Colm Brophy (Dublin South West, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I raise the issue of telephone masts that are being erected throughout this country and particularly in my constituency. There have been one, if not two, egregious incidents in Kingswood in Tallaght. Masts are put up under section 254 of the Planning and Development (Amendment) Act 2021. I call that section the "we do not give a damn what people think section". It enables a local authority to bypass most of the effective part of the planning system. What happens is that local residents wake up one morning to see a contractor carrying out work on a telephone mast and that is the first they have heard of it. The local authority in my area, South Dublin County Council, agreed under pressure from me a couple of months back to include it in the list for planning in the weekly planning lists, for which there is a provision. However, there is no site notice or process as there is with a normal planning application. People have the ability to object to An Bord Pleanála. At that stage, as we have seen in particular in the past few days in Kingswood, the mast can be half-built by contractors who do not seem to give a damn. This is totally unacceptable and absolutely needs to be changed. We have an opportunity to change it. A new planning Bill is coming in, section 10 of which is intended to replace section 254 of the 2021 Act. It must, at an absolute minimum, install a full planning process for these masts. There is no reason telephone masts should be exempted from the regular planning process. These companies have a lot of money. They are well capable of providing masts. I do not want to stop the provision of masts. What I want is a fair process that gives a right to local communities and residents to say they are in favour of or against a mast in their location. If that were to be the case, it would be a fair process. This sneaky, backdoor section 254 must be stopped. There should be a review of all currently pending masts. They can wait until the new legislation comes in and go through a section 10 process under that new legislation.

John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I will not repeat what my colleague said, but perhaps I can add some additional points. As a public representative, when I was in conversation with a few residents from Kingswood Heights recently, I came across five of these masts in a very small geographical space. I became more conscious of masts, including very close to where I live One of the things we need to know is what is the purpose of these masts. Why are they required? What are they used for? This is not to do away with the fact that we recognise the need for telecommunications and for more instruments to facilitate greater use of telecommunications, including by individuals using their smartphones. We keep so much information and use our smartphone technology for so many functions on a daily basis. Antennae clearly are in the interest of promoting business in a particular area, but I agree with my colleague that there almost seems to be a way whereby these companies get to construct and erect the communications masts and antennae by stealth. Local authorities, including in this case South Dublin County Council, say one day that there is permission for it. One department says that and then another day another department says that it has nothing to do with it, and that in the case of Kingswood Heights, the Luas is responsible for it. Luas then says it has nothing to do with this, even though it is within inches, without exaggeration, of a Luas stop.

We will have more to say when we have heard the Minister of State's response, but we need an awful lot of clarification on why the masts are needed and what the processes are legally in terms of what companies ought to be doing to secure planning permission for them.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
Link to this: Individually | In context | Oireachtas source

It seems to me that the Deputy Paul Murphy's issue is the same, so perhaps we will hear from him and then call on the Minister of State to reply. I have given everyone two minutes, so that is perhaps the best way to deal with this.

Paul Murphy (Dublin South West, RISE)
Link to this: Individually | In context | Oireachtas source

I do not have a problem, and neither do the residents, with masts in and of themselves. They are part of public infrastructure today. We need them for mobile phones and so on, but what people have a problem with is waking up one morning and finding that significant work is happening at the entrance to their estate. A 2 m high platform has been erected, upon which a 20 m high mast is going to go, all deliberately without a shred of public consultation. That is the abuse that is happening currently of section 254 of the Planning and Development Act. It is a section that is really intended for advertising structures, vending machines, tables and chairs outside restaurants and so on, and it is being used now in hundreds of cases across the country by Cignal-Cellnex to put up huge masts without any consultation or notice to people. It was reported in the Irish Examinerthat in the current draft of the new planning Bill that the right of people to even appeal to An Bord Pleanála would be taken away. I am interested in the Minister of State's response as to whether that will be the case.

What has emerged in regard to Kingswood is that a very good appeal has been put in to An Bord Pleanála, which is the only route we have. We cannot go to the council or put in submissions or objections. An excellent appeal has gone into An Bord Pleanála on the grounds of the locational choice, the procedure and the circular economy. What the mast company, Cellnex, is saying is that it has the legal right to proceed even though there is an appeal in with An Bord Pleanála, which is entirely different from how the rest of the planning process operates. I have a response from South Dublin County Council to Councillor Charlie O'Connor where the council says section 254 is unclear as to whether works granted can be commenced, so the work is continuing. Cellnex is planning to put up this massive mast in July without any consultation, with an appeal still pending in An Bord Pleanála. That makes no sense whatsoever.

The fundamental point is that part of this madness is the fact that this mast is for Three Ireland. The mast we had a couple of years ago, on which the residents successfully won a judicial review, was going to be for Eircom. Different private companies are competing with each other, as opposed to an open public consultation and agreement with the community on where a mast will go to serve the entire community.

Patrick O'Donovan (Limerick County, Fine Gael)
Link to this: Individually | In context | Oireachtas source

Thank you for your indulgence, a Cheann Comhairle. I have two responses that overlap so I will try to condense them. I beg the Deputies' indulgence in that regard. I thank the Deputies for raising the issues.

In regard to the Topical Issues before the House on 5G digital masts, two procedures are in place depending on where the telecommunications infrastructure is to be located. In the first scenario, where a developer proposes to place overground telecommunications equipment, such as a telecommunications mast on or along a public road, the developer is required to obtain a licence from the relevant planning authority under section 254 of the Planning and Development Act 2000, as amended. Section 254 provides for a licensing system for appliances and structures that are placed on, above, under or along a public road, including footpaths. The section 254 provisions may not be utilised in respect of any locations other than public roads and footpaths. A person applying for a licence under section 254 must provide the planning authority with such plans and other information concerning the position, design and capacity of the appliance, apparatus or structure as the authority may require.

In considering an application for a licence under section 254(5) of the Act, a planning authority is required to have regard to the proper planning and sustainable development of the area, the local development plan, the number and location of existing appliances in the vicinity, as well as the convenience and safety of road users, including pedestrians. In addition, a licence may be granted by the planning authority for such period and upon such conditions as may be specified, including conditions relating to location, design, space taken up by the appliance and the need to protect protected structures. In the second scenario, where a developer cannot avail of a planning exemption and wishes to install telecommunications infrastructure at a location other than on or under a public road or footpath, the developer must apply for planning permission for the proposed development to the relevant planning authority in the normal manner, under section 34 of the Act. The planning authority is required to consider each application on a case-by-case basis, with the process including a five-week period for the public to make submissions or observations on the proposal. The planning authority shall make its decision within eight weeks.

Under section 254(6) of the Act, section 254 licences may be appealed to An Bord Pleanála at any time, while in the case of a normal planning application under section 34 of the Act, the decision of the planning authority may be appealed to the board within four weeks. Where such an appeal is made, any member of the public may make submissions or observations in writing to the board in respect of the appeal within four weeks of the making of the appeal. A decision of the board on an appeal may subsequently be the subject of a judicial review challenge in accordance with sections 50, 50A and 50B of the Act, with the challenge being required to be made within eight weeks of the decision of the board. Where a person does not comply with the conditions of any licences issued, or permissions granted, or any court orders following a judicial review, they may be subject to enforcement proceedings by the relevant planning authority in accordance with Part VII of the Act.

With your indulgence, a Cheann Comhairle, I will refer to the second reply. The issue raised by the Deputy this evening refers to two telecommunications masts in the Tallaght area of the Dublin South-West constituency. One is currently the subject of an appeal to An Bord Pleanála, while the second is currently the subject of an ongoing judicial review challenge in the High Court. I am deputising for the Minister of State at the Department of Housing, Local Government and Heritage, Deputy O'Donnell. In accordance with section 30 of the Planning and Development Act 2000, as amended, the Minister with responsibility for planning is precluded from exercising any power or control in any individual planning case with which a planning authority or the board is or may be concerned. This is a fundamental principle of the planning system to ensure that it operates without any political influence or interference. In speaking on behalf of the Minister and the Government, I too must adhere to these principles. With regard to the second case, which is the subject of an ongoing judicial review, I am sure the Deputies will accept that all parties involved are entitled to due process and that it would be inappropriate to comment on ongoing legal proceedings which are a matter for the courts. Therefore, on behalf of my colleagues, the Minister, Deputy Darragh O'Brien, and the Minister of State, Deputy O'Donnell, I will briefly refer to generalities as I cannot discuss any specific details. In general terms, where a licence is granted by a planning authority for overground telecommunications infrastructure such as that in accordance with section 254, this decision may be appealed to the board. I have outlined to the House the other elements with regard to the imposition of that and its clarity in the law.

Colm Brophy (Dublin South West, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I thank the Minister of State for his reply to both matters. I appreciate that he is delivering it on behalf of the Minister of State, Deputy O'Donnell. I hand it to the Minister of State, that he has done one thing, in that in one speech he has really nailed section 254. It is a sneaky little exemption that allows local authorities to do an end run around the planning law. That is what we all collectively find so totally unacceptable. Where will it stop?

Will power generation plants be allowed next under a provision such as section 254? This is ridiculous. The section was never designed for this. It was introduced, in my maybe-too-cynical view, because too many problems were being found with the regular planning process and in getting these masts up. However, we have to put a stop to it now. We have, with the new planning legislation, an opportunity to do so. Section 10 can and should reflect the doing away with of the exception. As alluded to by Deputy Paul Murphy, Deputy Lahart and me, all people want is fairness in the application process. We are not Luddites against masts; we are opposed to a sneaky process that allows companies to do an end run around consultation with residents, communities and the people most affected.

I will close with one point. A home I saw the other day has a mast that is over 20 m high approximately 3 m from the side wall. It was provided by a local authority, which banged it in on a piece of grass by the footpath. Could any body other than a local authority get away with that? The answer is that it could not.

John Lahart (Dublin South West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I will not repeat points already made. Unfortunately, legislation going through the House is not going to have any impact on what has happened in Kingswood or other areas. I thank the Minister of State for his replies to the matters submitted by my two colleagues and me. There are four points I want to make. Can the Minister of State clarify whether anybody has an appeal before An Bord Pleanála? I presume work must be stopped if there is an appeal against the planning permission. Why is the work ongoing?

According to the Minister of State's response, and as alluded to by Deputy Brophy, a person applying for a licence under section 254 must provide the planning authority with such plans and other information concerning the position, design and capacity of the appliance, apparatus or structure as the authority may require. In the case in question, South Dublin County Council denied any knowledge of the antenna going up. This clearly implies it had to have knowledge in advance – not just knowledge in the sense of its having been told it was going to happen but detailed designs and drawings concerning exactly what was going up and its purpose.

Exactly why are these antennae so important? What are they serving? I take the point on issues currently before the board; however, if I applied for planning permission for a house and someone appealed my grant of permission, I simply could not proceed with construction and would have to wait until the board adjudicated. Despite this, the developers on the sites in question continue as if no law applies to them. I thank the Ceann Comhairle for his latitude.

Paul Murphy (Dublin South West, RISE)
Link to this: Individually | In context | Oireachtas source

I thank the Minister of State for the response but unfortunately it did not answer the questions. Therefore, I will go again. Is it the case that where An Bord Pleanála is considering an appeal, the company has to stop? Alternatively, can it continue? That is a very simple question. The written response circulated, which I think the Minister of State did not read out, states: "With regard to the case which is the subject of an ongoing appeal to the board, the board must be allowed complete its determination of the appeal without interference." I presume that building the mast is interference in the sense that before the board has the chance to hear the case in question, the mast will be up. That was the case with another mast, referred to by the Minister of State. It went up over two years ago. Yes, it is the subject of a judicial review before the High Court, but, to all intents and purposes, that has been successfully won by the residents. An Bord Pleanála has said it is instructed not to defend the judicial review. The company has agreed to take the mast down. The decision has national significance because it has serious implications for all masts allowed to go up across the country under section 254. However, it is still there. If Cellnex gets away with putting up the mast to which I have referred, even with an appeal under way in An Bord Pleanála, does it not constitute interference with the process? I presume it is happening in the Minister of State's constituency because it is happening all across the country. A fundamental problem is that section 254 is being used to avoid public consultation and, at a lesser level, to avoid the issuing of site notices or public notices to make people aware of what will happen in their community. Surely people have a right to consultation, to be informed about things and to have an input into where a mast goes. Does the Government agree that section 254 needs to be seriously amended to have a proper planning process?

Patrick O'Donovan (Limerick County, Fine Gael)
Link to this: Individually | In context | Oireachtas source

To go back to the points of Deputies Lahart and Brophy, I reiterate that a person applying for a licence under section 254 of the Act must provide the planning authority with such plans and other information concerning the position, design and capacity of the appliance, apparatus or structure as the authority may require. I am not getting into the ins and outs of a particular planning application because I am precluded from doing so in this House, but I am sure Deputies will know themselves, since they have been members of local authorities, that there is a mechanism by which that can be checked in each and every local authority.

I stopped responding to Deputy Paul Murphy's point because I ran out of time. I will address it now. With regard to the case that is the subject of an ongoing appeal to the board, the board must be allowed to complete its determination of the appeal without interference.

With regard to the case that is the subject of an ongoing judicial review process, the court must be allowed to issue a final judgment. Further to processes that are currently under way, these cases may later be subject to enforcement proceedings by the relevant planning authority in accordance with Part VIII of the Act. Should these circumstances arise, they will be a matter for the relevant planning authority concerned.

The role of the Minister with responsibility for planning is mainly to provide and update the legislative and policy guidance framework. I have noted Deputy Brophy's point on amending legislation and upcoming legislation and will ask the Minister of State responsible, Deputy O'Donnell, to revert to him directly. The legislative framework comprises the Planning and Development Act 2000, as amended, and the associated Planning and Development Regulations 2001, as amended. It is a matter for the relevant planning authority, the board and the courts to consider each case before them individually on a case-by-case basis.

The planning system provides a balanced and proportionate approach regarding the provision of telecommunications infrastructure. The planning Act provides that decisions of planning authorities for both section 254 licences and planning applications to be appealed to the board and in turn for decisions of the board must be subjected to judicial review.

As outlined in the response I have provided to the Dáil, I am unable to comment on the specifics of any individual case. Ongoing appeals to the board or judicial reviews must be let run their course, and where breaches of the planning code do occur, including proceeding with the installation of a telecommunications mast prior to the conclusion of the statutory planning process, there are enforcement powers available to the relevant planning authorities under the planning Act to address any issues as they arise.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
Link to this: Individually | In context | Oireachtas source

We appreciate the Minister of State coming in to deal with a matter that is difficult and sensitive. On the questions Members have raised about appeals to An Bord Pleanála, all of us who have dealt with planning matters over many years have found without exception that where an appeal is made to the board against a development, that development may not proceed. I have never known of a development that could legitimately proceed. I have known some chancers who proceeded with developments but they were not too bothered about the planning permission in the first instance. Anyway, I thank the Minister of State again and the three Deputies for raising this matter.