our constituents screaming at us as a result, he replied with a long letter in which he said he cannot do anything about it because the Central Bank is independent. In the past, when I asked the former Minister, former Deputy Pat Rabbitte, and other Ministers about energy prices and what they intended to do about those prices going through the roof at the time, they said they could not do anything because the Commission for Energy Regulation, CER, was independent. When I asked about the Commission for Communications Regulation, ComReg, and the rip offs in mobile telephony, which still exist and we are not sure how that will pan out regarding roaming charges and so forth as a result of Brexit, I was again told that ComReg was independent and the Minister could do nothing. Why should it be the case that in the vital area of planning the regulator should not be fully independent?

When an inspector is appointed and prepares a report, the Bill is unclear on whether the Minister may depart from a planning regulator recommendation after an investigative process has been completed by the regulator. The general scheme of the Bill referred to periodic reviews of regulators under the OECD’s best practice principles for transparency and accountability, but did not indicate how often this should take place. The provisions of the Bill before us also have this lacuna and it appears to be left to the regulator to conduct his or her reviews of the performance of their own office. Obviously, the Oireachtas committees will keep an eye on the performance of the regulator, but perhaps the Minister will examine this matter on later Stages.

The Bill does not make provision for the establishment of a national register of enforcement orders and-or sanctions imposed by courts for breaches of planning law. The environment committee of the Thirty-first Dáil called for such a register so it would be possible to easily identify, on a nationwide basis, developers in breach of planning law. As part of our job as public representatives representing our constituents, Members generally know what developments are taking place in their constituencies and are interested to know the track records of developers, particularly people engaging in major commercial or housing developments. Recommendation No. 6 of the Oireachtas Joint Committee on the Environment, Culture and the Gaeltacht report called "for the introduction of a national register of enforcement orders and/or sanctions imposed by the courts for breaches of planning law". According to that committee, it should be possible to readily identify on a nationwide basis any developers who have engaged in serious or serial breaches of the law. This is not provided for in the Bill. It is a major gap in the legislation and should be addressed on Report Stage.

I recall a Bill I was proud to support in the Twenty-eighth Dáil. It was a planning Bill put forward by my great Fingal colleague, former Deputy Sean Ryan, one of the greatest Deputies ever to speak in this House. The Bill sought to refuse any further planning permission to a developer who had failed to carry out the provisions of an earlier planning permission or to remedy major defects arising from the permission. We have seen developments with horrendous defects, for example, in the north fringe, yet developers put forward new developments before the remediation has taken place or before we have had a chance to study their track record. Unfortunately, that Bill was defeated by the Fianna Fáil-Progressive Democrats Government, which refused to put any constraints on developers.

In view of the history of planning, the code of conduct in section 31AL is vital. It will relate to the management of conflicts of interest. I note that there will be a written policy statement which will set out the need to disclose relevant relationships and interests within the regulator, including memberships of other agencies and, importantly, disclosing financial interests, whether work outside the office is taking place, gifts and so forth and disclosing information which may be of importance to the work of the office. It will also lay down the best practice for reviewing and management of development plans and submissions. I did not notice whether there is a cooling off period for the regulator and its staff. In other words, if the regulator leaves the office of regulator, will there be a period during which that person could not immediately go to work for a property company or developers? Is there an intention to include such a provision? If it is included I did not see it. I believe we have that type of provision relating to other areas of the public service.

With regard to section 31AS, I welcome the provision for reviews of those involved in planning and their systems and procedures. The section sets out the parameters of the review, including the provision for sending a draft report of the review along with recommendations to the relevant planning authority and other appropriate recipients. I am most familiar with the development plans of Dublin City Council, of which I was proud to be a member for 12 years, and of Fingal County Council, which I have been proud to represent for the past 24 or 25 years. We were educated through those development plans to seek the highest standards of sustainable planning in our areas, particularly in major developments, and in the sustainable development of the north side of Dublin city.

I welcome the provision in section 31AU for access to information during a review, and that once an authorised person is assigned to the review the Bill provides that he or she will have the authority to enter lands and other premises for inspection. Should somebody not comply with an office of the planning regulator request or, indeed, obstruct or impede a review, the Bill provides for such obstruction or non-compliance to be classified as an offence. Employees and consultants working with the OPR will also be prohibited from disclosing information. How will that chime in with the Protected Disclosures Act 2014? The House has had long discussions about the role of whistleblowers in the Garda Síochána and in other organisations, so I wonder how that will pan out in respect of that section.

Chapter lIA of the Bill provides for the replacement of the national spatial strategy with the national planning framework. I welcome that. Sometimes, however, I believe there is a feeling among our rural colleagues that everything goes to Dublin and so forth. Of course, we feel the opposite and that the city has not been given sufficient resources. The population of the greater Dublin area is heading towards 2 million people. If we want Dublin to be a premier league capital city and a premier capital of the European Union, which I believe everybody does, we must include that as an ambition. There should be a section of the framework discussing the capital city and stating that the city will be planned to the highest international standards. I recall the budget day when the former Minister for Finance, former Deputy Charlie McCreevy, announced decentralisation, which seemed to include a range of towns and villages across the country. I believe that was the wrong approach. In spreading development across the regions, we should have concentrated on building up cities such as Cork, Galway, Limerick, Waterford, Sligo, Castlebar, Tralee, Letterkenny and the Athlone-Tullamore nexus in the midlands, to hold their populations and give them the widest range of social services and jobs. The ambition should be included to have Dublin as a premier capital city but also to develop Deputy Jan O'Sullivan's city and our other cities as fine, important regional capitals as well. Section 20C(2) outlines the matters the national planning framework will address and it should include something on the capital. Such infrastructure includes water, waste, energy, health and cultural requirements. There is also a framework for maritime spatial planning. Under Directive 2014/89/EU, a framework for maritime spatial planning must be established. The framework will be reviewed every six years, and I welcome that.

Regarding our capital, I am of the view that, at times, there has been a lack of a cohesive plan for the region among the four councils. In the south fringe of Fingal and the north fringe of Dublin city, one tends to find the planners of the two councils doing their own thing and meeting very rarely to plan.

In my constituency, a person living in Baldoyle and another person living up the road in Donaghmede do not really think of themselves as being in two different local authorities. It is the same region. One of planning's key failures is the fact that the north fringe of our city was not a single strategic development zone. This is something that should be worked out for the future. I was once a member of the regional assembly for the greater Dublin region. This included counties around Dublin, including that of the Ceann Comhairle. We need to work together to have a sustainable and, hopefully, a very fine urban environment. We need a direct election for the mayor of the Dublin region, a cohesive plan for the region and all the facilities we need for sustainable development.

Deputy Jan O'Sullivan referred to developer-led planning and said that we had got rid of it. I do not think that is the reality. If one looks at the kind of plans that are coming before Dublin City Council, one can see that developers are still making the running. I agree with the Deputy that this House and the county and city councils are the ones who should make the running and have the master plan. For example, the north fringe had a few lines scribbled on a page instead of a detailed plan. When we get the plan together, that is the time to bring in the builders and let them build.

I welcome the planning regulator with a few caveats. I would like the office to be fully independent and I hope a few issues I have mentioned will be addressed. I hope it will be a step in sustainable planning and the sustainable development of our country.

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