Dáil debates

Thursday, 13 July 2017

Planning and Development (Amendment) (No. 2) Bill 2017: Committee and Remaining Stages

 

NEW SECTION

6:05 pm

Photo of Eamon RyanEamon Ryan (Dublin Bay South, Green Party)
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I move amendment No. 1:

In page 3, between lines 7 and 8, to insert the following:"1. The changes introduced by section 28(1)(a)(iii) of the Planning and Development (Housing) and Residential Tenancies Act 2016 are hereby commenced.".

This follows what the Minister said in his reply. I am trying to understand this. If as the Minister said, it was always intended that sections 28(1) and 28(2) would commence at different times, was there a mistake in how the legislation was originally written? Should that have been explicit? What is preventing applying that dual approach in terms of the original commencement?

The Minister said a transitional period is always needed in order to accommodate. Surely a developer who has one of the developments to which section 28(1) applies is now at risk if that developer now proceeds with the development, whether it is seen as a technical extension or otherwise. What is the legal position if there is a subsequent legal challenge and someone says that the commencement should have applied straight away? Surely that subjects that development to some risk of not being in compliance with European law.

Photo of Eoghan MurphyEoghan Murphy (Dublin Bay South, Fine Gael)
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Due to the drafting and construction of section 28 with the two separate provisions, it is not possible to specifically commence the second provision without also commencing the first. That is the mistake that is there, I suppose, in legislation. It was always the intention to commence them separately in a staggered way but because of how they were originally drafted in the Bill and then enacted, we could not do that.

By taking section 28(2) out now, we can now commence the second part now on completion of the Bill and signature by the President. We can then commence the first part of section 28 later in the year as was always the original intention. The difficulty here is that we are drawing a connection between the first part and the second part of section 28 when essentially there is not one. The amended section 28(2) will allow us to provide this technical extension where an EIA was not previously needed for a minimum of 20 builds or more. Of course, there are certain conditions regarding when the application can be made and how long it might last.

As the Deputy has said, section 28 is already enacted; it just has not been commenced and we cannot just commence that second part. It was always the intention to do them separately when it was first brought in. However, it could not be done because of the technical construction of section 28. This is very much a technical change.

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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Is Deputy Ryan happy?

Photo of Eamon RyanEamon Ryan (Dublin Bay South, Green Party)
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I would like to come back because this is my main concern and I would not mind spending a bit of time on it. I will not press every amendment. I will withdraw some amendments on the basis of that the Minister might have to say. I wish to tease this out.

Earlier the Minister said that we did not want to commence section 28(1) because developers need time to consider and comply with the new EU law requirements. I understand what the Minister is saying in regard to section 28(2) in that as there may be certain developments where there is a risk that housing would not be delivered, he wants to commence that now. I do not understand what those developers need time to do. If they require an EIA, I imagine these are large projects, so it is not a flip decision or an immediate decision. What do they need time to do and consider? The Minister says we want to commence section 28(1) at the end of the year. What will happen between now and the end of the year? What is precluding us from commencing it tonight?

Photo of Eoghan MurphyEoghan Murphy (Dublin Bay South, Fine Gael)
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It is important to note that section 28(1) makes a permanent change to section 42. When it is commenced, that permanent change takes place. It actually places quite a significant burden on stakeholders in the industry because of what it requires, which is that extension of the duration would no longer apply where an environmental impact assessment or an AA was required in respect of the original planning permission. That is quite a substantial change if we think of large infrastructural projects and what that might mean if they were to require a first extension. Therefore, it is good practice to allow a period of time - in this case roughly one year - to allow them to adapt to meet that new reality because this will be a permanent change in the law. That is why the advice is to commence section 28(1) at the end of the year. That was always the intention when this was first brought through at the end of last year.

Photo of Eamon RyanEamon Ryan (Dublin Bay South, Green Party)
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I cannot quite figure it out and this is the cause of my concern. Is there not a risk that some developer might decide to proceed in this interregnum period? If it is a large development, there is a risk that they would then be subject to legal challenge with someone saying, "Well, you proceeded, but you should have known that you had to be compliant with EU law, which you are not." Therefore, the courts would rightly determine that the development should not have got an extension and should not be proceeding. That is a risk we are creating by taking this two-stage approach to the commencements.

Photo of Eoghan MurphyEoghan Murphy (Dublin Bay South, Fine Gael)
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The risk is that the legal challenge might be to us, were we not to give enough time to people in this situation to be aware of the changes that were coming meaning that they would then need new permission in that circumstance.

Amendment put and declared lost.

SECTION 1

Photo of Eoin Ó BroinEoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 2:

In page 3, line 16, to delete "shall" and substitute "may".

A number of times the Minister talked about the technical nature of this second extension. Part of the concern that this and other amendments are trying to address is that ten years is a long time from the original grant of permission and a range of things may have changed. Therefore, I think it is too restrictive to restrict the decision-making power of the local authority purely to the conditions as set out in the Bill. There may be changes in county development plans, changes in Government legislation or changes in the surrounding built environment. Indeed there could be specific issues with the development itself or the behaviour of the developer. The local authority should have the authority to take those into account when determining the extension. Therefore, the small change from "shall" to "may" gives them that flexibility to take into account those broader developmental concerns. On that basis, I propose this amendment.

Photo of Eamon RyanEamon Ryan (Dublin Bay South, Green Party)
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I am concerned that we are weakening the power of the local authorities too much. We, in this House, cannot make an assessment of any individual development. As the Minister said, we are working on the aggregate, not on examples of specific data or specific developments. However, there may be certain developments affected by this provision that anyone might assess as not representing a good planning approach. It is important to give local authorities certain flexibility in the application of this provision in order that they may grant. As local authorities, by and large, have an interest in seeing housing development, one would imagine that the vast majority should get planning extensions. However, there may be specific examples where we should give that local authority the power to refuse even if the general provision is to provide extensions.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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I wish to qualify that somewhat. I believe that would need to be specified and limited. I am not opposed to the amendment but I think developers could take liberty in using this instead of, for example, seeking alterations. It would need to pertain to the conditions rather than the actual planning permission itself as otherwise, I believe it would be used as a way of circumventing the type of planning permission. There is a big risk in where this might be taken. It is not as if people are coming in for a change in house type or something like that and it could be used for that purpose. I would be somewhat concerned in this regard. While I would be quite supportive of some flexibility because one wants to be in compliance with the conditions, some of which are so out of date that it would be quite be hard to be in compliance with them. However, it would have to be limited to some of the conditions.

6:15 pm

Photo of Eoghan MurphyEoghan Murphy (Dublin Bay South, Fine Gael)
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The purpose of a second extension of duration is to provide certainty to those people who are currently building to make sure they can finish those builds, be they developments of 20, 30, 40, 100 or 200 houses, the completion of some of which, even though they are substantially developed already, will still take a number of years. I cannot accept this amendment because the extension of duration in that regard must be an administrative function to give them that certainty in terms of the planning permission process. However, this amendment has the effect of making it discretionary, which would negate that certainty. That would then have implications for funding and financing for all those developments that would still require two, three or more years to finish. In other words, with this amendment we would be turning the process from an administrative one for the planning authority to a substantive one. We would remove that uncertainty but we would also bring in other difficulties in terms of undermining the planning process if we were to say that wider policy considerations that did not exist at the time for whatever reason - the development plan might have changed - could be brought in all of a sudden on a simple extension of duration, which could completely undermine the development that is already almost substantially complete. That is the difficulty I have with this amendment. We should recognise the significant power a local authority will have in the granting of the timeline for that extension, if, for example, it can decide because of its closer knowledge, of the developer, or the state of completion of the development or the infrastructure going into that site, how much time is required to finish the development quickly. That is the reason I cannot accept this amendment.

Photo of Eoin Ó BroinEoin Ó Broin (Dublin Mid West, Sinn Fein)
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I may not understand the legislation fully, but from the argument the Minister just made, it makes eminent sense that if a development is under construction today that we would allow for a technical extension rather than a substantive reconsideration of the original plan. I get that point. However, if I understand the Bill correctly, for example, a major development could have been planned in two phases with one phase having been completed and no active construction now on site. A first extension may have been granted and nothing happened during those five years. Under the terms of the Bill, there was a commencement and substantial works were carried out but there is no actual construction. There could be valid reasons that do not conflict with anything the Minister has said. A planning authority might decide that a technical extension in this case is not valid, a substantive reconsideration is merited and on that basis, a second extension would not be granted. Local authority officials would be intelligent enough to understand the difference between the situation the Minister outlined, where a technical extension is appropriate, and the situation I am outlining, which is a real one in my constituency, where a more substantive reconsideration should be within the power of the local authority to consider. Therefore, I believe this amendment has merit.

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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Does Deputy Eamon Ryan wish to comment?

Photo of Eamon RyanEamon Ryan (Dublin Bay South, Green Party)
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No.

Photo of Eoghan MurphyEoghan Murphy (Dublin Bay South, Fine Gael)
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My advice is that this would create too much uncertainty in what was meant to be a technical extension process to allow developments that have already been substantially built to be completed, and to get that second extension as per the original planning permission, however that might have been phased. It is to have that certainty element. We are not just talking about getting 20 more houses built, as Deputy Ó Broin explained. We are talking about projects that still need to secure that additional bit of financing and to not have this certainty in place could also undermine that.

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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How stands the amendment?

Photo of Eoin Ó BroinEoin Ó Broin (Dublin Mid West, Sinn Fein)
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It is being pressed.

Amendment put and declared lost.

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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Amendments Nos. 3 to 9, inclusive, are related, amendments Nos. 4 to 9, inclusive, are physical alternatives to amendment No. 3, and amendments Nos. 7 and 8 are physical alternatives to amendment No. 6. Amendments Nos. 3 to 9, inclusive, may be discussed together.

Photo of Clare DalyClare Daly (Dublin Fingal, Independent)
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In light of the Minister's earlier points of clarification and some of his responses to Deputy Eamon Ryan, we will withdraw amendment No. 3 in preference of some of the other amendments.

Amendment No. 3 not moved.

Photo of Eamon RyanEamon Ryan (Dublin Bay South, Green Party)
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Given the Minister's earlier response, it has given me confidence that these developments are not included. Therefore, I will happily withdraw amendment No. 4.

Amendment No. 4 not moved.

Photo of Eoin Ó BroinEoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 5:

In page 3, line 22, after “authority” to insert the following:
"setting out the reasons why the development cannot be reasonably completed within the appropriate period".

I will speak to amendments Nos. 5 and 6 if that in order. While it is not in this grouping, my intention was that amendment No. 17 would be connected to those two amendments. I will speak to it now to save time, if that is allowed.

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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Good.

Photo of Eoin Ó BroinEoin Ó Broin (Dublin Mid West, Sinn Fein)
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Briefly, the intention of amendment No. 5 is to place an additional responsibility on the applicant to set out the reasons the development cannot be reasonably completed within the current timeframe. We need to find ways of strengthening the Bill as it stands to force developers to justify the reason they need the extension. That is the basis upon which the amendment is proposed.

Amendments Nos. 6 and 17 are connected but they are probably not well enough drafted for that to be clear to whoever was doing the grouping. Essentially, this goes back to the argument I made on Second Stage, which is as follows. My fear with the five-year timeframe is that it will become the default decision, rather than a local authority having the discretion to say the extension will be for six months, 12 months or two years. The idea was to make the default position one year unless, as amendment No. 17 outlines, there are significant reasons the planning authority believes a longer extension is required. I intend to press amendment No 5. but will not press amendments Nos. 6 or No. 17. I have a real concern that, under the pressure of time, local authorities will start granting five-year extensions as opposed to what the Minister outlined, namely, the possibility of shorter ones.

Photo of Eoghan MurphyEoghan Murphy (Dublin Bay South, Fine Gael)
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The Deputy spoke to amendment No. 5. It provides for home builders in the application for an extension of duration to set out reasons the development cannot be completed as envisaged. I will accept that amendment if the Deputy believes it will add value to the process because it is a good amendment.

I will speak to amendments Nos. 6 to 8, inclusive, together. This is the idea of the default position being one year. That might open up the risk of them needing a third extension, which we are not providing for in this legislation, if the default position is only one year. The other risk is that if the lapsing of the first extension were to happen after the date that has been proposed by the Deputy in his amendment, they would not be caught by this. However, in terms of the simplicity we are trying to bring to this to make sure that people who are currently building can finish the development secure in the knowledge that they will have the permission and the funding to do so, this will create a further doubt because it is only one year in terms of finding that certainty for them. We believe there are risks in accepting those amendments to the Bill.

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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The position is that amendment No. 5 is accepted.

Amendment agreed to.

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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Amendment No. 6 not moved.

Photo of Eamon RyanEamon Ryan (Dublin Bay South, Green Party)
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I move amendment No. 7:

In page 3, line 24, to delete "5 years" and substitute "2 years".

I can press it but I hear what the Minister said. He does not want to give a third extension and he can understand how a one-year timeframe might be too tight if a development comprises more than 20 houses. However, given these are all developments on which substantive progress has already been made, to avoid the concern about hoarding with people holding back, I would argue for setting a two or three-year period, which would be a signal towards completion and getting housing in the next two or three years rather than in five years' time. I am interested to hear from the Minister why that does not make sense.

Photo of Eoghan MurphyEoghan Murphy (Dublin Bay South, Fine Gael)
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I would not have combined some of the amendments as they have been combined. If we consider a separate amendment that has been tabled, I believe, by Deputy Ryan, it appears to open up a possibility of a third extension, which we do not want to allow for in this Bill. We want people to go to their local authorities to seek a second extension, the local authority to make a judgment call on the time needed, and for that work to be completed as quickly as possible. I think the Deputy's amendment would have been combined with the other amendment about a possible third extension. If we were to do that, it would potentially open up an ability for some builders to try to game the system to go for the first two years and then go for a third extension but that is not the intention of the Bill. To be clear, I do not believe that was the intention in the way the Deputy drafted the amendment. Some of these developments, from what we understand, are of a significant nature such that it would require more than two years to complete them, as they involve a significant number of units. While they are already substantially under way in terms of being past the point of no return, they may not be able to be completed within two years and so a five-year extension was the maximum or 2021 and at that point it would fall out of law, so one could not build beyond that time, or seek a further extension. We are very much giving the power to the local authority, given their closer knowledge of these developments, to decide what is the adequate timeframe for the extension.

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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The Minister is not accepting amendment No. 7. Deputy Ryan, how stands the amendment?

Photo of Eamon RyanEamon Ryan (Dublin Bay South, Green Party)
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I will withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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I move amendment No. 8:

In page 3, line 24, to delete "5 years, or until 31 December 2021" and substitute "2 years, or until 31 December 2019".

This amendment is similar to the previous one. These planning permissions were given in 2007 or prior to that.

That is ten years. There are people living in housing estates that commenced in 2007. For understandable reasons, the builder was not able to proceed as there was not a market and all of that. Very understandably, legislation was brought in to extend the duration. It was supposed to be a temporary arrangement with a sunset clause. It was understandable because of the economic situation at the time. Those same people are still living in that housing estate, however. It is still not complete. If it goes to 2021, they will have lived on a building site for 15 years. Is that fair?

We are trying to be fair to the construction industry side but we also have to be fair to people who are living in housing estates that are essentially building sites. It may well be a small number of estates but it is an unfair burden to put on those people. I can point the Minister to one of these estates if needs be. I am not talking in academic terms. Some of them only had street lighting installed in the last six months although the houses were started in 2007. There are some very bad examples.

If the Minister wants to save a developer from having to make another planning application with all the uncertainty it involves, the best thing is to put a limit on the time. The limit is reasonable at two years if we want houses built quickly. This is a benefit that is being given to a particular cohort but it is also of benefit that the houses will be delivered quickly and the foot will not be taken off the pedal. It is absolutely reasonable if there is going to be an extension of duration, which is a pretty big breach of planning law. Planning is supposed to be about orderly development, certainty and all of that. The certainty is not only for the developer. It is also for people who are living in these estates or going to buy in them. There has to be fairness on the other side. I know the Minister is going to disagree with this for exactly the same reasons as those he has given to Deputy Eamon Ryan. In this case, I feel very strongly that certainty has to be given to people who are living in those estates as well.

6:25 pm

Photo of Eoghan MurphyEoghan Murphy (Dublin Bay South, Fine Gael)
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The Deputy is absolutely right that the two things are not disconnected in terms of allowing and facilitating developers to construct their buildings and having homes for people to move into and to live in. When we address this measure, we are not just doing so for one part of this equation but for everyone involved, so houses can be built and finished and people can move in and live in them. It will relieve the kind of pressure that Deputy Boyd Barrett talked about in other parts of the market, which other people are experiencing.

Taking the Deputy's example of the estate that is not yet finished, one could equally be in a position whereby a developer now sees the opportunity for a second extension to finish out the development. He goes for financing to do that and the financier asks how long he has to do it. He says two years but the financier thinks it will take three and permission is not granted. In that scenario, the estate never gets finished. We are trying to put the five-year extension in place but will give the discretion to the local authority, which will be better able than the Deputy or I to judge how much time would actually be required, and will move forward on that basis.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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How stands the amendment?

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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I am pressing it.

Amendment put:

The Dáil divided: Tá, 26; Níl, 76; Staon, 0.


Tellers: Tá, Deputies Catherine Murphy and Eamon Ryan; Níl, Deputies Joe McHugh and Tony McLoughlin.

Richard Boyd Barrett, Tommy Broughan, Pat Buckley, Seán Crowe, David Cullinane, Pearse Doherty, Dessie Ellis, Kathleen Funchion, Séamus Healy, Gino Kenny, Martin Kenny, Catherine Martin, Denise Mitchell, Imelda Munster, Catherine Murphy, Carol Nolan, Eoin Ó Broin, Caoimhghín Ó Caoláin, Donnchadh Ó Laoghaire, Aengus Ó Snodaigh, Jan O'Sullivan, Maurice Quinlivan, Eamon Ryan, Bríd Smith, Brian Stanley, Peadar Tóibín.

Níl

Bobby Aylward, Maria Bailey, John Brassil, Declan Breathnach, Colm Brophy, James Browne, Richard Bruton, Mary Butler, Catherine Byrne, Thomas Byrne, Jackie Cahill, Dara Calleary, Seán Canney, Ciarán Cannon, Joe Carey, Pat Casey, Shane Cassells, Jack Chambers, Lisa Chambers, Michael Collins, Barry Cowen, Michael D'Arcy, Jim Daly, John Deasy, Pat Deering, Regina Doherty, Stephen Donnelly, Andrew Doyle, Bernard Durkan, Damien English, Alan Farrell, Michael Fitzmaurice, Peter Fitzpatrick, Charles Flanagan, Brendan Griffin, Simon Harris, Michael Harty, Martin Heydon, Paul Kehoe, Helen McEntee, Finian McGrath, Mattie McGrath, Michael McGrath, Joe McHugh, Tony McLoughlin, Josepha Madigan, Kevin Moran, Aindrias Moynihan, Margaret Murphy O'Mahony, Dara Murphy, Eoghan Murphy, Eugene Murphy, Denis Naughten, Hildegarde Naughton, Tom Neville, Michael Noonan, Éamon Ó Cuív, Darragh O'Brien, Kate O'Connell, Willie O'Dea, Patrick O'Donovan, Fergus O'Dowd, Kevin O'Keeffe, Fiona O'Loughlin, Frank O'Rourke, John Paul Phelan, Anne Rabbitte, Michael Ring, Noel Rock, Shane Ross, Eamon Scanlon, Brendan Smith, Niamh Smyth, David Stanton, Robert Troy, Katherine Zappone.

Amendment declared lost.

Amendment No. 9 not moved.

6:40 pm

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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Amendments Nos. 10, 16 and 19 will be discussed together.

Photo of Eamon RyanEamon Ryan (Dublin Bay South, Green Party)
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I move amendment No. 10:

In page 3, between lines 30 and 31, to insert the following:“(III) has determined that no environmental impact assessment and/or appropriate assessment are required at the time of the application for an extension of the appropriate period, following a screening determination made by the planning authority and in light of the changed environmental circumstances, conditions and cumulative impacts pertaining at the period now in question for the completion of the development,”.

This is a very practical amendment to provide a screening mechanism to ascertain whether any development to which we are giving an extension requires an appropriate environmental impact assessment, given the changing circumstances of EIA legislation. The 2014 EIA directive, which we should have enforced by this stage, has extensive EIA considerations to take into account climate change effects, flood prevention or other disaster issues. Under the Aarhus Convention, there is a requirement on the part of public authorities which extend planning permission, as provided for in this Bill, to take account of the need for EIA assessments. This amendment gives legal certainty and allows us to be compliant within European law. It also provides a suitable screening mechanism which is not otherwise provided for in the legislation.

Photo of Eoin Ó BroinEoin Ó Broin (Dublin Mid West, Sinn Fein)
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I will speak to amendments Nos. 10 and 16. The argument is similar to the one made on earlier amendments to the effect that ten years is a long time. There may have been significant changes in the period following the original decision as to whether an EIA was required. It is not to say that an EIA or AA will be required in all circumstances but it will give the local planning authority the discretion to make the call. I endorse Deputy Ryan's comments and speak in favour of amendment No. 16.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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A whole series of additional works have to be done in advance of local area plans commencing now, as opposed to planning permissions granted in 2007 or before. Some of them make sure we do not repeat the mistakes of the past by building on land which is prone to flooding and other things, causing problems into the future which have to be remedied at great expense. This amendment gives the flexibility to look at such issues. There is very little flexibility as to the extension of duration currently. If it is largely complete it is, to some extent, a box-ticking exercise and some fairly significant issues are not being scrutinised as they would now under the changes in planning law.

Photo of Eoghan MurphyEoghan Murphy (Dublin Bay South, Fine Gael)
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This is a very specific amendment in and of itself. It fulfils the intention of the House in an Act that was previously passed but could not be commenced because of a technical drafting error. The risk in accepting these amendments is to open it up wider than was the original intention of the section when it was enacted and it risks turning an extension of a duration process into a whole new consent process and that is not what this is about. It is not about introducing another consent process but this amendment intends to do that. It is very difficult to bring in a new screening process, or even a new EIA, for a development that is already substantially under way and it could have a significant impact on and risk for the completion of the development. If we were to allow it there are potential knock-on effects for other types of development if we required a new EIA when they were substantially complete.

We are opposing amendments Nos. 10, 16 and 19 as they effectively create a second consent process which is not the intention of this Bill. They bring in a further layer of uncertainty, a financial risk, a completion risk which we do not want, and unforeseen consequences beyond the scope of what this Bill intended to address.

Photo of Eamon RyanEamon Ryan (Dublin Bay South, Green Party)
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This is last-minute technical legislation, which is difficult, and we are amending various Acts. There is also European law. Would accepting this amendment not give us some protections against the concerns I have set out over not commencing section 28(1) for developments had been required to undergo an EIA? Does it not also give certain cover? The Bill grants an extension which is akin to major changes to planning law. Is there not a risk from changes in European legislation to situations where a development is given an extension but should have had a new EIA? Article 6.10 of the Aarhus Convention states:

Each Party shall ensure that, when a public authority reconsiders or updates the operating conditions for an activity referred to in paragraph 1, the provisions of paragraphs 2 to 9 of this article are applied mutatis mutandis, and where appropriate.

I suggested the amendment to bring about some protection legally.

Photo of Eoghan MurphyEoghan Murphy (Dublin Bay South, Fine Gael)
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We have to divorce the first and second parts of section 28, which is difficult given its construction. In the second part, we are talking about original permissions that did not require an EIA at the time. This is a technical extension to that permission. The intention of this Bill is not to open up a second consent process, which is what the amendment could do, and if we were to accept it there could be a knock-on effect on developments which are almost complete but need to be seriously altered, affecting its completion and financing. It would also be a risk for other developments that might be seeking an extension. Sections 28(1) and 28(2) are separate provisions and are not related. Section 28(2) ensures that almost-complete developments of 20 units or more can be completed where the original permission did not require an EIA.

Photo of Eoin Ó BroinEoin Ó Broin (Dublin Mid West, Sinn Fein)
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One of the big disagreements between us is that the Minister wants to restrict this to something technical while we are looking to introduce some level of substantive discretion for the local authority. Is there not a requirement in the EIA directives of 2011 and 2014 annex II.13 for precisely such a screening process in these types of cases?

6:50 pm

Photo of Jan O'SullivanJan O'Sullivan (Limerick City, Labour)
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8 o’clock

Deputy Ryan's point about the Aarhus Convention is well made, and it would be important to check the legal elements of all of this. This also brings me back to the point I made when I spoke earlier about what "substantial" means. The Minister is describing something that is nearly complete, but I think the description of something as "substantial" is open to interpretation. My concerns are that what a local authority might consider to be substantial might not be the same as what Deputy Murphy, as the Minister, might consider to be substantial, that the understanding of what is substantial might vary from local authority to local authority and that there might be situations in which there was no requirement for an EIA at the start but very little work has been done. The definition of "substantial" comes back into consideration under this amendment.

Photo of Eoghan MurphyEoghan Murphy (Dublin Bay South, Fine Gael)
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To answer Deputy Ó Broin's point about the article he cited and the potential impact in that regard, no, that is not the case. We do not believe there is a legal risk regarding the points Deputy Ryan made about the Aarhus Convention. In some ways this is related to amendment No. 12, which we will discuss in a moment. There is the idea that one could potentially open up a situation whereby people who had original permission that did not require an EIA might find themselves going for a simple extension to allow them to finish the build but could find their ability to complete that build undermined by the fact that they may now have to take into account changes that could have happened, for example, in terms of the strategic direction of a development plan in that area. A building could be almost substantially complete, be it an apartment block or anything else, but might no longer be in keeping with a policy change that might have happened since. This would then undermine the person's rights in respect of the permission that was originally granted in terms of the particular purpose of the build being undertaken by that developer at the time.

What we want to facilitate here is the completion of housing developments on which substantial progress has been made and which are almost complete. While there is no statutory definition of this, there is significant relevant case law. What we talk about here are developments that are past the point of no return. When we consider it in that context and what the local authorities will be judging, this screening further undermines that and therefore takes away the certainty we want to have in bringing forward this legislation. The Bill is very specific, as I said. It is technical. It was already the intention of the House to provide for this but, due to a drafting error, it has not been possible to commence it. It is about following through on that simple extension so that these developments can be completed.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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How stands the amendment?

Photo of Eamon RyanEamon Ryan (Dublin Bay South, Green Party)
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We will press it.

Amendment put and declared lost.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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Amendments Nos. 11, 12 and 15 are related and may be discussed together.

Photo of Eoin Ó BroinEoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 11:

In page 4, line 5, after “and” to insert “is under active construction but cannot reasonably be completed, and”.

All three amendments are in my name so I will speak to them together. Regarding amendments Nos. 12 and 15, I will not repeat the arguments. It is the same set of arguments we have discussed substantively on the other amendments. Regarding amendment No. 12, there is a phrase that has slipped into our conversation from the start, namely, "substantial completion", and nowhere in the legislation is there reference to substantial completion. There is reference to substantial works being carried out. This is an important point and I want us to be clear about it.

One of my big concerns about the drafting of the Bill is the two core criteria, namely, the requirement for the development to have commenced and for substantial works to have been carried out. Again, the difficulty is that if there is a single development of 20 units, for example, and the foundations are laid and half built, that is pretty straightforward. However, if there is a much larger development with phases, if one phase has been completed but the other has not and if the developer is deliberately not moving forward on that throughout the first extension of planning permission, that is very different. One of the reasons I have proposed amendment No. 11 is that I think to be eligible for this extension, construction activity has to be taking place in addition to those other two criteria, and that would be a stronger criteria.

Again, this Bill has been presented from the very start as involving a developer actively constructing on site and wanting to finish within the existing extension and permission but not being able to do so because of the time, and the Minister is giving them sufficient time to finish the work. However, the conversation has now changed to focus on a development where, for example, nothing might have happened for five years. They could have had the commitments and substantial works in the original five years when they got their first extension but nothing is taking place, and we are now talking about giving them an extension. Perhaps it is to allow them to access finance or other things, but that is a much bigger issue. This goes back to the information I requested from the Minister's office at an earlier stage because we are discussing hypotheticals. We do not know, certainly on this side of the House, of the 50 to 100 developments, how many are actively being constructed now and urgently need this and how many are more hypothetical or speculative developments that may need more time to access finance. We are not sure whether they will get it or not, etc., and that is why active construction on site at the time the developer applies for the second extension is crucial.

The Minister talks about the case law in terms of developments having passed the point of no return. I would be interested to hear him tell us a little more about this. We know, for example, that there were ghost estates which one would have thought had passed the point of no return but then not the Minister's Government but an earlier Government took the decision that some of those would have to come down rather than be finished, even though they would have been commenced and, under the terms of this Bill, substantial work would have been carried out on them.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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Amendment No. 11 is very important. I am aware of a few examples of developments in respect of which nothing has happened in the past five years even though there was an extension of duration. As for the idea that another five years would be given in such an instance, again, I make the point that where some work has taken place on such a development, it means that not only are the people living on it living on a building site, but questions would also be raised if they even tried to sell. There is a huge degree of unfairness if that is the case.

If there is a development that is 50% completed and it is motoring on and is going to deliver houses, none of us wants to stop that. However, neither do we want the unintended consequence of something being extended to developers who really have not engaged in building, even though they have got the benefit of extensions and now would get another benefit of an extension, despite the fact that they did not do anything within that first extension. To be given an extension is a big deal because it is a very costly exercise to come in and make a fresh planning application, and all of that would have been of benefit to them. I can understand why this has happened, but amendment No. 11 is very reasonable and I think it would give some degree of safety. I would reiterate the point about the definition of "substantial" as well.

Photo of Eoghan MurphyEoghan Murphy (Dublin Bay South, Fine Gael)
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While I absolutely understand the point Deputy Ó Broin makes as to why he has tabled amendment No. 11, the difficulty with it is that in the action plan launched last summer, a commitment was given to people for whom permission would expire between the intention as stated in the action plan and the actual enactment of the legislation and the commencement of the order. They would be captured by that. Therefore, certain developers had to down tools because the law was not yet in place and the order was not commenced. This Bill is to allow us to meet the commitment that was made when the action plan was published last year, so there is retrospection but only to the point of the publication of the plan last year because that commitment was given that they would be covered in this. This is why I cannot accept amendment No. 11. It would go back on that commitment given at the time the action plan was published.

Regarding the other point Deputy Ó Broin made about housing estates and ghost estates that were not completed but might have been deconstructed, I cannot speak to the individual estates as to why this may have happened. It could be for a number of reasons. The permission might have lapsed and no initial extension sought. What we are talking about here are developments in respect of which - the Deputy is right - substantial works have been carried out and the developers need this additional time to finish those works.

To speak to Deputy Murphy's point, the local authority is best placed to know exactly how much time is needed in such cases. It should be noted as well that the planning (amendment) Bill 2016 will be completed in September or October, as per our priorities in the Department. There are new provisions being introduced there to give greater flexibility to local authorities not to have to grant, as per the current position in an initial planning application, an automatic five years and to give them more powers to make judgment calls for periods of less than five years for the initial decision, whatever about extensions.

We should give local authorities greater discretion and more power, because they are closer to what is actually happening in those areas.

7:00 pm

Photo of Eoin Ó BroinEoin Ó Broin (Dublin Mid West, Sinn Fein)
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When the Minister speaks about a commitment that was given at the launch of Rebuilding Ireland, is he talking about a retrospective application of an extension to a permission that has actually already expired and where building work had stopped? That is what I took from what the Minister said, which is not what this Bill, as far as we have been discussing it up until now, is proposing to do. My understanding is that this concerns a situation where the expiry date is approaching and an extension is needed.

Apologies, I confused my numbers earlier. The purpose of amendment No. 15 is to give an additional criteria to the local authority. This goes back to the concern I had on Second Stage where a disingenuous or dishonest developer might seek an extension not because he or she actually need more time, but because he or she wants to accrue the house price inflation a couple of years down the line. The purpose of this amendment is to allow for a situation where a local authority is satisfied that granting an extension would not result in delaying a development.

Photo of Eoghan MurphyEoghan Murphy (Dublin Bay South, Fine Gael)
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To be clear about amendment No. 11, permissions which would have lapsed after July 2016, when the plan was published, can be reactivated under the provisions of this Bill, but they must apply within six months of the commencement, which is when the President signs the Bill.

We have addressed the substance of amendment No. 15 when speaking about other amendments. The purpose of this Bill is to allow an extension where there has been a delay. The drafting of the amendment that the Deputy has suggested reads, "is satisfied that the extension will not result in the delay of the completion of the development". By its nature it will be delayed until it is completed, so there was a question on our side as to the actual technical drafting of it and if it might add confusion. If this amendment was accepted I do not believe that it would undermine the Bill, but I do not believe that it would make sense in the Bill either.

Photo of Pat CaseyPat Casey (Wicklow, Fianna Fail)
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On the second period, the Bill as it stands states "up to December 2021". Is it not within the power of each local authority to grant an extension period of one, two, three, four or five years? They do not have to grant the entirety of the five years. If they feel a housing estate is almost completed and does not warrant a five-year extension, surely they have the ability to grant the extension for one or two years, or whatever they deem appropriate.

Photo of Eoghan MurphyEoghan Murphy (Dublin Bay South, Fine Gael)
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Absolutely. In 2021, the ability to have a second extension falls out of law completely. The onus is on the local authorities and the discretion is with them as to the length of extension they grant. That is how it should work, because they are closer to the development and they will have better knowledge as to what is needed.

Amendment put:

The Dáil divided: Tá, 23; Níl, 75; Staon, 0.


Tellers: Tá, Deputies Eoin Ó Broin and Catherine Murphy; Níl, Deputies Joe McHugh and Tony McLoughlin.

Richard Boyd Barrett, Tommy Broughan, Pat Buckley, Seán Crowe, David Cullinane, Pearse Doherty, Dessie Ellis, Kathleen Funchion, Séamus Healy, Martin Kenny, Denise Mitchell, Imelda Munster, Catherine Murphy, Carol Nolan, Eoin Ó Broin, Caoimhghín Ó Caoláin, Donnchadh Ó Laoghaire, Aengus Ó Snodaigh, Jan O'Sullivan, Maurice Quinlivan, Bríd Smith, Brian Stanley, Peadar Tóibín.

Níl

Bobby Aylward, Maria Bailey, John Brassil, Declan Breathnach, Colm Brophy, James Browne, Richard Bruton, Mary Butler, Catherine Byrne, Jackie Cahill, Dara Calleary, Ciarán Cannon, Joe Carey, Pat Casey, Shane Cassells, Jack Chambers, Lisa Chambers, Michael Collins, Barry Cowen, Michael D'Arcy, Jim Daly, John Deasy, Pat Deering, Regina Doherty, Stephen Donnelly, Andrew Doyle, Bernard Durkan, Damien English, Alan Farrell, Michael Fitzmaurice, Peter Fitzpatrick, Charles Flanagan, Seán Fleming, Brendan Griffin, Simon Harris, Michael Harty, Martin Heydon, Paul Kehoe, Helen McEntee, Finian McGrath, Mattie McGrath, Michael McGrath, Joe McHugh, Tony McLoughlin, Josepha Madigan, Mary Mitchell O'Connor, Kevin Moran, Aindrias Moynihan, Margaret Murphy O'Mahony, Dara Murphy, Eoghan Murphy, Eugene Murphy, Denis Naughten, Hildegarde Naughton, Tom Neville, Michael Noonan, Éamon Ó Cuív, Kate O'Connell, Willie O'Dea, Patrick O'Donovan, Fergus O'Dowd, Kevin O'Keeffe, Fiona O'Loughlin, Frank O'Rourke, John Paul Phelan, Anne Rabbitte, Michael Ring, Noel Rock, Shane Ross, Eamon Scanlon, Brendan Smith, Niamh Smyth, David Stanton, Robert Troy, Katherine Zappone.

Amendment declared lost.

7:05 pm

Photo of Eoin Ó BroinEoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 12:

In page 4, between lines 5 and 6, to insert the following:“(V) is satisfied that—
(A) the planning authority has been provided with established evidence by the applicant that the development can and will be completed within a reasonable time,

(B) the development would not be inconsistent with the proper planning and sustainable development of the area having regard to any guidelines issued by the Minister under section 28 notwithstanding that they were so issued after the date of permission in relation to which an application is made under this section,

(C) there have been no significant changes in the development objectives in the development plan or in regional development objectives in the regional spatial and economic strategy for the area of the planning authority since the date of the permission such that the development would no longer be consistent with the proper planning and sustainable development of the area, and

(D) there are no other conflicting issues arising in terms of flood risk or climate change considerations, not limited to but including considerations in the national climate mitigation and climate adaptation plans in accordance with section 15 of the Climate Action and Low Carbon Development Act 2015, which would mean that the development would no longer be consistent with the proper planning and sustainable development of the area,
and”.

Amendment put and declared lost.

Amendments Nos. 13 and 14 not moved.

Photo of Eoin Ó BroinEoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 15:

In page 4, between lines 19 and 20, to insert the following:“(VI) is satisfied that the extension will not result in delaying the completion of the development.’.”.”.

Amendment put and declared lost.

Photo of Eoin Ó BroinEoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 16:

In page 4, between lines 19 and 20, to insert the following:“(1B) The Planning and Development Act 2000 is amended in paragraph (aa) of section 42(1), inserted by section 28(1)(a)(iii) of the Planning and Development (Housing) and Residential Tenancies Act 2016, by the insertion of the following after “granted,”:
‘and where the planning authority has determined that no environmental impact assessment and/or appropriate assessment are required at the time of the application for an extension of the appropriate period, following a screening determination made by the planning authority and in light of the changed environmental circumstances, conditions and cumulative impacts pertaining at the period now in question for the completion of the development,’.”.”.

Amendment put and declared lost.

Amendment No. 17 not moved.

Section 1, as amended, agreed to.

Amendments Nos. 18 and 19 not moved.

Section 2 agreed to.

Title agreed to.

Bill reported with amendment, received for final consideration and passed.