Dáil debates

Wednesday, 6 July 2022

Planning and Development (Amendment) (No. 2) Bill 2022: Second Stage


1:57 pm

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 this Bill and thank Members for facilitating the passage of this important substitute consent legislation through the Houses in advance of the summer recess. The purpose of the Bill is to amend the Planning and Development Act 2000, as relating to substitute consent procedures. Substitute consent is a process that concerns applications seeking to regularise existing developments requiring retrospective environmental impact assessment or appropriate assessment in exceptional circumstances. This Bill seeks to streamline the process and provide for a single-stage application process and it achieves this by the deletion of the initial leave to appeal stage.

The amendments in the Bill follow prior amendments introduced by sections 6, 7 and 8 of the Planning and Development, and Residential Tenancies, Act 2020, enacted on 19 December 2020. That legislation was introduced as an initial interim response to the Supreme Court judgment issued on 1 July 2020 in the Ballysax-McQuaid cases, three joined appeal cases relating to two quarries.

The 2020 Act's amendments ensured that the findings of the judgment were addressed and that the issue of the exceptional circumstances in each substitute consent application case would be considered not only at the initial leave to apply stage, but also at the substantive application stage, where full public participation is involved. In deciding on exceptional circumstances, the board must consider a number of prescribed matters including whether regularisation of the development concerned would circumvent the environmental impact assessment, EIA, or habitats directives and whether the applicant could reasonably have been of the belief that the development was not unauthorised.

I should have said at the start that the Chairman of the Oireachtas joint committee, Deputy Matthews, has been in contact with my office. To let both Members who are present, Deputies Ó Broin and Cian O'Callaghan, know, there will a briefing at official level arranged for Monday, in advance of Committee Stage. The Deputies will be contacted with regard to the specific time.

The 2020 Act's amendments effectively rendered redundant the initial leave to apply stage, which did not involve public participation. In the present Bill's proposed deletion of the redundant leave to apply stage, it has ensured that the 2000 Act retains all of the established the criteria that the board, as the competent authority, is required to consider when determining whether exceptional circumstances exist in substitute consent applications on a case-by-case basis.

Related amendments are proposed to section 34(12) of the 2000 Act to clarify provisions for planning authorities and the board to screen applications for retention permission for EIA and appropriate assessment, AA, and to refuse to consider applications for retention of unauthorised developments where either EIA or AA are screened in, in which case the applicant can only consider the substitute consent process.

Amendments are also proposed to extend section 37L of the Planning and Development Act, which currently allows simultaneous applications for any future development to An Bord Pleanála and applications for substitute consent for certain quarries only. The proposed amendment to section 37L will allow for simultaneous applications to be made in respect of all types of developments. This amendment is to encourage the regularisation and remediation of unauthorised developments, as well as allowing an integrated assessment by the board of such related proposals, which will also be of benefit to the understanding of the public.

Some concerns were expressed in the Seanad with regard to the extension of such applications for future-facing development beyond certain quarries. I am keen for these concerns to be addressed in this House as they were in the Seanad. At the outset, it is important to note that it is a material consideration of An Bord Pleanála in considering whether exceptional circumstances exist in a substitute consent proposal, without which the substitute consent application must be refused, whether the applicant had or could reasonably have had a belief that the development was not unauthorised. There is also the additional material consideration of whether the applicant has complied with previous planning permissions granted or has previously carried out unauthorised development. In other words, the risk of exceptional circumstances not being deemed to exist and an existing development therefore being refused substitute consent is apparent if applicants cannot adequately demonstrate their bona fides that they could reasonably have had a belief that their development was not unauthorised.

Any perceived benefits to section 37L future-facing applications in being able to apply directly to the board rather than having to separately apply to the relevant planning authority first will be significantly outweighed by the inherent vulnerabilities and significant potential financial exposure if the related substitute consent application is refused. In such cases, the relevant planning authority will be statutorily obliged to initiate enforcement proceedings against the unauthorised development seeking remediation of the site. Furthermore, the future-facing planning application on the same site or an adjoining site may also be refused as a result of, for example, it relying on any element of the refused substitute consent proposal. In other words, the legislative provision to allow parallel substitute consent and planning applications is not in any way developer-friendly in focus or scope in light of the significant constraints and vulnerabilities for any developer attaching to progressing a substitute consent proposal. I also note the benefits to the public of allowing a parallel holistic assessment of two related proposals on the same site or adjoining sites to take place at the same time.

The amendments proposed by Government by way of this Bill are intended to act in exceptional circumstances to bring developments that have been determined to be operating outside of environmental planning law back into the planning framework irrespective of the commercial value of the site. In the very rare cases where substitute consent is being sought, this is done after a bona fide mistake has been realised by a developer. However, it should be noted that, if the substitute consent application is refused, the future development proposal must also be refused.

I also wish to inform the House of my intention to introduce Government amendments as the Bill makes its way through the legislative process on Committee Stage. These amendments relate not only to planning legislation, but to other legislation that is within the remit of my Department. It may be of note that four of the six proposed groups of Committee Stage amendments were previously flagged during the Second Stage debate on this Bill in the Seanad. These comprise amendments to the ministerial directions provision contained within section 31 and related sections of the Planning and Development Act, amendments relating to flexibility in planning provisions and judicial review provisions in the Planning and Development Act and amendments to the provisions of the Valuation Act 2001. I will now outline the intended purpose of each of the six groups of amendments I propose to move on Committee Stage, which also include amendments to include provisions on short-term letting in the Planning and Development Act and to make technical amendments to the Maritime Area Planning Act 2021. As I said earlier on, at the request of the Oireachtas joint committee and its Chairman, Deputy Matthews, my officials will brief Deputies in detail on these matters in advance of Committee Stage on Monday.

With regard to short-term lettings, it is further proposed to table amendments on Committee Stage in the Dáil with the aim of strengthening the pre-existing regulatory controls in this area. The detailed operational arrangements and other related ancillary provisions in respect of the certification requirement will be provided for in supplementary regulations which it is intended to make by the end of July, contingent on the enactment of this Bill. These amendments are being proposed in the context of the ongoing accommodation shortage in the private rental sector, particularly in the areas of highest housing demand, specifically the rent pressure zones, with associated knock-on implications for rental prices in these areas. These pressures have been further exacerbated by the recent arrival into the State of large numbers of people fleeing Ukraine who are in need of medium to long-term accommodation, which is likely to continue into the future.

On ministerial directions, I propose to table technical amendments consequent on the establishment of the Office of the Planning Regulator in 2019 and on foot of advice received from the Attorney General. These amendments will ensure that the legislative procedures of section 31 of the Planning and Development Act, including, but not limited to, sections 31AM and 31AN, which relate to development plans and variations, and sections 31AO and 31AP, which relate to local area plans and the relationship between them, are improved. This will be achieved by providing greater clarity in the consistency of procedures and of language to address matters such as correct cross-referencing and notifications for both the draft direction stage and the final direction stage. Amendments are proposed to provide for a timeframe for the office to recommend that a Minister issue a direction. Amendments are also proposed to introduce a new section to set out the process for the Minister to issue a final direction. The intent of these amendments is to clarify this process at final direction stage and to set out a timeline allowing for the inclusion of strategic environmental assessment and appropriate assessment, where appropriate. A further amendment has been provided to set out the procedure involved if the Minister does not agree with the recommendations of the office. This is currently set out at draft direction stage and we therefore believe it is appropriate for this process to be reflected at proposed final direction stage.

The purpose of amendments on flexibility in planning applications is to address a High Court decision from last summer relating to the concept of a design envelope approach in planning applications. Prior to this judgment, while not specifically provided for in legislation, the design envelope approach had been an accepted feature of the Irish planning system and had been successfully applied up to this time. The approach proposed in the legislative amendments involves a pre-application process in which prospective applicants who wish to avail of flexibility in their application request a meeting with the planning authority or An Bord Pleanála in respect of a development of a strategic nature in advance of submitting the planning application.

The meeting request will outline the flexibilities sought and the justifications for same. The planning authority or the board shall determine whether it is satisfied that it is appropriate that the application for permission be made and decided before the prospective applicant has confirmed the specific option and-or the details outlined in the meeting request. Where it is so satisfied, it shall issue an opinion in this respect. The planning authority shall issue a notification where it is not satisfied. The prospective applicant can then submit the opinion with a subsequent planning application and the information requirements for the planning application will be read in accordance with the opinion issued.

In the case of wind energy developments, this approach allows developers to apply for planning permission prior to procuring specific turbines and allows them to detail in the planning applications specific options for turbines or parameters within which the turbine dimension will fall. The applicant will have to submit sufficient information to allow the planning authority or the board to assess the impacts of any type of development that falls within the flexibility sought. For maximum flexibility, it is intended that the amendment would apply to the main land-based applications made under the Planning and Development Act 2000 with appropriate safeguards for the public consultation phase and the environmental assessment.

Judicial review challenges of planning decisions can cause considerable delays in the progression of development proposals, including projects of strategic national importance. To help address some procedural aspects relating to the conduct of judicial review challenges and improve the efficiency and effectiveness of the processes involved, a number of streamlining amendments are proposed to the judicial review provisions in sections 50 to 50B of the Planning and Development Act. These are primarily streamlining-type proposals aimed at improving the efficiency of the court processes in relation to judicial reviews of planning cases. It is intended that other more substantive reforms to the judicial review provisions in the Planning and Development Act will be addressed in the ongoing planning review being led by the Attorney General which is due to be finalised by the end of the current year.

The purpose of the proposed amendments to the Valuation Acts 2001 to 2020 is to enable the Commissioner of Valuation to defer the revaluation programme until 2023 and 2024 onwards, withdrawing the extant valuation orders for Reval 2021 and Dún Laoghaire-Rathdown. The need for these amendments arises as a consequence of restrictions imposed on businesses during 2020 and 2021 preventing the Valuation Office from inspecting properties. This takes account of the knock-on effect the pandemic had on the property market. As a result, the timing and roll-out of the revaluation programme between now and 2026 is affected.

It is proposed to amend Part 4 of the Maritime Area Planning Act 2021 relating to maritime area consents, MACs, as follows. The granting of a MAC will enable an applicant to occupy a part of the maritime area on the condition that planning permission will be secured. A MAC will set out conditions governing the relationship between the State and the holder in the period up to securing planning permission, and the construction and operation of structures for the lifetime of that maritime area consent, including financial returns to the State, indemnities, achievement of or adherence to key milestones, variation, assignment and decommissioning or reinstatement obligations. The proposed amendments, which are technical in nature, have been recommended and drafted by the Office of the Attorney General following a review of the conditions. Section 56 of the Maritime Area Planning Act 2021 is also proposed to be amended to allow for the appointment of a chief executive officer designate by the Minister ahead of the establishment of the Maritime Area Regulatory Authority, MARA.

Other amendments are required, including ones providing that the continental shelf may be treated as part of the State, a rehabilitation schedule to be attached to a MAC where it has been attached to a development permission to ensure consistency and amendments to provide for governing of the assignment of a MAC by the original holder to another person. New sections and amendments are included concerning provisions granted, licences and conditions attached, civil remedies, judicial review and enforcement and to provide for interest to be payable on money owing to MARA. The amendment of Part XXI of Planning and Development Act 2000 ensures that MARA is a prescribed body for the purposes of Part XXI of that Act.

In concluding the introduction of this Bill to the House, I confirm to Deputies that this Bill, as initiated, is needed to streamline the important substitute consent procedures for applications to regularise existing developments requiring retrospective environmental impact assessments, EIAs, or appropriate assessments, AAs, in exceptional circumstances. Public consultation is a critical component of planning legislation. My Department committed to the Joint Committee on Housing, Local Government and Heritage during the pre-legislative scrutiny process, and further to the Seanad, that we would extend the public consultation period for substitute consent applications from five to eight weeks. This detail is not included in the Bill, as details such as the minimum length of public consultation periods for planning applications are contained in secondary planning regulations. I will amend these regulations to introduce an eight-week consultation period for substitute consent applications later this year, at the same time as the commencement of the enacted Bill. I look forward to debating the Bill's provisions as it moves through the Houses. We will hold a detailed briefing with officials on Monday for members of the joint committee. I commend the Bill to the House.

2:17 pm

Photo of Eoin Ó BroinEoin Ó Broin (Dublin Mid West, Sinn Fein)
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I thank the Minister for his opening remarks. Despite the rather technical and dry nature of this legislation, it is important to remind the House that it has the potential to have profound impacts on the lives of entire communities. We have spoken previously, when we dealt with the predecessor to this legislation and the general scheme of this Bill, about Derrybrien. It is probably one of the most egregious cases we know of. The inadequacies of our planning system and the poor behaviour of a State agency led to a decades-long disruption to communities and their economic and social well-being, as well as to the natural environment. Thankfully, that matter has been almost resolved, although I will come back to one of the outstanding elements in a moment.

When significant changes are being made to planning, with respect to both the provisions of this Bill and the non-consequential amendments, which I will come to, it is always useful to ask why these changes are being made. What was it in our planning system that led to some of these changes? I ask the Minister, in any concluding remarks or in the briefing we get from the officials on Monday, for which I thank him, to provide some additional background information in that regard. That is always helpful in trying to adjudicate on whether the proposals in front of us are sensible and worthy of support.

I have some considerable difficulties with what is in the Bill in front of us, which I will outline for the Minister. I am not convinced, having considered the matter at length during pre-legislative scrutiny, that the removal of the leave to appeal stage is the right approach. Given that part of the purpose of the substitute consent process is to determine whether exceptional circumstances exist, with the benefit of hindsight and consideration, having a leave stage that would allow the board to filter and screen some applications and simply decide not to take them would be sensible. The weakness of the current leave stage, as the Minister said, is in the fact that there is no public participation. Therefore, I urge the Minister to think long and hard about whether this is actually a streamlining. Would it not be better to filter out some of the less deserving cases at a leave stage with public participation, rather than removing the stage overall?

I continue to have a problem with the definition of exceptional circumstances in the primary legislation. It is too vague and too general. In many cases, it will result in substitute consent permissions being granted despite there not being sufficient evidence to determine those grounds as being exceptional.

There is one bit of the Bill I do not accept. I have listened to the Minister's explanation and it is an area I would like officials to give us more information on. I do not understand why we are providing for a new parallel, fast-track planning permission process alongside a decision on substitute consent. In the vast majority of substitute consent cases, these are unauthorised developments.

The people responsible for the developments know they are unauthorised. Why would we reward bad behaviour by giving them access to a fast-track planning process for an additional development in parallel with and before substitute consent is finally decided? I am interested to know where this has come from. I have racked my brains and talked with many planning professionals to see what the origin of this is. It would be great if the Minister's colleague in his concluding remarks and the officials in Monday's briefing would elaborate on this. For example, is substitute consent required for An Bord Pleanála or other peat harvesting? It is not so much for the continuation of peat harvesting, which will not be permissible due to environmental impacts, but there could be infrastructure related to those kinds of unauthorised activities. That infrastructure could require substitute consent, in parallel with a new development, to use the infrastructure for something else. If that is the case there could be merit in that, but I would like to know where the idea of parallel fast-track planning alongside substitute consent has come from before I make a final decision. I am uncomfortable with it at present.

If I am reading the Bill correctly, I see an additional element which was not in the general scheme and therefore was not considered under pre-legislative scrutiny, whereby if somebody has a substitute consent application with the board, then pending substitute consent, a stay can be placed on the board making a decision to allow the applicant to put in a fast-track planning application separately in parallel. The Minister can correct me if that is a misinterpretation of the Bill, but that is how I currently read it. Why is that the case? Why would we not just require that applicant to deal with substitute consent with respect to the unauthorised and, in many cases, illegal development, working its way through the board and to apply separately to the local authority for planning permission, should that be appropriate?

One thing that is not in this Bill, which directly relates to Derrybrien, is what we do about remediation. Derrybrien is an egregious case of somebody being refused substitute consent. Decades of environmental, social and economic damage have been done. That has to be remediated. One useful provision that could be in this Bill would be a requirement for An Bord Pleanála, when making a decision on whether to refuse or accept substitute consent, to set out what remediation is required as a condition. If it does not require any remediation, having that on the public record would be a sensible idea. Members will remember we had a lengthy discussion during pre-legislative scrutiny on the issue of remediation. There is a fear that, while the legislation might deal with the substitute consent process, the matter of who is responsible for remediation of social, economic or environmental damage after a decision is being left unresolved.

On the extension of five to eight weeks, I support any extension of the public participation period. Eight weeks is not enough, if one thinks of the kind of applications we are dealing with. Derrybrien is a case in point because it was a particularly large on-land wind farm with substantial environmental impacts including large mudslides. For community-based organisations, residents and small environmental non-governmental organisations to be able to respond, even within eight weeks, to such large, complex and technical planning applications or, in this case, substitute consent decisions, is not reasonable. I am not saying that it should be unlimited. The Minister could set a minimum but the board could have discretion to give additional time in very complex cases to allow for full and adequate public participation. I know the Minister is going to set that by way of regulation. I ask him to look at setting a minimum time with discretion for the board to provide more. Think of some of the very complex wind farm and offshore wind farm projects that we will be dealing with. We want to make sure that we have adequate public participation in those so that we get those planning permissions right, because our renewable energy targets are heavily dependent on offshore wind energy being achieved. Therefore, a greater level of public participation at the earliest possible stage is always preferable.

With respect to the amendments, I fully understand that some things have to be done. I am not looking to delay anything, but I suspect that when we see these amendments, they will probably be almost the same length as the Bill itself. I have had this conversation with every Minister responsible for housing at the end of almost every Dáil term since I became a Deputy in this House. Planning is incredibly complex and technical. That is one reason why the Attorney General is doing the comprehensive review of the Planning and Development Act. It is not good practice to have very limited scrutiny for changes of a significant nature. That includes changes that I might fully support. A number of the changes the Minister has outlined, although with very limited information, sound potentially positive, but if we are to do our job properly and ensure that the decisions of this House, whether based on a decision between Opposition and Government or on a consensus, lobbing in a bunch of amendments at the very last moment with limited time to consider them is a real problem. I acknowledge that the Minister, or his Secretary General, responded quickly to the requests the chair and I made for briefings. That was welcome. If we could have more than half an hour or an hour, some of us would appreciate that.

I ask the Minister, in his discussions with the Chief Whip and his colleagues before next week's business is set, to give us the maximum amount of time to go through these. If they are sensible, required amendments, the Minister will not find us in this House playing politics, but we need time to go through them to be able to tease them out, as we ordinarily would on Committee Stage, or possibly even to amend some amendments if required once we see them. I am open to the proposals relating to the ministerial direction and the design envelope. The devil is in the detail. The industry made a strong case about the design envelope during pre-legislative scrutiny, but much of that will depend on what is in the legislation. The fear I have always had about offshore wind legislation is that, if we do not get the process, we will end up with a similar issue to that of strategic housing developments, with projects being judicially reviewed and delayed. We all want to avoid that. We want the offshore wind farm projects to be right. Therefore, the detail of what the design envelope permits or not, the degree of flexibility and the impact of the long-term nature of the project on marine biodiversity, inshore fishermen and local communities is significant. I am expressing some reservation without knowing the details, only because I want to get it right.

On the judicial reviews, a shiver goes down my spine when I hear the word "streamlining", until I hear the detail. I am nervous of where the Government may or may not be going with this. I note that in his speech, the Minister identified the sections he was thinking of amending rather than explaining the detail. If the Minister of State who is closing the date, whether it is Deputy Peter Burke or Deputy Malcolm Noonan, could give us more detail on that, it would be fine. If not, I ask the officials to note that we will heavily scrutinise this area during the briefing session on Monday.

Valuations have been discussed before and seem relatively straightforward, so I am less concerned about them. We worked on short-term letting before and we want to work with the Minister on it, so the more detail we have, the better. On the matter of the Maritime Area Planning Act, never mind the word "streamlining", when I hear that amendments are only technical amendments to planning, I am also nervous. Part of the point of planning is that it is technical. I am not suggesting that anybody is trying to do anything untoward. If technical changes are got wrong, they can have a profound and negative impact. Part of the reason why we had the last substitute consent legislation and why we had this is that it was not got right in the original process, with all its various negative outworkings.

I know the Minister's officials are exceptionally busy because, like his two predecessors, he puts enormous pressure on them at the end of the Dáil term to produce significant legislative change in a short time. They have my sympathy in that respect. Try to give us the maximum amount of time possible on Monday, because I presume this will be on the floor of the Dáil next week, so that we can have an exchange. The Minister can clarify matters further on Committee Stage.

I am concerned that we are still not getting the substance of substitute consent right and that the Bill as it currently stands will fall foul of challenges at a later stage. We may well be back here in a year or two with another substitute consent Bill with further changes because we did not have adequate time to scrutinise, amend and improve this, especially the parallel planning permission process, for pending and for future subsequent consent applications.

This is extremely problematic in the context of remediation and the length of time for public participation. I am being collegial here. We want to work with the Minister on the matter but there is still some way to go. Obviously, we reserve the right, between now and Monday, to table our own amendments and amendments to the Minister's amendments, if required, when we see them.

2:37 pm

Photo of Thomas GouldThomas Gould (Cork North Central, Sinn Fein)
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As my colleague Deputy Ó Broin has said, this is very important legislation. It requires a great deal of scrutiny and thought. It is disappointing that it is coming through at this time of year and in a rushed manner, as Deputy Ó Broin has outlined, particularly as we are looking at really substantive issues and very complex areas. We want to work with the Minister. This is a matter that we all know needs to be resolved. We need good, strong legislation. It is absolutely vital that we see proper regulation of developments. In the context of pyrite and mica, we have seen what happens when soft-touch regulation is allowed to happen. I urge the Minister to take on board the constructive recommendations we are putting forward and to work with us and other Deputies to come up with legislation of the sort that really is needed.

I want to highlight a planning issue in constituency relating to the demolition of the Sextant Bar in Cork in August 2020. At the time, the developer had lodged a planning permission application for an office block, but this did not include the demolition of the 145-year-old building. This happened overnight and, as far as I am aware, the matter is still under investigation. I must be brutally honest. I am not trying to score points here but when people hear that Fianna Fáil is involved in amending planning legislation, they can get nervous. When people hear that Fianna Fáil is rushing planning legislation through the Dáil that could cover illegal developments, they get really nervous. There is a long history here, and I am sure the Minister does not need a lesson on it from me. We want to work with the Minister so the public will have confidence, and so it will be open and transparent. That is absolutely vital. I hope the Minister will listen to our concerns today.

To add to people’s concerns, the legislation before us revolves around the significant powers available to An Bord Pleanála. The Minister will be aware of the serious concerns and allegations currently surrounding An Bord Pleanála. He has appointed a senior counsel to investigate. I welcome this because it shows that the Minister understands the seriousness of these allegations. Will he confirm that he will publish the report relating to the investigation as soon as he receives it? I ask him to give a commitment in this regard. Solving corruption through secrecy has never worked. We want a transparent and open system. It will also help to restore people's faith in An Bord Pleanála.

I take this opportunity to raise a number of planning issues in the context of vacancy and dereliction. While we are now accounting for the ability of developers to receive retrospective planning, often in cases where environmental or other issues would have prevented development, there appears to be no support for those looking to bring derelict buildings back into use. For example, the Gate Lodge on Model Farm road was sold in 2017 by Cork City Council. People were very angry at the decision but Cork City Council assured people that the new owners would resolve the dereliction at the site. Earlier this year, Councillor Eolan Ryng, Henry Cremin, a former councillor, and I visited the site. Dumping and antisocial behaviour were rampant and having a negative impact on this great community. The dereliction has not been resolved. I contacted the council and hoardings have been erected. There is movement on the site now but it has taken five years. There are huge issues around this and barrier after barrier is put in front of people in this regard. I urge the Minister to consider that one staff member who the Department currently funds and who is employed in the vacant homes unit could likely have assisted with this if the workload had not been so great and if the Minister had funded and resourced full teams to deal with dereliction and vacancy in each local authority area.

In addition to all this, in the past ten days there have been two major fires at two derelict sites in Cork city, namely, at the Sunset Ridge Hotel in Killeens and the old Vita Cortex factory. Both of these fires had a massive impact on Cork City Fire Brigade, on the environment and on the local communities where the sites are located.

It is time to tackle dereliction. It is disappointing that the Minister’s focus seems to be on sorting out problems for developers and new builds and not on the issues of vacancy and dereliction. Existing stock needs to be worked on and included in planning. There are huge benefits to turning these vacant and derelict sites into houses and homes for people

We will be constructive. We will try to find solutions and work together. We recognise that this is very important and complex legislation, which we need to get right. Having this debate during the last week before the summer recess does not do the Bill or ourselves justice.

Photo of Kathleen FunchionKathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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Other Deputies are not present, so I will move on to the Social Democrats.

Photo of Cian O'CallaghanCian O'Callaghan (Dublin Bay North, Social Democrats)
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I will first make some comments on the additional parts the Minister has announced today. I completely understand that this work must be done. It is very difficult, however, in terms of the legislative process and the scrutiny process, for us to engage with that in detail when all we have at this point are the introductory comments made by the Minister. We do not have the detail. I appreciate that there will be a briefing on Monday, which was sought by the Chairman of the joint committee and others. The deadline for amendments was 11 o'clock this morning, and yet we are only beginning our Second Stage debate now. We have not had sight of the detail relating to the new parts of the Bill.

The Minister is bringing forward new amendments around short-term letting. This is absolutely an area that needs to be regulated. I would really like to see the detail about how this is going to be done. I am concerned, however, and it may not be related to the regulations because I do not know from the detail in the Minister's speech today.

The Minister referred to rent pressure zones. Will the regulation of short-term lets only apply in rent pressure zones or will there be a different form of regulation outside of those zones? One reason I am particularly concerned is the way rent pressure zone rules are written. As the Minister will be aware, 77 local electoral areas at the moment are not in rent pressure zones. It is actually highly questionable whether any of those 77 local electoral areas would ever be deemed a rent pressure zone under the current rules in the way they are written and the way the data is needed in order for them to qualify as a rent pressure zone. This is despite the fact that in some of those there have been rent increases of up to 75%, which affects renters. Simply because rent increases can be way above and beyond the maximum that is allowed in rent pressure zones does not mean that an area qualifies to be a rent pressure zone on the data points sought. Many of the smaller local electoral areas that register smaller amounts of data with the Residential Tenancies Board will never qualify. The 15 local electoral areas where that does not apply are never likely to qualify as rent pressure zones because of the rules relating to average rents in the greater Dublin area, because they are located a significant distance from that or because the rents in those areas are significantly lower, albeit growing fast, and are never likely to exceed average rents in the greater Dublin area. If that is related to these measures and short-term letting, then it is a problem that needs to be fixed. If it is related to these measures and short-term letting, I have a concern. I simply do not know on the basis of the limited comments the Minister made earlier.

Before getting into the detail of the Bill, I want to raise one concern arising from the Minister's comments about the substantive issues relating to substitute consent. The Minister correctly sought to address some of the concerns that were expressed in the Seanad, and by me and others in this House, about whether substitute consent applications could be refused.

The Minster stated that a substitute consent application would be refused if it was decided that the applicant had or could reasonably have had a belief that the development was authorised. In other words, if it was unauthorised and they had reasonable or bona fide belief to that effect, then that would not apply. However, that then appears to be contradicted. I am not trying to be semantic; this is a serious point. The Minister then indicated that in the very rare cases where substitute consent is being sought, it is done after a bona fide mistake has been realised by the developer. That line seems to be a statement from the Minister that in all cases where substitute consents are being sought, it is because of a bona fide mistake being realised by the developer. That may not be the intent. If it is not, the matter may be clarified by the Minister when he is replying. If it is the Minister's view that in cases where substitute consent is being sought where there has definitely been a bona fide mistake and that this has been realised by the developer, just how does he know that? Has an analysis been carried out by the board? Could we get from the Minster or the board a report on the current applications for substitute consent? That would help inform the discussion on this to a considerable degree.

I want to get into some of the detail of the Bill. It is very important that we bear in mind the following very key point. This goes back to the Court of Justice of the European Union’s original ruling with respect to this matter, which is why there has been subsequent legislation. A critical aspect of that ruling is that under EU law, remedy is required in terms of environmental consequences and damage that may have taken place in the case of an unauthorised development. The point about remedy is very important. The reason there has been legislation subsequent to that ruling is because there was no provision for public participation in either the notice process or the leave process. That also fell foul of a judgment as well in the context of the case relating to An Taisce in the Supreme Court. That judgment was handed down on 1 July 2020. The changes brought in December 2020 by the Minister were on foot of that. The reason there are more changes being brought forward now is because that legislation was not sufficient in how it dealt with the matter.

On these changes, I specifically want to ask if the text of these changes been shared with the European Commission? Has the Commission expressed any views on the matter or any concerns in respect of the proposals? Has it asked any questions or sought any information with regard to the substitute consent regime and the underlying issues? I ask that because of the previous rulings and judgment.

On the rationale for the doing away with leave and notice instead of fixing the issues around that, I would like to hear about the rationale, motivation and driver behind these changes. What is the rationale, motivation and driver behind the changes to allow substitute consent applications be considered in tandem by the board with applications that are materially different but that relate to the same site? At what types of developments is this specifically aimed?

I have concerns about An Bord Pleanála and its capacity and workload. An Bord Pleanála has had a massive additional workload in the past number of years in the context of strategic housing developments. The latter has given rise to capacity issues. It is questionable as to whether or not, through these proposals, we should provide for additional applications outside of substitute consent applications to go forward to the board when its capacity and resources are already under strain. This also has implications regarding public participation. Usually, those applications will be dealt with by a local authority. Members of the public can participate at that point, after which they could then appeal any decisions to the board. Because this is going straight to the board while it is considering substitute consent, that means the only way to appeal effectively is by means of judicial review. We have seen with strategic housing developments how that has not been productive or useful and has actually led to greater delays and inefficiencies in the process, which is problematic. There are issues in terms of how this affects the public and its participation and has disadvantages for them. I agree with the comments that five to eight weeks is an improvement. If there are complexities such as those relating to serious environmental concerns, however, eight weeks will not be sufficient . It can take time to work through in order for people to submit their viewpoints. Those viewpoints need to be considered. That goes to the heart of the initial rulings on this.

The other concern I have is that what is proposed could delay remediation. This legislation allows that in order for a new application to be submitted. The board currently has the power to order that an operation be halted. I am not aware that it has ever done so. Perhaps the Minister could clarify if it has been done. Typically, what happens is that where there is an unauthorised development and there is going to be an application for substitute consent, the operator carries on regardless. That could provide an advantage to an operator who is engaged in unlawful development where they could potentially carry on for a period of six months or more, even if they consider that they have no chance of being granted permission or regularisation. These can be the exception, and, of course, legislation has to allow for people operating with good intent. We cannot be constrained simply by those who try to abuse processes, but all of us, through our work as representative over the years, have seen people operating flagrantly in unauthorised ways and with total disregard, and then using various legislative provisions to their advantage. I am concerned that this may provide advantages to people in those circumstances.

On getting rid of the streamlining and notice and leave stages, I would have thought it would make more sense in terms of decision making to first examine if exceptional circumstances do not apply. In what has been outlined, the public and the board would only have to consider a remedy in what needs to be done to sort out the damage if the notice and leave stages were retained. It is only in exceptional circumstances that the State and public should have to contend with grappling with both a remedial assessment of damage done and a proposal to effectually regularise the development and allow for its ongoing operation and the assessment of that into the future. By getting rid of the notice and leave stages, there will be potential delays in remediation. That should be to the very heart of what we are seeking to do here in terms of unauthorised developments where there could be damage taking place. It is getting that damage remediated as quickly as possible if people have been operating outside of the planning process. That should be an absolute priority.

Another issue that arises is linked to the inadequacy of enforcement provisions to deal with the remedy required when an environment impact assessment or an appropriate assessment has not been done. That is if the local authority issues an enforcement notice about an unlawful development. If the developer decides they do not want to apply for substitute consent, what provision is there in Irish law to provide for remedy and do the remedial assessment at a local authority level? This is outstanding under EU law, and there is a requirement in terms of providing the necessary information and facilitating the public in terms of participation and consultations.

On the provision to sit with the board under the substitute consent regime, by the Minister's own admission, this is not a process that is open to ensuring that local authority enforcement will be carried out. What happened with the Derrybrien wind farm is a practical example of this.

We effectively had a stalemate which is covered in detail in the judgments from the European Court of Justice where the ESB which was the operator in this case refused over a decade to apply for substitute consent. This was only resolved when the European Commission brought Ireland to court in 2019 and massive fines were imposed for the failure to comply with the part of the judgment relating to the wind farm. The issue of enforcement remediation is very important.

The cost of fines currently stands at €19,520,000. That is a massive fine for the Irish State to pay. There are very significant costs beyond that fine, costs faced by the Department, costs of legal and consultancy fees to remedy this before we even talk about the costs for remedying the environmental and other damage done. As these fines build up, the local community awaits remedy of this. I ask the Minister to provide a detailed breakdown of the costs associated with Derrybrien, including all the legal consultancy costs as well as the fine and an estimation of the remediation costs and the amount of time the State has spent on this.

I wish to deal with some things missing from the Bill and which could be corrected. There are issues when substitute consent is refused. Two things could be done when substitute consent is refused to provide clarity on what needs to be done and what happens next. Deputy Ó Broin also referred to this. A simple solution would be that in every case where an application is refused, information would be provided with the application for substitute consent as to what would happen if refused. That would be part of the application. That would put an onus on the person applying to provide the documentation outlining what they will do to remedy the site if they are not given consent. That would be one way to deal with it.

Probably a better way would be to amend section 177L with respect to changing from "may" to "shall", to require the board in every instance to provide a clear indication of what needs to be done if substitute consent is refused and to stipulate how that remedy would be done and assessed in line with EU law if it has not already been recovered in the substitute consent decision so that a statement is required if nothing is done. That would avoid what happened with Derrybrien. That is a very small change that could be done but would be very significant and would avoid further problems. I ask the Minister to consider that small change. That may avoid very significant problems down the line.

2:57 pm

Photo of Cathal CroweCathal Crowe (Clare, Fianna Fail)
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I thank the Minister for being in the Chamber. These are important changes to planning legislation. The Bill essentially changes the substitute consent regime provided for in the old Planning and Development Act 2000 and streamlines the substitute consent regime so that it becomes a more efficient process. I am glad that the legislation provides for a single-stage planning application process under the remit of An Bord Pleanála, replacing the current two-stage process.

The Bill contains many technical provisions but I want to begin my contribution about efficiency. I was in China around this time in 2008 when the whole country was getting ready for the Beijing Olympic Games. While I am not saying we should be going in that direction entirely, I was highly impressed at how they were delivering everything from power plants to housing developments. During the Covid pandemic, we saw how the Chinese Government was able to deliver new hospital blocks within 21 days in one instance. While that is the stuff of fiction and fantasy in this country, a source of major frustration to people is the delays in having public money, which is committed to many projects, actually delivered to allow projects to happen on the ground. There was much talk earlier this week about the MetroLink project which will be of great benefit to the Minister's constituency. However, that will take a good decade before any shovels are in the ground carrying out work.

There is a need to look at that overall. Since the Government came into office two years ago it has not been found wanting in committing capital money to capital projects and delivering on a new national plan to improve Ireland and drag us properly into the 21st century - we have only been limbering into it so far.

This day last week I met a group of people who work in the forestry sector. They met many Deputies from rural areas rural in the audiovisual room. Forestry is a form of land use which involves acres of ground being planted. The trees generally grow for 30 years before being harvested. It is a cyclical process. The timber is used in the building sector and new trees are planted. They are very frustrated that the Department of Agriculture, Food and the Marine licensing regime is pretty much at the point of stagnation at the moment. Applications from Coillte are processed much quicker than those coming from private forestry. I have met representatives of the sector to discuss this.

There is a real need to bring forestry into the realm of planning. We are able to deal with complex projects, such as bridge construction, data centres, new hospital wings and mobile phone antennae. If we are able to deal with those kinds of complex and often controversial infrastructure projects in an eight-week planning window and subsequently perhaps ending up with An Bord Pleanála, that shows it is streamlined. In each planning authority, be it An Bord Pleanála or local planning authorities, there is in-house capacity for things such as environmental screening for habitats and archaeological grounds. There is in-house capacity to gauge each planning application that comes before it. We urgently need to consider bringing forestry under this regime so that it becomes a planning matter with an eight-week turnaround. It should be treated as a land-use matter rather than something for licence and certification from a Department that is currently incapable of dealing with them appropriately.

I give the Minister credit for the Maritime Area Planning Act. The Foreshore Act dated back to 1933, between the two world wars when steamer vessels were still paddling up and down the River Shannon. Nobody ever thought of its enormous potential, indeed the offshore potential, of generating electricity, or offshore exploration for minerals. None of that was being considered. However, our legislation did not change one iota from 1933 to December 2021. The Minister, Deputy Darragh O'Brien, overhauled all that. That introduced a new streamlined efficient process and we are now seeing the benefits of that with the largest offshore wind farm in Europe now planned off the County Clare coast. This project very nearly fell 18 months ago because the legislation was so outdated. It is time to look at doing the same thing with forestry.

I wish to speak about planning objections. At some point we will need to introduce legislation to deal with the inordinate number of vexatious planning objections that continue to be submitted. We need some pre-qualifier rules. Some strategic projects in my county have been delayed and, in some cases, have fallen by the wayside entirely. The Killaloe bridge crossing was delayed by three or four years by objectors from Dublin. The coastal erosion defences at Doonbeg in County Clare-----

Photo of Kathleen FunchionKathleen Funchion (Carlow-Kilkenny, Sinn Fein)
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This debate must adjourn at 3.59 p.m. The Deputy may continue tomorrow.

Photo of Cathal CroweCathal Crowe (Clare, Fianna Fail)
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Basically, we need some pre-qualifying rules to ensure all this happens.

Debate adjourned.