Wednesday, 7 July 2021
Planning and Development (Amendment) (No. 3) Bill 2021: Committee and Remaining Stages
I move amendment No. 1:
In page 4, lines 9 to 23, to delete all words from and including “(1) Notwithstanding” in line 9 down to and including line 23.
Rushing through this legislation and using the guillotine has consequences. This has been done previously with planning legislation and has resulted in a Bill being rushed through before Christmas with changes to substitute consent which resulted in fines for Ireland for failure to comply with EU environmental impact assessment requirements at the Derrybrien wind farm. Ireland has paid fines of more than €14 million. The Government facilitating just 30 minutes for scrutiny is a mistake and it is a completely unacceptable practice. Those mistakes should not be repeated. This is happening consistently with planning legislation being rushed through.
I refer to the Aarhus Convention. The provisions being introduced in this Bill relating to extending the duration of planning permissions will compound the issues of non-compliance of section 42 with the Aarhus Convention. Ireland was found to be in breach of Article 6.10 of the Aarhus Convention in August 2019. The State issued a commitment on 1 October 2020 to fix this breach within a few weeks by statutory instrument in correspondence to the Aarhus Convention compliance committee. It was not implemented. The same commitment was given on 10 June 2021 but it still has not been addressed. Worse still, if an adequate fix is finally implemented by statutory instrument, section 7 of this Bill will puncture that fix by providing an alternative path for planning extensions. This is totally non-compliant with both EU law and Aarhus Convention requirements. When will the planning fixes, although inadequate, with respect to the Aarhus Convention be implemented? Why are these fixes not being done by primary legislation as part of this Bill, as they should be? Does the approach taken not leave any extension granted under this Bill exposed to potential legal challenge? Has the Minister engaged with the Aarhus section of the Department of Environment, Climate and Communications and the Attorney General about this?
Can the Minister clarify what is encompassed by section 42B(a)(1B)(b)(iii) of the Bill, which states that the authority: "is satisfied that the application is in accordance with such regulations under the Planning and Development Acts 2000 to 2021 as apply to the application"? Will the Minister clarify that? Why does this not reflect wider obligations for permissions, for example, in respect of the birds and habitats regulations, SI 477/2011, or water and waste regulations? Is it sufficiently specific and precise even in respect of the planning Acts?
Specifically on amendments Nos. 1 to 3, the problem they seek to address is that section 9A(1) allows the planning authority to do something with respect to the county development plan where that plan is a reserved function for members. Given how significant this is, a three-quarter vote of members should be required. The normal procedure for variation requires a three-quarter vote. This extension of time is, in effect, a variation of the county development plan process. That is what amendments Nos. 1 to 3 are about.
With respect to amendment No. 4, sections 9A(3) and 9A(4) effectively allow for other extensions on top of any original extension. My concern is that there is nothing about how these are decided. That is why I am putting forward the requirement for a three-quarter vote in that regard.
On amendment No. 5, I am seeking to eliminate residual ambiguity in the Bill on the overall time limit to extensions. Section 9A(4) mentions a cumulative limit but it could be argued, given the reference in section 9A(3), that this only applies to any further extensions granted under the latter and not to the total set of variations.
Amendment No. 7 ensures there are not many tiny incremental extensions, which facilitates negative screening for strategic environmental assessment, SEA, and appropriate assessment, AA. It is to limit the number of extensions that can be applied for. If the cumulative period for an extension is one year, we need to make sure we do not end up with 12 piecemeal extensions, for example, of one month each. It also makes clear the overall ceiling is one year.
This is a very bad way to make planning law. I am saying that as somebody who agreed, albeit reluctantly, to waive pre-legislative scrutiny because I understood the motivation of the Minister was to resolve a number of very important problems, which we wanted to help him resolve. My comments, therefore, are not being made in any opposition to this legislation, but planning law is complex. If planning law is rushed, not properly scrutinised and the decisions we take tonight end up being inadequate, two things will happen. Bad planning decisions will be made and will end up in the courts. We know that from previous rushed planning legislation, whether it was the environmental impact assessment legislation we dealt with in the previous Dáil or, indeed, strategic housing development.
On Committee Stage the Minister asked us to waive pre-legislative scrutiny. We did that, although we agreed to write to some independent planning authorities to seek their advice. The very least the Government should have done was to give us more than 30 minutes to do our job, scrutinise the legislation and tease out these complex issues. Neither Deputy O'Callaghan nor I, who have shared amendments, tabled an excessive number of them. We are not looking to delay this legislation but this is not good practice, particularly in an area of law that is already so fraught.
One of my concerns, and that of other Opposition Deputies, is the growing chorus of Government politicians arguing that because an increasing number of planning applications, particularly under strategic housing developments, end up being judicially reviewed in courts, that somehow we need to change the judicial review process and deny people access to justice. In fact, I have heard some people, including a Minister of State, suggest that people are taking frivolous cases despite the fact that judges in our courts do not allow frivolous cases to be taken. You have to pass a pretty high bar to proceed with a judicial review. The only reason I am saying this, is to urge the Minister please to let us stop making the same mistakes with planning legislation and all the negative consequences that result. This is an issue on which, with respect to this Bill, we are all broadly on the same page as the Minister so our concerns are genuine and I would like him to take those on board.
I will make two general points on the amendments because, unfortunately, we are not going to get to all of them. I will speak about them and raise two very specific concerns and, again, I urge the Minister to work with his officials to try to address them as this legislation is implemented and enacted. The first group of amendments speaks to aspects of this issue, which is to deal with the extension of the time period for a current county development plan. This legislation is about ensuring that local authorities negatively affected by Covid-19 are able to apply for an extension of the time period to complete their development plans. There is no objection or concern about that, but when local authorities are doing that they have to apply for an extension of their existing county development plans.
Those county development plans were made quite some years ago and there could have been significant changes, for example, in the levels of development, in the environment and on information with respect to water quality, sewage or sanitation. Therefore, the extension of an existing plan could see land zoned for residential development extended for a year, without there necessarily being an automatic requirement for a new SEA or AA to assess whether in fact the continued zoning of that land for that purpose is environmentally sustainable. That also means there would be no opportunity for genuinely interested third parties to engage in public consultation, which also falls foul of the Aarhus Convention. That is a very significant omission. That is not an intention of this Bill and I do not think anybody wants that to happen, but it could well be possible and, therefore, the amendments Deputy O'Callaghan and I are proposing aim to resolve that.
The second issue is the extension of planning permissions. One of the major concerns with the extension of planning permissions is if a developer is on site, has been disrupted by Covid and needs a small period of time to extend, that is a reasonable request. However, the provision in this Bill is too broad and does not allow, for example, for public participation. If somebody who is now in the 15th year of their planning permission seeks to extend that for a further two years, there is no facility for interested parties, people who may have the best interests of the community, environmental sustainability and natural wildlife at heart, from bringing issues to the attention of the planning authority for it to take into account. That is in complete contravention, in my view, of the Aarhus Convention and our legal requirements under it. As Deputy O'Callaghan rightly pointed out, we are already in significant breach and despite the fact there has been correspondence between Government and the relevant Aarhus compliance committee, to date, breaches dating as far back as 2016 and 2019 have not been addressed.
These are two fundamental problems with aspects of this legislation. If the Minister gets time to respond, I urge him to put his response to those issues on the record. We want a planning system that is compliant with our international EU obligations, gives adequate access to participation from the public and ensures that as we are developing public infrastructure, economic opportunity or residential development, we do so in a way that is consistent with good environmental practice and meeting our climate change obligations, which is something I am sure the Minister agrees with. I urge him to address those two specific concerns but also to give a commitment that we will not be in this House again this time next year, with half an hour to discuss complex and profound changes to planning that could have unintended consequences because of the lack of adequate scrutiny.
Section 181(2A) of the principal Act enables a Minister to order that certain developments carried out on his or her behalf by the Office of Public Works, OPW, are not required to abide by planning. Everyone agrees with that in areas such as the River Shannon, where there is flooding, or where there is a threat to life or property. However, section 9 of the Bill refers to the inclusion of the statutory undertaker in section 181(2A) of the 2000 Act.
A "statutory undertaker" is described in the principal Act as being "a person, for the time being, authorised by or under any enactment or instrument under an enactment to—...provide, or carry out works for the provision of, gas, electricity or telecommunications services,". My understanding is that the ESB is running short of power because the Government and the previous Government decided to close down the power stations in Lanesborough and Shannon Bridge and the coal plant in Moneypoint. What we have done is cut ourselves short. A decision has been made that €200 million will be spent in Dublin to bring in generators and to bypass whatever planning is required because the winter is coming and we could run out of power. There is a bit of a flurry because of decisions that have been made. Sadly, over the past six months to two years, the Government did not mind 2,000 people in the midlands losing their jobs following the closures and because of court cases taken against Bord na Móna. Nobody was able to enact emergency legislation to try to make provision for the supply of electricity through that. Is this what is going on in this country? Is it that we are spending €200 million to bring in gas generators to power the country for the winter in order that we will not run out due to the amber flashes we are getting at the moment? The Green Party is wagging the Government's tail and it is deciding what it will do. It is a total contradiction to put in gas generators if the Government is talking about it proposed agenda while at the same time closing the power stations in the midlands and importing gas from the Baltic countries.
I want clarification on that from the Minister, because while I agree with the likes of the OPW intervening where there is a threat to life or property, rightly so, there needs to be an exemption for a Minister. Does this include a statutory instrument or that the Minister could sign off on the likes of interconnectors or broadband – I note telecommunications services are included - without planning permission being required?
I will be brief as I am aware the time is short and I want to allow other Deputies to have their say. I have one concern which the Minister might clarify. It relates to the extension of duration that he will allow for existing projects where substantial works have been done on the ground. I am concerned that there are projects that have not commenced on-site but that may have had money expended on them for enabling works and getting everything lined up to start them, but where they have been delayed. Is there discretion for such projects? I am talking about major infrastructural projects that are being carried out by the private sector which would add greatly to the economy but where they are finding that the negotiation of finance may have stopped due to Covid and it could take a year to crank them up again. Is there discretion in cases where money has been spent, not necessarily on construction, but for enabling works on a site or other such works that would qualify the site to get an extension of duration to allow the works to proceed and to be finished?
Will housing schemes that have not commenced because of Covid, where planning permission is running out, be allowed an extension of duration as well as the ones that have works carried out on-site? That is important if we are to keep the planning supply chain going and to make sure that building works can get up and running in a meaningful way. I seek clarification on the extension of duration.
I too want clarification or to be assured by the Minister that what we are doing tonight will allow planning permission to be extended for people who are building their own homes, who fully intended doing so in the past 12 months or so, and then were refused funds by the banks or lending institutions because one or other person in a couple, or both, were on the pandemic unemployment payment. Many banks and lending institutions refused to give them money, so planning and building have been stalled.
In other instances where people wanted to apply for retention and where their planning was running out for commercial developments, they could not process their applications and get them together because architects and engineers were slow to come out as they were working from home. Many projects needed interaction with planners and various bodies to get going and they were held up.
Is the scenario I outlined first where people want to build homes for themselves included? In County Kerry, planning permission is for five years and then there is an extension for another five years to ten years but there are cases where people were at the end of the period and they were refused funds. Are those the types of scenario to which the Minister will give an extension of two years? If he does, I would support the measure because there is a need for it.
The very reason we are here is because of Covid. We are making provision for councillors to extend the process to form county development plans that suit their county. I ask the Minister to delete the section that does not allow existing planning permissions that have not substantially commenced. The reality is that if they have not broken ground it is because of Covid. We have had the only building sector in Europe that has been substantially closed down for almost two years. In the teeth of a housing crisis, how do we ever expect to get housing off the ground and supply the numerous houses that changed from 10,000 to 20,000 to 30,000 to now 40,000 per annum? I ask the Minister to do that because it is the fairest thing to do. It is a bureaucratic provision. Everybody should be afforded the same extension. Substantial moneys have been put into a lot of projects that may not reapply and they may be able to go ahead if they are given an extension. I ask the Minister to not further constrict the housing supply with a needless bureaucratic provision that specifies the extension only pertains to certain planning permissions that are already granted and delayed because of Covid.
It is terrible that we are only getting 30 minutes for the debate tonight. It is shocking, to say the least, that this is going to be rushed through without any great scrutiny as such because it does need a lot of clarity. We are talking about the extension of planning permission. As I have been saying to the Minister for months, there is a massive crisis in my county regarding the extension of planning permission. Is it once-off planning permission for which people will get an extension of time? Is it existing planning permission that has been given previously? We need clarity.
There must be a massive overhaul of planning in west Cork. Currently, most of the planning applications are being refused to young couples who are trying to get started in their life. They are being given no chance whatsoever of getting planning on their own farm or on a site they are trying to buy to get their feet on the ground. I previously asked the Minister to bring together around the table the Oireachtas Members for County Cork, the two mayors of Cork city and Cork county, the councillors and the planners to try to see how we can iron out this massive difficulty.
I have no problem in saying that over 90% of applications for planning permission are being turned down in County Cork. That is a scandalous situation. Young people cannot get off the ground and get their lives in order.
The Minister is also talking about extending the duration of county development plans. That is fine but, for many counties, the county development plan may have been developed five or six years ago. Hardly any of the plans that were envisaged for towns and villages have been fulfilled. Nothing has happened. These county development plans are drawn up. There are fabulous plans for every town and village in west Cork. It is the same everywhere else. There are dream plans for given numbers of houses in Ballinspittle, Ballinadee, Kilbrittain and villages in west Cork including Castletownbere but, when people apply for planning permission, they cannot get it. There are sewage issues, water issues and every other kind of issue but there is no clarity as to what happens if the goals of the county development plan are not met. What do we need an extension of time for? We need to concentrate on the existing plans and to make sure that they work and are delivered on, or at least that efforts are made. That is not happening. We need to look at county development plans with regard to starting to rebuild towns and small areas where there are shops, churches or pubs. These should be village nuclei around which planning is permitted within a 1 km radius. That is how we need to rebuild our country. I would agree with extending planning permissions if I knew exactly what that meant. I may be supportive of it but I would also look at the county development plans. There is no point in extending them if we have not really worked on the previous ones.
I will keep it short because other people might want to talk but I ask the Minister to facilitate a meeting between the planners in County Cork, Oireachtas Members and councillors to sit around the table and thrash out the difficulties. People who have planning permission may not need extensions if they have architectural issues and percolation sorted out in their applications. All these other nonsensical reasons for refusal should be ironed out because we have a crisis in County Cork.
I will do my best to address some of the points raised, specifically those relating to the grouping of amendments tabled. A briefing with officials was held for members of the Oireachtas joint committee. That needs to be recognised. I also note that the committee agreed to waive pre-legislative scrutiny. I thank it for that as the matters we are dealing with here are urgent. Other matters have been raised with regard to the Aarhus Convention and legal advice. I assure Deputies that, as those who attended the briefings will be aware, the Attorney General was personally involved in the drafting of this legislation. There are other matters to which we will return in the autumn.
Before I get to the grouping of amendments, one of the specific points raised by a number of Deputies related to the extension of permissions and projects being substantially complete. Most would agree that, for a planning permission to be extended, the project would have to be substantially complete. That is a definition that is well understood by our planning authorities. We cannot just keep extending paper permissions in respect of which works have not started. Permissions may have been in place for five years before being extended for another five years and now we are talking about another two. The purpose of this is to ensure that planning permission can be extended for developments, particularly residential developments, that are substantially complete. It is not a blanket extension. It must be applied for. The discretion of each planning authority applies in any decision as to the granting of an extension to a planning permission. It is for the planning authorities to decide whether the works carried out in association with a planning permission can be defined as substantially complete. It is right to allow that discretion and for the power to make decisions to be left with those who are charged with responsibility for granting or refusing planning permissions.
With regard to development plans, I note the amendments tabled by Deputies Cian O'Callaghan and Ó Broin. They want to place a further check on the extension of planning permissions. I know the Deputies respect local government and elected representatives all over the country in our city and county councils, as do all Deputies here, I am sure. It is those representatives who have the reserved function to complete development plans. It is their reserved function. It is wholly appropriate for a simple majority of members to decide whether to extend a county or city development plan. I altered that provision on the basis of submissions and contributions made on previous stages of the Bill, particularly Second Stage here and in the Seanad. That is why we have reduced the number required for a local authority to extend a development plan to a simple majority. I will not be accepting amendments Nos. 1 to 5, inclusive, or 7 which would put a further burden on the decision-making by lifting the bar to 75%. That is not required. We should trust our local authority members who are elected by the people in their local electoral areas. They are the ones who have that reserved function. The provisions in this regard are appropriate. We want to make sure that developments that are substantially complete and which require an extension to their planning permission because of Covid will be able to get such an extension. Applications for such extensions may be made to the planning authorities.
Of all 31 local authority areas in the country, 27 could avail of an extension if they wished to. Some may decide not to. The Department has had contact from a number of local authorities. This issue came up on Second Stage. This will give them the ability to make that decision themselves. I am not telling them to do so, nor is Government.
The time permitted for the debate having expired, I am required to put the following question in accordance with an order of the Dáil of 6 July: "That, in respect of each of the sections undisposed of, the section is hereby agreed to in Committee, the Preamble and the Title are hereby agreed to in Committee, the Bill is accordingly reported to the House without amendment, Fourth Stage is hereby completed and the Bill is hereby passed."