Darragh O'Brien (Dublin Fingal, Fianna Fail) | Oireachtas source

I thank Senators for facilitating the introduction of the Planning and Development Bill 2020 and the urgent passage of this important legislation through the Houses of the Oireachtas. For this reason, I will be requesting, in due course, that this House considers a motion to enable the President to sign the Bill earlier than would be routine.

I am bringing forward the Planning and Development Bill 2020 as a matter of urgency in light of the present Covid-19 pandemic and to ensure that the necessary protections are in place to safeguard the operation of the planning and building control systems. The purpose of the Planning and Development Bill 2020 is twofold. Its first purpose is to amend section 11(3)(b) of the Planning and Development Act 2000 in respect of the mandatory requirement to hold public meetings with regard to proposed development plans. Its second purpose is to allow the Government to make orders, during the period of the Covid-19 pandemic, which would extend certain statutory periods applying under the Planning and Development Acts and the Building Control Acts.

Before I address the rationale behind the Bill and specific details of it, I would like to address the matter of my request to an Ceann Comhairle, as Chair of the Dáil Business Committee, to waive the requirement for pre-legislative scrutiny of the general scheme of the proposed Planning and Development Bill 2020. I had sought this waiver due to the urgent nature of the proposed Bill, which I am bringing forward in response to the present Covid-19 pandemic. However, last Tuesday I was advised that I could secure an early time slot to commence the Bill's Second Stage today, Wednesday, 25 November, if I introduced the Bill through the Seanad. I was happy to do this, not only to progress the Bill as soon as possible, but also to allow me to fulfil a promise I made to Members of the Seanad just a few short weeks ago to initiate Bills in this Chamber.

The acceptance of an early time slot for this urgent Bill necessitated the publication of the Bill for the Seanad last Wednesday, which unfortunately rendered the potential for pre-legislative scrutiny by the Oireachtas Joint Committee on Housing, Local Government and Heritage unfeasible in these exceptional, time-sensitive circumstances. In acknowledgment of this, and in accordance with Seanad Standing Order 149(2)(i), I confirm that the reason that pre-legislative consideration did not take place under Seanad Standing Order 143 is the time-sensitive nature of this emergency Bill resulting from the pandemic's potential to negatively impact on the operation and integrity of the planning and building control systems, which required this exceptional accelerated approach.

Having regard to the above, I assure the House that the decision to commence the Bill in the Seanad was not intended in any way, shape or form to circumvent consultation with the joint committee, but rather was motivated by the desire to have this emergency Covid-19-related legislation enacted as soon as possible. However, I apologise to the Chair and to the members of the Oireachtas Joint Committee on Housing, Local Government and Heritage for any confusion caused by the urgency of this approach and for the resulting effects on pre-legislative scrutiny procedures.Today, I am asking Senators to pass the Planning and Development Bill 2020.

The Bill is being brought forward as a matter of urgency due to the Covid-19 pandemic to ensure that the necessary protections are in place to safeguard the operation of the planning and building control systems. In particular, this Bill will ensure that the integrity of the public participation elements and decision-making processes of these systems are protected. Local authorities play a critical role in facilitating construction activity, including housing construction, through a range of responsibilities, including granting permission under the Planning and Developments Acts and granting fire safety certificates and disability access certificates under the Building Control Acts. It is therefore essential for our economy and our collective aim of housing delivery that these services remain functioning and open. In this context, every effort is being made to ensure that the planning and building control systems can continue to remain open, with appropriate accommodations and taking into account public health advice.

Notwithstanding the present Covid-19 level 5 national restrictions on travel, it is important to note that the planning and building control systems remain open for business. In particular, the public participation elements of the planning system have been recognised as an essential service in SI 448 of 2020, introduced by the Minister for Health, Deputy Stephen Donnelly, which implements these level 5 restrictions. Attending the offices of a planning authority or An Bord Pleanála to engage in a statutory planning process, including inspecting the file, making an observation or submission to a development plan process or inspecting a site notice, is deemed to be a reasonable excuse for travelling or moving during these level-5 travel restrictions.

My Department continues to work with the planning and building control authorities to ensure that these systems, which are vital to the delivery of housing and infrastructure, remain open. Local authority public offices and the offices of An Bord Pleanála are open to the greatest extent possible, subject to adherence to HSE guidelines on physical distancing and any local arrangements on managed access. Furthermore, systems including the building control management system, can be accessed remotely over the local authority network; while in the case of the planning system, established systems are in place that enable people to view planning applications and submissions online.

As a direct response to the potential for Covid-19-related restrictions to have an impact on public participation in the planning application processes, the planning and development regulations were amended in May with the introduction of SI 180, the Planning and Development Act 2000 (Section 38) Regulations 2020, to require all planning authorities to upload all planning application documentation online for public viewing within five days of receiving the material, save for exceptional circumstances. My Department and I will continue to keep matters related to planning and building control regimes under review, in consultation with planning authorities.

It is hoped that the safeguarding provisions in section 3 of this Bill are never used. However, if there is a critical deterioration in staffing levels due to infections in one or more planning or building control authorities or in the event that the public at large or particular groups of the public may not generally be capable of engagement with the planning system due to the introduction of more restrictive measures that may prevent the public, for example, from seeing site notices or attending planning offices or meetings, it may be necessary to use the proposed measures in section 3 to ensure the integrity of the planning and building control system is maintained throughout the pandemic.

I will now outline the main provisions of the Bill. As stated earlier, the purpose of the Planning and Development Bill 2020 is twofold. First, the Bill proposes to amend section 11(3)(b) of the Planning and Development Act 2000 in respect of the mandatory requirement to hold public meetings concerning a proposed development plan. Second, it will allow the Government to make orders, during the period of the Covid-19 pandemic, which would extend certain statutory periods applying under the Planning and Development Acts and the Building Control Acts.

The Long Title of the Bill outlines the aims and policy context in which the proposed measures to safeguard the operation of the planning and building control systems are being introduced in light of the present Covid-19 pandemic and the associated restrictions required to contain the disease.

There are four sections in the Bill. Section 1 provides a definition for "principal Act", which means the Planning and Development Act 2000. Section 2 amends section 11(3)(b) of the Planning and Development Act 2000 to replace the mandatory requirement to hold public meetings regarding a proposed development plan with a more flexible requirement for planning authorities to consult with members of the public in such a manner as it considers appropriate and to invite written submissions from members of the public regarding a proposed development plan. This may include the holding of a public meeting, newspaper notices, written submissions or online communication or both.

The proposed amendment will allow the planning authority to take whatever steps it deems necessary to ensure the public are consulted in compliance with the principles of the Aarhus Convention, which include public participation in environmental decision making. This measure is required immediately to allow planning authorities to adapt public consultation procedures given the present restrictions on the holding of public gatherings during the pandemic. If this amendment is not made, such restrictions will delay the progression of development plans during the pandemic. The amendment is also in line with the modernisation agenda for the planning system to increase online activity and ensure continued flexibility in communicating details of draft development plans to the public and it will therefore be a permanent amendment.

Regarding the proposal in section 2 of the Bill, and following a submission from my colleague in government, the Minister, Deputy Eamon Ryan, and as raised by Deputy Matthews, Chairman of the Oireachtas Joint Committee on Housing, Local Government and Heritage, I wish to inform the House that I will be seeking to introduce a Government amendment to section 2 of the Bill on Committee Stage here in the Seanad on Monday to confirm that section 11(3)(b) of the Planning and Development Act 2000 will require the planning authority to hold either a public meeting or an online public meeting in respect of a proposed development plan. The Bill, as proposed, had required the planning authority to "consult with members of the public in such manner" as the planning authority considered appropriate, "which may include the holding of a public meeting". The Government amendment will ensure, for the avoidance of any doubt, that there will always be some format of public meeting under section 11(3)(b) in respect of a proposed development plan, either by way of a public meeting attended by the public in person or an online public meeting. That amendment will be introduced on Committee Stage on Monday.

Section 3, regarding emergency periods, would allow the Government to make orders, during the Covid-19 pandemic, which would extend certain statutory periods applying under the Planning and Development Acts and the Building Control Acts. This contingency measure is also urgently required to provide an essential legislative safeguard, which can be invoked as necessary to ensure that public participation elements of the planning regime, as well as certain decision-making and enforcement systems of the building control regime, are not compromised if further waves of Covid-19 may necessitate a further period of stay-at-home travel restrictions or may critically impact on the operation of individual authorities.

A core principle of the planning and development system is that of public participation and the assurance that planning is conducted in a manner which affords a high level of confidence in the openness, fairness, professionalism and efficiency of the process. This requires people to have the opportunity to participate in decisions being made at the strategic plan-making and individual planning application levels. Public participation is also central to certain decision-making and enforcement systems of the building control regime.

In the absence of section 3 of this proposed Bill, if circumstances arose during the pandemic which impacted on the public participation elements and decision-making processes of the planning system, these circumstances could cause significant difficulties, including preventing compliance by authorities with requirements set out in law and raising the prospect of knock-on effects. The possible consequences which might arise from these difficulties include the inability to operate statutory consultation periods, the inability to progress the making of development plans and deemed decisions, where decisions have not been made by the. appropriate authority.They could also raise the prospect of financial penalties being applied against authorities for not making decisions within statutory time limits; judicial reviews of decisions where individuals contend that the process did not adhere to statute; where public offices close, the inability to view information and make submissions; where enforcement proceedings are about to be commenced or are ongoing, the time limits are a key issue; and undue benefit accruing to some people by automatic default or through the elapsing of observation, submission or enforcement timelines before an observer, respondent or indeed the authority has time to act.

The main provision in section 3 is modelled on the recently expended section 251A of the Planning and Development Act 2000. Section 251A, in turn, was modelled on the existing section 251 provision within the Planning and Development Act, which applies each year for the Christmas period, when public offices are closed, whereby, when calculating an appropriate period or other time limit referred to in the Planning Act or regulations, the period between 24 December and 1 January, both days inclusive, shall be disregarded. The recently expended section 251A of the Planning and Development Act 2000 introduced a similar disregard provision for statutory periods during the first lockdown earlier this year, in which case the Government order made under section 251A lasted for eight weeks, from the end of March up to 23 May 2020.

However, the proposed provision in the current Bill includes new flexibilities, which were not previously included. More than one extension period order may be made within the confined operative period for this Bill, which is linked to the operation of Part 3 of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020, which now ends on 9 June 2021 following a resolution of both Houses of the Oireachtas. Extension period orders, if required, can be applied to specific administrative areas of the country, as opposed to applying to the entire country. The Government, at my request, may choose which statutory periods it requires to extend, rather than applying the extension to all periods under the planning Acts and the specified provisions of the Building Control Acts.

The proposed provisions in section 3 also introduce additional oversight of the Oireachtas, whereby any such order shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either House within the next 21 days on which that House sits after the order is laid before it, the order shall be annulled accordingly.

Similar to the provisions of the recently expended section 251A of the Planning and Development Act 2000, section 3 of the Bill requires that I, as Minister, shall consult the Minister for Health and request the consent of the Minister for Public Expenditure and Reform prior to making a request to the Government to make an order specifying the period for which the order shall apply.

In making an order under section 3, the Government is required to have regard to the following principles and policies: the nature and potential impact of Covid-19 on individuals, society and the State; the need to eliminate or reduce the threat to public health of Covid-19; the policies and objectives of the Government relating to the protection of the public from Covid-19; the need to mitigate the adverse economic effects resulting from the spread of Covid-19 or the measures adopted to prevent its spread; and the need to eliminate or reduce the impact of Covid-19 and the measures adopted to prevent its spread on the effective operation of relevant enactments and the effective performance of functions under those enactments.

In the case of sections 4(4), 6 and 17(6) of the Building Control Act 1990, or any instrument thereunder, which concern the operation of the building control regulations, the Government shall not make an order unless it is also satisfied that the making of such order is in the public interest having regard to the need to ensure the effective operation of that Act and protect the health, safety and welfare of occupants of buildings. In the case of the other enactments, which comprise the various Planning and Development Acts listed in section 3, the Government shall not make an order unless it is also satisfied that the making of such order is in the public interest having regard to the need to ensure the effective operation of such enactmentand proper planning and sustainable development. These principles and policies, which the Government is required to consider before making an order, broadly mirror the principles and policies of the expended section 251A. Section 4 provides the Short Title and collective citations to the Bill.

In addition to my detailed comments on the Planning and Development Bill, which is currently before the House, I also wish to inform the House that I will need to introduce further Government amendments as the Bill makes its way through the legislative process in the Dáil. Yesterday, the Government approved at Cabinet the priority drafting of modifications to the operation of the Residential Tenancies and Valuation Act 2020, which are being worked on by my officials and the Office of the Attorney General. The aim is to continue but modify the operation of the temporary protections to tenants under the Act that we passed here in late July until 12 April 2021 while recognising and balancing the constitutionally protected rights of property owners. An amendment will also be tabled to extend from 10 January 2021 to 12 April 2021 the provision under the Act of 2020 that proceedings before a Residential Tenancies Board, RTB, tribunal need not be held in public during the Covid-19 emergency period, with the aim of continuing the protection of the health and safety of participants in the proceedings and of RTB staff.

It is recognised by me, and I have stated it in this House previously, that a cohort of tenants are experiencing Covid-related economic difficulties for a second time this year as a result of the current lockdown. A further cohort may face a negative financial impact for the first time on foot of Covid-19. Low-income tenants are disproportionately employed in sectors that are severely affected by Covid-19, for example, in the hospitality and retail sectors, and are likely to face continued and particular strain.

The State continues to provide immediate support to families and individuals in private rented accommodation under the Department of Social Protection's rent supplement scheme. The scheme provides short-term income support to eligible people living in private rented accommodation whose means are insufficient to meet their accommodation costs and who do not have accommodation available to them from any other source. The scheme ensures that renters experiencing a temporary loss of employment during the Covid-19 emergency can continue to meet their rental commitments. The Act of 2020 complements the provision of rent supplement and other State supports, such as the supplementary welfare allowance, the pandemic unemployment payment and the employment wage subsidy, by providing time and security for tenants while engaging with State services in a bid to resolve their financial difficulty and to meet their obligation to pay rent.

The temporary tenancy protections under Part 2 of the Act of 2020 for tenants in rent arrears due to Covid-19 and at risk of losing their tenancy are due to expire on 10 January 2021, hence the amendment that will be brought forward in the Dáil. The economic impacts on tenants in the residential rental sector of Covid-19 and successive restrictions on the movement of people continue to be felt and the early part of 2021 is likely to be financially challenging for tenants. I have said that if I consider it necessary to bring in further protections for tenants, in particular in these difficult times during the Covid pandemic, I would do so. It was a Bill most Members of this House supported in July. It came into effect from 1 August. That Act has worked. This is effectively an extension of the provisions of that Act, coupled with the additional protections around the protection of tenants during the 5 km travel restriction, which we brought in a few weeks ago and which was passed unanimously in this House. This is a further protection that will be brought in and we will extend that out to April 2021. The amendment I mentioned is not quite ready and it will be introduced in the Dáil and added to this Bill.

Through these proposed amendments, the Government aims, as do I, to balance in a carefully calibrated manner the legitimate interests of both tenants and landlords. The proposed time-limited extension and modification of the provisions of the 2020 Act will apply only to those tenants who can demonstrate that, despite the significant State supports available, they have been negatively impacted by Covid-19.In concluding the introduction of this Bill to the House, I confirm to Senators that it is urgently needed to provide essential safeguards to ensure the continued operation of the planning and building control systems during this pandemic. The provisions in section 2 of the Bill to amend section 11(3)(b) of the Planning and Development Act are immediately required to allow planning authorities to adapt public consultation procedures in light of current restrictions on the holding of public gatherings during the pandemic. If this amendment is not made, such restrictions will delay the progression of statutory development plans during the pandemic. These amendment provisions are also in line with the modernisation agenda for the planning system to increase online activity and ensure continued flexibility in communicating details of draft development plans to the public and will, therefore, be a permanent amendment to the Planning and Development Act.

With respect to the safeguarding provisions in section 3 of the Bill, it is hoped that once enacted, they will never need to be used. However, these essential provisions are urgently needed to give the planning and building control systems the legislative flexibility and agility to react to more restrictive travel constraints, if issued by the Minister for Health, during the remainder of the pandemic, or in the event that significant infections among local authority staff critically impacts on the resourcing and operation of individual planning or building control authorities. This is all in order to ensure that the integrity of the planning and building control systems is maintained throughout the pandemic.

I look forward to our debate on the Bill's provisions and will seek to respond to any specific questions. I commend the Bill to the House.