Thursday, 25 November 2021
Planning and Development (Amendment) (Large-scale Residential Development) Bill 2021 [Seanad]: Second Stage
I move: "That the Bill be now read a Second Time."
I am pleased to have the opportunity to introduce the Planning and Development (Amendment) (Large-scale Residential Development) Bill 2021 on Second Stage. I thank Members for facilitating the debate on this very important Bill. We just completed Report and Final Stages in the Seanad earlier this week. Over the course of its passage through that House, Senators were very much engaged with the subject matter of the Bill. The debate was lively, constructive and detailed on all aspects of the Bill. I welcome that. A number of amendments were made during Committee and Report Stages in the Seanad which I was happy to accept. These will enhance the Bill. I will go through some of the amendments that were made in a little bit more detail later.
As the Cathaoirleach Gníomhach will be aware, in the Programme for Government: Our Shared Future, a commitment was made not to extend the strategic housing development, SHD, planning arrangements that were introduced under the previous Government's Rebuilding Ireland action plan beyond their legislative expiry date, 25 February 2022. Furthermore, in the recent Housing for All action plan, which I published in September, action 12.3 commits to the introduction of a new planning process for large-scale residential developments, LRDs, to replace the previous SHD arrangements. I am very happy that this Bill delivers on both of these commitments.
Most significantly, I am very happy that this Bill delivers on a commitment that this Government and I have made to restore decision-making to our local authorities. That is something I have always believed in. I have always believed that is a much more appropriate place for decisions to be taken. Underpinning that is the reinstatement of the primacy of local area and local development plans. That is very evident in this Bill. We are bringing planning back to the local level. The provisions of the Bill will also restore the two-stage planning process for large-scale developments with decision-making for such proposals returning to the local planning authority in the first instance, with the possibility of a subsequent appeal to An Bord Pleanála.
In addition to the benefits of returning the primary decision-making function for LRDs to the local level, the reintroduction of a method to appeal to the board should assist in reducing the number of judicial reviews against LRD planning decisions compared with the number taken under the SHD arrangements, where a judicial review in the High Court was the only appeal mechanism available. It is urgent that we pass this Bill because it is crucially important that we transition to decisions being made at a local level and restore the two-level planning process as soon as possible. That is why we need to conclude this Bill within the next ten days or so, allowing this system to take over from 17 December. I should have said that this Bill was passed unanimously in the Seanad without dissent. There was good debate from all sides of the House, both Opposition and Government.
I will now address the main contents of the Bill. Following discussions in the Seanad, the Bill now contains 18 sections, which I will turn to in a little bit more detail. The primary provisions are contained in a limited number of sections, namely, sections 3, 8 and 17, with supporting provisions for these arrangements contained in the other sections. Rather than go through every single section individually, I will instead outline the key elements of the provisions of the Bill. I am happy to take any questions so that we can move forward to the next Stage. The proposed new arrangements retain some of the positive elements of the SHD arrangements including the mandatory pre-application consultation on proposed developments between the developer and the planning authority to tease out issues prior to the submission of a planning application and the mandatory decision timelines, which provide greater certainty with regard to the timeframe for planning. These timelines are mandatory and will be brought into this Bill. The new arrangements will comprise three stages: pre-application consultation, planning application stage and an appeal stage, where required. Such appeals will be made to An Bord Pleanála.
I will turn first to the pre-application consultation stage, which is primarily detailed in section 3 of the Bill. This will involve two steps. The first is an initial, more informal, pre-application consultation on the proposals between the developer and the planning authority, as is already mandated for projects of this scale under section 247 of the Planning and Development Act 2000. This will be followed by a formal request for an LRD meeting by the developer. This will require the submission of fairly detailed initial documentation in respect of the proposed development. Planning authorities will be required to hold such LRD meetings within four weeks of the receipt of the meeting request and then to issue an opinion on the proposal within four weeks of that LRD meeting. The pre-application process will therefore take a maximum of eight weeks. The LRD opinion issued by the planning authority will set out whether the documentation submitted by the developer constitutes a reasonable basis for moving to the next stage in the process by way of submitting a planning application. It will also identify any issues that need to be addressed when subsequently submitting that application.
Drawing on the SHD arrangements, this new LRD pre-application consultation is intended to improve the quality of planning applications submitted subsequent to the pre-application process in respect of large-scale housing developments and reduce the need to request further information in respect of such applications.
The second stage of the LRD process is the planning application stage. The new LRD arrangements will rely on the existing section 34 planning application process and will require planning authorities to determine the LRD planning application within eight weeks of receipt of that application. There will be limited scope for requesting further information, as I have indicated. The need for such requests should be limited anyway because of the more detailed pre-application process, the details of which will be set out in supplementary regulations. Requests for further information have, in the past, resulted in considerable delays in determining planning applications. The new LRD arrangements are intended to front-load the consideration of a range of issues at the pre-application stage, as I have said, thereby reducing the need to request further information at the planning application stage, streamlining the decision-making process.
With regard to the third stage of the process, the appeals stage, which is provided for in section 7 of the Bill, the board will be required to determine LRD appeals within a mandatory 16 weeks of receipt of the appeal. Again, the scope to request further information will be similarly limited.
The mandatory timelines for the three stages of the LRD planning process, which have the potential to be almost as time efficient as the SHD arrangements they are replacing, will streamline the overall decision-making process, thereby providing greater clarity and certainty with regard to timelines. To help ensure adherence to these mandatory timelines, a penalty payable to the developer will apply to both the planning authority and the board. The penalty for the planning authority will be three and half times the application free or €10,000, whichever is the lesser. The penalty payable by the board for late decisions on LRD planning applications or appeals will be €10,000.
I should also mention one important difference from the outgoing SHD arrangements. The new LRD arrangements will allow for up to 30% of the gross floor space of the proposed development to be available for commercial or other uses rather than the 15% cap in place under the SHD arrangements. This change acknowledges that such developments, particularly in our cities and on our inner-city brownfield sites, tend to require a greater mix of residential, commercial and other uses in order to take into account the differing needs of inner-city areas. This allowance is for up to 30% and will make the LRDs in such inner-city urban areas more economically viable.
In line with the principle of compact growth, more residential development is required in urban areas. This change in the scope of the arrangements is intended to facilitate greater development of brownfield sites in those inner urban areas than might otherwise be the case. We all wish to see more development and compact growth in our cities, and particularly on brownfield sites. This Bill will assist in doing that.
The Bill also proposes some transitional arrangements in respect of the expiry of SHDs and their replacement by the new LRDs. I will address two scenarios under the transitional arrangements. First, developers with projects already in the SHD system that have already received an opinion on their proposals from An Bord Pleanála on the commencement of the Act will have 16 weeks from the commencement date to submit their applications to the board. Second, developers that have already commenced the SHD process by requesting pre-application consultation with the board and are awaiting an opinion on their proposals on the commencement of the Act will have 16 weeks to submit an SHD application to the board from the date of receipt of the pre-application consultation opinion from the board. In both scenarios, the board will then have a further 16 weeks to make a determination. These are fairly standard transitional arrangements that generally apply when changing from one planning system to another. It is important to note, however, that for large housing development proposals which have not commenced the SHD process on the date of the commencement of the Act - with the co-operation of this House, I intend that commencement date to be 17 December - any such future development proposals for large housing developments will be required to go through the new LRD process. Consequently, it is intended that this 17 December date will effectively mark the transition date from SHD to LRD arrangements.
A further provision in section 6 of the Bill will be subject to some discussion here and was subject to some discussion in the Seanad. This section amends section 50A of the Planning and Development Act 2000 to provide that any party to a judicial review challenge may apply to have a High Court judgment referred directly to the Supreme Court, bypassing the Court of Appeal. As I said in the Seanad, there is good rationale for this streamlining provision, which, once introduced, will have the effect of significantly reducing the time for disposal of litigation and enabling relevant projects to proceed earlier than otherwise would have been the case.
I will now summarise some of the amendments I accepted in the Seanad. There was an extensive debate on several aspects of the new streamlined planning procedures. Amendments were proposed and discussed by all sides and those discussions resulted in my acceptance of several key amendments to the pre-application stage of the LRD process, which concerns section 3 of the Bill, during the Seanad Committee and Report Stages. These changes are now incorporated in the Bill before us, which has been improved as a result of those amendments.
I will briefly outline in more detail the amendments I accepted. First, some concerns were expressed regarding the making available of documentation at the planning application stage, relating to the previous LRD meeting or opinion stages. Having considered the discussions in the Seanad, the Bill now includes a provision whereby the planning authority shall keep a written record of any third-party consultations held prior to the LRD meeting and attach a copy of such a record to any subsequent planning application. Furthermore, the Bill now provides that the LRD opinion issued to the developer at the end of the pre-application consultation stage shall be made public when the LRD application is made.
Second, some concern was also expressed about the omission of the obligation that a developer should provide a statement at the pre-application consultation stage as to how the proposed LRD has had regard to the local area plan and-or the development plan. Originally, I had intended to provide this requirement by way of regulations. We had a good debate on this matter in the Seanad, however, and what we are doing in this regard reinforces the recognition of the primacy of the development and local area plans. I was able to accept an amendment with this revised wording on Report Stage in the Seanad. These enhancements to the provisions reflect what we are trying to achieve here, namely, the restoration of a streamlined, two-stage planning process for large-scale housing developments, while also facilitating open, transparent and meaningful participation by the public in the overall process.
I also brought forward an amendment on Report Stage in the Seanad to provide that the housing strategy prepared by the local authority shall take into account the need to ensure that home ownership as a tenure type is provided for and estimated in its housing strategy. This provision is significant because it provides for the first time in planning law that home ownership shall be recognised and factored in as a specific tenure type in the drawing up of local authority housing strategies. That is another commitment we made in our Housing for All plan and another important step towards putting home ownership, in particular affordable home ownership, back within the reach of thousands of people. We have underpinned that and used this Bill as an opportunity to do it. Therefore, for the first time in planning law, home ownership is recognised as a form of housing tenure.
The Deputies will agree that this Bill contains a number of fundamental and important legislative features. Again, one is the restoration of the two-stage planning process for large-scale residential developments, with the primary decision making responsibility returned to the local planning authorities, in the first instance, thereby enhancing local democracy, and rightly so. We are also enhancing public participation in the local decision-making process, with members of the public now having two opportunities to provide input into the process, namely, at the planning stage and the appeal stage. We are also retaining positive elements of the SHD arrangements, namely, the mandatory pre-application consultation and the statutory and mandatory decision making timelines to provide certainty.
All these aspects are aimed at facilitating speedier decision making in the planning system for much-needed housing supply. While we want to improve our planning system and the access and input that people can have regarding planning applications, we must also look at the context and the why and when of introducing this legislation in the middle of a housing crisis. We must also streamline our planning processes to deliver homes for our people. The increasing number of judicial reviews in the SHD process arose because people felt they did not have a say during the early part of that process. I believe in local democracy and local public input into the planning process, as does the Government, and that is why these changes are significant and I want to ensure they are in place from 17 December.
I look forward to hearing the contributions of all Deputies to this debate. As I said, I took on board suggestions and amendments offered in the Seanad and I am very open to listening in this House. We will also have the Committee Stage of the Bill next week. I thank Deputies for their attention while I briefly outlined the main provisions of the Bill, which I believe are significant. This legislation heralds the end of the SHD planning process. We are ending it earlier than was provided for. I look forward to this debate and the Committee and Report Stage debates next week.