Eoin Ó Broin (Dublin Mid West, Sinn Fein)

I move amendment No. 5:

In page 11, between lines 19 and 20, to insert the following: “(e) The Minister may, by way of regulations, provide for third party observations for consideration by the planning authority to ensure compliance with the State’s obligations under the Aarhus Convention and the principles of good planning and development.”.

I want to make a couple of general points on the planned legislation and I will then speak to each of the amendments. There will be many occasions where we are arguing from completely opposing sides, whether on policy or legislation. However, there will also be times when people on this side of the House are not opposed to the principle of what the Minister is trying to do but, through long and difficult experience of dealing with planning legislation, we are going to raise points of concern with what is being proposed or how it is being dealt with. When we do that, we are raising it because we are sincere in the comments we are making and we want the Minister and his colleagues in government to take that into account. This Bill is a case in point.

This is my tenth year as a Member of the Oireachtas and my tenth year as a spokesperson on housing and planning. The vast majority of the legislation we have dealt with during that period is planning legislation. Paul Hogan and I were much younger looking and had far less grey hair when we started this, with both of us leaving South Dublin County Council at the time.

There have been far too many occasions when complex, technical changes to planning legislation were brought in at the end of a Dáil term without adequate opportunity for Oireachtas Members to hear from planning professionals and the representative bodies to ensure we got the legislation right. I have often been of the view that the Government puts far too much pressure on hard-working officials to work late into the night to produce these Bills and the amendments to them. Because they are working under such pressure and to such tight timelines, and because there is inadequate scrutiny, bad legislation is passed. That is not a criticism of the Minister’s officials, and I want to make that very clear. We have had many occasions - substitute consent was probably one of the most controversial - where, at the end of a Dáil term, really bad, rushed legislation was passed, was wrong, was subsequently found to be problematic and had to be returned to.

I say that because, specifically with respect to the provisions of this Bill that aim to pause planning permission durations during a judicial review and the extension of durations, while I support that in principle, they need to be got right and that has not been achieved here.

The first of these amendments deals with a request for some mechanism for public participation when the application to pause the planning duration during a judicial review is being undertaken. As the Minister will be aware, judicial reviews can take a year, two years, three years or four years. There are many planning considerations that need to be taken into account during that period. I am not at all suggesting that there should be the same level of formal public participation as one would have, for example, in a local authority planning application or with the board, but there needs to be some mechanism. The reason for that is twofold. First, it is in accordance with the principles of good planning and development because there may be third-party information pertinent to the development and the pausing of it that should be brought to the attention of the planning authority. Second, if this is not done, that leaves developers, public or private, who access these provisions potentially open to legal challenge for potential breaches of the Aarhus Convention and its working through EU legislation which, ultimately, of course, would cause a delay in the decisions and a delay in development.

I know the Minister will not accept the amendment. I will not labour the point but, with respect both to this and the other two amendments, we have a poor record of being fully Aarhus-compliant. We have a poor record of ensuring that where we have public participation, it is adequate and meaningful and, therefore, with respect to the judicial review pause, but also with the extension of duration, there needs to be some element of public participation.

It is probably an even stronger argument with respect to the extension of duration. I will explain why that is so. The first time we had legislation for the extension of duration was in 2010. I was not a Member at the time. Obviously, the Celtic tiger crash happened, people were not able to build out developments and as a consequence, for very different reasons, we were in a similar situation as we are in now. Vital planning permissions were at risk of collapsing. However, when the extension of durations was being considered, lots of things had changed. Sometimes ownership had changed, sometimes the reputation and activity of the developer on adjoining sites was materially relevant, and sometimes there were also changes in environmental or ecological factors surrounding the development. If there is no opportunity for any third party to bring additional information to the consideration of the planning authority, the extension of duration becomes a rubber-stamping exercise. That is what happened post-2010 and when the former Minister, Eoghan Murphy, introduced the second extension of durations in 2018, 2019 or 2020 it was the same. I am not at all suggesting there should be some elongated process, but the idea that one could extend a planning permission for three years without giving anybody the opportunity to bring matters of important concern to the planning authority is a mistake. It is a mistake on good planning grounds and in terms of Aarhus compliance as well as de-risking the developers who seek access to this extension from possible litigation.

While I can anticipate the response and I am sure the Minister will read out what he has been given by his officials, this is something we will return to. I urge the Minister to accept these arguments, unlike his predecessors who I believe did not take their Aarhus compliance responsibilities seriously. This is a really big issue. In fact, many of the problems we have had in planning, and particularly the dramatic upsurge in litigation of residential developments from 2018 - thankfully, that has now receded - are often due to a failure to get the process right and, as a result, opportunities are created for people who may or may not have genuine intentions to seek appeal and, ultimately, litigation. Public participation is one of those.

An extension of duration of three years is significant. I believe it is necessary for the planning permissions the Minister is looking to save but I simply do not understand why there is no consideration for public participation in that as well.

The third amendment is a safety amendment in case either of the others was ruled out of order. It is a reporting mechanism, but it is really the first two amendments that are the substantive propositions.

See this speech in context