Alan Dillon (Mayo, Fine Gael) | Oireachtas source

I thank the Senators for their contributions on sections 10 and 11. Section 10 deals with declarations on development and exempted development and section 11 provides that such declaration shall be conclusive evidence in relevant proceedings brought by an enforcement authority, a local authority or the DPP against a person who requested the declaration unless it is proved that the person knowingly provided false or misleading information or withheld information for the purposes of the making of the declaration and that the planning authority would not have made the relevant declaration if it had known that the information was false or misleading or that information had been withheld.

Sections 10 and 11 will replace section 5 of the Act of 2000, whereby a planning authority, or the commission on appeal or referral, may give a declaration as to whether the matter referred constitutes development, and if so, whether it is exempted development. Currently, "any person" may make a request for an exempted development declaration under section 5 of the current Act - the 2000 Act. The Bill provides that only a "relevant person" may make a request for such a declaration. A relevant person is the owner or occupier of land or a person who has their consent or an eNGO. It is important to emphasise that.

The original intention of section 5 of the 2000 Act was to function as a relatively simple mechanism by which to question whether a proposal is development or exempted development. The challenge that has arisen over time is that increasing numbers of third parties sought section 5 declarations from planning authorities. A number of problems arise from this practice, namely: the owner-occupier of the land might be unaware that a section 5 declaration had been sought in respect of their land; and the planning authority's consideration of the section 5 declaration is limited to the information put before it by the third party, which may involve incomplete information.

The Bill enables an owner to seek a declaration on development and, having been assessed and granted the same, to use this as a defence, subject to certain conditions, such as the requirement not to give misleading or false information. However, it does not allow for third parties to use such declarations against first parties. Rather, the extended relevant persons, which can be an eNGO, may use a declaration to seek the planning authority to pursue enforcement if relevant, which is the appropriate method for dealing with non-compliance. Alternatively, it may be utilised to form a basis for considering the taking of an injunction under section 345 of the Bill. In this regard it should be noted that under section 345(g) it is up to the respondent to prove the existence of a permission or that the development is exempt.

The Bill, as drafted, moves away from utilising this section as a form of enforcement by proxy without the necessary due process - it is important to stress that - and checks and balances while still allowing for certain bodies to have a basis for pursuing injunctions where they consider it necessary.I am satisfied that the provisions relating to the use of exempted development declarations are sufficient and I must reject Senators' objections to section 11.

Amendments Nos. 29 and 30, proposed by Senators Higgins, Ruane, Black and Flynn, and Senators Boyhan and McDowell, respectively, seek to replace section 10 of the Bill as currently worded. This section deals with declarations on exempted development.

I must oppose amendment No. 29 on the basis that it proposes to revert to the provisions contained in the Act of 2000, whereby any third party can seek a declaration on any development. I have outlined the position in the drafted Bill. This is a matter that was discussed at length during pre-legislative scrutiny and in Dáil Éireann, where it was clarified that there are significant legal and policy imperatives for the changes in relation to section 10 declarations to be made under the enacted Bill.

Senator Boyhan outlined that amendment No. 30 amends the definition of a "relevant person" to enable a third party to seek a section 10 declaration. As I stated in the Dáil, this would give rise to two significant challenges, namely, permitting an enforcement-by-proxy system without the necessary due process, checks and balances, and giving legal effect to the third-party action on the property rights of the owner. For these reasons, I am not in a position to accept these amendments.

Amendment No. 31, proposed by Senators Moynihan, Hoey, Sherlock and Wall, also seeks to amend the definition of a "relevant person" to enable a third party to seek a section 10 declaration. Amendments Nos. 32, 34, 35, 37 and 39 to 41, inclusive, proposed by Senators Higgins, Ruane, Black, and Flynn, seek to broaden the scope of section 10 to include environmental NGOs and to allow third parties to seek a declaration. Similarly, amendment No. 33, proposed by Senators Warfield, Boylan and Gavan, also intends to bring third parties into scope. I am not in a position to accept these amendments for the reasons I have already outlined. However, I would point out, particularly to Senator Higgins, that I brought forward amendments on Report Stage in the Dáil to extend the definition of "relevant person" in this section to include environmental NGOs holding the relevant bone fides. This means that such organisations will still be able to seek a declaration.

I cannot accept amendment No. 37 as it is not appropriate to provide that any person could appeal a decision on exempted development. Such declarations can only be sought by relevant persons, owners or environmental NGOs. On this basis, it is not appropriate to accept the amendment.

Amendments Nos. 36 and 38 are proposed by Senators Higgins, Ruane, Black and Flynn. I acknowledge the intent behind amendment No. 36 but I consider the risks associated with the interpretation of "reasonable attempts" to be substantial. Amendment No. 38 proposes a number of changes to paragraph (c) of subsection (10). I do not agree with the need to reduce the number of days within which a planning authority or the commission must publish its decision from five days to three days. Subparagraph (ii) is clearly drafted so that members of the public can inspect the relevant documentation at a physical location if unable to avail of the option to view such documentation online. For these reasons, I am not in a position to accept these amendments.

Amendments Nos. 42, to 45, inclusive, relate to section 11. As currently drafted, an enforcement authority or the Director of Public Prosecutions can use a section 10 declaration as conclusive evidence in proceedings for an offence under sections 341 or 344, or for proceedings taken under section 345. These relate to offences for carrying out unauthorised development, non-compliance with an enforcement notice or proceedings for planning injunctions in relation to unauthorised development.

Amendments Nos. 42 and 43, in the names of Senators Moynihan, Hoey, Sherlock and Wall, would cause a section 10 declaration to be admissible as evidence in any proceedings. The Bill enables an owner to seek a declaration on development and, having been assessed and granted the same, to use the declaration as a defence. The Bill does not allow for third parties to use such declarations against first parties as therein lies the core legal issue of this matter. A relevant person may use a declaration to seek a planning authority to pursue enforcement action, if necessary, which is the appropriate method for dealing with suspected non-compliance. Therefore, I must oppose these amendments.

Amendments Nos. 44 and 45, proposed by Senators Boyhan and McDowell, and Senators Higgins, Ruane, Black and Flynn, respectively, also seek to have section 10 declarations made admissible as evidence in any proceedings. For the same reasons as I have outlined, I am not in a position to accept these amendments.

Amendments Nos. 46 and 47, proposed by Senators Higgins, Ruane, Black and Flynn, seek to amend section 12, which is a transitional provision for declarations, and requests for declarations, made under section 5 of the Act of 2000. Having reviewed amendments Nos. 46 and 47, I have determined that they are not necessary. The saving of any request, application or appeal is already provided for under section 12(2) and the Act of 2000 will continue to apply and have effect in relation to these requests, applications or appeals. Therefore, I see no reason for amendment No. 46, as it is a duplication of what has already been provided for. Similarly, amendment No. 47 is not required since section 12 as currently drafted already provides that the Act of 2000 continues to apply and have effect. For these reasons, I cannot accept these amendments.

Amendment No. 48 seeks to restate section 12. Having examined the proposed amendment, I am satisfied that this rephrasing would only serve to duplicate what is already provided for under section 12 as currently drafted, especially in relation to the applicability of specified sections and chapters. As I mentioned, subsection 12(2) provides that the Act of 2000 will continue to apply and have effect in relation to any outstanding request, application or appeal made under section 5 of the Act of 2000. Therefore, I am not in a position to accept the amendment.