Ivana Bacik (Dublin Bay South, Labour) | Oireachtas source

A good deal of the Bill, as we know, restates existing provisions in previous Acts. While I was preparing for the debate on the Bill, I was reminded of a debate on one of its predecessors in 2010 when I was a Senator, namely what became the Planning and Development Act 2010, introduced by Fianna Fáil and the Green Party in government. It was found to have serious issues. However, despite having evident defects it was rushed through both Houses. I recall my frustration at the time when I sat in the Seanad Chamber on the last sitting day before the recess, wading through endless amendments, none of which we had sufficient time to scrutinise as thoroughly as we would have liked. As we approach the Christmas recess with this Bill, I very much hope we will not see that exercise repeated. Significant improvements to the Bill will be needed. I want to identify some of the areas we have examined, albeit that we have had a relatively limited time to peruse the 715 pages in the Bill.

At its core, what we have been presented with, despite undoubted levels of engagement from planners, public representatives and civil society, is still clearly a developer-led Bill which is incapable of carrying out the kind of drastic overhaul of the planning system that is needed. For starters, where is the use-it-or-lose-it clause that we understood would be in it? Where is the clause that would demand that developers act to activate planning permission where granted and consequences where they did not do so? I have previously called for a reduction in the time periods for which planning would remain live from the current five years to three. We understood there would be a provision in the Bill to address that concern about land hoarding. Apparently, however, the provision has been left out of the Bill. That would be a big win for developers but a loss to the public. It is a case of the tail wagging the dog at a time when we need strong State-led action to address what is the civil rights issue of this generation, namely the supply of homes and the fact people cannot access housing.

Today we heard from the Residential Tenancies Board, RTB, about shocking increases in rents despite the fact that most of the country is under rent pressure zones. The current system is simply not working and we know that crucial to addressing this is ensuring a supply of more houses and the building of more homes. It is not just about reforming planning in order to make the planning process more efficient; it is also about ensuring that we have the activation of existing planning permissions. It is well known that there are shocking levels of dormant or non-activated planning permissions for homes. At the end of last year, there were more than 100,000 such applications in the State, more than 50,000 of which relate to Dublin where we know the housing crisis is severe.

I speak as a representative of a constituency where nearly half of the properties are rented in the private market. Large numbers of people, including families, are renting privately, many of whom are in fear of losing their homes because of the lack of protections for renters. They are deeply fearful of notices to quit at this time because they cannot even find somewhere to live, never mind whether it is affordable. A sizeable proportion of the people I represent, including renters and those who seek to buy, would much rather have the security of owning their own home but simply cannot access an affordable home anywhere in the area.

In that context, it is utterly unforgivable to see speculators and developers hoarding good land and sitting on sites where planning permission has been granted for homes that could be built for the people who so badly need them. We will seek to introduce measures to ensure the use-it-or-lose-it provision is built into the Bill. We want measures to give effect to the Kenny report, which is now decades old but remains important in terms of addressing the chronic issue of land hoarding. We need to make it an imperative that people act on the planning permissions that are granted. That is crucial and should be a primary objective in the Department of Housing, Heritage and Local Government and a primary focus of the Bill.

There is a discussion to be had as to how much of the 715 pages of the Bill will actually make meaningful changes and how much is simply, as I said, restating existing laws and falling short of what is needed. As the Minister said in his speech, further legislation will come and he spoke about some amendments he will bring forward. The reforms recently recommended by the Law Reform Commission will apparently now take effect through different legislation. The Minister might confirm when it is proposed to bring that forward. I do not think he has given us a timeline. It would be helpful to try to get a picture as to when an entirely new and robust planning system will be in place.

One aspect of the Bill is the establishment of a new planning commission. It will be established from the ashes of An Bord Pleanála, but with an enormous backlog of work already on its hands. We need to know that there will be more here than just a change of name. We need to know that the change will be more substantial. An Bord Pleanála, as we all know, has been in the news for all the wrong reasons over recent months. The actions of a small number of individuals should not have driven a headline change in a name. If it is just an exercise in rebranding, that is simply not good enough. In October, it was reported that the backlog in An Bord Pleanála in deciding appeals has now grown to some 3,600 cases, roughly a whole year's intake. Serious efforts are under way to get through that backlog and many of us have met An Bord Pleanála to discuss this issue. The major critical issue currently facing the board as currently constituted is not the legislation, the legislative process, judicial reviews or NIMBYs; rather, it is a shortage of planners and staff. The Minister acknowledged that in his speech when he referred to hiring more staff. It is, of course, welcome to hear that staff numbers will be increased, but the question remains as to whether that will be enough to address the backlog and deliver on the increased supply that we all know is needed.

I have spoken many times in the House about the shortfall in Government housing targets. When I addressed the Taoiseach on this recently, he acknowledged that there would be a review of the targets and that the figure of 30,000 homes per year is now seen as too low to deal with increased demographic demand. We all know the real need is more like 50,000 to 60,000 new builds a year. We will need not just a change of name and new legislation but, crucially, more planners and staff, as well as people working in construction and whatever new planning system emerges as a result of the Bill and other legislation. The new commission, as envisaged in the Bill, will inherit existing staff. The Minister has said there will be an increase, but will that be enough to take on new roles, deal with the new challenges and deliver the vastly increased supply that we all know is needed? Anyone who speaks across planning and construction raises with us the shortage of planners as a major concern, as well as the shortage of staff generally. We know it is exacerbating the housing crisis and adversely impacting on the demand for development more widely.

It also undermines the function, role and public perception of the Department of Housing, Local Government and Heritage and local authorities.

To put it bluntly, people simply do not believe the capacity is there throughout the State, at both local and national level, to deliver the increased levels of housing that are needed. This needs to be addressed, but nothing in the Bill indicates that the historical under-resourcing and understaffing of our planning system is being addressed. If we are putting in new statutory obligations and timeframes, that is welcome, but if we do that without investing the necessary resources, we will undermine credibility in the new system and people's belief in its capacity to deliver on the changes. Given the current backlogs caused, as we know, by the lack of staff and personnel, the intended legislation seems to miss that factor and perhaps ignore it. There is a need for a more holistic view on funding for third level courses and apprenticeships. The Minister stated in his contribution that work is going to be done on this, but it needs to be done rapidly and it should have been happening before now. There needs to be engagement with the Minister for further and higher education and we need to hear what measures are being taken, such as through the critical skills list, to ensure we have the levels of recruitment we are going to need.

This is needed not just to ensure we will meet the demand for housing that we all know exists so patently and painfully throughout the country; it is necessary also for us to build the climate infrastructure that both the Minister and I have spoken about. We cannot meet our 2030 climate change targets, just six and a bit years away now, without making the necessary investment. I have engaged extensively with those working in wind power and solar power and they all tell me planning is the major obstacle to the development of the infrastructure they are keen to develop. There are now many national and international bodies, companies and firms with new technologies and reduced costs for developing solar and offshore wind at scale, with exciting potential, but the planning system has created a real obstacle to progress. In the week of COP28, this should be uppermost in our minds. We need a planning system that is robust enough not just to deliver the increased levels of housing that are needed but also to deliver efficient and effective infrastructure for renewable energy capacity. Again, it is about funding, resources and personnel and not just about law reform.

Looking at some of the measures where the Bill will repeal and replace existing provisions, there are concerns it may detract from democratic accountability, a concern raised with many of us by many individuals and organisations. For example, when the national planning framework was introduced in 2018, section 18 of that year's Act required the Government to submit any draft of a revised or new framework for the approval of each House of the Oireachtas before it was published. That requirement, admittedly, did not extend to the then current national spatial strategy, which was simply renamed as the national planning framework and was continued in force without approval by either House. Now, however, this new Bill proposes to dispense with Oireachtas approval altogether, and will continue the current unapproved framework that is in force and enable the Government to make new or revised frameworks without the requirement for the approval of the two Houses. I would be interested to hear the Minister’s response on this because it raises not just issues relating to democratic participation and accountability but also constitutional issues relating to what is effectively law-making without the participation of the Oireachtas. That, again, is a real concern.

This power, it seems, will be supplemented by a ministerial power to issue national planning statements detailing a Minister's instructions on anything and everything, from the contents of a regional, spatial and economic strategy to the layout of amenity spaces. The Bill will specifically enable the Minister to repeat instructions given by a predecessor regarding the promotion of a particular type of development - we might all think of the collapsed and somewhat hare-brained effort to shift Dubliners into tiny, costly so-called co-living spaces - but with this Bill there will be no requirement for Dáil and Seanad approval for the making of what will, in effect, be legislation of that sort. That is a concern, and we will seek to amend the Bill to require that these powers not be exercised without the prior consent of both Houses, because we are concerned the legislation will represent a massive centralisation of control in the hands of Ministers without adequate safeguards and oversight over power and its impacts.

Another example of what might be described as a power grab is the change in approach to how the Government, Ministers, the planning regulator, An Bord Pleanála and local authorities can be held to account for the lawfulness of their decisions. I am speaking, obviously, about the judicial review measures. Representatives of environmental NGOs, such as Attracta Uí Bhroin of the Irish Environmental Network, have described the proposal as an unprecedented regression in access to justice rights and the ability to hold authorities to account before the courts. The Minister has spoken about the Bill as streamlining judicial review but these are valid concerns. While there are, certainly, some who could be described as serial objectors, their interventions have had a minimal impact on the efficiency of the overall planning process and they are often used as scapegoats in this regard. The data say, for example, that just 0.25% of the overall planning decisions in 2021 were subject to judicial review, so I think we tend to overstate this issue.

During pre-legislative scrutiny of the Bill, countless stakeholders warned of the dangers of making changes in this area and the risk of delays with what is often referred to as satellite litigation, where several lawsuits relating to major proceedings take place in another court. We see that with arguments on preliminary issues such as scope and locus standibefore substantive issues can be resolved. The former Chief Justice Frank Clarke has stated that plans to cut red tape will herald a new era of lengthy legal delays as cases are referred to the European courts, while the European Commission has indicated we could be heading into another decade of litigation. These are all issues that need to be raised.

We are concerned that, as drafted, Part 9, on changes to judicial review, may create significant obstacles for ordinary groups and associations that come together informally to address issues in their community. I refer specifically to the proposed environmental legal costs financial assistance mechanism - there must be a snappier title – in Chapter 2 of Part 9 and the concerns that unduly centralised control will be exercised by the Government through this mechanism and that it will not increase access to justice, as the Minister suggested, but rather may act as an impediment to those with valid legal issues.

I have a sense of déjà vu in making some of these arguments because, to cast our minds back to 2010, the original section 50(b) in the then Planning and Development Act provided for the current special cost rules in environmental cases, and there was a concern then that this would make environmental litigation unsustainable. We want to make sure litigation is not the preserve of those who are very wealthy, which would be utterly wrong in respect of access to justice. As we know, that provision was finally amended by a subsequent Government.

Public and environmental NGOs are concerned about being put at a material disadvantage in trying to address or ameliorate unsustainable development. Developers will not be constrained by the cost rules and will enjoy the benefit of there being no order as to costs if they lose a case. This is a significant concern, not least at a time when the climate and biodiversity crises should be at the top of our agenda. It seems that in recognition that there may be some who seek to exploit the system, there is a danger that we strike the wrong balance when it comes to ensuring rights of access to justice for the many and for the ultimate good that comes from diligence, oversight and good planning. We need to ensure planning is good and sustainable and we need to legislate in a proportionate and informed way to address this issue.

Another issue was brought to my attention by Fórsa, the trade union, which represents employees of An Bord Pleanála. I am told that despite the proposed legislation, including, as we all know, significant changes to the organisational structure of the board, to date there has been very little, if any, engagement with Fórsa on the proposed changes, yet the Bill will have a substantial impact on the duties and responsibilities carried out by its members. There is a concern about the lack of consultation on significant changes affecting members. I would be grateful if the Minister could address that point in his response. How will he engage with the concerns of staff?

Planning and development legislation is profoundly important, even in the case of Bills that are less weighty in size. This legislation, and the infrastructure it will create, will shape the physical world around us. It will decide whether our State is up to the task of providing for its people and, in particular, decide whether we can deliver on the much-needed increased provision of housing for our people and the increased and more effective provision of climate and renewable energy infrastructure. I very much hope, therefore, that this will not be a wasted opportunity, that we will have an opportunity for constructive engagement to ensure the concerns we and others have for the Bill will be addressed, and that improved and revised legislation will finally pass to ensure we will have a fit-for-purpose planning system.

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