Cian O'Callaghan (Dublin Bay North, Social Democrats) | Oireachtas source

I will first make some comments on the additional parts the Minister has announced today. I completely understand that this work must be done. It is very difficult, however, in terms of the legislative process and the scrutiny process, for us to engage with that in detail when all we have at this point are the introductory comments made by the Minister. We do not have the detail. I appreciate that there will be a briefing on Monday, which was sought by the Chairman of the joint committee and others. The deadline for amendments was 11 o'clock this morning, and yet we are only beginning our Second Stage debate now. We have not had sight of the detail relating to the new parts of the Bill.

The Minister is bringing forward new amendments around short-term letting. This is absolutely an area that needs to be regulated. I would really like to see the detail about how this is going to be done. I am concerned, however, and it may not be related to the regulations because I do not know from the detail in the Minister's speech today.

The Minister referred to rent pressure zones. Will the regulation of short-term lets only apply in rent pressure zones or will there be a different form of regulation outside of those zones? One reason I am particularly concerned is the way rent pressure zone rules are written. As the Minister will be aware, 77 local electoral areas at the moment are not in rent pressure zones. It is actually highly questionable whether any of those 77 local electoral areas would ever be deemed a rent pressure zone under the current rules in the way they are written and the way the data is needed in order for them to qualify as a rent pressure zone. This is despite the fact that in some of those there have been rent increases of up to 75%, which affects renters. Simply because rent increases can be way above and beyond the maximum that is allowed in rent pressure zones does not mean that an area qualifies to be a rent pressure zone on the data points sought. Many of the smaller local electoral areas that register smaller amounts of data with the Residential Tenancies Board will never qualify. The 15 local electoral areas where that does not apply are never likely to qualify as rent pressure zones because of the rules relating to average rents in the greater Dublin area, because they are located a significant distance from that or because the rents in those areas are significantly lower, albeit growing fast, and are never likely to exceed average rents in the greater Dublin area. If that is related to these measures and short-term letting, then it is a problem that needs to be fixed. If it is related to these measures and short-term letting, I have a concern. I simply do not know on the basis of the limited comments the Minister made earlier.

Before getting into the detail of the Bill, I want to raise one concern arising from the Minister's comments about the substantive issues relating to substitute consent. The Minister correctly sought to address some of the concerns that were expressed in the Seanad, and by me and others in this House, about whether substitute consent applications could be refused.

The Minster stated that a substitute consent application would be refused if it was decided that the applicant had or could reasonably have had a belief that the development was authorised. In other words, if it was unauthorised and they had reasonable or bona fide belief to that effect, then that would not apply. However, that then appears to be contradicted. I am not trying to be semantic; this is a serious point. The Minister then indicated that in the very rare cases where substitute consent is being sought, it is done after a bona fide mistake has been realised by the developer. That line seems to be a statement from the Minister that in all cases where substitute consents are being sought, it is because of a bona fide mistake being realised by the developer. That may not be the intent. If it is not, the matter may be clarified by the Minister when he is replying. If it is the Minister's view that in cases where substitute consent is being sought where there has definitely been a bona fide mistake and that this has been realised by the developer, just how does he know that? Has an analysis been carried out by the board? Could we get from the Minster or the board a report on the current applications for substitute consent? That would help inform the discussion on this to a considerable degree.

I want to get into some of the detail of the Bill. It is very important that we bear in mind the following very key point. This goes back to the Court of Justice of the European Union’s original ruling with respect to this matter, which is why there has been subsequent legislation. A critical aspect of that ruling is that under EU law, remedy is required in terms of environmental consequences and damage that may have taken place in the case of an unauthorised development. The point about remedy is very important. The reason there has been legislation subsequent to that ruling is because there was no provision for public participation in either the notice process or the leave process. That also fell foul of a judgment as well in the context of the case relating to An Taisce in the Supreme Court. That judgment was handed down on 1 July 2020. The changes brought in December 2020 by the Minister were on foot of that. The reason there are more changes being brought forward now is because that legislation was not sufficient in how it dealt with the matter.

On these changes, I specifically want to ask if the text of these changes been shared with the European Commission? Has the Commission expressed any views on the matter or any concerns in respect of the proposals? Has it asked any questions or sought any information with regard to the substitute consent regime and the underlying issues? I ask that because of the previous rulings and judgment.

On the rationale for the doing away with leave and notice instead of fixing the issues around that, I would like to hear about the rationale, motivation and driver behind these changes. What is the rationale, motivation and driver behind the changes to allow substitute consent applications be considered in tandem by the board with applications that are materially different but that relate to the same site? At what types of developments is this specifically aimed?

I have concerns about An Bord Pleanála and its capacity and workload. An Bord Pleanála has had a massive additional workload in the past number of years in the context of strategic housing developments. The latter has given rise to capacity issues. It is questionable as to whether or not, through these proposals, we should provide for additional applications outside of substitute consent applications to go forward to the board when its capacity and resources are already under strain. This also has implications regarding public participation. Usually, those applications will be dealt with by a local authority. Members of the public can participate at that point, after which they could then appeal any decisions to the board. Because this is going straight to the board while it is considering substitute consent, that means the only way to appeal effectively is by means of judicial review. We have seen with strategic housing developments how that has not been productive or useful and has actually led to greater delays and inefficiencies in the process, which is problematic. There are issues in terms of how this affects the public and its participation and has disadvantages for them. I agree with the comments that five to eight weeks is an improvement. If there are complexities such as those relating to serious environmental concerns, however, eight weeks will not be sufficient . It can take time to work through in order for people to submit their viewpoints. Those viewpoints need to be considered. That goes to the heart of the initial rulings on this.

The other concern I have is that what is proposed could delay remediation. This legislation allows that in order for a new application to be submitted. The board currently has the power to order that an operation be halted. I am not aware that it has ever done so. Perhaps the Minister could clarify if it has been done. Typically, what happens is that where there is an unauthorised development and there is going to be an application for substitute consent, the operator carries on regardless. That could provide an advantage to an operator who is engaged in unlawful development where they could potentially carry on for a period of six months or more, even if they consider that they have no chance of being granted permission or regularisation. These can be the exception, and, of course, legislation has to allow for people operating with good intent. We cannot be constrained simply by those who try to abuse processes, but all of us, through our work as representative over the years, have seen people operating flagrantly in unauthorised ways and with total disregard, and then using various legislative provisions to their advantage. I am concerned that this may provide advantages to people in those circumstances.

On getting rid of the streamlining and notice and leave stages, I would have thought it would make more sense in terms of decision making to first examine if exceptional circumstances do not apply. In what has been outlined, the public and the board would only have to consider a remedy in what needs to be done to sort out the damage if the notice and leave stages were retained. It is only in exceptional circumstances that the State and public should have to contend with grappling with both a remedial assessment of damage done and a proposal to effectually regularise the development and allow for its ongoing operation and the assessment of that into the future. By getting rid of the notice and leave stages, there will be potential delays in remediation. That should be to the very heart of what we are seeking to do here in terms of unauthorised developments where there could be damage taking place. It is getting that damage remediated as quickly as possible if people have been operating outside of the planning process. That should be an absolute priority.

Another issue that arises is linked to the inadequacy of enforcement provisions to deal with the remedy required when an environment impact assessment or an appropriate assessment has not been done. That is if the local authority issues an enforcement notice about an unlawful development. If the developer decides they do not want to apply for substitute consent, what provision is there in Irish law to provide for remedy and do the remedial assessment at a local authority level? This is outstanding under EU law, and there is a requirement in terms of providing the necessary information and facilitating the public in terms of participation and consultations.

On the provision to sit with the board under the substitute consent regime, by the Minister's own admission, this is not a process that is open to ensuring that local authority enforcement will be carried out. What happened with the Derrybrien wind farm is a practical example of this.

We effectively had a stalemate which is covered in detail in the judgments from the European Court of Justice where the ESB which was the operator in this case refused over a decade to apply for substitute consent. This was only resolved when the European Commission brought Ireland to court in 2019 and massive fines were imposed for the failure to comply with the part of the judgment relating to the wind farm. The issue of enforcement remediation is very important.

The cost of fines currently stands at €19,520,000. That is a massive fine for the Irish State to pay. There are very significant costs beyond that fine, costs faced by the Department, costs of legal and consultancy fees to remedy this before we even talk about the costs for remedying the environmental and other damage done. As these fines build up, the local community awaits remedy of this. I ask the Minister to provide a detailed breakdown of the costs associated with Derrybrien, including all the legal consultancy costs as well as the fine and an estimation of the remediation costs and the amount of time the State has spent on this.

I wish to deal with some things missing from the Bill and which could be corrected. There are issues when substitute consent is refused. Two things could be done when substitute consent is refused to provide clarity on what needs to be done and what happens next. Deputy Ó Broin also referred to this. A simple solution would be that in every case where an application is refused, information would be provided with the application for substitute consent as to what would happen if refused. That would be part of the application. That would put an onus on the person applying to provide the documentation outlining what they will do to remedy the site if they are not given consent. That would be one way to deal with it.

Probably a better way would be to amend section 177L with respect to changing from "may" to "shall", to require the board in every instance to provide a clear indication of what needs to be done if substitute consent is refused and to stipulate how that remedy would be done and assessed in line with EU law if it has not already been recovered in the substitute consent decision so that a statement is required if nothing is done. That would avoid what happened with Derrybrien. That is a very small change that could be done but would be very significant and would avoid further problems. I ask the Minister to consider that small change. That may avoid very significant problems down the line.

See this speech in context