Michael McDowell (Independent) | Oireachtas source

A number of things arise in relation to section 8 as it stands. I know we are not discussing the section at this stage, but it is worthwhile to point out that it refers to short-term lettings and it defines them as "the letting of a house or a part of a house for any period not exceeding 14 days, and includes a licence that permits the licensee to enter and reside in the house or part thereof for any such period in consideration of the making by any person, whether or not the licensee, of a payment or payments to the licensor." It strikes me there is a huge loophole in that the payment has to be made to the licensor. If Senator Burke had a house in Mayo, in a rent pressure zone or whatever, and I was the manager of the premises or I had a right to manage the premises separate from Senator Burke as owner of the premises, you could ride a coach and horses through that definition. I just wanted to point that out.

One would assume the payment should be made to any person, not just the licensor. If it is confined to cases where the licensor, in other words the person who says you may use the premises, has to be the person who receives the money, then it is easily evaded by simply providing that somebody else gets the money such as a caretaker, a manager or whatever for looking after the premises. You pay €100 a night for it and you get the services of cleaning and all the rest of it from that person who manages it and the person who owns that property, who could be a spouse or anybody else, would not be caught by it. I am just pointing that out as it leapt off the page at me. When you say the payment has to be made to the licensor, you exclude a lot of cases and it is so easily avoided by one spouse owning the property and giving a licence to use it and the other receiving remuneration for managing and cleaning and all the rest of it during the period.

There are all sorts of alternative ways of dealing with it but I can well imagine the mere fact the licence to occupy a premises is short term means it is not a letting. There are many circumstances in which you could easily provide that somebody else gets the money and that is the end of it.

I want to make a point about amendment No. 21, which is in my name and that of Senator Boyhan.What we are doing is reciting the existing law as to what is and is not an exempted development. What the Bill is doing is saying to forget about all those cases that are the law of the land determined by the Oireachtas and the Minister will be able to make independent regulations to cover some, all or any of them and to repeal those regulations when he or she so decides. What we are actually doing is taking away from these Houses the provisions in question and handing it to the Minister, under the Act, to either make regulations or revoke regulations as when he or she decides to do so. That is part of a process of centralising legislative power in the hands of the Executive of the State. By any standards, if we say that exempted development means the series of things that it now means and then say that in future it does not mean any of those and it only means such of those as the Minister by regulation so prescribes, we are taking away the power of this House to determine whether a variation is a good idea or a bad idea.

Under subsection 9(6), as has been mentioned, there is an exemption that requires environmental impact statements. Where that is required, because such development requires an environmental impact assessment, the Minister can make regulations in those cases to say that it is not exempted development or that it is exempted development, or to vary it in and out of those categories. What I worry about is that environmental impacts are not only planning issues. There is a difference between the two. There are issues that would arise in the mind of a local authority as to whether or not to grant planning permission that might not be environmental impact assessment grounds. The mere fact that a body can permit something to happen in accordance with a licence that involves an environmental impact assessment does not mean that ordinary or different planning criteria are to be ignored or left out of the equation. It is not as if the regulations made under the subsection are a tiny technical class; they are fairly substantial. What they are saying is that the Minister can make regulations prescribing development or any class of development where that kind of EIA is required to be exempted development but the corollary of that is that he or she can say that it is not exempted development as well because the power to make a regulation saying it is exempted development implies the power to revoke it. The funny thing about that is section 4(4), which we have approved, requires that where regulations are to be made under section 9(1), a draft of the regulations shall be laid before the Houses, but not under section 9(6). The Minister can make or unmake regulations there without any requirement to invoke the authority of the Legislature. It is these kind of small things that concern me. It is not a niggly point. The policy behind that is not clear. Why should the Minister be able to make such a provision without coming back to the House, effectively removing the requirement for planning permission on the basis that an environmental impact assessment is required for some kind of statutory consent procedure by somebody else? EIAs are not the same as but overlap with - it is like a Venn diagram - planning concerns but they do not amount to an exhaustive statement of planning concerns. For example, if a development plan for an area specifies some kind of a development as to be discouraged in an area, the mere fact that it can be subject to an EIA does not mean that the policy aims of the development plan for the area enacted by the local authority are thereby satisfied and met.

We should be considering each bit of section 9, comparing it with what was the law, and asking ourselves: is section 9 satisfactory and does it diminish the involvement of these Houses in stating what the law is and give to the Minister the right to, by regulation, make something exempted development or cease to have it exempted development without the intervention of these Houses?