Damien English (Meath West, Fine Gael) | Oireachtas source

I will try to answer most of the questions posed. I missed Senator Humphreys' question earlier. The delay in the provision of affordable units in Dublin is not due to a lack of relevant legislation. Senator Humphreys raised the issue last week and I know he hoped to discuss it again this week. I am happy to debate the issue but the delay is not due to lack of legislation. Many such sites throughout the country have been identified for the development of social housing, affordable housing and private development. The Department is not dictating to local authorities in regard to how to bring those sites forward. Councillors have enough common sense, working in tandem with their officials, to bring forward proposals in regard to lands. They have been asked to have all proposals in by September. However, the Department, rather than dictating to them, wants to see what is brought forward by local authorities in terms of what they think is best for their areas in making the best use of public lands and the deliverance of social and affordable housing appropriate to each site, along with private housing.

Some local authorities are bringing forward proposals for high levels of affordable housing, which is to be welcomed. We have asked for the plans to be brought forward. The Department has identified the sites and will make money available, along with personnel to enhance and develop local authority teams, but it needs to know what appropriate action local authorities want to take in their areas. Members have emphasised the importance of councillors and local authorities. The Department wants to hear their views on the sites in their areas, most of which are in local authority ownership. The Department does not currently dictate the course to be taken, nor does it intend to do so. If housing development is not progressed in the near future, there may be a change in the process, but progress is currently being made. The Department wants to see what plans are developed for each site. That is important. If I am incorrect, and new legislation is required to alleviate the delay in the provision of affordable units in Dublin, I will address that immediately but that is not my understanding in regard to the current situation.

The Bill does not address greenfield sites. Members are absolutely correct in that regard. It addresses sites on which works have substantially commenced. A person will not be able to get a mortgage to buy a house on a flood plain, nor will he or she be able to get finance to build a house on a flood plain, irrespective of whether planning permission has been granted, because the OPW has identified all potential flood plains. I, therefore, do not share the concerns of Members in that regard. I do not know the location of each of the 70 or 80 sites and, therefore, I cannot give a guarantee to Members in that regard but funding will not be given for the development of sites on a flood plain. However, I cannot promise that planning permission has not been granted for developments on flood plains. All available talents are being used to identify such sites. Some people have sites for which they do not realise that planning permission has expired. However, it is likely that in such cases development has not been commenced. The Bill addresses sites on which work has substantially commenced and is progressing. We want the development of those sites to be completed. I would be surprised if Members have not received calls from people in regard to these sites. I have received several such calls. I can, therefore, speak to some of the sites but not all of them. However, one will not get funding to build a house on an identified flood plain unless one can prove through one's engineers and in consultation with the OPW that the house is safe from flooding. It is usually the case that if finance cannot be obtained, houses are not developed. That can also be a problem in regard to some good sites but that issue can be discussed at a later date.

I will take all amendments together. In regard to amendment a1, which, in a sense, supersedes amendments Nos. 1 and 2, the further extension of direction provisions which emanate from the Government's action plan for housing will affect not only future permissions but also those that expired after the publication of the action plan last summer. Such permissions may be re-activated under the provisions of the Bill because some such planning permissions would have expired in August, September, October or November 2016 but a commitment was given in mid-July 2016 that, from that date, any site with planning permission on which development had commenced would qualify under this scheme. Development on some sites may have commenced and then ceased. To require that there be active construction in progress is problematic because of the commitment given last year. The Government opposes the amendment because it would preclude those developments which have already received an extension of duration of permission which expired after the publication and which, therefore, would have stopped work before now. Such sites exist.The effect of this amendment would be that only a development under active construction would benefit from the extension of duration. It would exclude that cohort of developments whose submissions had withered away after the publication of the action plan in July 2016. This runs contrary to the objectives of the action plan and therefore I cannot accept the amendment. I hope that Members will understand why we cannot accept that amendment. I know the principle it aims to achieve. This is not to facilitate the hoarding of land and we will do more on that in our planning Bill, for which some amendments have already been tabled and which colleagues may have seen. These amendments to the larger Bill will be very much in line with what the Senator wants to do to try to ensure there is no land hoarding. Members can be assured that land hoarding does not fulfil our aims or help us with our plans. We will do all we can to prevent land hoarding.

On amendments Nos. 1 and 2 on the principal list of amendments and amendment No. 3 on the additional list, all of which we oppose, in subparagraph (A)(I), "established evidence" is not defined and will cause great uncertainty as to what it means precisely. I remind Senators that the provisions in this Bill already require planning authorities to interrogate the application to extend the duration of the permissions and to give only as much time as is required to complete the development. Senator Ó Clochartaigh's colleague, Deputy Eoin Ó Broin, mentioned this. If it merely needs six or nine additional months, it does not need to be given an extra five years so that they can sit back and not develop it. That is for the local authority. It makes the decision on that. Again, I hope the authorities will do their job correctly. That is what we will be asking them to do and that is the guidance they will be getting. In law, local authorities have to be the judge of that and it is quite common in most cases. It is inherent in the processes envisaged under legislation that developers would provide reasonable estimates of how long the completion of developments will take, and it is therefore impractical to require developers to provide evidence of something that has not yet occurred. The Senator said that there is a belief in some local councils that there is an automatic right to an extension and people will have their applications rubber-stamped. That is not always the case. I have come across people who did not get their permissions extended. Timelines can be put in. If the Senator has evidence of this, he should bring it forward. My experience, from talking to councillors and people who were themselves involved, is that these applications are not always rubber-stamped and people have not always received their extension. In this case, the chances are that if applicants have not done substantial work, they will not get it. The legislation is very clear on that. They have to have made major progress on the site. It is as simple as that.

On subparagraphs (A)(II), (A)(III) and (A)(IV), and (B), of this amendment, the provisions propose to assess retrospectively the planning merits of a development which has already received consent and where substantial works have been carried out. It is like a new planning application. I know that is Senator Grace O'Sullivan's concern, but it is like going back to square one and resubmitting a planning application. We propose that in respect of planning permissions which have run out in the previous nine or ten months or are about to run out on sites where work has started and building is under way, those sites can be finished out. It is not a greenfield site, it is not starting again from scratch, but if we accept these amendments it would in practice be a return to the starting position of a new application which would undo the certainty we are trying to introduce in this model. The reopening of the determination of the planning merits of a particular application where developments have substantially commenced is not reasonable and it is generally not possible to add or vary planning conditions after construction substantially commences, as proposed in this amendment. Some of these developments are well advanced and almost finished, and we are trying to get them finished. The effect of accepting these amendments would be to complicate an administrative process and effectively create a second consent process, which would bring massive uncertainty and financial risk to house providers in terms of undermining developments which have already passed through the planning process, with the potential for unforeseen consequences in relation to other infrastructural projects as well.

I am not inclined to insert a definition of the term "substantial works" in primary legislation, as proposed in amendment No. 3 on the first additional list, as it is subject to a widely litigated and complex area of case law which would not be well served by a restricted definition. It is noted that a consideration of whether substantial works have been carried out should be determined on the basis of the particular facts of the case and not by reference to any predetermined formula or rule of thumb. Again, this goes back to the planning authorities in the area having the judgment on that and, in the principal Act, it is their call. It is not defined in legislation, and if we were to do that, it would need a much more lengthy process. It is something we can look at again, but it is not something that is done without consulting the different stakeholders and having proper public consultation. There is considerable case law and to undermine it would involve much work. If people want to do that, we can look at it, but it is a complex area and not something to be done just like that.

This legislation reflects the discussion in the debates we had here last December and in January. Most people would agree that if a development is under way on a site, it should be finished because we need the houses, and that is what we are trying to do here. There are also people for whom this is their livelihoods. They will be working on these sites today. Are we to say that they cannot be on site next week? That is what we are discussing and those are the practicalities. This does not relate to hundreds of sites. It is about 50 to 60 sites. Some people are saying 70 sites and we are saying it might be 50 to 100. People are on those sites today, delivering houses that we all need, whether for the purposes of social or private housing, but it is also their livelihood and we are trying to facilitate that. When we discussed this in December, most people were satisfied with that. We made changes because they made sense logically. It is not to protect hoarders or greenfield sites from being developed for another five years. I want to be clear that is not what we are doing here.