Michael McDowell (Independent) | Oireachtas source

-----but there were such things inside the hall doors of most houses at one time and this could certainly keep the hall door open in a fairly substantial wind. Abridging the time for consideration of this legislation on Committee Stage is not a good idea. Even with the accelerated procedures for clearing the decks in respect of amendments for Report Stage, which are a concession because it was originally planned to steamroll this whole Bill through before the summer vacation, the Bill is not receiving adequate consideration in this House. The Members of this House have been confronted with a Bill coming from the Dáil, which, to anyone, is frightening in size.Even insofar as it is a consolidation of existing planning law rather than new measures, it does not purport to be a consolidation Bill and, on the face of it, does not allow time for us to reconsider what elements of existing planning law are good, bad or need revision. We are being asked to consider this in the lump, so to speak, with very limited time resources made available to us and a false sense of urgency about it.

I fully accept the general principle the Attorney General recently argued for, namely, that housing is the priority and unreasonable obstacles to the implementation of housing policies, composed of the availability of judicial review and the like, and the unbridled access to judicial review by people who have the most tenuous interests in the matters under consideration, need the attention of these Houses. I accept that proposition. I am not arguing for the unbridled right of the need to object to something in County Wicklow or vice versa. Nobody is suggesting that is a legitimate state of affairs. I have seen cases involving people I know who applied for planning permission for a house in Blackrock who were opposed by somebody who lived at least five miles away in Dublin, with no visible or sensible connection to the development at all. That is before we get to all the controversies about people who are objecting on a commercial basis to planning applications and are using the existing structures to exact financial settlements from would-be developers. I fully accept all of that is wrong and must be remedied. These Houses owe themselves and the Irish people a duty to remedy those matters.

This Bill will effectively be a consolidation measure wrapped up with small amendments. There is a separate procedure in the Houses of the Oireachtas for consolidation laws, which is that they go through an accelerated process whereby, on certification that they are a consolidating measure, they are given a green light rather than a full line-by-line examination. It would have been more appropriate for the Minister to bring in an amending Bill where it would be clear what was new and what was old. He should have justified that and then said, "By the way, once this Bill is passed, we will enact a consolidating measure, but you can focus in the meantime on what is proposed to be changed here."

Having said that, the amendment we are now concerned with is one on which I take a slightly different view than my colleague Senator Boyhan. The Office of the Planning Regulator is something I regard with considerable suspicion. The reason for that is its origin and genesis. It originally came into being on foot of dissatisfaction with the powers, and the manner in which they were exercised, of local authority members as considered by various tribunals. Again, it is a legitimate cause of concern that there was an opportunity for abuse of the system simply by virtue of the fact that would-be developers and would-be landowners were in a position to influence the zoning, dezoning or deviation from zoning activities of county councillors in a manner that attracted allegations of corruption and, in some cases, proof of actual corruption. That was scandalous. I accept something had to be done about that but I do not accept the proposition that what we have ended up with, in the form of the Office of the Planning Regulator, is the solution to that problem.I ask this House to remember, in particular, that we did amend our Constitution to introduce an Article 28A dealing with the whole area of local government. We did this because, at European level, it was pointed out that the Irish local government system was not at all considered by the Constitution save in one respect alone, that is, the right to nominate candidates for the office of President. Apart from that, I do not think local authorities featured at all in the 1937 Constitution up to the enactment of Article 28A. What was done regarding Article 28A looked plausible on the surface but was in fact largely illusory because it establishes at constitutional level the obligation of the State to have an effective system of local government and, at the same time, completely takes away from that right – a right vested, presumably, in the people whose communities are affected by local government – any power to determine what issues do and do not fall exclusively within the remit of local authorities. Article 28A is a blank cheque to the Legislature to take from or grant unto local authorities particular powers that may have profound effects on local communities.

It is in this context that I consider Article 28A to be somewhat fraudulent. No local authority really could ever litigate on the extent of its powers or the legitimacy of proposed legislative deprivation of its powers or functions under the Constitution because the terms of the article simply state the functions to be carried out by local authorities shall be those enacted by law. Therefore, no local authority can say what its exclusive business is or say to central government that something is for the local authority alone to decide. It is not for it alone to decide. Local authority members now have reserved functions to adopt development plans. I will come back to that shortly, if I can. I intend to be brief on this and am not in any sense filibustering, but I am articulating a view that I passionately hold. Local authority members have the right to determine the development plan for their local authority area, and this process requires publication, public consultation, revision and the like. The members of the public in Dublin city, Wexford or wherever have the right to see what is being proposed by their local authority members and the decisions they are about to make, and the right to comment on these, object to them, support them, vary them or whatever. That process is set out in an elaborate fashion but what happens then is that the role of the planning executive of every local authority is made central to the process of developing a local authority development plan. The local executive is given massive power in generating the proposals and also onerous duties relating to that by planning law. Duties are imposed on the local authority as a whole to conform to certain national criteria such as the ones mentioned by Senator Boyhan, including in respect of infrastructure and a national spatial strategy. While many of these are legitimate aims to impose on a local authority that wishes to consider adopting a development plan with a lifetime of so many years, a new body, the Office of the Planning Regulator, has come on the scene that is supposedly independent of the Minister but that has a most complex relationship with the Minister and effectively marks a local authority's homework.I had experience on one occasion, and I think I can speak about it without breaking any professional rules, of a decision by local authority members in one local authority to authorise a variation of the local development plan to facilitate the building of a housing estate outside a developing town on the periphery of Dublin. The question that they ran into was that under guidelines issued by the Minister, the idea of sequential development was established as a criterion for granting or refusing planning permission or for making or not making decisions to vary the local authority's draft development plan. What happened in that context was that in that particular town there was land closer to the centre which could have been built on to provide housing but by the same token that land was not, for one reason or another, being developed. The local authority was not compulsorily purchasing that land but was saying to a person who was on the periphery of the town that his or her scheme could not be approved because there was available alternative land closer to the centre of the town which he or she did not own and which the owners did not propose to develop.

When one considers that problem, one then comes across the function and role of the Office of the Planning Regulator which said that such a variation of the draft plan was illegitimate because it violated the principle of sequential building out from the centre of the town, regardless of the fact that the lands which were being held up as more worthy of development were not going to be developed, in the opinion of the local authority members.

I noticed recently that there was a property in Monkstown in Dublin with 12 acres attached to it. It was a single private house in what would be considered a prime residential area. If I own that house but have no intention of developing it, even if I am taxed for failure to do so, the fact that I am not developing it is a rather odd reason to refuse somebody else in Dún Laoghaire-Rathdown who is further out or at a greater distance from population centres, the right to develop his or her property or to deprive the councillors of Dún Laoghaire-Rathdown the right to rezone or fail to dezone lands for residential development.

The example I gave earlier came to the courts in the context of the local authority wanting to vary the draft development plan for this particular conurbation in a particular way so as to ensure that the land would be developed and that open space to be provided for local clubs and the like would be taken up but the Office of the Planning Regulator said it violated the principle I mentioned earlier of sequential development. Therefore, it was either entirely premature or excluded, having regard to ministerial directives.We have, therefore, a situation whereby the planning executive officers in the local authority, who know the situation on the ground and appreciate the likely demand for housing in an area, and in that case in particular with reference to outdated demographics for the greater Dublin and surrounding area legislation, are told by the Office of the Planning Regulator to refuse to implement the amendment to the development plan that they wanted to make in the interests of their own community. I have since come across many other examples across the country where county councils have been told that housing density should be used at a rate per acre that involves the building of duplexes in areas where there is no demand for such accommodation. That is demanded and imposed on a local authority because the housing density to be achieved under ministerial directives is not going to be achieved with lower density or different forms of housing estates. That is another example. In that case too, the Planning Regulator comes on the scene and tells an entire county council that it must conform with planning densities as determined by the Minister nationally to make a valid development plan, to vary the existing plan or even to propose a variation to the draft development plan as drafted by the local authority's planning department.

We then come to the question of what the Department of housing has done with regard to all of this. I do not withdraw for one minute what I am on the record as saying and it is not meant as a slur on any of the individual public servants in that Department. However, that Department has been a grotesque failure in meeting the housing needs of this country. We had a situation until the early 2000s whereby local authorities had a statutory duty under the Housing Acts to provide sufficient housing in their areas to satisfy anticipated local needs. That statutory duty was abolished and we have instead a much more relaxed system which does not compel, for example, Dublin City Council to assess how many people in its area require housing and to do something about supplying it, whether through compulsory purchase orders, CPOs, joint schemes or whatever other approach. That duty no longer exists because at the time it was considered too onerous.

The Office of the Planning Regulator was conceived in the Department of housing. It started as a proposal generated in response to the planning tribunals and has grown, even on the most rose-tinted view, to subvert totally the rights of local government in the context of the non-guarantees of Article 28A of the Constitution. It is in that context that I say the following. The Minister for housing is put in a very embarrassing position. If the Planning Regulator takes one view of the legitimacy or otherwise of a development plan, a proposal to vary a development plan or a proposal to vary the draft of a development plan, and the regulator issues a direction along those lines, what happens then? Unless the Minister is willing to come to the Houses of the Oireachtas and vote down the view of the Planning Regulator, it stands. The office effectively vetoes planning decisions by local authorities and the Minister either has to table a resolution in the Houses of the Oireachtas rejecting the decision of his or her own Planning Regulator or else it is deemed to be effective and binding on everybody, including the Minister, the elected members of the local authority and the unelected executive of the local authority.What has happened in Ireland to local government is that we have created a prefecture of chief executives who used to be called county managers and city managers that is selected by an inner sanctum. It is not clear how it happens but as far as I can see, they all end up self-selecting to some extent. The process is far from transparent. The powers of local executive management compared with the powers of elected members are hugely tilted in favour of the executive, headed by a person appointed by the Department of housing in the last analysis. It is all very well to have a directly-elected mayor in Limerick-----