Malcolm Noonan (Carlow-Kilkenny, Green Party) | Oireachtas source

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

I thank Deputies for providing me with the opportunity to set out the provisions of the Planning and Development, Heritage and Broadcasting (Amendment) Bill 2021.

This technical Bill is necessary to allow for the transfer of functions relating to heritage under a number of enactments to the Minister for Housing, Local Government and Heritage. Normally, such transfers of ministerial functions are effected through orders made under the Ministers and Secretaries (Amendment) Act 1939. A number of powers and functions in relation to heritage have already transferred to the Minister for Housing, Local Government and Heritage under the Heritage (Transfer of Departmental Administration and Ministerial Functions) Order 2020. However, two problems arise in relation to the transfer of the remainder of the functions relating to heritage to the Minister for Housing, Local Government and Heritage, which must be addressed by the Bill. First, section 30 of the Planning and Development Act 2000 prohibits the primary Minister under the Act - the Minister for Housing, Local Government and Heritage - from exercising any power or control in respect of any particular planning case. Section 30 must now be amended to provide for the Minister for Housing, Local Government and Heritage to lawfully exercise certain heritage functions proposed to be transferred from the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media, in particular certain functions regarding commenting on planning applications and draft development plans from a heritage perspective. Second, the Supreme Court decision in the Mulcreevy case of 2004 holds it to be impermissible to use secondary legislation in the form of transfer of functions orders to merge into one Minister functions that the Oireachtas, in primary legislation, that is, an Act, had intended to be divided between two separate Ministers; this being seen by the court as breaching a key constitutional principle that only the Oireachtas can make and amend primary legislation. There are certain legislative provisions relating to heritage in which this problem arises and must be addressed by the Bill.

If the Bill is enacted and commenced, the remainder of the heritage powers and functions held by the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media may be transferred to the Minister for Housing, Local Government and Heritage by a transfer of functions order.

The Bill contains three parts. Part 1 - preliminary and general - of the Bill contains standard provisions in relation to the Short Title, collective citations, construction, commencement and expenses.

Part 2 contains five chapters and 13 sections the purpose of which is to amend the Planning and Development Act 2000, the Wildlife Acts, the European Communities Birds and Natural Habitats Regulations of 2011 and planning matters relating to heritage.

Section 3 is a standard provision providing that in this part, the "Act of 2000" means the Planning and Development Act and "the Minister" means the Minister for Housing, Local Government and Heritage. Chapter 2 contains eight sections related to amending the Planning and Development Act, 2000.

Section 4 amends section 13(2)(a) of the Planning and Development Act 2000 by the substitution of "to the Minister, the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media" for "to the Minister, the Minister for Arts, Heritage and the Gaeltacht" and similarly amends section 13(8)(c) of that Act. Section 13 of the Planning and Development Act, 2000 deals with the adoption by planning authorities of variations to development plans. With regard to sending notice to specified bodies regarding proposed variations and notice to such bodies on the making of a variation, it contains references to "the Minister for Arts, Heritage and Gaeltacht", as the Minister for Tourism, Culture, Arts, Gaeltacht, Sports and Media was titled in 2014, along with references to "the Minister", the latter being the primary Minister under the Planning and Development Act, 2000 and now titled the Minister for Housing, Local Government and Heritage. Without amendment to primary legislation, the merging, by means of a transfer of functions order, of the notification to the Minister for Tourism, Culture, Arts, Gaeltacht, Sports and Media under the section with the notification to the Minister exercising the function of primary Minister under the Planning and Development Act, 2000, namely the Minister for Housing Local Government and Heritage, would result in a Mulcreevy problem.

Section 5 amends section 30(2) of the Planning and Development Act, 2000 to allow for the Minister for Housing, Local Government and Heritage to exercise certain heritage functions transferred or proposed to be transferred to him or her in particular, certain functions regarding commenting on planning applications and draft development plans from a heritage perspective.

Section 6 amends section 51 of the Planning and Development Act 2000 by providing that the Minister for Housing, Local Government and Heritage shall prescribe the form of a record of protected architectural structures. The text of section 51(2) of that Act raises problem a from the point of view of the judgment in the Mulcreevy case. Section 6 of the Bill solves this problem by providing for the Minister for Housing, Local Government and Heritage to make regulations regarding the form of a record of protected structures without needing to consult with another Minister.

Section 7 amends section 52 of the Planning and Development Act 2000 by providing that the Minister for Housing, Local Government and Heritage shall issue guidelines to planning authorities concerning development objectives for protecting structures, or parts of structures, which are of special architectural, historical, archaeological, artistic, cultural, scientific, social or technical interest and for preserving the character of architectural conservation areas. As already stated, the text of section 52(1) of the 2000 Act raises a problem from the point of view of the Mulcreevy judgement. Again, this amendment solves this problem by providing for the Minister for Housing, Local Government and Heritage to issue the guidelines to planning authorities without needing to consult with another Minister.

Part XAB of the Planning and Development Act 2000 provides for consultation by the primary Minister under the Act, namely the Minister for Housing, Local Government and Heritage, with the Minister for Arts, Heritage and the Gaeltacht, as the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media was titled at the time of enactment, as to whether the compensatory measures specified by a competent authority in an imperative reasons of overriding public interest case are sufficient to ensure that the overall coherence of the Natura 2000 network, that is, European sites which are special areas of conservation or special protection areas, is protected, where the making of certain land use plans specified in the Act or the granting of consent for a proposed development under the Act would adversely affect the ecological integrity of a European site, but it is proposed that it should still go ahead for imperative reasons of overriding public interest.

Sections 8 to 11 amend sections 177X, 177Y, 177AB and 177AC within Part XAB of the 2000 Act. These sections provide for the transfer and merger of the consultation functions of the Minister for Arts, Heritage and the Gaeltacht in Part XAB of the Act to the Minister for Housing, Local Government and Heritage resolving the Mulcreevy problem in Part XAB.

Chapter 3 contains one section relating to amending the Wildlife Act 1976 and one section relating to amending the Wildlife (Amendment) Act, 2000. Section 12 amends section 59(3) of the Wildlife Act 1976 by providing that where the Minister for Housing, Local Government and Heritage is regulating access to or use of the foreshore for nature conservation purposes, those regulations shall be made: following consultation with the Commissioners of Public Works; with the consent of the Minister for Public Expenditure and Reform; and where the regulations relate to foreshore in relation to which functions are vested in a Minister of the Government other than the Minister for Housing, Local Government and Heritage, with the consent of that other Minister of the Government.

Section 13 amends section 16(2)(a) of the Wildlife (Amendment) Act, 2000 so that the Minister for Housing, Local Government and Heritage shall seek the observations of any Minister or Ministers of the Government as the Minister considers appropriate in the circumstances in respect of the proposed designation of a natural heritage area rather than seeking the observations of certain specified Ministers. The Ministers from whom observations would be sought would depend of the functions of those Ministers which may vary over time.

Chapter 4 contains one section relating to amending the European Communities (Birds and Natural Habitats) Regulations 2011. Section 14 amends the designation of sites as special areas of conservation and special protection areas and direction provisions of the European Communities (Birds and Natural Habitats) Regulations 2011 by providing that, in the designation or direction process, the Minister for Housing, Local Government and Heritage will inform another Minister or Ministers of the Government of developments. As with the amendment to section 16(2) of the Wildlife (Amendment) Act 2000, the Ministers to be communicated with would depend on the functions of those Ministers which may vary over time.

Section 15 provides, in accordance with the relevant provisions of the Planning and Development Act 2000, for the Minister for Housing, Local Government and Heritage, when he or she is performing a function in respect of heritage to: make a planning application to a planning authority; make an appeal to An Bord Pleanála; make a request for a declaration to a planning authority, a referral for a decision to apply for a determination to An Bord Pleanála in relation to exempt development; and do any act or thing pursuant to the provisions of the Planning and Development Act 2000 relating to any of these matters.

Part 3 contains two sections and these relate to amending the Broadcasting Act 2009.

I am very pleased to have had the opportunity to outline the provisions of the Bill. I look forward to hearing Deputies' views on it.

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