Tuesday, 17 December 2013
Planning and Development (Transparency and Consumer Confidence) Bill 2013: Second Stage [Private Members]
I move: "That the Bill be read a Second Time"
I thank my parliamentary assistant, Mr. Eoin Wilson, for his help with this legislation, in which we have invested a great deal of time over a considerable number of months. I also thank Councillor Pádraig McEvoy who is in the Visitors Gallery for his input and sharing my passion about the planning system. The Bill's provisions are intended to be practical, but it seeks to reframe planning and development legislation in such a way that it would give much greater consideration to planning and development from the point of view of citizens and consumers. Most of the legislation in place was framed with the developer and planning authorities in mind. The citizen and consumer were left on the sidelines as though they were disinterested parties or adequately protected by legislation or their local authority. Based on the litany of failures we have experienced, the individual and the taxpayer either lives with the problem or picks up the tab. That has to change and if it is to change, everything must be done differently. It is not good enough to say it will not happen again. We must make sure the law is amended and new thinking applied to how planning and development laws function. Transparency is critical to putting the interest of the citizen and the consumer at the centre. There are thousands of unfinished estates, a small number of which are ghost estates. If one asks those living in them if they feel protected or asks those living in estates where a bond was put in place by local authorities to complete the developments if they feel protected or if one asks those who have found that they must wait up to 17 years before they can force the local authority to take their estate in charge if they feel protected, the resounding reply will be "No". The Bill is an honest attempt to outline some of the issues and even though it has taken time to draft, other remedies could be added. It is intended to provide in a timely way practical remedies for problems I encounter routinely.
There is a housing shortage in parts of the country, including in my constituency, although development has recommenced on a good number of sites. If finance was available to those who could sustain a mortgage, there would be a major pick up in the housing market. That is all the more reason to do things differently rather than picking up where we left off to ensure we do not end up addressing the same problems in a few years time. I meet residents' groups all the time and find myself telling them that this is my second time to picki up the pieces following a collapse in the construction sector. Those of us who were elected to local authorities in the 1980s or 1990s know unfinished estates were a major feature of our work, particularly in locations where there was significant development. Kildare County Council has 280 unfinished estates on its books, with a total of 19,683 houses that have not been taken in charge. There are houses to be built on only a tiny proportion of the estates; therefore, they are largely complete. Outstanding issues include construction drawings or vesting maps, but other issues require significant work in bringing the public infrastructure up to a standard to comply with the conditions of planning permission.
In addition to new laws, there is also an issue in some local authority areas in respect of the adequacy of staffing, both in terms of their number and skill sets. The Department is constructing a workforce plan, but this must be followed by recruitment in key locations. A failure to do so will cost us all in hard cash, but it will also cost those living with the consequences.
I refer to a number of the sections in the Bill, Part 2 of which seeks to construct a national compliance register. The number of planning authorities will reduce to 34 following the abolition of town councils. Under current law, each maintains its own compliance register, which is largely an internal process. Planning authorities such as city and county councils and some town councils keep their own register. Under the Critical Infrastructure Act 2006, a new law was introduced aimed at weeding out rogue developers. It enabled a planning authority to refuse permission if there had been non-compliance on previous projects. A council was given the right to refuse permission and if the developer was unhappy with the decision, he or she could appeal to the courts. The lack of a national compliance register means rogue developers can leave a trail of destruction across several counties.
A good example of that is the developer of Priory Hall, Tom McFeely, who also developed apartment blocks containing similar defects in Dundalk and Clondalkin, with disastrous consequences for those who bought and lived in them. These are high profile failures but how are planning authorities to track similar incidents if information is not captured nationally and easily searchable? A national register is needed if local authorities are to be able to weed out the rogue developers. It would be based on an enforcement notice issued by the local authority and, in advance of the enforcement, a warning notice would be issued giving sufficient time to comply with the directions. As what I propose is a public process, it will contribute to a change in the culture because developers will be more likely to take an enforcement notice seriously. It is critical that we change that culture and it may also save time and avoid costly court cases. It is an essential first step in rewarding good behaviour and weeding out rogue developers.
Part 3 of the Bill provides for stronger and more consistent language around proposed developments associated with local area plans or integrated area plans. These are the plans at the end of the food chain where land is zoned and applications are made on developments. The national spatial strategy sets the scene and plans go to regional and county or city level. It is important that local level plans are consistent. We have seen the consequences of building in the wrong locations, such as flood plains, or building excessive numbers of houses not only for those who live in these developments, but also in terms of providing public infrastructure and services.
Part 4 seeks greater transparency and accountability in respect of development contributions. The Bill is not aimed at self-builds, one-off housing or extensions. In theory, development contributions are paid in advance but in practice, and with the agreement of local authorities, they are often paid on an incremental basis as housing units are sold. Unfortunately, we saw what occurred to this approach in the context of a building crash. The reply to a parliamentary question tabled by Deputy Simon Harris earlier this year indicated that in excess of €312 million is outstanding in long-term legacy development contributions. Each local authority is required to operate a development contribution scheme which sets out the public infrastructure required, such as roads, paths, public lighting, water and leisure facilities. The local authority usually has to provide matching funding for major infrastructure works. Essentially, if there is a deficiency in the fund, the matching funds are not available. This is why we cannot allow somebody who has failed to pay levies in the past to come back into the system.
The Bill would also seek retrospective contributions for the preceding ten years to take account of the pre-crash situation. In most cases those who purchase a house will not be aware that the planning permission contained a development contribution which was built into the cost of the house. Development contributions are usually a condition of planning permission. Failure to pay means the developer is not in compliance and subject to enforcement proceedings. It is essential that clear liability is established because otherwise those who purchase could end up with double liability in that they could be pursued by the planning authority. This happened in Avoca, County Wicklow, earlier this year when Wicklow County Council pursued 24 home owners for unpaid contributions which were required in the planning permission. The council was of the opinion that unpaid development contributions were charges on the properties concerned rather than on the developer. The case was considered by the Ombudsman, who found that local authorities are legally entitled to pursue home owners for payments under section 152 of the Planning and Development Act 2000. It appears that local authorities may reach agreements with developers on phased payments at the expense of the purchaser, who ends up taking the risk. We need to close off that risk by making it clear where the liability resides. Section 49B does just that. A by-product of introducing a searchable list is that legal searches as part of the conveyancing process may become easier and more cost efficient.
Section 28 of the Planning and Development Act 2010 provided powers to extend the appropriate periods of permission. In practice, this means planning permission is extended for a further five years. The extension must be applied for within the timeframe of the first permission. This roll over provision may be in conflict with new provisions contained in the same Act which raise the bar on environmental considerations. Section 28 did not make provision for a consideration of citizen and consumer opinions. The provision as it stands is a private matter between the planning authority and the developer as if it had no consequences to anyone else. However, there are real consequences for others. For example, section 180 of the Planning and Development Act 2000 provides for the taking in change of housing estates by local authorities. The Act allows residents to petition a council seven years after planning permission has expired, or 12 years after it is first granted, to have the estate taken in charge. The 2010 Act extends that period to a potential 17 years. In many cases, the developer will be long gone by that stage.
Section 9 seeks the full transposition of the 1998 Aarhus convention on access to information. We are signatories to that convention. An application to extend planning permission should be a public process and subject to the same considerations and appeal options. The conditions for granting permission should include, where appropriate, taking earlier phases in charge, the level compliance with the original permission and the term of the bond. In other words, the planning authority must consider the impacts on those who live in an estate which has remained a building site for several years.
Bonds take the form of cash or insurance. Cash bonds are generally sought only where issues previously arose with the developer concerned. The vast majority of bonds are in the form of insurance policies. Most bonds are limited to seven years. The Anglo Irish Bank bonds were the only bonds issued in perpetuity and now the bank is in liquidation bondholders are essentially unsecured creditors. Bonds are required to guarantee that the public elements of estates are completed. Key issues include the adequacy of bonds. In recent years, most planning authorities have ensured the monetary value of bonds are adequate but we need to make sure this is fully considered. The bond must also remain in place until the development fully complies with the conditions of the planning permission. Even if the value of the bond is sufficient, it does not guarantee anything if a developer becomes insolvent and ceases to make payments to the bank or insurance company to maintain the bond. The result is that there are often no funds to complete the development. Local authorities are precluded from spending public money on what remains a private development. Typical problems include incomplete roads and footpaths; faulty sewers and drains; and a lack of landscaping.
The absence of a bond in an estate not taken in charge will often mean that a house or apartment cannot be sold. I am constantly asked by those who live in such developments why they are being asked to pay property tax, and I have no answer for them because there is not an adequate answer.
Calling in a bond is also a complex matter, and the balance is given to the developer. The planning authority must wait for the bond to expire before it can pursue the developer for non-compliance with the permission for not having a bond in place. Section 10 seeks to amend section 180 of the Planning and Development Act to ensure action is taken in advance of a time-limited bond expiring.
It seems there is more consumer protection for purchasing simple items such as food products, than there is for purchasing a house, and that urgently needs to change. The bond is critical for the home purchaser but also for the public purse. Section 180 of the Planning and Development Act allows the residents to petition to have their estate taken in charge after a specified timeframe. Clearly, non-compliance involves a cost for the home owner but it also involves a cost for the public, and we must address that issue.
Part 7 seeks to reduce, from seven to two, the number of years residents must wait after planning permission has expired before they can petition to have their estate taken in charge. It also seeks to address the further extension of planning permission to the developer, which in practice would mean, as I stated, that it could be 17 years before one could petition to have an estate taken in charge.
It is open to the local authority to take enforcement proceedings. This is a last resort. They usually try to work with the developer which can be a time-consuming and slow process and is administratively expensive.
As for the consequences for those who have been unfortunate enough to have a non-compliant developer, they are often consigned to living on a building site with many of the obvious services, such as roads, footpaths and lighting, not dealt with, or where there are constant problems with sewers and drains. The longer it goes on, the more likely it is that the builder will not complete the work, and timing is vital.
Part 8 refers to the Multi-Unit Developments Act 2011. There is a problem with the definition of a development containing residential units where it is intended that amenities, facilities and services are to be shared. That definition is vague and it is conceivable that it could include every housing estate and residential street in the country. It needs to be tightened up to mean the amenities, facilities and services to be shared between the residential units, not by the wider public.
I fully accept that a management company is needed for apartments where there are shared services, but the vagueness of the definition of housing development is now being interpreted to mean any housing development and we are back to the situation I had hoped was resolved in 2006 when planning authorities often included as a condition of planning permission a requirement to establish a management company, even in traditional housing developments where there are no shared internal spaces. I brought this to the attention of the Minister for Justice and Equality some months ago, but see no reason it cannot be resolved in the context of the Bill given the urgency of the situation. In parts of the country, including Kildare, building has recommenced. While it is welcome that big industrial developments are being constructed, there will be more housing development and we need to ensure we deal with this in a timely way.
Part 9 seeks to amend section 179, in effect Part XI, of the 2000 Planning and Development Act where a local authority gives permission to itself. There needs to be some recourse to an appeal because consultation can often mean that people are told what will happen but they feel that the local authority is judge, jury and executioner on that. I will leave it at that and use the remainder of my speech in the wrap-up tomorrow. I was told earlier that the Government did not intend to oppose this Bill. That is welcome.
I thank the Leas-Cheann Comhairle for the opportunity to speak on this new radical Bill.
This new sensible and progressive Bill should be supported by all Members of the House if we are serious about doing something practical about planning and development and tackling dodgy practices. There has been enough talk; we want action.
Before I go into the details of the Bill, I thank and commend my colleague, Deputy Catherine Murphy, for bringing the Bill before the House. Not only does she deal with legacy issues, she also tries to protect the citizen and sets out a clear path for planning and development in this country. That is another example of how Independent Deputies can make a significant contribution to economic development. Independent Deputies have new ideas and new solutions, they want accountability and transparency, and they believe in putting forward solutions to problems, such as has been done with this Bill. It is important we say this. When new ideas, such as this from my colleague, Deputy Catherine Murphy, and others on banking, disabilities or the Central Remedial Clinic come from the Independent benches, they are an important statement to say we have arrived and are part of modern political society. The Bill being discussed is another example of what can be done and, once again, I thank the Deputy for her work on this matter.
Let us remember bad planning and development in this debate. I remember, in particular, the residents of Priory Hall whom I thank for their bravery and support. I commend the Minister, Deputy Phil Hogan, for the final solution in that issue also. Those residents were victims of bad planning, a bad developer and mishandling, and they were let down by sections of the State. I thought it was a nice gesture when I read yesterday about Ms Stephanie Meehan being given some money from the sum that was found in the developer's house. It was an important gesture from the new residents of that house. Ms Meehan and her family appreciated this gesture, as did many of my constituents. The Bill will try to stop situations such as Priory Hall developing.
The Bill is about protecting citizens. There has been much bribery and corruption. Big developers and greedy politicians have been milking money, swapping money, and so forth. Most of them have got away with it. They have damaged the integrity of politics. It is important we say this because this is what the Bill is about. It is about accountability, transparency and, above all, fairness to the citizens of the State.
On the details of the Bill, it establishes a national planning compliance register, which is a positive development. It also establishes a national schedule of development contributions. It ensures greater consistency of the local development plans. It tightens controls on the extension of planning permission and brings in greater public scrutiny and right of appeal to extension decisions. It requires full inclusion of the Aarhus Convention in the planning code in this area. The key words are "public scrutiny", which is essential if we want sensible and clear planning. The Bill also removes some of the worst and most unnecessary obstacles for taking in charge of estates. It tightens the practice around the stipulation of the bonds as a planning condition.
The Bill is about good quality planning, accountability, transparency, common sense and protecting the rights of citizens.
I welcome the opportunity to contribute to this debate. I congratulate Deputy Catherine Murphy and her team on putting together this Bill and bringing it to the floor of the House for debate in the next two nights.
This is an important Bill. There have been indications that the Government is not opposing it and that is a welcome step. If that is the case, I commend the Minister.
This legislation will be important in bringing transparency, accountability and protection of citizens into the planning code. For too long planning permission and the planning code have been the domain of developers who have driven development plans at local level across the country. Such plans have been developer-led rather than community or citizen-led and have taken into account the best needs of developers rather than those of communities. The transparency, accountability and public scrutiny provided for in this Bill will go some way towards making developers more accountable and responsible for the decisions and permissions in which they have been involved. It will also force local authorities to be more proactive in dealing with developers who may have a large number of enforcement proceedings against them or developers who have not paid development contributions. That is important because we need to give the planning authorities a push in that direction. From my experience of dealing with planning matters during the time I served as a county councillor, I am aware that it has been very difficult to getting planning approval. The planners have pointed out that the legislation does not always assist in that way.
It has been very difficult to make developers accountable for bad developments and to pursue them in respect of bad decisions. The planning system seems to facilitate them in doing this. I have often thought that if one has the brass and money, one can railroad one's way through the planning system. All one has to do is ignore the local authority and sit it out. It is mainly developers who have the brass neck to do that. Most citizens would be too worried about the implications for themselves if they were to do that. In effect, people get away with it because the enforcement system is too cumbersome, too slow and it is a complete waste of time. The local authority will spend months, and perhaps up to a year, trying to get a developer to deal with an enforcement notice, then it will decide to go to court and it will take time to get the case to court and when it goes to court numerous adjournments will be granted by the judge because the developer will come on site and do a little bit of work and tell the court that he is dealing with the matter and the court will adjourn the case. At the end of the process a few years later the court might decide to fine the developer a few hundred euro and that is the end of the process, but the process will start again when the developer does not comply with conditions attaching to the planning permission. That is the system under which people have to labour, including many people living in unfinished multiple developments who have tried to ensure that developers are held to account for shoddy workmanship.
The legislation helps to enshrine the Aarhus Convention into the planning system and that is vitally important. That convention sets out that members of the public have a right to participate in a range of decisions where they may have an environmental impact and that includes planning matters. We need to provide for that and to put citizens to the forefront and allow them to participate fully in the system. The Bill outlines a number of ways that can be done, namely, through the national compliance register and a national register for development contributions and, importantly, there is an onus on local authorities when they receive a planning application to search the national compliance register. We have seen in the past where developers will move from county to county to avoid being held up for having poor quality permissions completed. That is an important requirement. We must send the message to local authorities that they must refuse permissions to developers who have been problematic in the past in their own counties and in other planning areas and make them access the courts if they want to obtain planning permission. That is the only way we can send a clear and strong message in this respect.
I welcome a number of other provisions in the Bill. There are one or two measures I would like included in it that could be considered at a later point, particularly in regard to section 5 of the 2000 Act where a developer can seek a declaration as to whether a proposed development would require planning permission. That needs to be opened to allow third parties who may have concerns in that respect to take part also in the process.
I also commend Deputy Catherine Murphy for bringing forward this Bill. It contains many ideas. As in the case of much legislation that goes through this House, there is not enough time to debate it. The Water Services (No. 2) Bill is a stark example of that this week.
Part 2 of the Bill provides for the establishment of a national planning compliance register composed of information relating to enforcement notices issued by every planning authority in the State. The intention of the register is to allow far greater transparency than presently exists in the area of compliance. If a builder carries out an unauthorised development, he is subject to criminal proceedings but too often that does not happen. While we have had a great deal of debate on problems in the construction industry in the past two years, there is a fair amount of decent regulation in place but the problem is that it is not implemented or enforced. I have some serious reservations about some major aspects of the new building regulation that the Minister plans to introduce in the new year.
To return to Part 2 of the Bill, I am advised that the Construction Industry Federation, CIF, is compiling a registry of compliant builders, and reference is made to that register in Part 2, but I do not believe that those in the CIF are the best people to do this. It is a bit like the gardaí inspecting themselves. If the Minister was to take account of the bad building that was done here in the past 20 years, I can assure him that more of it was done by the larger developers - rather than the smaller operators - who had a very good relationship with the CIF. I do not know if this problem will be tackled. Self-regulation is a huge problem. The Minister's new regulation cuts out the local authority too much; it will not give them an independent input into what is going on. The lack of site supervision on a constant basis is a massive problem. I do no care how many drawings one has to do in advance or how many certificates one has to get, if a builder is on site and needs 32 mm steel bars for a load-bearing beam and has only 25 mm steel bars on site and no one is watching what he is doing, he can use the steel bars he has on site and they will be covered in concrete in an hour or two. What is going to change? Therefore, site supervision is critical.
I spent most of my life on building sites and I know where the cheating happens. I am surprised there has not been more consultation. The Minister has dealt with the professionals, the architects and engineers in the design game, rightly so, but builders, homeowners and people who manage properties have a good deal to bring to the table. I am surprised there was not more consultation with those people. I can assure the Minister that builders know a great deal more than architects about how work is done poorly on sites. The Minister has made the architect completely responsible but I do not know how the architect will get insurance cover to do that. I believe the responsibility must be spread more. The architect is supposed to get certificates of all the others involved but the individuals have to provide the insurance on an individual basis. I am only getting started.
At the weekend the Minister, Deputy Leo Varadkar, rightly said that much more housing is needed in the greater Dublin region and his comments included a caveat. He said: "The planning system will also be made less restrictive."
A major programme of social housing in Dublin and throughout the country is urgently needed but the deplorable record of the Celtic tiger era is that the planning system was anything but restrictive. Disasters such as the pyrite infestation, Priory Hall and the shoebox apartment approach happened because the flotilla of developers, out-of-control banks and quiescent Fianna Fáil-led Governments permitted planning controls and building regulations to be loose or non-existent, with up to 100,000 commercial housing units being spent built every year. I warmly commend Deputy Catherine Murphy for drafting this Bill. It is another thoughtful and timely Bill that she brings before the Oireachtas.
I commend her for the proposal, in part 2, for a planning compliance register. It would be a huge step forward in protecting citizens when making the largest purchase of their lives. Hundreds and thousands of citizens, who bought during the Celtic tiger era, are left with huge liabilities of €200,000 or €300,000 above the current value of their homes. Two or three years ago, my colleague in Dublin North, Deputy Sean Ryan introduced a simple Bill on behalf of the Labour Party, which I strongly supported at the time. The Bill included a provision to refuse further planning permission to builders or developers who had previously left unfinished estates or estates with outstanding problems. That was the way to go and the approach is necessary to invigilate building and development. In my student days, like many Members, I worked on those sites; therefore, I can testify to what Deputy Mick Wallace tells us.
As a councillor, I regarded the adoption of the city and county development plans and local area plans as one of the key functions of local government. I made a lengthy submission on behalf of constituents on the North Fringe, Baldoyle, Stapolin and south Portmarnock local area plans. Unfortunately, these plans are often disregarded by developers. Our officials had just finished the North Fringe plan in Dublin City Council and Fingal County Council when developers came along with a different proposal for areas that were supposed to be developed for housing and commercial development. That is why I welcome Part 3 of the Bill, which legislates that all permissions shall comply with the area and local plans. Egregious attempts were made over recent years to make young householders pay development contributions to finish key and necessary infrastructure in housing and apartment developments. Part 4 is also welcome in providing a centralised national schedule of agreed development contributions. Part 5 addresses the long-standing problem of the extension of planning permissions. We have seen a plethora of extensions before Dublin City Council and Fingal County Council and they should be open to the same invigilation as they were originally.
Part 6 addresses an important lacuna in the law in respect of bonds connected with developments. I welcome the amendment to section 180A of the 2000 Act as outlined by Deputy Catherine Murphy in Part 10. It will address something that has been, regrettably, a feature of developments in recent years whereby the bond expired before the local authority in question could redeem it. Many local authorities have suffered grave losses.
I also agree with Deputy Catherine Murphy's proposals in Part 7, which give residents in an estate an active role in the initiation of the estate being taken in charge. In Dublin Bay North, estates such as Clarehall went through seven or eight years trying to get the city and council authorities and developers to finally take estates in charge. Now I am grappling with that on behalf of constituents in the North Fringe, Belmayne, Clongriffin and The Coast. It is the same old story. I commend the Deputy for the Bill which is part of a series of thoughtful and useful legislative proposals from her.
I propose to share time with Deputies Paul Connaughton and Joe Carey.
I thank Deputy Catherine Murphy for bringing forward this Private Members' Bill, which contains many interesting proposals pertaining to planning, and which are intended to improve transparency and consumer confidence in the planning system. The Government and I subscribe to these principles and, accordingly, the Bill is not being opposed on Second Stage.
I am surprised at the reaction of Deputies Mick Wallace and Thomas P. Broughan when I seek to improve the building regulations. They should know better than anyone the poor quality of our regulations. They are taking the side of the professional classes that have abdicated responsibility.
I am making sure the people in question will be responsible for the work they sign off on. An efficient, well functioning planning system is essential for the proper, balanced and sustainable development of our country. In this regard, we have very detailed legislation built up over a number of decades to underpin the planning system, namely the Planning and Development Act 2000, as amended, supplemented by equally detailed planning regulations which, in unison, set out how the overall planning system should operate. The Government inherited many legacy planning issues arising from bad planning decisions and poor planning enforcement. However, the Minister of State and I have provided solutions to the residents in Priory Hall while others spoke about it. We provided solutions to those homes affected by pyrite while others spoke about it. We are dealing with the unfinished estates legacy. That is not to say the planning system and the legislation underpinning it is perfect. As has been indicated on a number of occasions by the Minister of State, Deputy Jan O'Sullivan, and I in recent months, a commitment has already been given to review the Planning and Development Act. In this regard, we have announced the firm intention to bring forward proposals for a new planning Bill in the first half of 2014, primarily for the purposes of implementing the recommendations of the Mahon tribunal and, in particular, the establishment of a new office of the planning regulator. In association with this, it is also intended to undertake a broader review of certain provisions of the Planning and Development Act, including some of the matters raised in Deputy Catherine Murphy's Bill, with a view to appropriate updating and strengthening, particularly in the area of enforcement, which is an issue of concern.
I will now briefly discuss some of the main provisions in Deputy Catherine Murphy's Bill that require some further consideration and teasing out as the Bill is considered by the Oireachtas. Section 4 proposes to establish a national planning compliance register containing particulars of all planning enforcement notices issued by all of the planning authorities in the State, the measures taken to ensure compliance with planning permissions and the outcomes achieved. I consider that there is some merit in this idea. However, there are a number of issues which need to be further teased out as the approach could involve additional administrative burdens and resources which may be better employed in undertaking actual enforcement on the ground. There could also be data protection issues that need to be considered in the compilation of any such national register. It is also worth pointing out that much of this data is already required to be published on each planning authority's planning register. I will give consideration to the matter of how enforcement data could be better published electronically, as appropriate, and whether legislative proposals or guidelines are required.
The second issue in the Bill relates to the taking into account of past non-compliance by a developer when deciding on a planning application. This is already covered by section 35 of the Planning and Development Act. Accordingly, I do not consider that the amendment proposed at section 5 is necessary.
Section 6 proposes that planning permissions be fully compliant with local area plans. There is some merit in this proposal but care needs to be taken that the introduction of such a provision does not introduce undue inflexibility into the system. For instance, a proposed development might comply with a large number, but not all, of the local area plan objectives. Taking account of the wording in these proposals, planning permission for such a development would have to be refused. Section 18(3) of the Act already provides that planning authorities must have regard to the provisions of a local area plan when considering a planning application. It may be appropriate to better highlight this provision by moving it to section 34 of the Act where reference is made to the development plan.
In section 7 Deputy Catherine Murphy proposes the establishment of a centralised national schedule of agreed development contribution liabilities in respect of industrial and commercial developments. Under the proposal, local authorities would be required to submit to the Minister at specified intervals comprehensive details of all development contributions determined under sections 48 and 49 for the preceding ten years, the monetary amounts of such contributions, the specified improvement works carried out in respect of the payments in question, the liable persons, the local authorities to which the contributions are to be paid, and the dates by which payment falls due. Given the thousands of planning applications determined by planning authorities each year, the level of detail required in compiling the data specified represents an onerous task. Nevertheless, it may be necessary although it gives rise to an additional administrative burden and resource implications.
In particular, the requirement to list each of the specified improvement works carried out in respect of the monetary payments for each and every development contribution condition attached to each and every relevant planning permission in the State would be burdensome for both developers and planning authorities. However, I am prepared to look into the matter of the compilation and publication of more comprehensive information on development contributions generally, both locally and nationally, than is the case.
Deputy Catherine Murphy's proposals in sections 8 to 10, inclusive, of the Bill relate to extending the duration of planning permission. These proposals require that applications for extensions of permission have to comply with the requirements of newspaper notices, site notices and all of the other public participation requirements of the Aarhus Convention.
However, it is considered that an application for an extension of the duration of a permission is not an application for development consent; instead, it is regarded as an administrative application for additional time to complete a development for which permission has been already granted, and which has already gone through all of the public participation processes required. The proposed amendments also provide that an extension of permission in respect of a residential estate will only be granted where conditions are attached and where the planning authority considers it appropriate to do so with regard to the phasing of the development and the application of bonds. I add with regard to bonds that the planning Act was already amended in 2010 to provide that when granting an extension of the duration of permission, a planning authority may attach conditions requiring a bond or may vary or add to any such conditions attached to the permission which was originally granted.
As regards the phasing of developments, it could be argued that this should be more appropriately dealt with in the initial permission and that any changing of the phasing of a development is in fact varying the terms of the initial permission. Existing guidelines to planning authorities on the taking in charge of estates state that planning authorities should consider requiring the phasing of residential developments. However, I have noted the Deputy's particular concerns about the desirability of phasing housing developments and the phased taking in charge of estates, and of the need to strengthening the arrangements in this regard.
Section 11 proposes to insert a new section 180A into the planning Act relating to bonds. The proposed new section 180A(1) would enable planning authorities, within one year of the expiration date of a bond or security, to stipulate an extension to the bond or security to a period deemed sufficient for the development to be completed, not exceeding five years; or where an extension of a bond is not possible, to call in the bond where there is no likelihood that the development will be completed to the satisfaction of the planning authority; and complete the development as soon as it has funds from the bond. There is merit in the overall thrust of the Deputy's proposal but I am not convinced that it is necessary as local authorities are already permitted under current legislation to monitor the completion of housing developments, the adequacy of securities provided for and to pursue enforcement actions where the terms and conditions of the relevant permission are not being observed. That provision may not always be enforced and this is essentially an enforcement matter but I am willing to look further into how the provisions regarding bonds and securities can be better operated in practice.
Again on the bonds issue, the new section 180A(2) as proposed in Deputy Catherine Murphy's Bill would require the Minister for the Environment, Community and Local Government to make regulations providing for the phased redemption of a bond or security which a planning authority may specify as a condition to be attached to a planning permission; and the index linking of bonds or securities. This proposal which is well-motivated and worthy of consideration and it has some practical implications which merit further consideration. Local authorities are already enabled, having regard to the circumstances and nature of particular housing developments, to specify the way in which the security is to be structured and operated. For example, many local authorities will approve a development subject to the lodgement of security for the overall development. They may also specify conditions on the sequencing or phasing of houses within the development. Subsequently, taking account of market conditions and preferences for different house types in different parts of the overall development, the local authority may agree to a request by the developer to lodge a security for the initial phase of development and to release that security for reuse in a later phase subject to the local authority being satisfied that the initial phase has been completed.
This arrangement is often necessary to avoid overly onerous working capital requirements preventing an otherwise good scheme to get off the ground. In essence, such new arrangements as proposed by Deputy Catherine Murphy could stymie the smooth progression of developments but the secondary issue of the index-linking bonds and securities is something that I am open to considering.
The Deputy also proposes two amendments to section 180 of the Act relating to the important issue of the taking in charge of estates. The first proposal would require planning authorities to include both owners "and occupiers" of houses in any plebiscite to establish whether an estate should be taken in charge by a local authority. In this regard, the existing wording in the Act, which refers only to "owners" in the context of a plebiscite, was revised as recently as 2010 on foot of a recommendation in the Law Reform Commission report on multi-unit developments. The commission concluded that it is only the owners, rather than the tenants or occupiers, who should be the appropriate people to decide on whether an estate should be taken in charge. The second proposal, involving the transfer of responsibility for an estate from a developer to a local authority within two years - instead of seven years - of the expiration of the permission for that development may be problematic from a practical perspective. However, I am prepared to review the seven-year timeframe currently in place.
The amendment proposed at section 13 of the Bill on multi-unit dwellings is a matter for my colleague, the Minister for Justice and Equality, and my Department will consult further with his Department on this issue as the Bill progresses.
The final element of Deputy Catherine Murphy's Bill relates to an appeal mechanism for local authority "own development" proposals. It is important to state that under section 175 and 177AE of the planning Act, any developments by a local authority which require environmental impact assessment or assessment under the Habitats Directive are already required to be submitted by the local authority to An Bord Pleanála for approval. Local authority "own development" proposals that do not require environmental impact assessment or appropriate assessment are regulated by section 179 of the planning Act and Part 8 of the planning regulations. Proposed local authority "own developments" can include public housing, water services infrastructure, sewers, mains pipes, minor road works, parks, public amenities, swimming pools etc. Under the relevant provisions, local authorities are obliged to publish notices of any such proposed developments and to undertake a public consultation process in respect of same. The manager then submits a report to the elected members, who in turn can decide to accept, reject or vary the proposed development in accordance with their democratic mandate acting on behalf of the local community they have been elected to represent. Thus, there are already public consultation procedures incorporated into the decision-making process in this regard. In addition, one must also take account of the fact that the introduction of such an appeal mechanism could delay the implementation of works already deemed necessary by the elected representatives for the benefit of the general community.
In acknowledgement of the importance of the proposals contained in the Bill, I have tried to respond in a detailed manner and as constructively and openly as possible to each of the proposals, all of which should be considered as they have merit. There are a number of considerations that need to be taken into account in the further development of this Bill. It is fair to say Deputy Catherine Murphy and I share the same objective in seeking to revitalise the planning Act and make it more transparent, dynamic and fit for purpose, having regard to the need for an efficient, workable and streamlined planning system that facilitates balanced and sustainable development while simultaneously protecting the interests of citizens. Accordingly, I am not opposing the Bill on Second Stage.
I am thankful for the opportunity to speak to the Bill, which I welcome. I congratulate Deputy Catherine Murphy on bringing the Bill to the House, as it is involves many measures that will streamline the planning process and create a more transparent system. If there is only one complaint, it is that this comes many years too late. That is not the Deputy's fault and if these measures had been implemented many years ago, we may not have been put in the mess we are in currently. It is very welcome that the Government and the Minister are willing to work with this in order to see how the system can be improved and used more effectively.
I will only speak to certain elements which reflect the concerns I get across my table; they concern estates and developments, and the main issue is taking in charge. A number of estates have been built in the past few years and the developer has gone but there is still much confusion about who carries out the maintenance in these estates. This causes unbelievable anger in the residents who bought houses in estates, with many properties still vacant. If parts of an estate are vacant people may try to put up shutters around that portion, and there can be other issues, such as potholes and malfunctioning lighting. The council cannot take over such estates if it does not have the means to do so. The issue must be tackled and addressed quite quickly. Nobody would buy a house with the intention that for many years afterwards he or she would be fighting with a local authority about it.
Another element of the Bill relates to extension of time. There is the case of previous planning applications that were granted but where nothing was built. These would have been approved under a previous county development plan, which could be completely different from the current plan. There are cases where people have sought to build houses under a current development plan while considering how plans changed under an old plan. They may wonder why a previous application was granted but there is no expectation for it to change. That causes much anxiety and concern as it seems it is not the same rule for everybody. We are at a point where consistency must be the name of the game and applications must be coherent with other applications in the area from that time. There is a concern where an extension might have been given once or twice as the application may not be the same as more recent examples. If somebody is looking to build a house or a number of houses, it leads to a great amount of anger.
There is also an element relating to contributions to local authorities and I will approach this issue from two angles. There is a lack of consistency in the amount being sought from people when planning permission is granted. We know it is expensive to plan and build a house even before one is notified of the contribution to be given to the council for amenities, water etc. The greatest level of concern relates to the lack of transparency as to how the figure is calculated. Building a house is expensive and when one gets notice of a contribution to be made to an authority, one may not be 100% sure from where it is coming.
I represent a very rural constituency where houses are not very near to one another and there is no certainty as to how the contribution fee is calculated. It is very important that we come up with a clear, transparent system of calculation.
I know one person who set up a small business in recent months. He is an entrepreneur who received no State funding. He built up a business from scratch that is based in a shed. He needs help and encouragement to continue. He got a massive contribution fee bill from the council which will stymie his business for the first six months if not the first 12 months. If there is an economic management element in local authorities it is important that it would take into account that such a person might not make any income from the business for the first six to 12 months. It is not fair to slap a big bill on top of such businesses. I understand local authorities need to get revenue from industry and households but it must be done in a way that is clear, transparent and fair.
That leads me to my final point which is the consistency of planning. One sometimes sees planning permission granted for a house but a year later if a different planner is in situhe or she could take issue with a similar type of application. The point could be made that one’s neighbour got permission for a similar house. That leads to frustration and anger at the lack of consistency in reaching decisions on planning applications. That is especially true of one-off rural housing. One could have a planner with a very set idea of how houses should look but if another planner is not consistent with such a view that is not entirely fair.
The Bill is most welcome as its intention is to bring transparency to a system that for too long was not transparent. I have no doubt the Minister, Deputy Phil Hogan, and the Minister of State, Deputy Jan O’Sullivan, will probably have to make certain changes in order to improve the Bill but it is something that was needed a long time ago. That is not a criticism of Deputy Catherine Murphy’s Bill but it will help to restore public confidence in the process. We all know of the devastating effects of the Celtic tiger era, especially in small rural towns around east Galway. Many towns have unfinished housing estates that will never be finished. It is very difficult for someone who is living in an unfinished estate in cases where a decision has been taken to knock down the estate. I refer, for example, to where four or five houses are occupied and ten or 12 houses are not. We must come up with a clear, transparent system of planning that has full public confidence now and in the future.
I welcome the opportunity to speak on the Bill, which I support. I commend Deputy Catherine Murphy for introducing it to the House for debate. It contains many practical measures that would bring about more transparency and consumer confidence in the planning and development system.
It is my understanding that the Minister of State, Deputy Jan O'Sullivan, has indicated that she is not in opposition to the Bill. The Bill contains a number of welcome provisions such as the establishment of a national planning compliance register composed of information relating to planning enforcement notices issued by all planning authorities in the State; consistency of proposed developments with local area plans and their full compliance with same; the establishment of a centralised national schedule of agreed development contribution liabilities relating to specified classes of development; new proposals on the extension of planning permissions; new proposals on the application of bonds on housing estates and apartment complexes; new proposals on the taking in charge of estates; and the possibility for persons to appeal decisions of planning authorities to An Bord Pleanála relating to local authority’s "own development" proposals.
I also understand that the Minister of State has indicated a commitment to review the Planning and Development Act. In that regard, it is her intention to bring forward proposals for a new planning and development Bill in the first half of 2014, primarily for the purpose of implementing the recommendations of the Mahon tribunal, involving the establishment of a new office of the planning regulator. In association with that, it is also intended to undertake a broader review of certain provisions of the Planning and Development Act, including some of the matters raised in Deputy Catherine Murphy's Bill, with a view to appropriate updating and strengthening, particularly in the area of enforcement.
I further understand that the Minister proposes to use the opportunity of the forthcoming planning Bill review to bring forward a number of potential planning-related measures to support economic growth and job creation activity. That is welcome.
I concur with Deputy Paul Connaughton’s point that unfinished housing estates are a significant issue. That is the case in County Clare. Current statistics indicate that there are 63 unfinished housing developments in County Clare that all have varied and specific problems. A common trend is that residents' associations are frustrated with the lack of progress in regard to them. Lights do not work and there are problems with potholes and sewerage systems. Complete and utter frustration has been expressed to me by one residents' association after another. A proper regime is required to deal with the issue. Consistency is required for the taking in charge process. Residents’ associations should be central to the solution. That is one of the proposals in Deputy Catherine Murphy’s Bill and it is a welcome measure.
It is not fair that local authorities do not take housing developments in charge given that individuals who buy a house spend so much money investing in their property. That leads to frustration and anger. The lack of progress by local authorities adds to the anger. I would support any measure that could be introduced to speed up the process.
Deputy Paul Connaughton also referred to the extension of time for planning permissions. People who got planning permission and who through no fault of their own were not in a position to develop the site to build a house, possibly due to the financial crisis, should be allowed to get an extension of time to build their house. I welcome that aspect of the Bill.
There is a ghost estate on the outskirts of the village of Clarecastle in County Clare. The only new addition is the hoarding around it which protects one from looking in. There is a mass of concrete behind the hoarding. Pools of water litter the site. Concrete has been poured into foundations and some houses are half built. The development would not have worked even in the good times. It was bad planning from day one that planning permission was granted on the site. The only solution is for what has been built to be knocked down. I welcome the proposals introduced by the Minister to deal with the issue. The estate takes significantly from the appearance of the village of Clarecastle. The issue must be sorted out. The local community development group should be central to finding a solution. People should have a say on how the site is restored to a greenfield site and possibly used by the community. Currently, the estate is in private ownership and is in the care of a receiver. No matter what is done with the site it will never be occupied. Powers should be given to local authorities in such instances to compel the receiver in question to make safe and knock such developments and restore them to a greenfield site in the interests of local communities.
I support the Bill. It is very practical and I look forward to its progression through the Houses of the Oireachtas.
All across the country we bear witness to the spatial legacy of a planning system that was put under immense strain in the past decade. Unfinished housing estates and unsustainable developments on the edge of hollowed-out towns pockmark the landscape. All the while, ordinary people seeking to build a family home on their own land feel frustrated by an expensive and unresponsive system. In County Offaly considerable time is spent by public representatives in helping local people to navigate through a system that does not seem to engage with them and which lacks popular legitimacy.
Fianna Fáil has consistently argued that a revamped planning system must engage citizens at every point if it is to work. A new planning system with real citizen engagement would be an integral part of an overhauled local government system. We have put forward detailed plans on the future of local government and argued for them in the 2013 local government legislation. These are ideas that would break the distance between ordinary citizens and the planning system. An effective planning system is a key part of promoting economic activity and creating strong environmentally sustainable communities. Weaknesses in the planning system have played a significant role in facilitating the construction of unviable developments across the country and need to be fully addressed.
Deputy Catherine Murphy's omnibus Bill takes a miscellaneous approach to several issues in the planning system, namely, development contributions, estates taken in charge, planning enforcement notices and planning permission roll-overs. Overall, it is a welcome Bill that would rectify several weaknesses in the planning process. While we have some concerns about certain aspects of the Bill, these could be addressed on Committee Stage if the Government is willing, as it should, to engage with it.
The Bill provides for the establishment of a publicly available, updated national planning compliance register drawn from information on enforcement notices placed by local authorities across the country. The goal of the register is to promote enhanced openness in the area of compliance and to facilitate access to essential information on past failures to comply. The legislation would enhance the prohibitive aspect of the law in combating unauthorised development. It earmarks rogue developers who have systematically dismissed planning concerns. This information would help to inform future planning decisions in shaping the future of each county. The register would help to underpin a cultural shift that would penalised unauthorised developments and retrospective planning permissions. Highlighting non-compliance, in a manner similar to a litter register, or tax non-compliance would help to underline the negative impact that breaches of planning law have on the landscape.
Regarding development plan consistency, the Bill tightens legal language in regard to the consistency of proposed developments with the local area plan, or integrated area plan, for future developments. A key issue that emerged at the height of the boom was the lack of alignment between regional, county and local development plans, creating an excess supply of zoned land and, ultimately, vacant units. The spatial legacy of ghost estates and the overhang of vacant housing reflect the misplacement of housing units across the country. Strengthening the link between plans and the distribution of demographic plans would be an important step, towards providing homes, facilities and transport links where they were required. Permissions have to reflect the vision laid out for the area as decided by the democratically elected councillors.
The legislation seeks to bring greater transparency and accountability to development contributions which have been agreed as part of permission for certain classes of development. The Bill would create a publicly available centralised national schedule of agreed development contributions. A fair and balanced development contribution scheme is an important part of incentivising development, while financing future infrastructural requirements. Local authorities across the county have cut development contribution scheme contributions in order to attract investment in the moribund construction industry. While property prices have partially recovered in Dublin and other major urban centres, they remain stagnant or declining beyond the M50. A register of development contributions would help to outline best practice across the country and add to the public debate about competitive development contribution rates. It is imperative that the contribution system does not act as a drag on viable construction investments across the country.
The part of the Bill on planning permission roll-overs might present problems as it might unfairly penalise legitimate developments delayed through no fault of the developers with additional financial burdens. The Bill seeks to introduce specific circumstances in which an extension of an appropriate period would only be granted for developments consisting of traditional housing estates or apartment complexes. The roll-over permissions referred to are a sensitive issue, given that many developments were unable to be completed in the midst of the recession owing to the rapid and ongoing drought of available credit.
A key feature of the Planning and Development Act 2010 is the provision for an extension for planning permits for developments. This corresponds with the provisions in section 238 of the NAMA Act, pertaining to Part 3 of Schedule 8, where an application can be made to extend an existing planning permission for five years. A planning authority may extend the period of the permission where it is proved, including an explanation of the circumstances, with evidence, that there were considerations of a commercial, economic or technical nature beyond the control of the applicant that substantially militated against either the commencement of development or the carrying out of substantial works. A further requirement in that legislation is that there be no significant changes to the development objectives in the development plan or to the regional development objectives in the regional planning guidelines for the area since the date of the permission that would make the development inconsistent with the proper planning and sustainable development of the area.
The changes outlined in the Bill might clash with what was envisaged by the Planning and Development Act 2010 as a respite for individuals undermined by the credit drought, for example. If the Government is willing to engage, I am sure we can address this issue by way of a more appropriate wording on Committee Stage.
The part of the Bill on bringing estates in charge would place new obligations on planning authorities where permission for housing estates or apartment complexes had been granted subject to the payment of a bond or securities in the event of non-completion. It also seeks to eliminate any case where a bond may expire before a local authority has a chance to redeem it, which it is hoped would, in effect, provide an early warning system for the expiration of a bond or security. The relevant section seeks to define those residents who may petition a local authority to take an estate in charge as a majority of those casting votes in a plebiscite of the owners of the houses involved. It would further reduce the amount of time before an estate might be taken in charge by a local authority from seven years to two.
Despite the fact that 1.6 million homes are being levied for the local property tax which is ostensibly for local services, countless estates have not been taken in charge by the local council. The homeowners are, in effect, paying for services they are not receiving. Taking estates in charge at a faster rate is vital to addressing this gross unfairness in the property tax system.
The Bill tackles some of the outstanding areas to be addressed in the planning system. The Government should approach it in a constructive light and the spirit in which it is intended. We could move to strengthen it on Committee Stage with the co-operation of all parties. Such co-operation has been evident in the speeches of Members since Deputy Catherine Murphy initiated the debate.
I hope the Government will give an indication that it is prepared to allow this Bill to progress to Committee Stage and to work with all parties to strengthen its provisions for the betterment of those we seek to represent.
I commend Deputy Catherine Murphy for her Planning and Development (Transparency and Consumer Confidence) Bill, in which she is attempting to limit or repair some of the damage done during the so-called boom, which in fact saw some of the most negative and corrupt practices in the history of the construction industry.
Housing is one of the most basic human rights and the lack of it, or homelessness, is a disaster in anyone’s life. There is a crisis in public housing and we do not have to turn to the ESRI or other research agencies to tell us that. Every day, on the streets of Dublin and towns across Ireland, we can see people in horrific circumstances, trying to keep body and soul together without a roof over their heads. The constituency offices of every public representative are dealing with more and more people who are in housing crisis and housing lists are growing all over the State. The spectre of increased homelessness in rural areas is looming, something which was almost unknown in living memory.
The legacy of the Fianna Fáil-Progressive Democrats coalition and its greed-is-good mentality is an attitude that Government should tax at the minimum and let people fend for themselves. This legacy did not, unfortunately, die with that Fianna Fáil-led Government but is alive and well and is central to this Government's policies. It goes against the honourable tradition of social welfare, including social housing, provided by Government to those who cannot provide for themselves.
The destruction of the rates system for short-term electoral gain by Fianna Fáil in the 1977 general election and the subsequent starvation of local authority funding by central Government means that it has almost become a thing of the past that county councils build and or even maintain social housing. The social housing that was available, dating back to the 1930s and 1940s, was sold off to tenants. This housing stock was never replaced, thereby reducing social housing and making housing lists all over the State grow longer while the housing crisis grows. Meanwhile, the private rental sector is being subsidised heavily to provide the housing that the local authorities once provided and should still be providing. Providing social housing is the most efficient, equitable and socially responsible way for local authorities to ensure that the housing needs of citizens are met.
While there is a role for the voluntary housing bodies, they are not accountable to the citizens in the same way as the county and city councils and they are not as transparent either. Furthermore, they do not have the ability to cope with the scale of the housing crisis we currently face. Meanwhile, we have the potential of NAMA housing, with 3,500 homes already earmarked for social and voluntary housing. However, progress is so slow that the Minister of State herself admits that only 500 of these units will be made available for social housing before the end of the year.
Despite all its financial difficulties, the local author sector is still the main provider of social housing, although it is becoming more dependent on the private and voluntary sectors to meet the needs of those on the housing lists. Significant borrowing restrictions imposed on councils are a major obstacle to progressive action on housing. Local authorities are owed €700 million in development levies from builders who are now in NAMA. However, local authorities are not listed as creditors of NAMA and so the moneys owed to them, which would alleviate some of their dire financial problems, are not going to be paid over to them. This situation also distorts their accounts, where such debts are listed as assets but in reality they are liabilities.
The solution is greater local authority involvement in the provision of social housing. Rental supplements and rental accommodation schemes should be nothing more than emergency measures while a properly planned and financed building programme, which would also create jobs, is implemented. The long-term aim must be that local authorities build, maintain and provide an adequate supply of housing for rental to the public at rates people can afford.