Thursday, 25 November 2021
Planning and Development (Amendment) (Large-scale Residential Development) Bill 2021 [Seanad]: Second Stage
I welcome the confirmation from the Minister that there will be time allocated by the Government to facilitate this on Committee Stage next week, and that it will move on to Report Stage and Final Stages the week after that in Dáil Éireann. I welcome that and it is important. I am aware that considerable time has been given to this Bill in the Seanad, but it is important that there is time allocated in Dáil Éireann also, not least given the history of planning legislation. It does deserve sufficient scrutiny. I will be tabling a number of amendments and I look forward to the engagement on that, which is a very important part of the process. While amendments are not always accepted, at least we can get an understanding as to why they are not accepted and why the Government believes its approach is the correct one. There is something to be gained from that in the context of the process.
I take issue with one thing that the Minister said in his earlier remark about ending the strategic housing development, SHD, process early. Many people feel that is not the case. There was a statement from the Minister earlier in the year that the SHDs would come to a conclusion this October with the final planning applications happening in December. Many people I know in local communities involved in planning issues were under that impression. That has not happened and I do not think that everybody would accept that it is ending early. In fact, under the transitional arrangements in this, it will go well into next year and could well be going into next summer. There will be a potential cost in a rush of applications and possibly more poor decisions that could have detrimental effects for years to come.
I will address a couple of issues in respect of this legislation. First, I can fully see the logic in the penalties payable by the local authorities or An Bord Pleanála if they do not meet the timeframes. One of the key things that arose at the joint Oireachtas Committee on Housing, Local Government, and Heritage when we were doing the pre-legislative scrutiny of this Bill and was raised by everybodywe consulted, be it planners, the Dublin Democratic Planning Alliance, or the County and City Management Association, was they all expressed the same concern about this legislation on whether there would be enough resources such as planning resources to deal with it. This was the concern across the board. There is a strong view that there are deficiencies in forward planning resources in local authorities in that they do not have enough, but there is also much concern about dealing with planning applications. I want to flag that now.
One of the other issues that arose during the pre-legislative scrutiny was about continuing to have a role for local area committees or municipal districts in the process.
I note the Minister’s comments on pre-planning, where he said that it is intended to frontload the consideration of a range of issues at the pre-planning consultation stage. That makes complete sense and is a valuable way of doing things. The more that is frontloaded and teased out at that point and resolved, the more likely that planning applications will be successful and the quicker we will have much-needed housing delivered and on stream. Issues can be teased out at that point which reduce conflict.
When it comes to large-scale residential developments, many of the issues and the problems that need to be resolved often come from knowledge that is held within the community. I think, in particular, of a strategic housing development in my local community where there was much local knowledge about problems relating to the site that could have potentially resulted in landslides and problems of real substance in actually trying to build there. The local community had that knowledge but the developer did not, nor did their various consultants, engineers or planners. That only came through late in the process and because there is no ability for local communities to give that knowledge in the pre-planning process, it is missing from it. I appreciate that there are genuine reasons why the Department and the Minister may not want to go down that route because of the resources that it might involve as we do not want anything that would create more time or would burden local authority planners with extra work which would slow the process down. At the same time, not being able to get that information at the start, and the fact that the local community will not even be aware that pre-planning or that sort of consultation is going on, is a potential gap. Perhaps there is some way that does not create too much of a burden or any delays that would be able to get at least some of that information out about particular sites and areas where this could be resolved early on.
I remember when I saw the current Minister, Deputy O’Gorman, at one of his first council meetings and he had an excellent motion about looking for transparency at the pre-planning stage of the process which I was very impressed with. I would love, however, to see those principles around transparency. I appreciate it will be published later on but there would be benefits for communities to that being made available at the early stage.
I have concerns about section 6, which has been referred to as the leapfrog section relating to access for justice. It would be very useful and helpful to receive a detailed explanation as to the justifications around that.
I also have concerns on the question of additional information which were well flagged during the pre-legislative scrutiny process. The County and City Management Association, in particular, made the point - to be fair it has great expertise and experience in this area and is not in any way an overly critical group and only makes comments in a very careful and considered way - very strongly that the additional information stage is often where issues are resolved. I agree with the association on this. I have seen this in many larger planning applications where the planning or local authority comes in with additional information, flags things with the developer-applicant that need to be sorted and corrected, and because they are corrected and sorted at the additional information stage, the developer-applicant goes on then to get a planning permission rather than a refusal. The association was very strong in saying that if that process is overly curtailed, it will lead to more refusals. I, therefore, urge caution there as I appreciate the wish to have this streamlined but if that is tightened too much, it would be counter-productive.
I will go through the sections and then I will make some other more general comments about the disaster that the strategic housing development process has been.
First, I should, of course, say that it is very welcome that decision-making is being returned to local authorities. It should never have been given to An Bord Pleanála, which, by its nature, is an appeals board. Having that process where the only way to access an appeal was through a judicial review was a disastrous process and should never have been done and it is welcome that is returning back to the local authorities. This will be a gain for everybody, for planners, applicants, communities and people who need homes. We will have more homes with better planning and more sustainable communities as a result.
I have concerns about the existing SHD applications, the transitional arrangements and how long that will go on for. I also have a concern that this Bill will do nothing to address the very regressive section 28 guidelines that were brought in by the former Minister, Deputy Alan Kelly, which effectively allowed the undermining of development plans and ultimately led to increases in land speculation and costs. It is my strong view that it undermines the delivery of housing in areas of prime location by effectively creating the situation of planning applications and permissions that are unviable. Due to the heights and densities allowed - I am in favour of increased heights and densities where appropriate - which can go so high and dense, it can actually make development unviable. I will give an example of this later to illustrate this point.
On section 3 of the Bill regarding a new section 32 in the principal Act, I have talked through the need for early consultation with communities and the benefits of that in reducing conflict together with the need for transparency. I will just briefly flag also that I have concerns about the language in section 3 as it does not follow the UN guidelines on gender inclusive language. It is very welcome that the Taoiseach and the Ministers from time to time give very strong and positive statements about the need for gender inclusive policies in Ireland which I respect and welcome. We should be following through, however, in ensuring that our legislation does likewise. The language is completely unnecessary and I have submitted a couple of amendments to address this. I appreciate that is not the main thrust of this Bill but, nonetheless,I have to say this.
I have concerns, as I have with all legislation, about the scope for the Minister to make regulations without the approval of the Dáil.
I have already made my comments on section 4 on additional information. The wording in the Bill seems better to me than was originally signalled. I am concerned, however, about how much it could be curtailed.
I have a particular concern that section 5 could potentially go against the principle of use it or lose it, on which the Minister has been very strong both since taking office and in opposition. Specifically, I am concerned that it may curtail the ability of planning authorities to consider other matters where a permission has already been granted. It goes back to the point I made earlier about instances where excessive development permissions, to the point of unviability, have been granted through the strategic housing development process. It will probably take some time to see the full extent of that but, where excessive permissions that are simply unviable have been granted, there must be an ability, if further applications on the same sites are submitted to the local authority, for the latter to consider whether the permissions previously granted are viable or are holding back the delivery of homes and the completion of communities. I have considerable concerns that section 5 goes against that principle and will curtail local authorities by not allowing them the flexibility to deal with such situations.
I have already dealt with section 6. On section 7, I must take issue with comments by members of the Government and with the relevant provisions. I certainly agree that owner-occupiers need to be respected in terms of the housing delivery and planning mix, but to suggest that this only applies to traditional houses and duplexes and not apartments is a cause for concern. The Bill mentions houses and duplexes but not apartments. The good news is that I have put in an amendment on this point, which I hope the Minister will accept. I am coming to his rescue on this critically important issue. We cannot accept a provision in legislation that home ownership is specifically about houses and duplexes and not apartments as well. Given the increase in smaller households, people rightsizing and the move towards more compact development, we must allow for supporting home ownership in apartments. I hope the Minister accepts my amendment.
I have outlined my concerns regarding the transitional arrangements set out in section 17.
I want to make a few general comments on the SHD process, which has relevance to the Bill and the measures I have discussed. One of the things SHDs have done is allow for increased heights and densities, as well as land values, to such an extent that they make delivery unviable in certain places. That is a principal concern I have. As I said, I support greater densities and heights, especially near public transport, but it must be done on a reasonable basis and with a realistic prospect of delivery. I will give an example from my constituency. It is one with which the Minister is very familiar as he probably passes by the development in question on a daily basis. Excellent infrastructure has been put into Clongriffin, including a DART station. There is a shovel-ready site in the heart of the development, right by the station, for 1,823 homes to be delivered, some of which were granted permission under SHD applications. It is a very good location on the edge of the traditional Dublin city suburbs. It has been rezoned for housing for the best part of two decades and the first phase of the development was occupied more than 15 years ago. The people who moved in then expected the development to be completed long before now, as well as what should be the town centre, in the area around the DART station. Under the SHD process, the heights and densities permitted have increased ever further. I have no issue with reasonable heights and densities, as I said, but in this instance we are looking at permission being granted for buildings of up to 17 storeys. That is well in excess of anything along the quays, in the docklands and elsewhere in the city centre or, indeed, almost anywhere in Ireland. The National Asset Management Agency, NAMA, which holds the loans, has indicated by way of replies I have received to parliamentary questions that it considers this and other developments to be, in effect, unviable.
My concern with the Bill is that it will not allow the local authority, if further planning applications come in to correct what I consider in this case to be a planning mistake. What is happening is that NAMA and the developer are looking to flip the site, with the lands and associated permissions on sale for €50 million. The only possible way the development could be made viable is by way of an investment fund buying it for build-to-rent schemes rather than for home ownership, which the Government says is its focus. It could only possibly be viable for an investment fund if the high rents such a fund would be seeking were underpinned by the State through housing assistance payment, HAP, provision and long-term leases. The site will possibly deliver high rents and high returns for investment funds but it will not deliver the kind of community housing of which we are all in favour. It may be the case that, for years to come, because of these excessive and speculative planning permissions granted under the SHD process, the housing will not be built because the permissions are not realistic or viable. This area that has been left undeveloped for two decade will remain undeveloped. The people in the community, who deserve to have the development completed, will not see that happening. Children will grow up, go to college and still be walking through what is, in effect, a ghost town around the DART station. This is all happening in the middle of a housing crisis. The people in that community and the people who need housing deserve to have the area completed. It is highly questionable whether SHDs have helped at all in this case or have, in fact, played a destructive role.
I appreciate that I am unpicking the decision-making being done by An Bord Pleanála but it is relevant to this Bill. If we do not have a balance in terms of achieving viable planning permissions that can be developed and delivered, we will continue to have delays in completing communities and delivering housing. Without the guidelines under section 28 of the Planning and Development Act 2000, as amended, being overturned and without local authorities being given the power under this legislation, if further planning applications are submitted, to correct planning mistakes that were made under the SHD process - my reading of the Bill is that it does not allow for this - we will continue to have the same problem.
It is worth considering research that was done into the SHD process and how it was lobbied for very strongly. A research paper by Dr. Mick Lennon of University College Dublin and Dr. Richard Waldron of Queen's University Belfast, entitled De-democraticising the Irish Planning System, details interviews with a number of politicians, decision makers and lobbyists. A lobbyist from Property Industry Ireland said the following in reference to his meetings with the then Minister for Housing, Planning, Community and Local Government, Deputy Coveney:
We went in and met him. And we met four times over about six or seven weeks... And he went through what his vision was for the Irish planning property system. And we gave him our recommendations and they took it lock, stock and barrel and stuck it into the new housing bill.
That is a direct quote from the person who lobbied for the SHD legislation that was brought in by the previous Government, which has been disastrous and which is, correctly, being removed now. I have no issue with the property industry or developers having a say in legislation but they should never have that level of influence.