Michael McNamara (Clare, Independent) | Oireachtas source

We have this tome of 720 pages to reform our planning Acts and we must ask why. It seems many of us do not really know why. We know there were problems with the planning system and that reviews were carried out, but we do not really know what those reviews found as they have never been published.

There was certainly a problem with An Bord Pleanála. There were many cases in An Bord Pleanála that were taking a long time, but we do not know why those cases were taking so long. It is not unreasonable to surmise they were taking so long because they raised complex issues and the board lacked the resources to deal with those issues. However, the Irish response to a lack of resources tends to be to bring in a law. It takes a lot of time and a certain amount of money to bring in a law, but it takes much less time and money than it does to address the root cause of the problem.

I find myself in agreement with much of what Deputy Connolly said. She spoke of the similarities between planning and access to An Bord Pleanála and immigration judicial reviews. Various Ministers for Justice have said the problem with immigration in Ireland is that we just cannot deal with the challenges so we should tinker around with the rules and bring in a new law and that will change matters. When it did not change matters, we changed the law back again to what it was and, unsurprisingly, the problem is still the same.

Alan Shatter was Minister for Justice. The Minister of State, Deputy O’Donnell, will remember Mr. Shatter as they served in the same parliamentary party. He had strengths and weaknesses, as everybody does, but one of his strengths was he did not go with the usual canard of saying he would change the law. Instead, he resourced the decision-makers. He resourced the citizenship section of the Department of Justice so instead of spending all its time and resources in the courts justifying the bad decisions it was making or, even more problematically, justifying the fact it was making no decisions at all, the section was resourced to make decisions and did so, and the problem did not arise anymore. This was much to the chagrin of some immigration lawyers - and I must declare I am someone who has practised in immigration judicial review – but at least proper decisions were being made. The same was true of first-instance decisions being judicially reviewed and it became more difficult to review first-instance decisions. Instead of changing the law in that regard, the former Minister hired a lot of people to make first-instance decisions and he ensured they were trained to make the decisions. Guess what? The judicial reviews fell away because bad decisions were no longer being made.

The problem with An Bord Pleanála is that it is making a lot of bad decisions. How do we know this? It is because the board is not able to stand over the decisions it is making in the courts when they are challenged. I am not blaming individuals in An Bord Pleanála, but the political system that has failed to resource An Bord Pleanála. If the board had been making decisions properly, it would not have been losing as many cases as it was. Maybe then, there would not be as many cases being taken because it would be perceived as difficult to win against the board on the basis that its decision-making was okay and it was able to stand over it. However, that is not where the board is at, so the response has been to change the law to make matters more difficult, rather than resourcing An Bord Pleanála. Unless the Government resources the board and its decision-making improves, we will still have the same problem. We will end up with a damaged environment because bad decisions will be made but it will be more difficult to challenge those decisions. It is incredible the Minister of State’s partners in Government have gone along with this because it will result in bad decisions being made which will be more difficult to challenge.

We are all aware of the phenomenon of pseudo-objections in An Bord Pleanála. That works both ways. It is not just that there are people who make objections in the hope they will be bought off. There are people who make legitimate objections and developers offer them a bit of money and ask them to take the few bob and go away. One feeds the other, unfortunately, and the fault is not all on one side. I am intrigued by RTÉ’s exposé, but maybe I am just here too long and have a suspicious mind, and maybe that suspicious mind comes from being a nefarious person, but when a programme from an independent broadcaster is timed to coincide with a Bill it is a happy coincidence at best. I hope it is just a happy coincidence because I would like reassurance from RTÉ about this programme, which bolsters the case the Minister of State and Minister are making. RTÉ is in a hole at the moment and desperately needs money, so I just hope it is not doing the Government a favour and the timing is entirely coincidental. That is all I wanted to say on that. I do not in any way condone what was exposed. It is wrong, it may well be criminal and I hope it is investigated. I call upon any and all authorities to investigate it and if it is not a criminal activity, the making of objections for the sake of obtaining a financial benefit should be an offence in this Bill. I hope the Minister does that.

Before I examine some of the provisions of the Bill, I will return to the lack of capacity in An Bord Pleanála. The lack of capacity with respect to environmental decisions is even more profound. Where a development is large-scale and will impact, or has the potential to impact, on a designated or European site, of which there are many in the State, an EIA or a Natura 2000 assessment must be done. The developer will pay a consultancy firm to do the assessment and will submit it along with the planning application. I have seen a number of these done over the years, but I have never seen one from a consultancy firm which states that, under no circumstances, should the development proceed because it will damage the environment. That is not how the world works. When a consultant is hired, be that by the Oireachtas, a Government Department or a private developer, it is hired to come up with a particular outcome. A consultant which does not come up with an outcome the clients wants is very unlikely to be hired by the same client again and less likely to be hired by any other client.

These developments are, by and large, for profit. Most of the developments that are applied for are for profit and consultancy firms must come up with a decision that somehow justifies or softens the edges of the impact the development will have. Very few An Bord Pleanála inspectors have the expertise to go through those assessments and must take them at face value. They note what they say about the proposed measures and decide that they will do. They are not in a position to second-guess the material or to interrogate it.

If we are serious about the environment, and if the Green Party is serious about the environment, these assessments, the environmental impact reports, EIRs, the Natura 2000 reports, etc., need to be referred to an independent State agency that has the expertise to look at a report and, where necessary, declare it a load of codswallop. Agents should be able to say they appreciate the reports are done by consultants but still consider them a load of codswallop. They should also be able to say that they are right, that mitigation measures can be taken and that the project in question can proceed without damaging the environment. At the moment, we do not have that arrangement. We have an inspector who may be an engineer or who may have expertise in architecture but who is looking at detailed reports with no skills or training to interrogate them. Such inspectors are in a position whereby they must take the reports at face value. There is, in fact, a particular impetus to take them at face value when it comes to the strategic development of infrastructure, such as housing developments, because the Government has said it will go directly to An Bord Pleanála. There is no filtering mechanism whereby it goes first to the environmental department of a council, which may have among its staff an ecologist or environmental scientist who can at least interrogate the reports. That option is not even in place.

Strategic infrastructural developments going straight to An Bord Pleanála has been an unmitigated disaster. I see it is replicated in this Bill. Applications can still be made directly to the board. Why are we replicating failure? It has not worked. I appreciate what it was intended to achieve but it has not achieved it. Why are we doing this?

I note the section 5 declaration process is being done away with. We want to lessen litigation, it seems, and yet we remove that section 5 process. It is inexplicable that we are removing the section 5 declaration process, or, rather, limiting it to the owner of the property or the potential developer. A person who has concerns about whether something is exempt from development - often the most complex question in that regard is around whether screening is required - will only have the avenue that leads to the courts. We want people to go to court less but we take away the alternatives. It does not add up. Again, no explanation has been given and no outcomes of the review that was carried out on the operation of section 5 have been shared to explain what was so wrong with how it was working that it had to be removed. The removal of the section 5 process will force more people into court.

There are a couple of other problematic features of the Bill. It is not all bad. I welcome the fact that there are timelines for An Bord Pleanála. I raised an objection to this Bill proceeding on the basis that the explanatory memorandum is hopelessly inadequate. In a 720-page Bill, one might expect more information. The parliamentary draftsmen in the Department know exactly which provisions, and which parts of provisions, are restatements of existing law and which provisions are new law. Why not share that information with us? Why is it a secret? What does the Government gain by keeping it secret? It should share that information and tell us which sections and subsections are exact restatements of the previous law and which are new pieces of legislation. That might encourage people to interrogate such bits of the legislation more closely. I listened with interest to what Deputy Pádraig O'Sullivan, from Cork, had to say. He talked about conspiracy theorists. When the Government is trying to hide what is new among a lot of what is old, and is not differentiating between the two, a little suspicion is not unreasonable and is quite understandable. I ask the Minister of State or the Minister, Deputy Darragh O'Brien, or whoever cares about this legislation, to come up with a memorandum that sets out in clear terms what is a restatement of existing law, what modifications are being made and what new law is in this 720-page tome. That would facilitate the law-making process.

A whole Part of the Bill attaches to the Dublin Airport Authority, DAA. I noted that applications should be made to a competent authority but the Bill does not state which competent authority. I assume the competent authority is the same one as in the 2000 Act that is being repealed, but that is not clear.

One of the more contentious areas is around appeals to the superior courts, which are judicial reviews generally, and the necessity to cut them down. Many of them are successful, as I said earlier, and if they are successful, it points to problems in the decision-making process or else suggests that we, the Legislature, are saying we do not like the courts. That is a big statement to be making if that is what we are doing. I do not think the Government will state overtly that it does not like the fact that the courts are upholding so many of these judicial reviews. It is for the courts to determine if the proper procedure was followed and a decision was made properly. They are making certain findings in the majority of cases they decide. In fairness, other cases are withdrawn. However, in a large proportion of cases, the courts are finding decisions were not made properly. I have concerns about anything that impedes access to justice. The Government talks about the importance of access to justice and says it is great. It says it needs to deal with this, that and the other. On the other hand, when access to justice does not suit an agenda - I will talk about the agenda in a couple of minutes - the Government impedes access to justice. It is impeding who can take a case and who cannot. It is not perhaps as draconian as it might be but I have concerns.

Section 259(2) specifically states: "No appeal to the Supreme Court shall lie from the determination of the High Court in Part 9 judicial review proceedings save on the basis of an application for leave to appeal under Article 34.5.4° of the Constitution." I do know why that needs to be stated. One cannot appeal directly from the High Court to the Supreme Court other than in accordance with that provision. It seems superfluous. Perhaps something is meant by it and if it is, I would like to know what it is. Perhaps it is just an inelegant piece of drafting. Is something specific meant by that subsection other than that which it states? It need not, in my view, be stated.

I will move to consider costs. It is regarded, perhaps somewhat unfairly, that there is an inequality of arms, or at least an inequality, at the moment, in that applicants will frequently not be liable for costs because they are a residents association or a loose association of people who cannot be pursued for costs. Even if they were not a loose association and were a legal entity or individual persons, they could not be pursued for costs if the application relates to an environmental-type planning case, under the Aarhus Convention and the relatively recent finding of the Supreme Court in the Heather Hill judgment. That said, there is a danger that the pendulum is going to swing too far the other way because costs are only going to be allowed in accordance with section 266. Those costs will be determined by the Minister for the Environment, Climate and Commutations "after consulting with the Minister and the Minister for Justice", and "with the consent of the Minister for Public Expenditure, National Development Plan Delivery and Reform". The latter Minister may have a vested interest in limiting judicial reviews because they might be slowing things down. The man or woman who will be writing the cheques - it has been men until now who have held the office - will have a vested interest in keeping the money down. He or she may want to deter judicial reviews to the greatest extent possible and even to make it financially unviable for people, other than those with very deep pockets, to access judicial reviews. Such a Minister may want to ensure that counsel and legal teams, even when they take on the gargantuan task of challenging a huge infrastructural development, and even when they win, get very low cost awards.

If the Government is serious about this being a real measure, at the very least the Law Society of Ireland and the Bar Council should be included in the consultation. Its representatives will at least know what level of costs is reasonable in the circumstances and what level is not. I do not know if the Cathaoirleach Gníomhach knows the film, "My Cousin Vinny". I do not have a cousin named Vinny, but I have seen the film.

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