Eoin Ó Broin (Dublin Mid West, Sinn Fein)

I thank the Leas-Cheann Comhairle. I am sharing time with Deputy Gould.

When Deputy Darragh O'Brien was the Minister for housing and he launched a once-in-a-generation review on consolidation of the planning and development Acts, one of his main arguments was that the 2000 Act had been amended so many times that the legislation was unwieldy, too difficult to understand and overly complex and, therefore, what we needed was a complete rewrite of the entire planning code, simplified and consolidated into a single Bill to allow planners and developers, public and private, to get on with their business, yet here we are, six or seven months after the passing of that very controversial legislation and only a fraction of its 637 sections have been commenced, and Government is already amending the legislation that was meant to be a once-in-a-generational change. That really speaks to the fact that so much of that controversial Bill was rushed. Large sections of it got very significant scrutiny from committee - the Minister of State and I were there - but almost all of the transitional mechanisms were rushed in as Committee Stage and Report Stage amendments with no external scrutiny or oversight. Whole sections of that Bill had not even been written. Some of them will be written by other Departments, such as the new cost protection regime to replace the current situation. It is just baffling that we are back here again, at the end of a Dáil term, dealing with complex technical planning legislation without adequate scrutiny.

The Minister asked us to waive pre-legislative scrutiny and if we had opposed that, he would have accused us of wanting to delay developments. That is a fact. While we waived the pre-legislative scrutiny, we expressed our deep dissatisfaction at the way in which this has been done. We have now learned from the Minister of State that amendments of an even more controversial nature, which have nothing to do with this legislation that I will come to in a moment, will be introduced in the Seanad. This is not the way to make good planning law.

I am not against the core principles of the Bill. Even when the Opposition is not opposed to what the Government is doing, we have a job to do, which is to scrutinise and listen to external experts and professionals to ensure the legislation, which will affect the lives of thousands and thousands of people for generations, is gotten right. It seems the very fact this Bill is before us shows it was not right the last time and that does not inspire confidence for the present or future.

With respect to the transitional mechanisms, it is hard to understand how these were not caught when they were being developed over a two-year period between 2023 and 2024. They are all very obvious and all I can suggest is the hardworking officials in the Department were put under unacceptable levels of pressure by the previous Minister and Government and stuff was forgotten or left out. That is not in any way a criticism of the officials - I do not envy their job in this particular area - but it is a criticism of the previous Minister. While the transitional mechanisms themselves are not objectionable, we have not had the ability to listen to the Irish Planning Institute, the County and City Management Association or public and private sector planners working in development as to how these will work in real time, which is regrettable.

Regarding the pauses on judicial review, JR, it is hard to understand, given there is a provision in last year's controversial Bill to allow for such pauses for all new applications, why somebody in the room did not think about whether it should apply to applications currently within the JR process. It is eminently sensible. This is a provision I have no objection to whatsoever but we spent two years reviewing the 2024 Act and it was not provided for then. This speaks to the ongoing concern we have in planning legislation. There needs to be two changes, however, to this section of the Bill and we have tabled amendments to provide for a limited form of public participation because these can be significant, particularly given the long period it takes to get something through judicial review. I am also strongly of the view the practice guidelines issued by the Master of the High Court should be put on a statutory basis. There should be timelines coupled with increases in the number of judges, backroom staffing and resourcing for the planning and environmental panel of the High Court to ensure JRs do not take two, three or sometimes four years. My amendments give the Minister the power to make regulations to do this, which I will discuss in more detail tomorrow.

With respect to extensions of duration, for some developers, though not all, there have been viability challenges that have led to some planning permission not being commenced. Again I understand what the Minister is trying to do and I accept him at face value. If there is a chance of those commencing, we do not want to lose them and therefore, the principle of this is not at question. The difficulty is, because we have not had time to get independent expert advice at committee, we have not been able to undertake pre-legislative scrutiny, the practical detail of this concerns me. Some of my colleagues will raise additional points with respect to this but there are three points I wish to make. Again, these speak to the amendments I will deal with tomorrow.

There needs to be public participation but not a full-blown public participation as in a planning application process. It should be some mechanism, possibly like the public participation opportunities available in Part 8 relating to decisions made by local authorities, whereby if people have pertinent information that should be considered and is relevant to the considerations of the extension, the planning authority should then be able to access that. I am talking about something time-limited but compliant with our Aarhus Convention requirements.

I am also concerned that there is no viability assessment. If somebody could not commence and had a viability problem, the question is: what will have changed to make the difference? The Minister might say the very bad decision the Government has announced today on inferior property design standards could be the thing that makes the difference. Somebody who is applying for the extension of duration should be required to submit a viability assessment setting out what it is that has changed and what is now available to them if they get this extension to allow them to build out. The reason this is necessary and could be done in a straightforward manner is we do not want people utilising this provision for purely speculative reasons or other reasons my colleagues will outline. If we had time to go through this more fully during pre-legislative scrutiny, we could have discussed flexible ways of doing this. Unfortunately, that opportunity was denied. An 18-month commencement period is too long. It makes no sense and I would like that shortened to six months unless there are extenuating circumstances. If they want to get commenced, they need to get commenced within six months of the extension of duration.

I am genuinely concerned, which I say every time we do planning legislation, that there is a question of what extent the absence of public participation opportunities in the substantive sections of this Bill are compliant with the Aarhus Convention. There should be some reporting mechanism on that. I am also concerned about the impact on JRs but crucially - and I urge the Minister to take this on board even though I suspect he will not accept my amendments tomorrow - when the extension of durations is passed and enacted, there has to be some reporting mechanism. The Department and local authorities must keep an eye on who gets the extensions, if they commence within the relevant period and if they avail of it or not. Some six-monthly reporting procedure would be a good way of doing this.

Having said all that, it should be clear to the Minister we are not opposing the Bill, although we will press our amendments. We will not stand in the way of the provisions in front of us, weak as they are, but I question the suggestion this will have a significant impact on commencements and supply. Ultimately, time will tell and we will judge that as we go. This is another example of the Government tinkering around the edges, making small changes and then spinning it outside of this Chamber as if somehow this is going to make a big difference. There are far more fundamental problems at the heart of the viability challenge, which the Government is not tackling. The cost of finance from Home Building Finance Ireland and others is far too high. The time it takes to get through planning, particularly through the planning board, is far too long and there is nothing for people looking for planning permission for less than 100 units. The board and local authorities still have far too few planning staff. Site servicing, particularly for complexes in urban density developments, is simply too onerous. If Government really wanted to speed up the commencement of higher density in our urban developments, including apartments, it would deal with those early stages of development and ensure the risks and delays associated with getting on site and building are dealt with, not with all these measures. I have heard nothing from the Minister at a committee meeting earlier or elsewhere that suggests the Government will address that.

The Minister indicated at that meeting that there could be some retrospective application of the new apartment design standards by way of an amendment in this Bill and that has been confirmed by the Minister of State, who has now left. I want to address that because it is pertinent to this Bill as we will deal with it as an amendment. That will be a hugely significant amendment. I imagine the justification for this is to avoid somebody who has planning permission having to go back in for new permission to avail of the new inferior design standards. However, will it apply, for example, to applications currently in the planning process that have not yet been subject to a decision? For example, Hines had a controversial planning application on Clonliffe Road, which was subject to appeal to the board and then judicial review. It was struck down by the courts and the company has spent the intervening period producing a new application. I was recently on site at the request of the developer to view it. Unlike the original application, it has completely adhered to the city development plan in terms of the percentage of studios and one-bedroom apartments, the percentage of dual-aspect units and the cultural space. Hines submitted its revised planning application today, which I discovered as I was sitting down and looking at the news. If Hines has submitted that planning application today, which is fully consistent with the development plan, and it is granted permission, will the company be able to avail of this new proposed retrospective application?

I understand that it will have to be within the existing mass of the permission. However, can they revert from 50% to 70% one-beds and studios, can they halve the percentage of units that would be required to have dual aspect and, of course, will they be able to remove the cultural space? This is a crucial question that people need an answer to. If I am trying to judge that application today and, all of a sudden, I am told they will have this option of retrospectively and substantially changing the topology, configuration and use, then that is a challenge. I suspect it is a challenge that may be an unintended consequence but, again, this is what happens when you rush complex planning legislation.

Likewise, I am genuinely frustrated that we are being told there will be even more transitional mechanisms that will get no scrutiny whatsoever. I suggest that, if possible, we get a private Teams briefing as a matter of urgency with the officials to go through all of the amendments. We will not get to see some of the amendments until the Seanad stage, although I presume we will get a short amount of time to come back here when they pass through the Seanad. That is a wholly unsatisfactory way of doing business.

I will not deal with the substantive issue of the apartment design standards because I dealt with that in committee today and it is not pertinent to the Bill. I get the sense the Government is essentially now accepting that its own housing plan has failed over the last number of years. It is attempting to suggest that what it is doing is somehow a radical change of course from its own failing housing plan. However, what the legislation in front of us today tells us is that it is business as usual. It is more piecemeal, last-minute and rushed tinkering around with a planning system that we all know is not properly resourced or properly functioning in the interests of society or public and private sector developments. Of course, what this tells me is that this is not going to have the impact the Minister claims. It is not going to see a significant increase in the delivery of much-needed homes. The homes that we will see delivered will be of a lower standard, smaller and with less natural light and less amenity, but they will also be far more expensive.

I do not think the Government understands the actual causes of the viability challenges, many of which have arisen directly as a result of policies implemented by Fianna Fáil and Fine Gael over a number of years. The new apartment design standards were published today and the amendments will be dealt with in the debate on this Bill later in the week. This is the third time the Government has sought to reduce the standards for apartments yet, all the time, the cost of delivering apartments has increased, not only because of that but in part because of that. This legislation does not inspire me. It does not give me confidence that the Government has any sense of where it is going. Some of the measures are not objectionable, although they are poorly drafted, in my view, because it has been rushed. We will seek to amend those. Ultimately, however, we will not oppose the Bill here or at the Seanad stage. I ask the Minister, particularly given the significance of the amendments that his colleague has outlined, if we can get a briefing from the officials either this week or on Monday of next week to go through those. That would at least give us some sense of what is being proposed, inadequate as the time allowed for scrutiny is.

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