Darragh O'Brien (Dublin Fingal, Fianna Fail) | Oireachtas source

As the Deputies mentioned, this was an area we discussed and debated at length on Committee Stage. It was a very useful discussion too. It is not an oft-used provision. Deputy Matthews has acknowledged that Government amendment No. 72 seeks to further clarify who can be involved in this regard. I think it is very clear and I do not intend to go back over the debate we had on Committee Stage. In fairness, colleagues opposite have not done so either. The principles in the Bill as initiated compared with the 2000 Act provide that only the owner-occupier of land or a person with their consent may apply for such a declaration. Equally, the declaration given is not binding on persons who are not involved in the application. The procedure may be used as a means of confirming whether any particular works are within the scope of a grant of planning permission.

I will be moving my own amendments in this regard and I will discuss those later. In the first instance, I will be opposing amendments Nos. 70, 73 to 78, inclusive, 81, and 92 to 94, inclusive, all of which relate to who can request a section 10 declaration on development. These amendments seek to revert the situation back to the status contained in the 2000 Act where any third party, that is, any person, could seek a declaration on any development. This matter was discussed at length during pre-legislative scrutiny and on Committee Stage of the Bill, where it was clarified that there were significant legal and policy imperatives to the changes being made in the parameters for obtaining section 10 declarations contained in this Bill.

The original intention of section 5 of the 2000 Act was to function as a relatively simple mechanism by which a question concerning whether a proposal was a development or an exempted development could be determined. The challenge that has arisen over time is that increasing numbers of third parties sought section 5 declarations from planning authorities. Several legal problems can arise from this practice, including that the owner-occupier of the land might be unaware that a section 5 declaration has been sought in respect of his or her land and the planning authority's consideration of a section 5 declaration is limited to the information put before it by the third party, which may involve incomplete information.

Therefore, two significant challenges arise from the use of "any person" as requested in the proposed amendments submitted by the Deputy. First, wider use of this section by any person would enable a form of enforcement by proxy without the necessary due process and checks and balances being considered and contained in enforcement provisions as set out in Part 11 of the Bill. We have local authorities that are the planning authorities that have the enforcement obligations in each planning authority area. Second, there is the legal effect of the third-party action on the property rights of the owner. Having considered both the proposed amendments and legal advice taken on these matters raised, I must again oppose these amendments as the Bill should retain the provision relating to a "relevant person" rather than "any person".

That said, having listened to the arguments put forward by the committee and having consulted the Attorney General, I will be moving amendments Nos. 71, 72 and 79, to which I will return shortly. Amendments Nos. 80, 82, 84 to 87, inclusive, 91 and 95, tabled by Deputies O’Callaghan, Ó Broin, Gould and Ó Snodaigh, all seek to have details of declarations submitted and published on planning registers. This is unnecessary and potentially legally problematic. For example, in the event of the declaration being sought by a third party, we return to a situation where a first party who is not actively engaging with the planning system has details of their property published through no action of their own. The changes I have already made ensure that, in such instances, the owner is notified, and I think this is right and proper, after which they may seek further engagement with the planning authority on the matter. This is sufficient to all parties, notifying the owner of that action on their property without their knowledge while the applicant for the declaration is already aware of the request. On this basis, I must reject these amendments.

Amendment No. 97, tabled by Deputy O’Callaghan, seeks to remove the word "not" from section 11(2) and, therefore, make all declarations admissible in evidence. It is for the same principal legal reasons that I cannot accept this amendment.

The Bill enables the owner to seek a declaration on development and, having been assessed and granted the same, to use this as a defence. However the Bill does not allow for third parties to use such declarations against first parties as therein lies the core legal issue. Rather, the extended relevant persons, for example, an environmental NGO, may use a declaration to seek the planning authority to pursue enforcement if relevant, which is the appropriate method for dealing with non-compliance. I therefore must oppose these amendments.

Amendment No. 83, on the appeal timeframe, seeks to change the period for appealing a declaration from four weeks to five weeks. I am not in a position to accept this amendment. The timeframes set out in the Bill are reasonable.

Amendments Nos. 88, 89, 90 and 96 tabled by Deputies Ó Broin, Gould and Ó Snodaigh, which, as with section 9 were already discussed, seek to insert special processes for language assessments and for Gaeltacht communities. We have covered that at length already. I am not being dismissive but we have discussed it and we will discuss it further.

I will now move to the amendments I have tabled. Deputies Boyd Barrett, Ó Broin, Ó Snodaigh, Gould and Cian O'Callaghan have tabled amendments to amendments Nos. 72 and 79, which I cannot accept. The proposed amendment to amendment No. 72 seeks to provide an alternative description of environmental NGOs. I cannot accept this proposal as it does not include the appropriate criteria to be regarded as an e-NGO under the Bill. I imagine that environmental NGOs would not be supportive of that either.

I cannot accept the proposed amendment to amendment No. 79, which seeks to provide that where someone other than the owner seeks a declaration and they cannot identify the owner to notify them of their declaration request, they can outline the steps taken to the planning authority in lieu of notification. Although I do see some merit in this, I would need to check with the Office of the Parliamentary Counsel the wording of the amendment to amendment No. 79 for any unintended consequences arising from it. I will do that and then, if appropriate, I will bring forward an amendment on Committee Stage in the Seanad.

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