Dáil debates

Tuesday, 29 June 2021

Planning and Development (Amendment) (No. 3) Bill 2021: Second Stage


4:20 pm

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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I welcome the Minister for Housing, Local Government and Heritage, Deputy Darragh O'Brien. He is certainly very busy on the legislative front.

Photo of Darragh O'BrienDarragh O'Brien (Dublin Fingal, Fianna Fail)
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I move: "That the Bill be now read a Second Time."

I am grateful for the opportunity to introduce the Planning and Development (Amendment) (No. 3) Bill 2021 and I thank all colleagues for facilitating the urgent passage of this important legislation through the Houses of the Oireachtas. I am bringing forward the Bill as a matter of urgency in order to address the delays and disruption caused by the Covid-19 pandemic on the completion of construction projects, including housing projects, and for the completion of development plan programmes, in particular, having regard to arrangements for consultation with elected members and the public. The Bill will also bring forward urgently needed amendments to the ministerial order procedure of the planning Act to ensure such orders will apply to development by or on behalf of statutory undertakers, and amendments to the Fifth Schedule to the Planning and Development Act 2000, which I will go into a little more detail shortly.

Due to the urgent need for this legislation, I made a request to the Business Committee of the Houses of the Oireachtas to waive the requirement for pre-legislative scrutiny of this general scheme by the Joint Committee on Housing, Local Government and Heritage. The waiver was granted earlier this month following a briefing session by my officials with the members of the joint committee.

With regard to the purpose of the Bill, the first two provisions I will discuss are proposed in the context of delays and disruption to certain elements of the planning system as a result of Covid-19 restrictions. The first provision proposes, at sections 2, 6 and 8, to allow a planning authority, should it so decide, to take an additional period of up to one year over and above the statutory period set out in the Planning and Development Act 2000 to prepare a new development plan for its area. Some local authorities have indicated that, while they have remained open for business despite Covid-19 restrictions and have facilitated public participation in the plan-making process, the restrictions have resulted in unavoidable disruption to the development plan programme, in particular, the arrangements relating to consultation with elected members and the public.

Colleagues will agree that public participation is a core principle of the planning and development system. It requires that people have the opportunity to participate in decisions at the strategic plan-making level and the individual planning application level. The public participation elements of the planning system were previously recognised as an essential service in SI 448 of 2020 and were not, therefore, subject to travel restrictions. The mandatory requirement to hold public meetings in relation to a proposed development plan has been replaced with the obligation for planning authorities to consult members of the public in such manner as they consider appropriate and to invite submissions in writing from members of the public in relation to a proposed development plan, which may include the holding of a public meeting.

Notwithstanding this, some planning authorities have indicated that it has been necessary to delay certain stages of the plan-making process to ensure the appropriate level of engagement with the planning system can be facilitated with elected members and members of the public and the other practical matters that have arisen from this can be addressed. As a result, they may not be able to finalise the new development plan within the statutory time periods set out in the Act.

I propose, therefore, that where a planning authority requires additional time to prepare a new development plan, it would need to consider and set out the reasons for doing so, and it would need to extend the duration of the existing development plan accordingly, taking appropriate account of any potential environmental effect or any effect on a designated European site which might result, in line with the requirements of the strategic environmental assessment and habitats directives.

The Bill was passed by the Seanad without opposition. Following engagement with Senators, I have amended the original Bill to reduce the threshold of a 75% majority of elected members to a simple majority to initiate such an extension of duration. As colleagues know, a development plan is a reserve function of our county and city councillors. It is wholly appropriate that it is they who decide by simple majority as to whether a local authority wishes to extend its development plan process because of difficulties that have arisen due to logistical difficulties, in particular with regard to public consultation due to Covid. It is not an obligation. Many local authorities that have been in contact have proceeded further along the line with their development plans and there will be no need for this. However, more than 15 authorities have directly contacted the Department to express that they have had difficulties with certain aspects, particularly with regard to public consultation. We will leave it to the locally elected members who represent their communities to make this decision as to whether a local authority wishes to extend its development plan process by one year.

The second key provision, in section 7, is grounded in the need to ensure the timely delivery of housing and the completion of construction projects, in the context of delays and disruption caused by the Covid-19 pandemic. This amendment to the Planning Act will allow, on a temporary basis, for further extensions of planning permission previously extended where those developments were commenced with substantial works carried out by a period of up to two years or until 31 December 2023, whichever first occurs.

The general scheme of the Bill, as approved by Cabinet this month, had originally provided for a single year of further extension. However, following further consultation and on reflection, noting that this provision would only be available where the extension is required to enable the completion of a development where substantial works have been carried out, an extension of up to two years, subject to a sunset clause of 31 December 2023, was considered appropriate. This was considered to be a reasonable period to respond not only to the direct delays to construction work caused by the Covid-19 pandemic over the past year but also to reflect the possible additional disruption to logistics, supply chains, and availability of personnel when trying to get construction work restarted after the shutdown and finished after the mandatory and unplanned second closure of building sites over the past year.

This provision will also allow for the further extension of permission that has expired or is due to expire during the period from 8 January 2021, when the most recent construction restrictions were introduced, to the day before section 7 comes into operation. Such applications must be lodged within six months after the commencement of this provision. Any further extensions will be subject to a condition that environmental assessment is not required in relation to the proposed extension of time. If an environmental impact assessment or appropriate assessment is required then a fresh planning application will need to be made in order to continue the development, as this allows for updated environmental assessments and public participation in the process.

Separate to these Covid-19 related amendments, section 9 contains a proposal to amend the ministerial order provisions in section 181 of the 2000 Act, for the avoidance of doubt, to include development by or on behalf of statutory undertakers. This amendment is being made at the request of the Department of the Environment, Climate and Communications and on the advice of the Office of the Attorney General. Section 181 enables a Minister, by order, to disapply the 2000 Act to development to be carried out by or on behalf of that Minister or the OPW. The relevant Minister must be satisfied that the carrying out of the development is required by reason of an accident or emergency and the development may be subject to an environmental assessment procedure carried out by An Bord Pleanála before any order is made where such assessments are determined to be required.

The final provision, at section 10, involves a proposal to amend the Fifth Schedule to the Planning and Development Act 2000, which sets out conditions that may be imposed as part of a planning permission without attracting compensation. The new provision relates to a very important condition which restricts the persons of a particular class or description who may use a dwelling which has been approved as part of the planning permission.

I thank colleagues for their time and for allowing the Bill to be brought forward at relatively short notice. I look forward to the debate on the Bill's provisions. I will seek to respond to any questions raised on Second Stage and as we move through the other Stages.

4:30 pm

Photo of Eoin Ó BroinEoin Ó Broin (Dublin Mid West, Sinn Fein)
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I thank the Minister for his outline of what the Bill involves. By way of a general comment, rushed planning legislation, unfortunately, often leads to bad planning outcomes. Too often in previous years we have seen very complex and technical changes introduced at the last minute to already very complex planning and development legislation, the outcome of which has been to make our planning system more complex and cumbersome and less participative than it should be. I have to say, and I will explain why in a moment, that I have some concerns with the information before us today. Having said that, I fully understand the need for these provisions. As a result, my concern is not with the principle but with the fact that, unfortunately, we have very little time to tease out these measures. While I, along with the rest of the members of the Oireachtas housing committee, agreed to waive pre-legislative scrutiny because we understand the urgency involved, we had hoped to get some written independent views from planning organisations which, unfortunately, we have not got as yet. This is not the fault of the Minister or the people we wrote to, as they are all busy. However, it puts us in a very difficult position. We want to be constructive. We want to help. We want to make sure nobody is disadvantaged by Covid in the county development plans or in the delivery of homes but we are left grappling, nonetheless, in an imperfect timeframe.

I do not have an enormous concern about the county development plans but perhaps in his reply the Minister can give us some more information. I would be interested to know how many local authorities have been in touch with the Department requesting a possible extension and which local authorities these are. I know my local authority is quite advanced. South Dublin County Council and Dublin City Council have found, surprisingly, that there has been a far greater level of input in the pre-draft consultation phase, in part facilitated by greater online engagement. I would like to know who is asking for it. I also wonder why there are not more defined criteria in terms of the grounds on which local authority elected members can request it. It does seem quite general. Will the Minister outline his thinking with respect to this? Will he also outline why there is the fixed date of 1 January 2024? Is this the final cut-off point or could there, indeed, be a further extension?

Do I have ten minutes with additional time for my colleagues or are we all within the remaining seven minutes?

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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There are 20 minutes in total in the slot.

Photo of Eoin Ó BroinEoin Ó Broin (Dublin Mid West, Sinn Fein)
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That is perfect. I would like more information from the Minister on what could be the maximum extension. This would be helpful.

On the extension of planning permission, I do not think there is a Deputy in the House who wants disadvantage in any way building sites, particularly those involving residential construction, that have been forced to close because of public health guidelines. I am concerned, however, about the two-year extension and a blanket extension. I thought it would have been much more effective for potentially affected developers to make the case for how much time they needed and to try to justify this, either in terms of the length of time they were closed because of public health restrictions or, for example, difficulties getting materials and workforce in between public health restrictions.

What none of us wants, and I know this is not the Minister's intention, is anybody using this extension to hoard planning permission and slow down the development or release of units. We raised this with the officials and I am raising it with the Minister. During the course of the debate, I would like to hear what the Minister will do and what he expects the planning authorities to do to ensure nobody does this and that the only people who avail of this are those who legitimately need it. I am concerned, however, as with all of the previous extensions of planning permission, that there can be no new consideration of requirements for environmental impact assessments or appropriate assessments where they had not been required when the very first planning permission grant was issued.

We need to keep in mind that this could add two years onto what could now become a 17-year planning process involving an initial planning application, an extension under the 2010 Act, a further extension under the 2018 Act and now these two additional years. While that may not have been required 15 years ago for an environmental impact or other appropriate assessment, things could have changed in terms of the quantum of development in an area or the nature of the natural environment surrounding it. Therefore, it is a mistake that could not only cause some poor planning outcomes but could potentially be in breach of our obligations under EU law as well as the Aarhus Convention.

I made it clear that I was concerned when the Minister's predecessor, Eoghan Murphy, introduced the second five-year extension to planning permissions with no facility for public consultation. That was a mistake. I can think of a number of developments in my constituency where, given the length of time between the original grant and the extension application, there is a strong case for the planning authority to be able to consider third-party opinions. They may not be objections. Rather, they may be considered opinions to try to improve or address concerns within local communities. That is not in the Bill. It is a weakness that the Minister should consider.

With respect to the changes to section 181, I would like more information. I presume the Department and Minister have very particular projects in mind. Could the Minister share them with us on the floor of the Dáil? We got some of that information in the private briefings, but it would be valuable to have that. The Minister stated that they may be subject to environmental impact assessments. Why is the word "may" used rather than "shall"? What would be the determining factor in distinguishing between the two?

One of my concerns with recent changes to the Planning and Development Acts and the planning process in general has been an increasing conflict with our international obligations under the Aarhus Convention and the specific provisions that the previous Government introduced and that, unfortunately, I fear this Government is introducing. We already know that section 42 of the Planning and Development Act, introduced by way of amending legislation a number of years ago, is in direct contravention of the Aarhus Convention and our obligations under it. That is yet to be rectified and causes a problem throughout our entire planning system, including some aspects that the Minister is changing today.

I want to express a broader concern. I read regularly in newspapers about concerns that third-party opinions and interactions, appeals and judicial reviews are delaying the delivery of housing. I do not believe that is the case. In fact, the significant increase in judicial reviews of housing matters is a direct consequence of the flawed strategic housing development, SHD, planning process. The Minister and I share a desire to see the SHD process withdrawn from our planning system as quickly as possible, but I do not accept that the dramatic increase in judicial reviews was caused by a flawed fast-track planning system. It has not, of course, fast-tracked the delivery of homes at all because many of the people who availed of it have sat on those permissions rather than build developments. The view that somehow the denial of communities and organisations the right to appeal through a two-stage process, which is what we had before, can somehow be blamed for the delay in the delivery of housing is fundamentally flawed. I am a firm believer in a two-stage process.

Under our planning process, our local authorities should be the first stage. I would like to see statutory timelines for preplanning and additional information and a very strict statutory timeline for the board. People have a right to an appeal mechanism through the board. The sooner we return to that kind of mechanism, the sooner there will be a dramatic reduction with respect to judicial reviews of residential housing developments.

The greater the involvement of communities at the earliest possible stage, whether that is for housing, offshore wind or other strategic infrastructural developments, the greater the scope to ensure that the final shape of that development meets all of the legitimate needs within our community. The constant attempt to present reasonable third-party opinions and interactions with our planning system as automatically not-in-my-backyard kinds of objections is unfair.

Very good organisations like the Dublin Democratic Planning Alliance, comprising people who want increased density in residential developments in our city and good quality urban planning in place-making, are concerned about some of the poor quality decisions emerging from the board, and I agree with them, in particular through the SHD process. Such organisations have a right to be involved in the process, and the sooner we bring them in, along with the communities they represent as well as elected members and others, the better.

I hope the Minister brings forward his amendments to the Planning and Development Acts to replace the SHD process. It would be great if we do not wait until February for that to be implemented and could do it before the end of this year. He will certainly have the support of many of us in opposition. Let us increase participation in planning and community involvement, and move towards high-quality place-making as the underpinning of good urban and rural development so that we do get just good quality homes but the infrastructure, amenities and economic opportunities that everybody deserves. Notwithstanding the significant concerns I have with parts of the Bill, we will not oppose it but will continue to work with the Minister to try to improve it in the time ahead.

4:40 pm

Photo of Darren O'RourkeDarren O'Rourke (Meath East, Sinn Fein)
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I welcome the opportunity to speak on the Bill. The preparation of development plans are important and shape the development of a county for the life of the plan. At their heart has to be the principal of participation and a commitment by local and central government that the vision set out in the written statements and maps comes to fruition. Meath County Council's plan is at an advanced stage. Today is the deadline for submissions on the material amendments. The final amended plan is expected to be completed in October or November of this year. In many respects, Meath County Council has been a guinea pig in all of this. From the council's perspective, officials have worked very hard to work through the review of the plan in the midst of Covid. They have been innovative. New online portals have been successfully developed, for example, and meetings have happened in person, online and in hybrid formats.

It has not been without issue. There are ongoing legal issues regarding access to taped recordings of the meetings. That would not happen ordinarily, but because of the new Covid restricted format we have them. How that information should be used is a bone of some considerable contention. Is it an official record of the meeting and its interactions and votes, etc., or is it an aid for preparing the official minutes?

More fundamentally, in Meath there is a question of the impact of the plan on the future social and economic development of the county. I refer in particular to the issue of dezoning. A couple of weeks ago, the Business Postcarried a headline stating, "Meath dezones a third of housing lands to mitigate climate change". In the middle of a housing crisis in a county that, relative to others, has shown some capacity to deliver houses we are proposing to significantly constrain residential development in urban settings with the dezoning of 319 ha. That is enough land for 9,500 new homes. There are the most outrageous of constraints on people in rural communities. The bar will be so high it will mean it is nigh on impossible to build a one-off house.

At the root of the county development plan is the ambition of local people, through their representatives, to deliver the best for their communities. They do not ask for much. Communities like Ashbourne, Ratoath, Dunshaughlin, Dunboyne, Stamullen and many others in my constituency of Meath East have lived through and with the consequences of the Celtic tiger, including developer-led rampant development, with light or no touch regulation. Houses have been built, but when it came to community infrastructure, including community centres, créches, playgrounds, public green spaces and parks it could not and cannot be done. In Ashbourne, the community is united in its call for a public park of regional scale. Before the deadline this afternoon, close to 2,500 submissions in support of a proposal to zone lands for an 80-acre park will have been submitted. That is incredible. I want to commend everyone from the community and across the political spectrum who had a role in getting us to this point. I want to commend, in particular, the Ashbourne Playspace Network and, more recently, the Ashbourne Public Greenspaces Community Group for their tireless work over many years.

The community in Ashbourne is a perfect example of a community that is organised and playing its part. Members of the community engaged, lobbied, argued, petitioned, fundraised, protested and campaigned. Men and women – mostly women - have fought for the best for their community and children. It is not much that they ask for - a playground, public park and safe place to bring their children, go for a walk or run, play or kick a ball. It is incredible that they have to do that at all.

At every turn, they meet resistance. The council is either reluctant or dealing with its own funding and other constraints. The Government, be it led by Fine Gael or Fianna Fáil, has added nothing. Communities are doing all the right things but are being failed. This needs to change now.

I invite the Minister to Ashbourne. He has a role to play, as does his Department. He should meet the local councillors and community groups. The county development plan and zoning issues will run their course. Regardless of their outcome, though, the community wants and deserves a public park. I implore the Minister and his Department to work with Meath County Council to make that happen. A meeting with stakeholders would be a help. The Minister has been to Ashbourne and I have met him there many times. There is an opportunity now. There is considerable popular support for this proposal across the political divide. It can happen and I would welcome the Minister's support in making it happen.

4:50 pm

Photo of Mark WardMark Ward (Dublin Mid West, Sinn Fein)
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As has been stated, Sinn Féin will not oppose the Bill. However, we tabled a number of amendments in the Seanad that would have strengthened it. They would have limited the extension for county development plans, as there is no realistic justification for allowing the operation of multiple extensions to happen all the way out to 1 Jan 2024. Joined-up thinking needs joined-up planning and these extensions could create a disconnect with other county development plans and the national planning framework. An extension could also compromise the regional guidelines as well as the spatial and core strategies of development plans.

In my local authority of South Dublin County Council, councillors and officials have just gone through the first part of their county development plan process. It is an arduous process, one that I went through during my time on the council. There was much debate on the plan's core strategies before any sort of consensus was reached. Core strategies are the foundations of, and set out a vision for, the development of the area to which the plan relates. They give spatial expression to the population in addition to providing the economic, social, environmental and cultural aims of the county development plan. They must be grounded in public and political consensus around the plan's strategic framework.

The county development plan covers everything from population growth and the projected amount of land needed to house that growth to employment and economic development, parks and playgrounds, transport, tourism, natural resources, community development, telecommunications, culture and the environment. Everything of note that happens in the county is covered by the county development plan, framed in the context of climate change and ensuring proper planning and sustainable development. Any extension to these plans will not only allow for potential disconnects with other county development plans, but also mean that the core strategies in the plans and settlement strategies could be compromised. This will maintain the status quofor developers and serve to delay the development of new county development plans.

As someone who went through the county development plan process, I commend the councillors of all parties and none the length and breadth of the State who have gone through this process during these challenging times. Meetings that are held remotely are not the ideal setting for difficult planning meetings. As with much of what happened during the pandemic, though, our councillors knuckled down and adapted to the changing situation. I commend South Dublin County Council's Sinn Féin team, in particular my two Dublin Mid-West colleagues, Councillors Derren Ó Brádaigh and William Carey, for their hard work during the process. I appreciate the work that local authority officials have done in trying to put together a county development plan process in the midst of a pandemic. It has been a challenge for them.

Regarding the extension of planning permissions, I recognise that time was lost due to Covid-19 and public health restrictions, but the Bill's carte blancheapproach to the granting of blanket extensions in respect of existing planning permissions causes me concern. It would be better to grant these exemptions on a case-by-case basis. The blanket extensions to existing planning permissions, some of which have been in place for 15 years, could lead to land hoarding or planning hoarding. I would like to see what the Minister will put in place to stop that from happening.

Photo of Duncan SmithDuncan Smith (Dublin Fingal, Labour)
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I will not take anywhere near 20 minutes, but I have a couple of points to make. Since I am not a member of the joint committee, I was not present for any of the discussions on the Bill. I offer my apologies for that.

Regarding what the Minister said about the extension of development plans, the intent is welcome. As a former member of Fingal County Council, where I was honoured to serve for five and a half years, he knows that reserved functions must be protected and valued. The work of a councillor is important and needs to be valued. Perhaps I am being naive or optimistic, but I believe that there is a shift among the political class in the House towards recognising the need to value our councillors and local government more. A heap of work needs to be done to ensure that more reserved functions and powers are devolved to our wonderful, hard-working councillors of all shades and of all parties and none up and down the country. They do incredible work.

The most strategic and important work they do - when the dots are joined up, it also has the largest impact on people's day-to-day lives - is on county and city development plans. It is a significant undertaking by council officials and councillors who, after doing a great deal of research, sit, engage and debate in long meetings over a number of stages and do their best to ensure that the development plans they produce work for their respective areas. It is through these meetings and other processes that one can see which councillors and council groups care about their counties and put in the time and effort. I am sitting close to a Deputy whom I sat with during the previous Fingal County Council development plan, namely, Deputy Cian O'Callaghan. As a councillor, he put his heart and soul into the development plan, as did I. I was not a member of Fingal County Council while the Minister was, but I am sure he worked as hard on its development plans as his colleagues did. We are on opposing sides where many planning issues are concerned, but this is about being committed to one's county and doing what one feels is best.

The Minister stated that 15 councils had asked him directly for an extension. An extension is good if they use it to ensure that their county development plan processes are robust and the public are engaged as much as possible. Our county council has started its development plan. That is welcome. Speaking as someone who has run 15 webinars trying to engage citizens in Fingal in the early strategic process though, I know that some council officials are disappointed with the level of engagement and the number of submissions compared with the previous county development plan. With the previous plan, they were able to go to hotels and community centres, set up tables for many hours, have working groups and breakout groups and talk in great detail. They have not been able to do so this time. In Fingal's case, people's distance from the process has posed a difficulty. We need to be cognisant of that and make every effort across the country to ensure that the communities, clubs and individuals who care about how their areas are developed are engaged in their county development plan processes as much as possible.

Engagement must be rewarded. People are aware that their submissions will almost never be taken on board wholeheartedly, but after putting effort into make a submission, they need to feel it has been acknowledged and, where possible, they need to get answers to the issues they have raised. Doing that is a significant amount of work, but almost everyone who makes a submission on behalf of himself or herself, a residents' group or a sports club is doing it voluntarily. The majority of people cannot afford planning consultants to help them make submissions on development plans. They do their own research and work on submissions after putting their kids to bed or by getting up early before going to their jobs to ensure that those submissions are as robust as possible. Some never hear from the council again, be it councillors or council officials. That is a problem because it erodes people's faith in local government and the process.

I am digressing a little, but I feel passionately about this issue. I hope the extension contained in the provisions of the Bill will be used in the right spirit, which I believe is the spirit in which it is being granted by the Minister.

I have a question on the second provision with regard to the extension of the planning permissions when substantial works have commenced. I would like a definition of substantial works. We have an issue. The previous Deputy mentioned rushed planning law can lead to bad planning and bad outcomes. I always have a concern about how planning law may be used or manipulated by those who will profit from the development of land, for whatever purpose that may be, but mainly housing. Does substantial works mean the clearing of ground, for example, or does it mean foundations? Do bricks have to be up? I note the Minister has indicated bricks have to be up. I have got some more detail on that.

However, we could have a scenario in which there is planning permission for 800 or 1,000 houses, of which 100 are built. Then there is a pause for the next 100 units and then a pause for the next 100 houses after which a change of planning permission may go in to the effect that the houses may become a little narrower, smaller or higher and the gardens may become a little smaller. We all know the story there. Can the Minister speak to that in his response, in terms of these provisions? Does he have any concerns they may be manipulated. He is shaking his head. I will be back in the room listening to his response.

My one concern is the definition of what constitutes substantial work and, in his eyes, how open to manipulation these provisions could be by those who seek to profit from the development of land and these planning permissions.

Debate adjourned.