Victor Boyhan (Independent) | Oireachtas source

I move amendment No. 1:

In page 27, between lines 21 and 22, to insert the following: “(3) Without prejudice to subsection (2) the provisions of this Act relating to the repeal of the termination of the Office of Planning Regulator shall come into effect on the passing of this Act.”.

I welcome the Minister of State and his team to the House. It is my intention to keep debate on these amendments pretty brief and to the point. There was a substantial amount of debate at the Oireachtas joint committee. Many of the members of the committee are present and contributed substantially to that discussion. There was a very big debate in the Dáil on the Bill. We now are starting on Committee Stage of the Bill. I am conscious of the need for strategic planning.I am conscious of the need for infrastructure to be catered for in our planning. We will not have success in the areas of our housing, health, education, enterprise, innovation, connectivity, water, waste and energy if we do not have a strategic overarching policy. There are criteria and an apex in that regard. I want this to be a constructive and respectful dialogue, because that is what is needed. This is not about any individual; it is about policy and an opportunity to contribute to that policy. I will touch on a number of the amendments in the grouping that comprises amendments Nos. 1 to 16, inclusive.. I will indicate which ones I am speaking to as I go.

It is not my intention at any point to scrap the Office of the Planning Regulator. I wish to speak about the office, not the individual who holds the post of regulator because the holder changes from time to time. I acknowledge the important work of the Office of the Planning Regulator, particularly in its engagement with and oversight of plans and their strategic nature. I have a number of concerns, however. In the context of the Office of the Planning Regulator, the county development plan, as the Minister of State and others know, is an important policy document that sets out the overall planning strategies and objectives for each of the local authorities. More than anybody else - it will not come as a surprise to any of us - I receive most of my representations from sitting county councillors, the practitioners of this planning system and the guardians of their city and county development plans. They take them seriously. They are strategic. They are reserved functions of the elected members, and I support them and their concerns. I am teeing up this particular amendment to touch on some of the concerns they have in relation to the Office of the Planning Regulator. I will wait for the Minister of State's response, but there are issues around governance of the Office of the Planning Regulator. It does not have a board. We are talking about An Bord Pleanála - An Coimisiún Pleanála - but it has a board. We will talk about that later. There is no governance structure. We know there has been litigation by a number of councils against the Office of the Planning Regulator, some of which has been successful. I do not want to comment on individual cases because that would be right or proper. I understand one or two may be outstanding, therefore it would not be appropriate or right on the floor to single out the particular planning authority or case. The Minister of State will be well aware of it and has been contacted by the Office of the Planning Regulator in relation to some of these issues.

The making of a development plan, as councillors see it, is a reserved function. They are absolutely right about that. Section 9 of the 2000 Act, with which we are familiar - and we are now bringing in new legislation - provides that a planning authority must make a development plan every six years; we will talk about that later. I emphasise that there are concerns about the Office of the Planning Regulator. My primary concern about the Bill relates to the proposals curtail certain rights. This Bill will reinforce the Office of the Planning Regulator, which from time to time has sought to undermine planning decisions made by elected city and county councillors in relation to their development. That is how they see it.

The Minister of State and his staff will be aware that the Association of Irish Local Government has made a number of submissions in relation to these matters. It is deeply concerned. The Bill gives me and my colleague Senator McDowell an opportunity to home in on the Office of the Planning Regulator. This not about scrapping the office; we have teed this up to give us an opportunity to make a contribution. I am interested in the Minister of State's feedback on what plans there are. The Minister for housing indicated that he had concerns or that he wished to see a strengthening of governance around the Office of the Planning Regulator. He may have; I do not know. The Minister of State may be able to share with us. There may be amendments in that regard. There are a substantial number in respect of the Office of the Planning Regulator in the plan. I touched on actions and the High Court issues relating to all of that. It is an important point. We are conscious of the need for infrastructure and for oversight of these issues.What was going on before the OPR? This was all happening in-house and being done by the Department charged with that responsibility. This is an important point to make.

There must be management of the planning systems but there must also be accountability and transparency. I refer to a situation where the OPR must contact the Minister because it is feeling a bit jittery about litigation, needs to seek advice or needs to inform the Minister that it may be exposed. In this case, who is exposed? Is it the OPR in relation to the decisions it makes or is it the Minister? As the Minister of State will know, the OPR is ultimately under the aegis of the Department. There needs to be greater clarity and understanding around all these issues.

Much of this is just about teasing out the issues and I would have expected this to have been addressed in this legislation. Councillors must be able to realise the ambitions of their city and county councils and their respective plans. No one is there to frustrate others. There are genuine concerns. I am conscious of the reasons for the OPR being established in the first place following tribunals, and this is understandable. The point I am making is that we need to home in on, and have some sort of governance structure put in place for, the OPR. It is important to be open and fair and I acknowledge the OPR has done extraordinary work, especially in regard to its liaison with city and county councillors, its programmes and its outreach. However, there needs to be greater clarity concerning the respective roles and functions of the regulator and the parent Department, namely, the Department of Housing, Local Government and Heritage. This is also an important point. The Minister of State has got the gist of what I am saying in this context so I will move on.

Turning to amendment No. 2, this is not in my name but it addresses the Aarhus Convention. What is it? As the Minister of State will know, it is really about the right to have access to justice, the right to commentary and the right to engage in all of these issues. It is an important aspect and one we should continue. The Aarhus Convention is all about access to information, public participation in decision-making and access to justice in environmental matters. It is an international agreement that considers and bestows rights on citizens, including covering rights of access to justice in case of non-compliance with environmental law, and it does much more besides. I wish to hear from the Minister of State the view of his Department and his officials on compliance in this regard. Is this Bill fully, and I emphasise the word "fully", in compliance with the Aarhus Convention international agreement? I ask this question because this is a concern and one that needs to be addressed.

We have seen that many environmental bodies are worried and concerned about this issue. As a member of the Oireachtas Joint Committee on Housing, Local Government and Heritage, this matter was raised time and again with us.

I wish to speak briefly in support of amendment No. 13. I will not go into detail on it because the proposer of the amendment will have the details and be able to talk about it later. I also support amendments Nos. 14 to 16, inclusive, because they are worthy of support and of being covered.

I draw attention to the issues highlighted as a result of the joint committee's public consultation. The joint committee's report on the Pre-Legislative Scrutiny of the Draft Planning and Development Bill 2022" states:

The Law Society of Ireland informed the Committee that rules on standing which are too narrow could deprive people of their right to seek legal review of planning decisions and delay proceedings where the new standing requirements are challenged. Consequently, questions remain regarding the interpretation and compatibility of these standing rules with the Aarhus Convention and EU Law.

[...]

...the balance of Judicial Review set out in the 2000 Act is correct regarding equivalence of treatment, constitutional justice, fair procedures, and Ireland’s obligations under international law regarding access to justice. Given the stated concerns, the Committee believes it is necessary to retain the current legislative definition of standing, interest and grounds derived from relevant case law and as defined in the Aarhus Convention.

Those were the views expressed in that context. I very much respect the witnesses who contributed and I thank them again for their engagement with the joint committee's work because it was important.

I turn next to witnesses from the Bar Council.The Bar Council made submissions. The Minister appeared at the committee and the Bar Council spoke about rights under the Aarhus Convention. In its submission, it stated:

The overarching intention of the Convention is to remove barriers and broaden access to justice on environmental issues. The Preamble to the Convention provides that the Parties are “[c]oncerned that effective judicial mechanisms should be accessible to the public, including organizations, so that its legitimate interests are protected and the law is enforced”. The Convention was ratified by Ireland in June 2012,1 with elements adopted into EU law via Directives 2003/4/EC and 2003/35/EC.

The Bar Council also made the following interesting point:

EU law requires – in summary - that Member States ensure that concerned members of the public who have a sufficient interest or whose rights are affected have access to an independent review procedure before a court of law or tribunal in relation to matters affecting the environment. While law gives significant discretion to Ireland with respect to procedural requirements, those procedures “... shall provide adequate and effective remedies ... and be fair, equitable, timely and not prohibitively expensive.” It further provides that the Parties “shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.”

These are key elements of what we are talking about today.

The Association of Irish Local Government, AILG, made a number of detailed submissions and raised concerns. It believes the office of the planning regulator could potentially curtail its reserve functions. I am here to make a case for the AILG. Quite simply, I made a commitment to the AILG and I am honouring it. Its members indicated they believe it may affect their reserve functions in respect of city and county developments. They talk about concerns about a number of recommendations by the Office of the Planning Regulator. That is it.

There is a lot in that but the important point is that we need clarity on the Aarhus Convention and the role of the Office of the Planning Regulator. We need a fully understood, consistent and transparent structure for the relationship between that office and the Department. We need greater clarity on circumstances where the Office of the Planning Regulator has a concern about a planning authority and that planning authority decides to mandate litigation. Should that litigation be taken against the planning regulator or the Minister? We need stronger arrangements to be put in place for the overall governance of the Office of the Planning Regulator. I understand the Minister is considering establishing a board, but we need to hear that.

There is nothing personal in this about any member of the staff. I acknowledge the enormous amount of work they have done. This is about strengthening the Office of the Planning Regulator. This craftily worded amendment gave us an opportunity to prioritise this as an issue to be raised today.