Mick Wallace (Wexford, Independent) | Oireachtas source

I move amendment No. 2:

In page 6, between lines 10 and 11, to insert the following:“Planning Regulator powers

4.The Principal Act is amended by the substitution of the following for section 31:

“Planning Regulator directions regarding development plans

31.(1) Where the Planning Regulator is of the opinion that—

(a) a planning authority, in making a development plan, a variation of a development plan, or a local area plan (in this section referred to as a ‘plan’) has ignored, or has not taken sufficient account of submissions or observations made by the Minister to the planning authority under section 12, 13 or 20,

(b) in the case of a plan, the plan fails to set out an overall strategy for the proper planning and sustainable development of the area,

(c) the plan is not in compliance with the requirements of this Act, or

(d) if applicable, having received a submission prepared under section 31C or 31D (inserted by section 95 of the Act of 2008) that a plan of a planning authority in the Greater Dublin Area (GDA) is not consistent with the transport strategy of the National Transport Authority, the Planning Regulator may in accordance with this section, for stated reasons, direct a planning authority to take such specified measures as he or she may require in relation to that plan.

(2) Where the Planning Regulator issues a direction under this section the planning authority, notwithstanding anything contained in Chapter I or II of this Part, shall comply with that direction and the manager or elected members shall not exercise a power or perform a function conferred on them by this Act in a manner that contravenes the direction so issued.

(3) Before he or she issues a direction under this section, the Planning Regulator shall issue a notice in writing to a planning authority no later than 4 weeks after a plan is made.

(4) The notice referred to in subsection (3) shall, for stated reasons, inform the planning authority of—

(a) the forming of the opinion referred to in subsection (1),

(b) the intention of the Planning Regulator to issue a direction (a draft of which shall be contained in the notice) to the planning authority to take certain measures specified in the notice in order to ensure that the plan is in compliance with the requirements of this Act and, in the case of a plan, sets out an overall strategy for the proper planning and sustainable development of the area,

(c) those parts of the plan that by virtue of the issuing of the notice under this subsection shall be taken not to have come into effect, been made or amended under subsection (6), and

(d) if applicable, requiring the planning authority to take measures specified in the notice to ensure that the plan is in compliance with the transport strategy of the Dublin Transport Authority.

(5) The Planning Regulator shall furnish a copy of the notice referred to in subsection (3) to the manager and Cathaoirleach of the planning authority, where there is a regional spatial and economic strategy in force for the area of the planning authority, to the regional assembly concerned and, where relevant, to the Dublin Transport Authority.

(6) (a) Notwithstanding section 12(17), 13(11) or 20(4A), a plan shall not have effect in accordance with those sections in relation to a matter contained in the plan which is referred to in a notice under subsection (3).

(b) If a part of a plan proposed to be replaced under section 12, 13 or 20 contains a matter that corresponds to any matter contained in that plan which is referred to in a notice under subsection (3), that part shall not, save where subsection (17) applies, cease to have effect in respect of that matter.

(7) No later than 2 weeks after receipt of the notice issued by the Planning Regulator under subsection (3), the manager of the planning authority shall publish notice of the draft direction in at least one newspaper circulating in the area of the development plan or local area plan, as the case may be, which shall state—

(a) the reasons for the draft direction,

(b) that a copy of the draft direction may be inspected at such place or places as are specified in the notice during such period as may be so stated (being a period of not more than 2 weeks), and

(c) that written submissions or observations in respect of the draft direction may be made to the planning authority during such period and shall be taken into consideration by the Planning Regulator before he or she directs the planning authority pursuant to this section.

(8) No later than 4 weeks after the expiry of the period referred to in subsection (7)(b), the manager shall prepare a report on any submissions or observations received under subsection (7)(c) which shall be furnished to the Planning Regulator and the elected members of the planning authority.

(9) The report referred to in subsection (8) shall—

(a) summarise the views of any person who made submissions or observations to the planning authority,

(b) summarise the views of and recommendations (if any) made by the elected members of the planning authority,

(c) summarise the views of and recommendations (if any) made by the regional assembly,

(d) make recommendations in relation to the best manner in which to give effect to the draft direction.

(10) The elected members of the planning authority may make a submission to the Planning Regulator in relation to the notice issued by him or her under subsection (3) at any time up to the expiry of the period of time referred to in subsection (7)(b).

(11) The Planning Regulator shall consider the report furnished under subsection (8) and any submissions made to him or her under subsection (10) and—

(a) where he or she believes that no material amendment to the draft direction is required, or that further investigation is not necessary in order to clarify any aspect of the report or submissions, he or she may decide, no later than 3 weeks after the date of receipt of the report under subsection (8), for stated reasons—

(i) to issue the direction referred to in subsection (4)(b) with or without minor amendments, or

(ii) not to issue the direction referred to in subsection (4)(b),

or

(b) where he or she believes that—

(i) a material amendment to the draft direction may be required,

(ii) further investigation is necessary in order to clarify any aspect of the report furnished under subsection (8) or submissions made under subsection (10), or

(iii) it is necessary for any other reason, he or she may, for stated reasons, appoint an inspector no later than 3 weeks after the date of receipt of the report under subsection (8).

(12) The inspector appointed under subsection (11)(b) shall be a person who, in the opinion of the Planning Regulator, has satisfactory experience and competence to perform the functions required of him or her pursuant to this section and shall be independent in the performance of his or her functions.

(13) The inspector appointed under subsection (11)(b) having regard to the stated reasons for his or her appointment—

(a) shall review the draft direction, the report furnished under subsection (8) and submissions made under subsection (10),

(b) shall consult with the manager and elected members of the planning authority,

(c) may consult with the regional assembly and persons who made submissions under subsection (7)(c), and

(d) shall no later than 3 weeks after he or she was appointed, furnish a report containing recommendations to the Planning Regulator.

(14) Copies of the report of the inspector referred to in subsection (13)(d) shall be furnished as quickly as possible by the Planning Regulator to the manager and elected members of the planning authority, the regional assembly and persons who made submissions under subsection (7)(c).

(15) The persons who have been furnished with the report of the inspector referred to in subsection (13)(d) may make a submission to the Planning Regulator in relation to any matter referred to in the report no later than 10 days after the receipt by them of the report.

(16) No later than 3 weeks (or as soon as may be during such period extending that 3 week period as the Planning Regulator may direct) after receipt of the report of the inspector referred to in subsection (13) (d), or any submissions made to him or her under subsection (15), the Planning Regulator, having considered the report, recommendations or submissions, as the case may be, shall decide for stated reasons—

(a) to issue the direction referred to in subsection (4)(b),

(b) not to issue the direction referred to in subsection (4)(b), or

(c) to issue the direction referred to in subsection (4)(b), which has been amended by the Planning Regulator to take account of any of the matters referred to in subparagraphs (i) or (ii) as the Planning Regulator considers appropriate:

(i) recommendations contained in the report of the inspector referred to in subsection (13)(d), or

(ii) any submissions made pursuant to subsection (15).

(17) The direction issued by the Planning Regulator under subsection (16) is deemed to have immediate effect and its terms are considered to be incorporated into the plan, or, if appropriate, to constitute the plan.

(18) The Planning Regulator shall cause a copy of a direction issued under subsection (16) to be laid before each House of the Oireachtas.

(19) As soon as may be after a direction is issued to a planning authority under subsection (16), the planning authority shall make the direction so issued available for inspection by members of the public, during office hours of the authority, at the offices of the authority, and may also make the direction available by placing it on the authority’s website or otherwise in electronic form.

(20) The Planning Regulator shall publish or cause to be published in such manner as he or she considers appropriate directions issued under subsection (16).”.”.

I thank the Leas-Cheann Comhairle. In section 1.14 of the Mahon tribunal findings, it states:

with regard to enforcement, the Tribunal is concerned that recent changes in the planning system have resulted in an over-centralisation of power in the hands of the Minister for the Environment which is not subject to sufficient checks and balances. Consequently, the Tribunal is recommending that the Minister for the Environment's ability to give directions to Regional Authorities and Local Planning Authorities should be entrusted to a Planning Regulator.

Furthermore, section 1.15 states:

While the Planning Regulator should assume some of the Minister for the Environment's existing role in relation to enforcement, the Tribunal considers that his or her role should not be confined to this. In particular, the Tribunal is recommending that the Regulator should also be entrusted with the power to investigate possible systemic problems in the planning system, including those raising corruption risks, with the aim of making recommendations to address those problems.

The Department's regulatory impact analysis also states:

The Final Report of the Tribunal of Inquiry into Certain Matters and Payments (also known as the Mahon Tribunal), which was published in March 2012, recommended the establishment of an Independent Planning Regulator, who could assume certain planning oversight functions of the Minister for the Environment, Community and Local Governments and who could also be charged with carrying out investigations into systematic problems in the planning system together with conducting research, education and training. This recommendation was accepted in principle.

The regulatory impact analysis goes on to point to the fact that the Mahon tribunal's findings in this regard were in all likelihood influenced by section 31 of the principal Act when it states:

The small number of instances in which a Minister has invoked the powers of direction available under Section 31 of the 2000 Act to direct a planning authority in respect of forward plans, including the majority of those arising under one Minister, is likely to have informed the Tribunal in making this recommendation.

The Bill leaves all this power in place. Even to pretend that this legislation addresses or implements the recommendations of the Mahon tribunal is an insult to that body of work and to our intelligence. The provisions in Schedule 1 do not transfer these powers away from the Minister, so amendments Nos. 2 and 3 here address this deficiency in the Bill. These amendments must be incorporated in the Bill in order for the main Mahon tribunal recommendation on planning to be addressed.

The majority of our following amendments refer back to amendments Nos. 2 and 3 as if they have been incorporated into the Bill. If they are not accepted, then in essence all the legislation allows for is the establishment of an advisory body, not a regulator. The regulator in reality will still be the Minister, which is the situation that the Mahon tribunal condemned with regard to planning enforcement and regulation.

Amendment No. 16, coupled with the next four proposed by Deputy Eamon Ryan, with which we very much agree, will also be essential if we are to uphold the spirit of the recommendations of the Mahon tribunal. In section 1.09, the tribunal states that both the National Development Plan and the National Spatial Strategy:

play a key role in the planning system. However, neither has a statutory basis and the Minister for the Environment, Community and Local Government (the "Minister for the Environment") enjoys considerable discretion in determining their scope and content. The Tribunal recommends that both of those instruments be placed on a statutory footing. The relevant statutes should specify the procedure for adopting and/or reviewing those instruments and make provision for public consultation when carrying out those procedures. In addition, the Oireachtas should approve the adoption of both the NDP and NSS.

It is noted that the NDP and to a lesser extent the NSS are not in play any more and that the national planning framework, NPF, is more relevant now, but it is clear that in order to avoid political interference and potential corruption, the planning regulator's role should be to ensure that local and regional authorities are in line with these more descriptive plans and objectives, such as the NPF.

As Deputy Ryan proposes, it should also be in line with the national transition objective established in the Climate Action and Low Carbon Development Act, the water framework directive, EU directives on air quality and the floods directive. The provision "Policies and objectives for the time being of the Government" and the other provisions allowed for in section 31S(1)(a) and (b) will allow for the kind of short-termism, short-sightedness and political expediency that led to the disastrous, unco-ordinated and reckless planning that we have seen for the past 25 years. The role of the planning regulator should be to make sure that our planning authorities are making decisions and carrying out their functions in line with term objectives, environmental legislation and agreed national and regional plans that have already had their political input inserted into them. In the way the legislation stands, apart from the fact that the regulator will have no teeth, the regulations will ensure that planning authorities must stay in line or change with the wind based on whatever is politically or economically expedient. As the Mahon tribunal has shown, these two latter categories have little to do with the public interest.

Like most of our amendments, amendments Nos. 22 to 26, inclusive, and amendment No. 33 serve to remove political interference and ensure that the office of the regulator is truly independent, is actually a regulator and is not just a powerless advisory body making recommendations that the Minister may or may not do anything about depending on what he or she feels like.

Amendments Nos. 34 to 36, inclusive, are all to do with ensuring that this legislation sets up a regulator and not an adviser. They seek to end the situation that the Mahon tribunal condemned, namely, the provision in section 31 of the principal Act by which special powers of veto and enforcement lie in the hands of the Minister of the day. The amendments also attempt to curtail the interference of the Minister of the day. Section 31AO(2)(e) basically allows the Minister to direct the regulator in accordance with whatever it pleases. The office must endeavour to ensure that in its function of compiling submissions, observations, recommendations or reports regarding notices from planning authorities of a proposal seeking to make, amend or revoke a local area plan, it addresses, "such other matter as a Minister may prescribe under section 262 or otherwise prescribe". Section 262(2) states, "regulations under this Act may contain such incidental supplemental and consequential provisions as appear to the Minister to be necessary or expedient".

See this speech in context