Malcolm Noonan (Carlow-Kilkenny, Green Party) | Oireachtas source

Gabhaim buíochas leis an Leas-Chathaoirleach. I thank the Senators for providing me with an opportunity to set out the provisions of the Planning and Development, Heritage and Broadcasting (Amendment) Bill 2021. As I set out in the Dáil a number of weeks ago, this technical Bill is necessary to allow for the transfer of functions relating to heritage under a number of enactments to the Minister for Housing, Local Government and Heritage. Normally such transfers of ministerial functions are affected through orders made under the Ministers and Secretaries (Amendment) Act 1939. A number of powers and functions in respect of heritage have already transferred to the Minister for housing under the Heritage (Transfer of Departmental Administration and Ministerial Functions) Order 2020. However, two problems arise as to the transfer of the remainder of the functions relating to heritage to the Minister for Housing, Local Government and Heritage which must be addressed by this Bill.

First, section 30 of the Planning and Development Act 2000 prohibits the primary Minister under the Act, the Minister for Housing, Local Government and Heritage, from exercising any power or control in respect of any particular planning case. Section 30 must now be amended to provide for the Minister for Housing, Local Government and Heritage to lawfully exercise certain heritage functions proposed to be transferred from the Minister for Tourism, Culture, Arts, Gaeltacht, Sports and Media, and in particular, certain functions regarding commenting on planning applications and draft development plans from a heritage perspective.

Second, the Supreme Court decision in the Mulcreevy case of 2004 holds it to be impermissible to use secondary legislation in the form of the transfer of function orders to merge into one Minister functions of the Oireachtas in primary legislation which the Act had intended to be divided between two separate Ministers, this being seen by the court as breaching a key constitutional principle that only the Oireachtas can make and amend primary legislation. There are certain legislative provisions relating to heritage in which this problem arises and must be addressed by this Bill.

If this Bill is enacted and commenced, the remainder of the heritage powers and functions held by the Minister for Tourism, Culture, Arts, Gaeltacht, Sports and Media may be transferred to the Minister for Housing, Local Government and Heritage by a transfer of functions order.

I will give a brief overview of the main areas of legislation to be amended by this Bill.

Section 4, amendment of section 13 of the Act of 2000, amends section 13(2)(a) of the Planning and Development Act 2000, which deals with the adoption by planning authorities of variations to development plans by the substitution of "to the Minister for Tourism, Culture, Arts, Gaeltacht, Sports and Media" for "to the Minister for Arts, Heritage and Gaeltacht" and similarly amends section 13(8)(c) of that Act.

Section 5 amends section 32 of the Planning and Development Act 2000 to allow for the Minister for Housing, Local Government and Heritage to exercise certain heritage functions transferred or proposed to be transferred to him or her. Sections 6 amends section 51 of the Planning and Development Act 2000 by providing that the Minister for Housing, Local Government and Heritage shall prescribe the form of a record of protected architectural structures. Section 7 amends section 52 of the Planning and Development Act 2000 by providing that the Minister for Housing, Local Government and Heritage shall issue guidelines to planning authorities concerning certain development objectives.

I will now deal section 8, which is the amendment of section 177X, and section 9, which is the amendment of section 177Y, section 10, which is the amendment of section 177AB, and section 11 which is the amendment of section 177AC of the Act of 2000. Part XAB of the Planning and Development Act 2000 provides for consultation by the primary Minister under the Act, the Minister for Housing, Local Government and Heritage, with the Minister for Arts, Heritage and the Gaeltacht which the Minister for Tourism, Culture, Arts, Gaeltacht, Sports and Media was titled at the time of enactment.

Sections 8 to 11, inclusive, amend sections 177X, 177Y, 177AB and 177AC within Part XAB of the Act in order to resolve the Mulcreevy problem in this section of the Act. Section 12 amends section 59(3) of the Wildlife Act 1976 which refers to access to or use of foreshore for nature conservation purposes.

Section 13 amends section 16(2)(a) of the Wildlife (Amendment) Act 2000 so that the Minister for Housing, Local Government and Heritage shall seek the observations of any Ministers of the Government as the Minister considers appropriate in the circumstances of the proposed designation of a natural heritage area rather than seeking the observations of certain specified Ministers.

Section 14 amends the designations of the sites of special areas of conservation and special protection areas and the directions and provisions of the European Communities (Birds and Natural Habitats) Regulations 2011 by providing that the designation or direction process for the Minister for Housing, Local Government and Heritage will inform another Minister or Ministers of developments.

Section 15 provides, in accordance with the relevant provisions of the Planning and Development Act 2000, for the Minister for Housing, Local Government and Heritage when he or she is performing a heritage function to first make a planning application to a planning authority, to make an appeal to An Bord Pleanála, to make a request for a declaration to a planning authority, or a referral for a decision or apply for a determination to An Bord Pleanála as to exempt development and, finally, to do any act or thing pursuant to the provisions of the Planning and Development Act 2000 relating to any of these matters.

Part 3 of the Bill contains two sections in respect of the amending of the Broadcasting Act of 2009.

In conclusion I am very pleased to have the opportunity to outline the provisions of this Bill here today and I look forward to hearing Senators' views on it.