Alice-Mary Higgins (Independent) | Oireachtas source

I have a number of amendments in this section. Amendment No. 20 seeks to insert a new subsection into section 8. This would provide that the Minister should, following consultation with the Housing Commission and the Minister for Tourism, Culture, Arts, Gaeltacht, Sports and Media, Údarás na Gaeltachta and Gaeltacht language planning officers, lay a report before both Houses of the Oireachtas, within six months of this Act, outlining the impact of short-term lettings on Gaeltacht communities, in particular, on the availability of affordable housing for Irish speakers and the associated impacts in long-term sustainability of these communities and their linguistic identity. Caithfear díriú ar inbhuanaitheacht fadtéarmach phobal na Gaeltachta agus ar a gcuid féiniúlachta teanga. Tá dochar á dhéanamh ag léasanna gearrthéarmacha ar seo agus níl muid tar éis tada cosúil le rialú ceart ar an earnáil a fheiceáil, ná bac le rialú a fhreastalaíonn ar riachtanas phobal na Gaeltachta.

The impact of short-term lets on housing provision for communities and city centres has been discussed extensively. When we talk about the Irish-language-speaking community, we are talking about one of particular importance and vulnerability. We have heard lots about one-off housing in areas where there may be a very limited housing provision available within some of the Gaeltacht areas. I acknowledge of course that there are areas in Dublin city, which would like to be Gaeltachts as well. We are talking about areas with communities where by their very nature, people need to be able to speak to each other in that language to keep the community alive. If there is a preponderance of short-term lets or holiday lets, that can really diminish the intergenerational sustainability of Irish language speaking communities. I really hope that the Minister of State would lay reports looking at the issue of short-term lets. I will move on to section 9 on exempted development.The grouping is somewhat strange because these points are set aside each other. Section 9 looks at the problematic issue of exempted developments. These are developments proposed to be exempted from the planning process. We would not have even a part of the normal planning process applied to certain categories of development. That is problematic in general but specific aspects in the Bill are particularly concerning.

Amendment No. 23 seeks to amend section 9(3) by inserting a new subsection (4), which would add development which is environmentally significant to the list of developments in section 9(3) which are not exempted. There is a wide and concerning set of developments exempted from the planning process. However, section 9(3) states:

Development shall not be exempted development for the purposes of this Act if an environmental impact assessment or an appropriate assessment of the development is required.

This comes back to Aarhus. The requirement for proper public participation in terms of environmental decisions is not confined to the narrow and specific criteria of whether environmental impact assessment is required, or indeed appropriate assessment, which is really only asking if the development has a specific impact in relation to Natura 2000 sites and special areas of conservation. The bar in terms of the requirement for public participation in a development decision under Aarhus is something that is environmentally significant. Examples have been given. There may be a change of use. There may be a pig farm that gets imposed or there may be a development with implications not just in terms of its physical structure but in terms of an activity that takes place there that has significant environmental impacts. For example, a liquified natural gas terminal has very significant implications. There is a large range of developments that may not come under the environmental impact assessment requirement because it tends to relate to the structure itself. They may also not happen to be within a certain distance of a Natura 2000 site but may have significant environmental implications in terms of particular species, our shared environment, pollution or the purposes of the development.

Aarhus Article 6.1.(b) requires public participation when an activity has "a significant effect on the environment". Most situations may get captured by environmental impact assessment but there would be an insurance policy in the use of the language of the Aarhus Convention and compliance with it. Something that does not require an environmental impact assessment or appropriate assessment but is environmentally significant would be covered and not have an exemption from the planning process, which, to be clear, is an exemption from public participation and from the public having the opportunity to comment and engage in the process. It is clear that, under Aarhus Article 6.1.(b), public participation is required in any such situation. This is another point where I fear the Bill will be found less than compliant and the issue could be addressed easily through the amendment I have proposed.

Amendment No. 24 seeks the deletion of section 9(6), which gives the Minister the power to make regulations prescribing development or any class of development to be exempted development if such development is permitted by another enactment and, in line with another enactment, an appropriate assessment or environmental impact assessment is carried out.

I find my own notes confusing about this, so I will go back to talk about what that section says. It is really significant. The Minister can make a regulation that exempts not just an individual development but a whole class or category of development. For example, it could be data centres. That is a good example of where an environmental impact assessment may or may not be needed but the energy demands have significant environmental implications, as addressed in my previous amendment. The Minister can exempt a class of development, even though there would normally be an environmental impact assessment required, if such development is authorised or permitted or under any enactment - that is, any other law - in accordance with any kind of authorisation or permission. If there is another law that has addressed this issue, the Minister can say he will take a whole category of development out of play. There is significant concern about that because we could have a falling-between-two-stools situation. Any other enactment was probably created with the idea there would be a proper planning process but under this, the Minister can pull away the planning process because another piece of legislation refers to this development.

Amendments Nos. 25 and 26 are technical amendments.

Amendment No. 27 seeks to insert a new paragraph into section 9(6), which would require that a development or class of development can only be exempted by the Minister "where an environmental impact assessment or appropriate assessment has not been required under any ... enactment, but the activity may have a significant impact on the environment, [as long as] public participation has been provided for prior to the authorisation or permitting of the activity.” The amendment seeks to address the Aarhus Article 6.1.(b) requirement to secure participation on the development as it cannot be exempt from planning unless participation is provided for prior to authorising the activity. This tries to reach back to situations where the Minister is saying it is previously authorised by another enactment and to ensure that can only apply where there has been an appropriate opportunity for public participation.

Amendment No. 28 seeks the deletion of section 9(10), which provides that a:

Development to which— (a) a declaration under subsection (4) or (4A) of section 181B of the Act of 2000 applies, or

(b) a declaration under subparagraph (i) of paragraph (ba) of subsection (2A) of section 181 of the Act of 2000 applies, shall be exempted development for the purposes of this Act.

This means developments proposed to be carried out by or on behalf of a Minister of a Government, the commissioners or a statutory undertaker, or a development for national defence or civil emergencies would automatically be exempted. This is an extremely wide provision.It is effectively saying that anything the Government wants to do, or anything anybody working for the Government wants to do in terms of statutory undertakers, would automatically become an exempted development. Given the restrictions in this legislation around who can seek a declaration as to whether or not a development is exempted, I am really concerned this could be abused. The Minister of State might comment in particular on amendment No. 28 and its very broad reach. It is unclear how that very wide exemption under section 9(10) even sits with some of the other pieces in terms of environmental implications.

I have focused on public participation in relation to environmental implications because that is an area where there is the concern legally under the Aarhus Convention. I also have a concern about the potential abuse or excessive use of the exempted development category in general in relation to good planning and public participation. I have focused on the aspect where there are potential issues around compliance with Article 6(1)(b) of the Aarhus Convention but I am concerned about a stretch in general around exempted development.

We have a planning process for a reason. The planning process is not just about the rights of individuals to make objections. The planning process is there because it catches a lot of things. It was why when we had strategic housing developments, for example, which leapfrogged over the local level planning process, we got worse decisions. We got decisions that ended up falling down when they came to the courts because they did not consider everything and they did not consider all of the relevant factors. In terms of exempted development, there is a danger here. It is a power that should be used very cautiously and very rarely. The Minister of State might comment on my points around Article 6(1)(b) of the Aarhus Convention in particular but also around the issue of section 9(10) and the potentially excessively wide scope of how this might be used.

The planning process is not just a series of obstacles; it is also a useful process for refining and improving development proposals. I worry we might lose out by having it skipped too often or easily.