Thomas Pringle (Donegal, Independent) | Oireachtas source

What continues to come out in relation to this Bill is that it is rushed and maybe deliberately complicated. We are hearing now that the explanatory memorandum does not even comply with the Bill, which is shocking for the House here, because it is disrespectful to put forward a Bill of this nature to the House for consideration. Many Members are not members of the housing committee and would not be intimately involved in the pre-legislative scrutiny, yet we all have an important role to make sure that the legislation is scrutinised. That the explanatory memorandum is not in compliance with the Bill is bad enough. One then sees that the debate time will be compressed, so Second Stage will be shortened. For a Bill that has taken so long, is so complicated and is allegedly so important for the workings of our State, it is a disrespectful step to make sure that it goes through in such a rushed process.

I am calling on the Ceann Comhairle to clarify, even in light of what happened today, what the situation is and whether this Bill complies with Standing Orders and what he is going to do about it. He should stand up for the Dáil, not the Government, in doing so, because there are three strands, although one would be forgiven for thinking there are only two. One is the Executive, the second is the Dáil and the third is the Judiciary, but in effect, the Executive is the Dáil because it controls everything that happens. That can be clearly seen in how this Bill is progressing and being dealt with.

There is no doubt but that the Bill is massive. I have not had time to look at this Bill in detail. Many others have not. I would say that even committee members have not. The explanatory memorandum is confusing to read, which makes it even more difficult. That raises questions about the intent and workability of the Bill in the future.

The consultation on the actual Bill is fairly lacking. The Community Law and Mediation centre and the Environmental Justice Network Ireland have stated that they were disappointed that the Bill has proceeded to Cabinet without prior inclusive public consultation, indicating a weak commitment to genuine democracy. Welcome to Ireland.

The Minister has said that the Bill is well balanced. He would say that, would he not? The Minister is the one who has brought this Bill to us with an explanatory memorandum that is lacking.

The Minister will say the Bill is balanced and perfect, and we should only trust him and the Government to put that forward. Why would we need a Dáil at all, is the attitude. Indeed, the Fórsa trade union that represents workers in An Bord Pleanála has said there has been no consultation with staff regarding the provisions of the Bill that apply directly to them. If there is no consultation with staff directly affected, it is unlikely the public or others would be consulted either. Fórsa has also expressed concerns on the arbitrary deadlines that are being placed on response times and I would have to agree with it on that. As I understand it, one of the main reasons the board did not make quick enough decisions is that it had only six board members so therefore the number of cases that could be reviewed was affected. With six board members, there could be two decision-making bodies and that is why the decisions were not made on time, and that is a problem. The best way to ensure An Bord Pleanála can meet its deadlines is to ensure a fully constituted board acts and acts all the time. A quick look at the board last week showed that 12 of 15 members were only appointed this year, and at a committee hearing in February, the board discussed how it could not function with only six members. The board would work if the Minister and the Department ensured there was a functioning board in place.

It is also insisted that courts' oversight is causing delays for housing. That matter was put to lie last week when, in a letter in The Irish Times, it was outlined that of 297,000 planning applications made in the past 11 years, fewer than 7% have been appealed to An Bord Pleanála, and of those, fewer than 3% have been taken to judicial review. This amounts to 0.04% of all planning applications and 3% of those on appeal. We are constantly told as Members, particularly regarding social welfare, that bad cases make bad law. Certainly, if that is the case, bad cases in this instance make bad law; that is for sure. It seems that the 0.04% of cases that end up with An Bord Pleanála in the High Court are the ones that are deciding what is being done regarding this legislation. This Bill is not only detailed, long and everything else, but it will be bad law as well.

How can the proliferation of judicial reviews be causing the delays in the planning cases? We heard the previous speaker talk about the number of houses that are delayed because of judicial reviews. It is nonsense. It is media BS. It is put out in the media all the time that all these houses are delayed because of An Bord Pleanála and the courts system, while hundreds and thousands of houses are sitting there with granted planning permissions because developers are looking to capitalise on the value of land and sell it. This is why housing is being delayed, not because of An Bord Pleanála or because of appeals by those who are concerned about what is happening in their communities and are getting involved in the process. We should be getting involved. If the Ministers were sensible and right, they should be welcoming communities getting involved in the process, rather than trying to restrict them, cut them off, and cut down the legal places where they can go. The reality is that you get a judicial review only if the law has not been followed. A judicial review is a review of the actual law that is being dealt with and not a review of the merits of a particular case in itself. It is a review of how the law has been followed and making a decision on that. Therefore, that is a problem. There is no doubt this is all about restricting the public's access to the courts and to justice. The reality is that if the system was working properly, and if councils and An Bord Pleanála were following the law in making their decisions, leave to have a judicial review would not be granted by the courts. As I understand it, an applicant will have to be able to show a prima faciecase that the law was not followed to have a judicial review ordered, as I have said.

The cost provisions in Part 9 of the Act are clearly an attempt to stifle those solicitors who help communities bring the limited number of cases that are actually brought to the courts as it is. It is proposing to move cost hearings away from the Office of the Legal Costs Adjudicators, which knows whether costs are fair and reasonable, to an appointee of the Minister and all that entails. That is the aim of the industrial political lobby groups who do not want to be accountable to the courts and legal processes that we mere mortals have to live under. There is also the question of whether the changes to the cost provisions could actually create a precedent regarding legal costs in general, and therefore there is a genuine question about the legality of this provision, and that may be tested in the courts as well. That bizarrely will also lead to legal cases and appeals, possibly to the European Courts, which will cause the delays it is supposedly going to end. As Gregory Jones QC, BL. who chaired the review of An Bord Pleanála said in March 2016:

Some of the changes will not speed up the planning system. We will be on a European tour of Geneva, Strasbourg possibly even, and Luxembourg. Good work for the lawyers who practise in that way, but a depressing thought of delay and adverse impact on the economy. Decisions on developments should be speedily made? False. They must be made fairly.

Decisions being made fairly is what everyone is looking for and that is what communities are looking for as well when they decide on whether they want to oppose an application or stand up for their rights. If they can see decisions are being made fairly, they would probably go along with those decisions.

I listened to Members the last day and today talking about how councillors must have a right to have an input into a plan and that a plan should be adopted every five years rather than every ten years. That may be so, but in my experience, planners basically railroaded the plan through anyway and councillors did not get much input into it. That is what happened. Unfortunately, we have a system of local government that puts all the power with the county manager to railroad stuff through and that is what happens in the process. If we really wanted to have plans that were responsive and in which councillors were involved, we should be changing our entire local government system and doing away with the county managers system that persists at the minute. It was brought in at a time in the 1940s when it might have been necessary. I do not know if it is strictly necessary now because it does nothing but hamper local democracy and local values.

During the short time I had to condier the Bill, a number of things jumped out at me. There are probably many more and I will be looking at those through the process. I will pick out some of the things that concern me at the minute. I notice, for example, in section 9, on exempted development, it states that all exempted development is to be provided for in regulations rather than in the Act itself. This is very dangerous. It reduces oversight and makes clear that regulations can be adopted by the Minister at the drop of a hat. Nobody will know what has happened, unless someone is watching continuously to see what happens, identifies those regulations which are of concern, and brings them before the House in a specified period so they can be debated and discussed. That is all that can be done. The Minister can whack through regulations left, right, and centre to whatever development he wants to make sure they are okay, and by the time it has been realised these have been done, it probably will be too late, and they will not be able to be challenged anyway. Perhaps that is what the Minister and the Government would like to see in planning. It certainly seems to be what is going to happen.

In section 15, on definitions, the Bill refers to a settlement as "containing a minimum of 50 occupied dwellings with a maximum distance between any dwelling and the building closest to it of 100 metres". I wonder what impact this will have on the possibility of small villages in rural plans, whether they will be deemed settlements in the future, or what the implications of that will be. That could be important. It has been said in the House previously that this Bill is basically not looking at rural planning. It looks more at urban planning and mainly at Dublin and that seems to be the point of this Bill. However, there will be knock-on implications. The planning Act does not say the settlement relates to Dublin. It refers to 50 dwellings anywhere so that could have an impact for rural areas as well. That is significant and is something that should also be looked at. Indeed, it then goes on to state, in section 27 on regional spatial and economic strategies, that the "metropolitan area of a city means the area consisting of the city and its surrounding area approximating to the extent of its commuting zone". That is very interesting, and it would be interesting to see how that actually works in practice. I know for a fact that the commuting zone of Dublin goes as far as Cavan, Athlone, and probably as far south as Kilkenny. The Minister will poo-poo this and say this is not what is happening, but it is stated in the legislation that this is the commuting zone. Therefore, could Dublin City Council make a plan that affects the whole country or these 13 or 14 counties? I would like the Minister to point out in the legislation where that does not take effect.

That is what the definition in section 27 states. People will say that will never happen, that is not the intention of the Bill and so on. It is here in the legislation, and this is the legislation that will be looked at, chewed over and decided on in the courts. That is the reality and that is the difficulty with the complicated legislation we have. We are expected just to accept it, rubber-stamp it and pass it. That is the difficulty we all have to face.

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