Alice-Mary Higgins (Independent) | Oireachtas source

I move amendment No. 29:

In page 46, between lines 26 and 27, to insert the following: “Declaration on development, exempted development, etc.

10. (1) If any question arises as to what, in any particular case, is or is not development or is or is not exempted development within the meaning of this Act, any person may, on payment of the prescribed fee, request in writing from the relevant planning authority a declaration on that question, and that person shall provide to the planning authority any information necessary to enable the authority to make its decision on the matter.

(2) (a) Subject to paragraph (b), a planning authority shall issue the declaration on the question that has arisen and the main reasons and considerations on which its decision is based to the person who made the request under subsection (1), and, where appropriate, the owner and occupier of the land in question, within 4 weeks of the receipt of the request.

(b) A planning authority may require any person who made a request under subsection (1) to submit further information with regard to the request in order to enable the authority to issue the declaration on the question and, where further information is received under this paragraph, the planning authority shall issue the declaration within 3 weeks of the date of the receipt of the further information.

(c) A planning authority may also request persons in addition to those referred to in paragraph (b) to submit information in order to enable the authority to issue the declaration on the question.

(3) (a) Where a declaration is issued under this section, any person issued with a declaration under subsection (2)(a) may, on payment to the Board of such fee as may be prescribed, refer a declaration for review by the Board within 4 weeks of the date of the issuing of the declaration.

(b) Without prejudice to subsection (2), in the event that no declaration is issued by the planning authority, any person who made a request under subsection (1) may, on payment to the Board of such fee as may be prescribed, refer the question for decision to the Board within 4 weeks of the date that a declaration was due to be issued under subsection (2).

(4) Notwithstanding subsection (1), a planning authority may, on payment to the Board of such fee as may be prescribed, refer any question as to what, in any particular case, is or is not development or is or is not exempted development to be decided by the Board.

(5) The details of any declaration issued by a planning authority or of a decision by the Board on a referral under this section shall be entered in the register.

(6) (a) The Board shall keep a record of any decision made by it on a referral under this section and the main reasons and considerations on which its decision is based and shall make it available for purchase and inspection.

(b) The Board may charge a specified fee, not exceeding the cost of making the copy, for the purchase of a copy of the record referred to in paragraph (a).

(c) The Board shall, from time to time and at least once a year, forward to each planning authority a copy of the record referred to in paragraph (a).

(d) A copy of the said record shall, at the request of a member of a planning authority, be given to that member by the manager of the planning authority concerned.

(7) A planning authority, before making a declaration under this section, shall consider the record forwarded to it in accordance with subsection (6)(c).”.

Amendment No. 29 seeks the deletion of section 10 of the Bill and its replacement with a new section. Section 10 concerns declarations on exempted development, and the provisions in that section represent an incredible step backwards from the 2000 Act. In his op-ed on the Bill, one of many critical opinion pieces relating to the Bill by people with a very long and established expertise, Frank McDonald rightly points out:

One of the bill's most retrograde provisions would strip citizens of their long-standing right to challenge unauthorised development by seeking a declaration from a local authority on whether any such development is, or is not, exempted from planning control.

This is what we mentioned. There will be less transparency and less accountability in declaring developments to be exempted. We may want to get a declaration that simply informs us whether a development is unauthorised or exempted. If we do not see a planning process in respect of a development, is that because it is an exempted development or is it simply a completely unauthorised development? That is basic. When we talk about environmental information, it is essential to know this. This also, on a basic level, would deprive citizens of the long-standing right to challenge unauthorised development by seeking a declaration from a local authority as to whether a development is or is not exempted from planning control. Frank McDonald continues "Instead, [under section 10 of the Bill, as it stands] only landowners or those wishing to carry out development would be able to do so." Our amendment would ensure that any person would be able to seek a declaration and that that right to seek a declaration would continue. Otherwise, we will have a further erosion of public participation, transparency and accountability in our planning process, and that will undermine confidence in the planning system as a whole.

Amendment No. 32 seeks to amend the definition of "relevant person" by modifying the criteria for those who qualify as relevant persons and broadening it to reflect genuine local groups. The amendment would remove the requirement of having existed for a period. This is a disgraceful requirement because quite a lot of groups will form to address specific environmental problems or specific issues which arise in their localities. It may be a group that has formed to save the Dodder or the local river or to protect children's play spaces if it wants to protect local playgrounds. Such groups often form only when something on which they may rely as a community is under threat. In the truncated planning process we have, people have only a really short period in which they are able to take actions and apply.I am aware of some developments in Dublin in recent years in respect of which there were preplanning meetings with developers or consortia of different developers. There are other provisions in the legislation that allow developers to have a big, long lead-in. I am thinking even of retrospective consent whereby they can have a long chat in advance before they decide whether they want to apply for retrospective consent or have it extended. Developers know what they are planning to do for a long period but the public only gets to see it when the notice goes up. Of course, people will only form groups in response to, for example, a proposal that will take away all of the children’s amenities in their areas, that might pollute or destroy a local river or local woodland or that would decimate local businesses. Despite the fact that they did not form six or eight months or a year or two in advance, these groups are no less legitimate or genuine. The requirement that they must have existed for set periods intentionally creates an inequality and effectively blocks communities from taking collective action on these issues. That is in the context of where a group might wish to be a relevant person. Then you are down to individuals having to take action, which is extremely burdensome, particularly when there could be a pooled or collective response.

Amendments Nos. 34 and 35 both seek to amend section 10(2) to provide that any person can seek a declaration as to whether a development is an exempted development. This reverts to the long-standing right of any persons to seek such a declaration. I have spoken about the definition of a “relevant person”. It an issue here, but the same issue will be tracked right across the Bill. There are many attempts to narrow the pool. In this case, it is the definition of “relevant person” that limits who can seek a declaration in respect of a development.

Amendment No. 36 seeks to amend section 10(4), which was inserted by the Minister in the Dáil. This subsection provides:

Where a relevant person requests a declaration under subsection (2) in respect of land or a maritime site and the relevant person is not the owner of that land or maritime site, that relevant person shall, when making the request, notify the owner of the land or maritime site, as the case may be, in writing of the making of the request.

This is problematic because the name or contact details of a landowner will not always be available. The Minister needs to clarify that requests should not be deemed invalid without such a notification. I would appreciate if the Minister of State could clarify the circumstances where people meet the bar to be considered relevant persons, which is placed excessively high, and seek a declaration that is straightforward information as to whether a development taking place is exempted or not, their request will not be deemed invalid simply because they were not able to find out the detail of the contact details of a landowner or that site. These people are trying to find out what is happening. Our amendment would insert the phrase “make reasonable attempts to” before the notification requirement. It is a small and reasonable piece whereby if persons have made reasonable attempts to contact a landowner and inform them they are making inquiries about a development, that should be enough. Otherwise, simply, we have a situation where, effectively, a landowner can block the receipt of or simply refuse to receive that information and thereby block a request being made.

Amendment No. 37 seeks to broaden the right of appeal in respect of a declaration to any person, not just those involved in the original request or the owner, where other persons are able to say that they do not believe something should be declared an exempted development. This, again, is kind of a meta level of the exempted development. If there are exempted developments, and they are kind of happening not under primary law, with all its transparencies, but, rather, under regulations made by the Minister, there still needs to be some mechanism whereby if people feel that a development has been declared exempt and that it does not meet the criteria in those regulations, there has to be a process for any person – not just the owner of the site, who has an interest when a development is denied exempted status – who wishes to lodge an appeal. Any member of the public should be able to say that they do not believe a development should have been declared exempt. They should be able to challenge a decision if they so wish and set the declaration for exemption up against the test of whatever is in the regulations that the Minister lays down.

Amendment No. 37 is crucial. General members of the public are blocked from making the original request for a declaration. Effectively, they are being blocked from challenging the decision to declare a development exempt because they are excluded from making the original request. They cannot initiate the process of determining whether a development should be exempt. Because they cannot start the process and because they are not the owner of site, they cannot say that they think the wrong decision was made by the Minister or whomever has declared something to be an exempted development and that it does not meet the criteria for an exempted development. For example, perhaps there are environmental issues. There is an environmental impact assessment or there is something else that applies and makes it fall out of scope. The public are being cut out of the process in terms of exempted developments and they are being removed from any mechanism to challenge skipping of the planning process and putting everything in. There is no mechanism for them. They are excluded from both levels of the process.

Amendment No. 38 seeks to amend section 10 by replacing subsection (10)(c) with a new paragraph that shortens the decision publication time to three working days from five and ensure the inspection of the physical decision and the relevant documents will be free of charge. People should not be charged in terms of inspecting the decision on the relevant documents.

Amendments Nos. 39 to 41, inclusive, seek to amend section 10(15) to provide that any person can seek a declaration. This is to ensure consistency with amendments Nos. 34 and 35.

Amendment No. 45 seeks to amend section 11(2) by removing the word “not”, which would have the effect of making a relevant declaration admissible in evidence in any proceedings relating to the act, operation or change in use in respect of which a relevant declaration is made. A relevant declaration should, of course, be admissible in evidence in proceedings. It is wild that something would be declared an exempted development and yet the declaration would not be something one could use in court as evidence. In some cases, this declaration is the basis on which real physical things will be built. They will not be built on the basis of a paper trail through the planning process; they will be built on the basis of a declaration. However, there is kind of a suggestion that perhaps those declarations would not just be coming though the secretive regulatory process and not just be not accessible to the public or appealable by the public, but would not necessarily be admissible as evidence in proceedings in courts. That is wild.

Amendment No. 46 would extend the saver for declarations under section 5 of the Act of 2000 to include a “request for a declaration, request for information, further information, notice, request for a review or a referral under that section and made before that repeal”. The saver, as it stands, is inadequate. This amendment this is to ensure there is not a gap. A large part of the process around declarations in the existing legislation is not included in the bridging and transition provisions in the Bill.

Amendment No. 47 would also extend the saver for declarations under section 5 of the Act of 2000 in the areas where we are trying to ensure there is appropriate transition to include "any such matter may be concluded in accordance with the provisions of section 5 of the Act”.

Amendment No. 48 seeks to clarify an issue with the saver for declarations under section 5 of the Act of 2000.The saver in section 12 is inadequate in terms of exempted development under the 2000 Act. It only allows continuation of certain aspects of the process, and it is not resolved by section 495 which provides for the continued application of the board's functions in respect of such matters caught in the pipeline, so to speak. Section 495 does not even include the full list of matters that could go to the board from section 5 in the Act of 2000. For example it omits reviews, which are appeals of a declaration made by a local authority as opposed to a referral where the local authority sends the matter to the board. In situations where a review is under way on a previous declaration that has been made, that is not carried forward. Referrals are carried forward but reviews are quite different.

Amendment No. 20 seeks to amend section 8 by increasing the timeframe for decisions relating to the licensing of appliances and cables on public roads from eight weeks to 12 weeks. This is because such decisions can often be very sensitive locally. Things get signed and an eight-week period is perhaps insufficient for public awareness to be generated in relation to such a decision. Again, that is not to block the licensing of appliances and cables on public roads but it is to ensure that there is appropriate sensitivity, for example, to the timing of local events and other such matters.

Amendment No. 51 seeks to amend section 13(8)(a) and increases the timeframes for decisions following receipt-----