Catherine Connolly (Galway West, Independent) | Oireachtas source

I have placed a bundle of documents in front of me to give to context to what we are being asked to do. I would be misleading the Dáil if I said I have read the Bill. I have done my best to read around it and to read the memorandum. I thank the Library and Research team for producing two digests under extreme pressure.

I want to thank the staff in the Department before I absolutely criticise this Bill. I have serious concerns about it, but certainly not about the staff.

I make my comments today in the context of yesterday's report about the tipping point for our climate. Two hundred scientists said we are at a pivotal moment for humanity and they outline five major things already at risk of crossing tipping points at the present level of global warming, namely, the Greenland ice sheet; the west Antarctic ice sheet; warm water coral reefs; North Atlantic subpolar gyre circulation; and permafrost thaw. That serious warning yesterday is the context. I have searched in vain for recognition that we are facing an existential crisis on climate change and biodiversity although we declared an emergency, I think back in 2019.

I also despair of the narrative that accompanies this Bill, which again is no reflection on the staff but an absolute reflection on Government spokespeople and certain backbenchers who continually reiterate the narrative that the planning system is in trouble because of objectors. I do not know any such word as an objector. I spent 17 years of my life at local level. The people I know put in submissions at great cost to themselves. It takes huge effort to put in a written submission. We never made provision for oral submissions. I have never met someone who was an objector for sake of being an objector. Perhaps I am a little innocent in view of the RTÉ programme the other night. I have only met concerned residents and concerned citizens at the end of their tether. If TDs were honest in this regard, they would agree with me on that.

I think there is a title there "a solution in search of a problem" which I will come back to. I am not sure why we do a regulatory impact analysis. I know there is no option and we have to. I do not want the Minister of State to come back and tell us we are legally obliged. My difficulty relates to the do-nothing option or do something and the cost. When it was finally published, the benefit of option 1 - the do-nothing option - was that the majority of Planning and Development Act 2000 is considered to be working efficiently as is and well understood. Option 1 does not require any phased implementation of new policies. One would wonder why we have produced this Bill. Part of it is to do with the open door that different lobby groups have had to this Government and to successive governments. In collusion with the Government, they have put forward the narrative that the biggest problem with strategic housing developments are objectors with absolutely no evidence of that.

On 6 December I received an answer to a parliamentary question on lack of capacity and lack of planners in the system. It stated "The LGMA submitted a report entitled Business Case for Resources for the Planning Function of Local Authoritiesin 2022 [imagine it had to go to the trouble of putting forward a business case] which identified a shortfall of over 500 staff". Can you imagine trying to run an effective planning system? Notwithstanding that, the regulatory impact analysis tells us it did pretty well. That is a testimony to the staff who are there despite a shortage of 500 staff.

The Office of the Planning Regulator made a submission to the pre-legislative scrutiny stage. It stated:

As the Department’s own analysis has shown, [which we are not privy to, of course] the planning service as it were is likely under-resourced by probably a third in headcount terms and with fee income not having been revised since 2001, our planning service is chronically underfunded.

The historic and structural underfunding of our planning processes is all the more remarkable when one considers how central the planning process is to building anything in this country – homes – infrastructure – schools – flood defences – renewable energy infrastructure.

It goes on to make a range of points, some of which I agree with and some of which I do not. It points out it does not agree with imposing fines for delays in the statutory limits.

Before I get into the nitty-gritty of it, I mention climate change because now more than anything we need the active participation of residents and citizens. In my experience change has come from those committed people on the ground. I believe the national climate mitigation plan was taken to court by the Friends of the Irish Environment. We can only learn from those in that organisation. They put that stress on themselves and the court upheld their application and found that citizens were entitled to know what was in the law and the mitigation plan was held to be invalid.

As TDs we are trying to do our best because we constantly remind ourselves that we are here to legislate. This is the third largest piece of legislation in the history of the State comprising 712 pages, 22 Parts - we know there are further Parts to come which have not been subjected to pre-legislative scrutiny - 501 sections and six Schedules. The explanatory memorandum is 124 pages long. The legislation will affect all our lives in areas such as housing, roads, renewable energy, environmental and architectural conservation, and very importantly, access to justice in planning matters, which I will come back to because that is exactly what we are restricting and reducing. The briefing note from the Department states that one of the primary objectives is to bring clarity, consistency and certainty. We used to talk about the three Rs; now we are talking about the three Cs and an additional one, coherence.

The whole idea is to save time. As one of the previous speakers said, the planning system is a mess and there are delays. As I have pointed out, one of the major delays is with lack of resources and staff. Regarding a particular appointment to An Bord Pleanála, that is a reflection on the Minister who appointed the person at the time and did not seem to recognise when one might have conflict of interest or not. However, that has gone through the criminal courts and has been dealt with. None of that was caused by the good staff who work in An Bord Pleanála.

We come along with this legislation and we change the title. I see absolutely no reason for changing the title of An Bord Pleanála. We all know it; even people with little Irish know it and they say it proudly. It was a body that we had trust in. I did not agree with all its decisions but we had trust in it. We knew there was a second tier. We knew when decisions were rushed at local level because of lack of staff or extraordinary pressure on staff, there was a second tier to look at it.

Even though we are talking about saving time here by reducing the participation of the public, we then have this documentation from the Department's regulatory impact analysis claiming we are actually expanding public participation. For God's sake - or the goddess or whoever one believes in - how could we possibly say that we are expanding the opportunities for public participation when we are doing the complete opposite? There might be with the preparations plans, the ten-year plans for local authorities and so on; I have no difficulty with that at all. However, I have the most serious difficulty with the twisting of language when it comes to claiming we are expanding the role of residents and people who are interested when we are doing quite the opposite.

Going back to the three Cs, the former Chief Justice has told us - unfortunately he hopes that he does not have to say he told us so - that it will lead to further litigation. All of the contributions I have read tell me that this Bill will lead to further litigation, what is called satellite litigation, because of the confusion, because of the failure to define terms precisely, and because it is centring power in the hands of whoever the Minister will be on the day, leaving a huge amount of power for regulations and so on and that this will be challenged.

Nowhere in this have I seen the context given of climate catastrophe and how planning has to deal with that and allow maximum participation. Nowhere have I seen the Aarhus Convention set out, which was signed by us in 1998 and ratified in 2012. I have had my office do a word check on it. I think the Aarhus Convention and what it is specifically mentioned 11 times, but there is no overall setting out of the obligations on us under the Aarhus Convention, which we ratified in 2012. It is certainly going to be challenged on that basis alone. That has become part of European law and part of our law. I would have thought, somewhere in those vast 700 pages, it would have been set out and that we would have learned that much by now. There is not a mention of it.

I keep an eye on the cost of tribunals, and two in particular relate to planning. The Tribunal of Inquiry into certain Payments to Politicians and Related Matters concluded and we are at €67 million for it. I will skip all the others because they are not relevant to planning. That was the Moriarty tribunal. The Mahon tribunal, from 1997 to 2004, cost more than €142 million, and it is ongoing. Of course, this has nothing to do with that, but with the importance of the public participating, as set out in the Aarhus Convention, by getting maximum information, maximum participation in the decision-making process, and access to justice in the courts. In fact, the judge - I cannot remember his name - in one of these tribunals is quoted as saying we need maximum accountability and participation because corruption blossoms in the dark. Yet, what we are doing here is reducing it, against all the submissions that have come in.

We champion Science Foundation Ireland through regular contributions in the House by various Deputies, and we have Science Week. We should base our decisions on evidence. There is a complete lack of evidence here as to why we need to change the judicial review process and restrict further the ordinary person’s access to it. I have not seen it set out anywhere. What I have seen, however, is that the judicial reviews are minimal. They are something like 3% to 5% annually, as set out by the Office of the Planning Regulator and the different environmental groups. A narrative that judicial reviews are causing the problem is completely false, misleading and against everything I stand for, particularly in a Dáil that prides itself on Science Week and basing decisions on evidence.

I will probably not be here for the Minister of State’s concluding remarks, but I will read them. Maybe he could set out the rationale that has led the Government to restrict judicial reviews and on what basis it has done this, bearing in mind that those submissions have repeatedly itemised the previous occasions on which the Government tried to do this. The first was in 2000 when it attempted to get rid of the ex parte. It had to put it back in 2010. The Government also had to do something similar with asylum and immigration cases where the narrative was they were clogging up the system. The reality was the Government had to reinstate it. Here we are in 2023 getting rid of the ex parte, which acts as a filter system. It allows barristers and solicitors to bring forward bona fidecases and is the only avenue open to the people on the ground, and the Government is restricting that.

With a sop to the Green Party, the Government is setting up an administrative scheme that, however it is set up, will be in the hands of the Minister and the Government and taken from the courts. I put my trust in the courts any day in the awarding of costs, the withholding of costs or their analysis of whether there is a substantive case to go forward for judicial review. The Government is restricting all of that.

The Government is also restricting the declaration of whether a development is an exempted development. Again, that has been cited in the court. As it was, and the Government is making it worse, anyone, whether the neighbour next door or up the road, could seek a declaration that something was an exempted development. If they did not do that, they could not put in a submission to An Bord Pleanála. Within that restriction, the High Court has commented that this is very difficult to justify under the Aarhus Convention. The Government has gone even a step worse and said that a third party cannot look for a declaration on exempted development. There is no rationale or reason given. It will be the developer or the person with permission to develop it who can seek the declaration. The recommendations from the many various groups are that this should not be done, that it is wrong, that this should not be done with judicial review because it is wrong, and asking for the rationale and the basis for it to be shown, and nowhere is it to be seen.

The restriction on residents’ associations and the onerous and burdensome criteria is nothing short of shocking when we are utterly reliant on people to come forward because the enforcement by local authorities is appalling and abysmal. A huge amount of that is down to the lack of staff in local authorities. I was in Achill with the Irish committee less than three weeks ago and we checked with the new county manager. I still call them county managers. It appeals to me, rather than the term "príomhfheidhmeannach".

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