Eoin Ó Broin (Dublin Mid West, Sinn Fein) | Oireachtas source

The strategic housing developments were probably one of the worst changes to our planning regime for many decades. It is not the only bad change made by the previous Government and other Deputies have correctly identified the section 28 mandatory ministerial guidelines and there are also key aspects of the national planning framework that are continuing to cause us significant problems.

I welcome this Bill, although there are elements the Minister should still consider changing. It is worth reflecting on the passage of the strategic housing developments legislation in 2016 and early 2017, when many of us on the Opposition benches and some in Fianna Fáil rightly recognised that the legislation was not fit for purpose. We argued strongly at the time on Committee Stage that it would not speed up the delivery of homes. We said it was a developer-led change to the planning system that would cause very significant problems in terms of the type of proposed developments and lead to a significant increase in judicial reviews, which would delay the delivery of much-needed housing.

That argument that many of us made was subsequently confirmed in a very important piece of academic research done by academics from University College Dublin and Queen's University Belfast, who interviewed over 40 individuals involved with that process including development lobbyists, Ministers, officials and Opposition spokespersons. The research had an anonymous basis and it confirmed that this was a classic example of industry capture of the planning regime with all the negative consequences we have seen since.

I have a slightly wry smile when I hear Deputies opposite criticising the legislation, particularly those from Fine Gael, given that they supported it and were warned not to do so. Some Fianna Fáil Deputies who were very vocal in their criticism of strategic housing development applications have been very quiet in accepting the fact that while they abstained on the original legislation, they facilitated it. I say this because the same thing happened, albeit under this Government, when we gave Deputies the opportunity to remove those two sets of mandatory ministerial guidelines that Deputy Haughey has correctly criticised. Recently he voted to maintain those mandatory ministerial guidelines in a vote on legislation in this House. They will come back to cause difficulties for him and his constituents in the time ahead. That is a matter he will have to explain to those constituents.

The real problem with the SHD legislation is that it was never about speeding up the delivery of homes; it was about, in the words of one senior official who was involved in the drafting of the Bill, removing the idiosyncrasies of the city and county development plan to make things easier for developers at their behest. The consequence was the undermining of the democratic decision-making power of the local elected representatives in those city and county development plans, the alienation of local communities by not having the right to appeal and, ultimately, not delivering much need homes. Only 15% of the approximate 70,000 units of accommodation that have been approved to date by the SHD process have commenced. This is a tiny number, which shows that even when projects are not judicially reviewed, they do not get built.

At the time, I and others argued strongly to the then Minister, Deputy Coveney, that instead of the SHD process he should do something very simple, namely, put in place statutory timelines for pre-planning, for further information requests and for An Bord Pleanála appealed decisions. Thankfully, that is what the current Minister is doing in this Bill and I welcome the fact that he is returning primary responsibility for decision-making in planning to local authorities and improving the system with statutory timelines. That is an eminently sensible thing to do and it is on that basis that we will support the Bill. However, often when Opposition Members make proposals, they do so out of genuine intent. The measures we propose should get better consideration from the Government. There are six issues I want to genuinely highlight that the Minister has got wrong in this Bill and urge him to reconsider key aspects of it.

First, there is no provision for public participation in the pre-planning stage of development. I know there are issues with commercial sensitivity, etc., but the greater the involvement of local communities and third parties at the outset of the development process, the less likely there will be large-scale concerns and subsequent legal challenges. There are different ways to do that. It can be done, for example, through greater use of placemaking or master planning by the local authority or some form of public involvement in the pre-planning process. There is a way of doing that, which would deal with many of the problems Deputy Haughey and others raised earlier, and I think it is an omission in the Bill.

The second issue is on material contraventions of the city and county development plan. The reason 90% of the judicial reviews of SHDs were on material contraventions was the changes to the ministerial guidelines by the former Minister, Eoghan Murphy, on building heights and design standards and the misapplication by the board of aspects of the national planning framework national planning objectives. That created a tension between the city and county development plans and those other planning policies. That should all now be ironed out of the system with a new round of county development plans and a planning regulator involved directly in ensuring compliance between local and Government policy. We need to return to a position where contraventions of development plans are the exception. No planning application should be accepted with a material convention to the development plan without justifying why. I am not saying such applications should be automatically excluded, but if a planning application proposes a material contravention, the developer should have to justify in explicit terms in the application why that is being done, otherwise we will continue to have these problems in the future.

I am very concerned about where we might go with the restrictions by way of regulation on further information requests. I urge the Minister in his reply to this debate to give more information on where he plans to go with those further information request regulations. A local authority should not be prohibited from requesting any information at further information stage that it believes is necessary to make its final decision.

I am still not convinced by the Minister's justification for the leapfrog provision in section 6. I heard his contribution in the Seanad. I do not believe this is anything to do with residential development, because appeals to the Court of Appeal have been incredibly rare in SHD cases. This seems to me to be something that probably came from the Attorney General for some other purpose. The Minister needs to tell us why the provision is in the Bill. If he tells us why, that will allow us to make an assessment of it. I think it is to do with strategic infrastructure developments and not large-scale residential developments, but until we have an adequate explanation, I am not in a position to support it. I am all for speeding up the process; I do not object to that. I just do not see why this provision is in the Bill and, therefore, greater clarity would be very welcome.

The final two issues I wish to raise relate to the transitional mechanisms. There were always going to be transitional mechanisms - I was clear on that - but the Minister is being excessively generous, and I say that in all honesty. Allowing those with a pre-planning approval from the board a period to put in a planning application is completely legitimate, but we should have given them until February of next year. Everybody knew this process would end in February. I do not see why the period is 16 weeks; eight weeks would have been more appropriate. I do not accept that developers can come along at the last minute and put in a pre-planning application through the SHD process on 16 December, for example. The developers will get all the benefits of the SHD process into the middle of next year for the application, into the autumn for the decision, and if it is judicially reviewed into the courts at the end of next year and the year after. I see no reason the Minister could not have allowed them to go through pre-planning in the old SHD process and if they were approved after nine weeks by the board next year, they would have been redirected into the large-scale residential development process. I suspect it would have been quicker to do it the way I have proposed because it is less likely to be judicially reviewed. I urge the Minister to consider that option again, because giving people nine weeks for the board to make its pre-planning application decision, 16 weeks for submission of application and 16 weeks for decision means that Deputy Haughey, in north County Dublin, could face SHD decisions in his constituency in October next year, with all the consequences of that. I accept the transitional mechanism. I think the Minister has got this wrong and I urge him to rethink it.

Even when we get rid of the SHD process, which I welcome, we will not get rid of the real problem, which is the negative impact of Eoghan Murphy's mandatory ministerial guidelines on building heights and design standards and the misapplication by the board of the national planning objectives. National planning objectives are high-level strategic objectives, but they are currently being used in decisions by An Bord Pleanála to approve plans that are in direct contravention of new country development plans that have the approval of the Planning Regulator. That makes no sense whatsoever. Some of those developments are in or very near Deputy Haughey's constituency. If people think that moving from the problematic one-stage approval process to the two-stage local authority and An Bord Pleanála process will resolve the problems that other Deputies have mentioned, they will be sorely disappointed. So long as those mandatory ministerial guidelines on heights and inferior design standards for build-to-rent apartments remain on the Statute Book, we will have a problem. So long as the board is misapplying and misinterpreting the national planning objectives in conflict with new city and county development plans, we will also have a difficulty.

I know we have very little time on this Bill. Committee Stage is to be taken later today. I ask that the Minister listens to us on some of these issues. If the former Minister, Deputy Coveney, had listened to the Minister, Deputy Darragh O'Brien's colleagues on the Oireachtas housing committee and to me in 2016 and 2017, we would not have the mess we have today. If we work together more collaboratively, we can come up with an even better Bill. Sinn Féin supports the Bill, notwithstanding the problems in it, but, in my view, it is inadequate. We need further changes and I ask the Minister to work with us between now and Christmas so that we get the best possible planning system with the best possible outcomes for the people who currently live in those areas and those who will move into those areas once the new homes are built.

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