Alice-Mary Higgins (Independent) | Oireachtas source

Senator McDowell referred to remarks made by way of preliminary comment. We have to have preliminary comment on the scale and size of what we are being asked to review and the absolutely inadequate time allotted to so do. We have heard the serious concern from right across the Opposition in the discussions relating to the Office of the Planning Regulator and this is part of a genuine concern in respect of democracy. The planning system is part of democracy. It is one of those fundamental areas. When I try to get people who might be jaded with politics or policy to become passionate about it, I often say these are the decisions we make about how we live together. That is all it is. It is not an esoteric thing; it is decisions we make about how we want to live together. Some of the most fundamental decisions we make about how we live together are decisions on planning and development and how the spaces we share are planned for and developed.

There are very serious concerns regarding the democracy of that process in this Bill. It sits inside a very serious concern about the lack of opportunity for this House to deliver full democratic oversight because a Bill ten times the size of a normal Bill is being put through Committee Stage in just three days. There is a fundamental issues of democracy in terms of the process for the planning Bill and there are fundamental issues of democracy within the planning Bill. Many of those issues relate to the very late section in question, which I hope we will reach. Let us be clear, however, that if we do not get to it, that will be the result of a decision made by the Government and its representatives here in the Seanad to guillotine the Bill. That was the decision made during the Order of Business this morning.There are big issues with the Office of the Planning Regulator with regard to the absolute lack of oversight, as has been mentioned, and the extraordinary interpretive powers that reach into every plan and framework. We are giving unchecked interpretive power to an individual. There is also the power to absolutely override local authorities and local development plans. We speak about democracy and local development plans, on which we will have a more lengthy discussion later, are made by people in a place about that place.

Senator Moynihan spoke about the concerns we had in the past about potential conflicts of interest. Not only do we not have a governance structure with regard to the Office of the Planning Regulator but that public official does not come under the scope of the Regulation of Lobbying Act. We will have an individual with this extraordinary power to railroad past everything who will not be regulated in terms of lobbying in the same way as other public officials. This is extraordinarily dangerous and irresponsible, particularly given the scandals we have had in the past at local authority level and, more recently, at An Bord Pleanála. I hope we will get to discuss these issues further later as I would like to support the amendment tabled by Senators Boyhan and McDowell regarding the planning regulator.

I want to make some remarks about the size of the Bill and democracy. I also want to put on the record that I am concerned about the entire premise of the Bill and the reason we are being told it is being rushed. It is so big that we could get lost in the weeds, and no doubt we will get lost in the weeds of the many poor aspects of the Bill. In many places it is poorly drafted, in other places it is dangerously drafted and in other places again, it is drafted in direct non-compliance with international law. There is a premise about the Bill that I am worried about. It is the idea that we will have a big Bill so the Government can say it did something on housing. Let us be clear that the failures on housing and on delivering housing for the people of Ireland and for all who come to live in Ireland are failures of policy. They are multiple failures of policy in many areas and I hope we will be able to discuss points on them in some detail. As for the idea of ending 12, ten or multiple years in government, as is the case with Fine Gael, by stating the problem all along was planning and doing a big Bill and of thinking people will forget it failed on housing, that should not be the case. To be clear, last year the Department of Finance found more than 100,000 planning permissions for houses that went through the system and are not being held up are not being developed and are lying dormant.

Strategic housing developments were one of the first things to be fast-tracked and rushed when I came here in 2017. The idea was that they would be fast-tracked and skipped. Four years after the system was introduced, only 30% had broken ground. Many of the cases that were taken related to strategic housing developments because they skipped the planning process. The Government short-circuited the process and bypassed local authorities. It ended up with poor decisions. The cases were decided not on the point of principle that people did not want houses but because of failures on points of law, including international law. There were poor planning decisions. The Bill will further centralise planning functions and take decisions further from local authorities and local democracy. Public confidence in An Bord Pleanála is at an all-time low under the weight of scandals, including arrests, convictions and resignations.All of these issues are not issues with the planning process or the planning legislation. These were issues arising from poor policies inserted by the last two Governments, which were effectively designed to skip bits of the planning process. They led to bad decisions that were challenged. On individuals appointed by Government, when we come to An Bord Pleanála we will see the same mechanisms of appointment that we had previously, even though there has been a re-brand on the name. We are again seeing in the Office of the Planning Regulator a clear danger - which we can flag here - being created in respect of extraordinary powers, with lack of oversight and proper accountability.

I want to go into some of my amendments. I apologise; this will be a long intervention because a number of core issues are only being addressed at this point. Maybe we will have an opportunity to address them later but they are addressed in these amendments Nos. 2 to 16, inclusive. Amendment No. 2 seeks to insert a new section into the Bill, which would effectively mirror what we previously had in section 1A of the Planning and Development Act 2000. This amendment would address the communication obligations in respect of EU directives where the Government needs to set out the legislation relied upon for the transposition of a directive into national law. Ireland has to complete its national implementation reports on the Aarhus Convention. I know on Committee Stage at the Dáil select committee, it was argued that it was specified in different sections but it is missing in others. There are sections, for example, Part 9, which, do not have clear reference to how the Aarhus Convention will be reflected. This could cause major issues with the European Commission, as it means that a de-communication of transposition is taking place, as opposed to what had been previously in place. The mechanisms for communication around EU directives on section 1A of the Planning and Development Act 2000 that were there already there, will vanish and equivalent measures are not put in place in all parts of this Bill. This will create a lacuna, which is one of the many problems here. This is why a full Committee Stage is important because it allows us to catch, straight up, mistakes - I certainly hope it is a mistake - and problems that are being created in the drafting.

Amendment No. 4 seeks to amend the definition of "State authority" in the legislation by removing the line which says that the definition is subject to section 155(8). We are concerned that the provision, as it is currently worded, would mean that within the scope of the Bill, sub-contractors would be construed to be State authorities. Section 155(8) talks about State bodies as being those that are working on behalf of the State. That is what is there and that is getting put. The next definition that we have in the Bill talks about "undertakings". The definition, by adding that line in, effectively says that those undertaking work on behalf of a State authority are a State authority. That is another dangerous ambiguity being created. It is hard to know what the rationale is for it and why it is there.

Amendment No. 6 is fixing a key issue within the definitions of "unauthorised structures", as drafted. This is a mistake that was made, or I hope it was a mistake, it is certainly a bizarre piece of drafting, which occurred in three or four places in the Bill and has been proposed to be fixed in three or four places in the Bill, but not everywhere. It is still there, where we have sought to fix it in amendment No. 6. It is still there on page 40, between lines 10 and 11. I will read this, because it is important, as it was a mistake that was in multiple places and is now still in some places, which could be quite consequential. We have a definition of "development" as being, "carried out in accordance with a licence under section 13 ... or, in respect of which a licence under section 13 is required". It is literally just inserting that it is a development in which a licence is needed but not in terms of if it has a licence.Again, that is a strange choice and it creates further ambiguities.

We are not going to go through all the technical issues in the Bill. This is just to give a sense of some of those that need teasing out. I will focus on amendment No. 10, which is crucial. It states, "The Minister shall, within three months of the passing of this Act, lay a report before both Houses of the Oireachtas outlining the specific manner in which this Act, and [crucially] any regulations or orders made thereunder, comply with the Aarhus Convention." The context is that we know that this legislation, as drafted, is not compliant with the Aarhus Convention. This alone was a reason to pause the Bill and delay Committee Stage until the autumn. The full independent review I am calling for, along with this report to be published subsequent to that, should be conducted prior to the passing of the Bill, in light of recent events. On the evening of 11 June, during the first hours of the Dáil Report Stage debate on this legislation, the Minister, Deputy Darragh O'Brien, stated, "As we said right the way through pre-legislative scrutiny, Second Stage and Committee Stage, every element of this Bill that we have worked through is Aarhus-compliant, unquestionably."

In fact, 24 hours before he made that statement about the complete and unquestionable compliance with Aarhus, Ireland had been sent a report by the Aarhus Convention compliance committee explicitly stating that Chapter 5 of Part 4 was not compliant with the convention. Ireland had been so misguided in its understanding of what the convention requires that on 11 December of last year, the Department sent a copy of that Chapter to the committee in the mistaken belief it would correct areas where Ireland had failed in the past to be compliant with the convention, relating to the crucial issues of participatory rights and permissions being changed or updated. Again, these are not technical issues. They are ones of public participation and, crucially, of people's rights to be part of the planning process.

We are not compliant with Article 6.10 of the convention, which states, "Each Party shall ensure that, when a public authority reconsiders or updates the operating conditions for an activity referred to in paragraph 1 [in terms of planning], the provisions of paragraphs 2 to 9 of this article are applied mutatis mutandis, and where appropriate." We have very few hours to debate the Bill but I am going to take a little time for this aspect because it is important. Again, 24 hours after the Government received the report stating it was not compliant, the Minister stated in the Dáil that every element of the Bill was unquestionably Aarhus-compliant. Twenty-four hours after that, Deputy Cian O'Callaghan tried to draw attention to the report and seek clarification on whether it was that the Minister had not been aware of the report or whether he was choosing to ignore and mislead in regard to it. In fact, I have to hand a copy of the report. It exists. It is a real, solid and clear report. It is not a draft report or discussion document. It is a direct, clear report that states Ireland is not compliant, written by the body that is allocated by all the parties to the Aarhus Convention to be the determining body in interpreting it, and the convention is, of course, law.Despite the matter being raised also by Deputies Bacik, Cian O'Callaghan and others, no satisfactory response has been received to clarify the Minister's comments claiming compliance, wrongly and falsely. No clarification has been received as to whether the Minister was at that point or a subsequent point aware of this or whether the Minister, Deputy Ryan, who has responsibility for the Aarhus Convention had engaged with this Cabinet colleague on this matter. In a written response on 25 June the Minister, Deputy O'Brien, indicated consultation on the matter of the report was being conducted with the Attorney General. Again, this is something the Irish Examinerreported on 19 June.

These matters are of concern because they are the context for us rushing the Bill through without clarification. It is now a month since the report from the Aarhus compliance committee. There are no amendments proposed by the Minister to address the issues the committee has identified with Chapter 5, Part 4. The legislation we are being asked to let through Committee Stage is publicly known to be incompatible with international law. The Government is not even trying to fix it on Committee Stage; it is just rushing Committee Stage. One of the decisions of the compliance committee on Chapter 5, Part 4 on why it is not compliant reflected the advice on the similar issue that arose with decision VII/8m concerning the Netherlands. The Minister, Deputy O'Brien, had previously dismissed this by saying that the Dutch system is very different from ours, but the compliance committee was clear that decision is directly relevant and applicable to Ireland. The fact the Aarhus compliance committee has highlighted that advice to the Netherlands again and again and highlighted in public consultations concerns about Ireland's approach is something that has been flagged. The highest-level interpretation has been clear to the Government and should have been clear but that does not seem to be addressed in the proposition being made to us on Committee Stage of this legislation. To suggest this was all just sprung on the Government would be to give it too easy a time, because right the way through people have been telling it there are problems with the Bill. These issues have been flagged all the way through by the Irish Environmental Network and many others.

I am coming to the last two sections on Aarhus, but it is important to set it out so we are clear about the context in which we are proceeding. The consequence when we do not get Aarhus right is not a mere technical issue. When the Bill is not compliant with the convention it is likely to lead to serious and complex litigation. It is inevitable. That will not be the fault of anybody taking litigation, but of a failure to do planning right, follow the laws correctly and legislate correctly. The litigation that will almost certainly flow from very clear and public noncompliance with international law will lead to delays and cases being taken. These cases are completely avoidable if we get the legislation right. It will affect the delivery of homes and critical climate State infrastructure, it will lead to uncertainty for investors and increased costs and it will increase the burden and difficulties within our courts. It is worth reflecting on the opening paragraph of the Supreme Court judgment on the Heather Hill case, where Mr. Justice Brian Murray provided a salutary reflection on the extent of litigation generated to clarify just one issue, namely, costs not being "prohibitively expensive". This was under the previous legislation. Over a decade there were "... at least thirty-five reserved judgments of the High Court, four decisions of the Court of Appeal, three references to the Court of Justice of the European Union, one judgment of that Court ... and, now, this ... [ruling]".That issue has effectively been resolved to a point where it is now operating. That was on one aspect of public participation and access to justice.

When we talk about some of the issues on access to justice, the Bill makes changes not only around the prohibitive cost issue on access to justice, but also around the standing of who can take cases, around the scope, and around what kind of effective remedies are or are not available. These are like almost the pillars of access to justice. They are non-prohibitive cost; that people have access in terms of standing to take the cases; that the scope is appropriate; and that the remedies are appropriate. All of those issues are being dealt with in ways that are problematic in this Bill and that have been flagged by many across civil society and, indeed, politically.

The potential risk is further compounded by the deficit in planning resources among planning authorities throughout the country and An Bord Pleanála. There are many resources issues. I will not go further into them here, but that is one of the issues. We cannot table amendments relating to the failure of resources but many of the problems with planning come down to a failure in resources. Of course, amendments by Senators in that respect will be ruled out of order.

It is expedient to ensure the courts can act in a co-operative, complementary and supportive way to the planning system. It is good to have errors caught and addressed quickly and effectively. Instead, the Bill will burden the courts with a range of further entirely avoidable issues around Aarhus compliance. It is a bit like an analogy that somebody suggested to me, which is interesting, of knowing that you are going on a very dangerous journey in a vehicle which you know not to be roadworthy with many passengers on board while also putting your accident and emergency department out of action. It is basically reckless in that context.

On the Aarhus Convention, I come to the last section where I detailed the specific aspects of the convention for this legislation that would need to be addressed in the report I am calling for in my amendment. The Aarhus Convention is responsible for a range of information, participation and access to justice rights. It drives many of the requirements in the planning system, in particular, the procedural rights, which are the tools the public rely on in terms of their public participation and their right to be heard on decisions that affect them.

We have also ratified this convention in full. We have no opt-outs or carve-outs. Many of its obligations come to us also as a function of EU membership. Not only is Ireland a full signatory to the Aarhus Convention - we are talking not about an aspirational document but about a law - but the EU is a signatory to the convention and many of the provisions in the convention are also translated into individual EU directives and reflected in them. When Ireland becomes non-compliant in respect of issues in this regard or when decisions are made through a poorly designed process that is non-compliant, it will not only be out of step with the convention but in many cases out of step with EU law that reflects the convention.

I will take a quick whistle-stop tour of some of the problems. Part 9 throws up issues regarding the standing of individuals, groups and environmental NGOs. It also throws up issues relating to the scope of the review, the adequacy of remedies, the fairness and the equity of the proceedings, a crucial issue I missed in my previous listing, the appropriateness of costs and the implications of removing the leave stage requirements in terms of injunctive relief, that is, the measures that would allow an injunction where that is necessary and relief on the costs of injunction. This is on top of a range of other requirements across the Bill around information and participation, not only on activities and development but across a range of plans and policies. This is, of course, putting aside the fundamental failure within the Bill of properly providing for public participation under it as a whole under Article 8 of the convention, including in circumstances where the Government's attempt to pretend consultation may have already happened through a planning advisory forum.Again, this is an attempt to short-circuit or have a proxy for proper public participation and reminds me of the idea whereby "We will put one worker on the board but it will not be a union member", or something of that nature. It is kind of having pretend representation if we have a planning advisory forum. It absolutely is useful in terms of making good planning proposals, but it is not an adequate substitute for public participatory rights. Multiple members of those forums have been unusually united in their view that the Bill bears no resemblance to the matters discussed by the planning advisory forum and that there was no meaningful consultation or discussion on the Bill with them. To be very clear, not only is the planning advisory forum an adequate substitute for public consultation and participation but members of that advisory forum themselves have been explicitly clear that the Bill does not reflect anything they have been asked to discuss and that they have not been meaningfully consulted.

We have been afforded the benefit of a timely warning that all is not well. The further concerns are that the Minister is seeking extraordinary discretion around the commencement of the legislation, which given the many concerns and problems needs to be managed and looked at in terms of those commencement measures. The reports relating to compliance with the Bill in terms of regulations and orders made under it should be laid, and this is a major issue we will come to later. It is my final amendment in this grouping. There are real concerns that many of the regulations and orders made under this Bill will not go through a proper review process in the Oireachtas.

I wish to flag another serious concern about the major change in section 4 whereby most regulations made under it will not, as was the case with those made under the 2000 Act, require the approval of both Houses of the Oireachtas. That is a huge sliding back in the context of democracy. Instead of having approval of the regulations under this section, they will simply be laid before the Houses. The Houses will have to mobilise in order to seek to annul them but will not have the opportunity to discuss or impact them in any way.

There are many directions and orders provided for under this Bill which have policy implications, including appointments and removals and regarding a large number of plans in respect of which the Aarhus Convention should play a key role, and that should be specified.

There are too many points to list, but I have four really quick ones that I wish to make. I may bring forward Report Stage amendments in respect of all the issues to which I am referring here.

Part 2 of the Bill relates to policy decisions on exemptions and what exemptions mean for participation that we normally assign to planning. There are changes to those permissions and concerns about licensing under section 13.

Part 3 gives rise to problems regarding the framework of plans, policies and directions and the failure to see the provisions of the Aarhus Convention properly reflected in those.

There are major issues with Part 4 in the context of development consents where the core framework for our environmental decision-making is set out and which must be compliant with EU law and the Aarhus Convention. This is also the case with Part 6 and the concerns around environmental assessments as they are approached there.

Part 7 also gives rise to issues in terms of the Aarhus Convention in the context of policy, the Acts and decisions relating to the housing strategy.

Part 8 contains a range of diverse provisions in respect of taking in charge, control and protections for the environment including the issues of tree protection orders and special amenity area orders.

Part 17 relates to An Comisiún Pleanála. There are serious concerns regarding the policy matters prescribed to it by the Minister and extraordinary, excessive discretion for the Minister with regard to appointments, removals and extent of potential political interference provided for in what should be an independent body. There seems tor be a lack of learning from the issues that arose in respect of An Bord Pleanála.

Part 18 relates to the Office of the Planning Regulator, which others have spoken about. This is one of the most extraordinary poolings of power into a body that is unaccountable, not properly regulated in terms of governance and not even subject to lobbying laws. This is centralisation of power in a way that will lead to problems.That concludes that amendment and speaking to that report. I am sorry it is quite lengthy but it is because the Bill is riddled with issues related to the Aarhus Convention. We should not even be having this discussion before the summer is completed. The Government should take the entire summer to go through the Bill section by section and find out exactly how it can be made genuinely compliant with Aarhus. That does not mean a Minister saying it is compliant; it means actually being compliant. This Bill should come to us on Committee Stage in the autumn with a pile of amendments from the Government fixing and addressing the issues. Given how important the legislation is, that is where we should be.

Amendment No. 11 seeks to delete the phrase "or expedient" from section 4(2). As drafted, the subsection allows for the regulations the Minister might make. People talked about the Office of the Planning Regulator and I am concerned about overreach in that regard but there is also a huge amount of overreach of powers for the Minister throughout this Bill. In this section, the Minister can make regulations on any matter with any incidental supplementary, consequential or other provisions that seem to be necessary or expedient. Surely "necessary" is the basic bar, that you would make regulations you think are necessary. They are very sweeping powers. Expedient simply means I want to make the regulation quickly. That in itself is the justification for making them, that you want to do it quickly. Expedient is not an appropriate bar. Bear in mind, every time we in the two Houses of the Oireachtas are asked to give a Minister the power to make regulations, no Minister just has the power to just make regulations. They are given the power to make regulations. Usually, in legislation, they say they should be given the power to make regulations for a reason or about a thing. Here, however, we are being asked to just give the Minister the power to make regulations whenever he thinks it would be handy or quick to do so. That is not an appropriate request to make of the Oireachtas. It is not an appropriate bar. How about necessary and expedient, if that is what is wanted? To have this wording as drafted as the bar is not appropriate. It is a lower bar. Will the Minister of State say why "necessary" is not sufficient and the choice was made to use the word "expedient"?

Amendment No. 12 seeks to insert a new subsection in section 4 which would require that the Minister would establish a list of prescribed bodies and consult them on the making of regulations in respect of heritage. These are all around the Minister's quite wide powers to make regulations. In the amendment, the Minister would set out a list of prescribed bodies and then, as appropriate, consult those required bodies - not all of them - connected with or related to the matters concerning the regulations and provide them with an opportunity to comment and participate. The Minister would still reserve the power under our amendment but it states the Minister would at least listen to and take due account of input from relevant prescribed bodies which have expertise in the areas in which the Minister is making regulations. These are the prescribed bodies the Minister himself sets out. It is areas like environmental protection, protection of built heritage and archaeological and historical or cultural heritage. There are expert bodies in these areas in the State which the Minister should at least consult or get input from when making regulations that address things like built heritage, artistic and cultural heritage and so forth. It should include organisations to do with heritage and culture, both built and natural.

Amendment No. 13 inserts a new subsection into section 4 which requires that the Minister would facilitate effective public participation at an appropriate stage concerning these regulations, while options are still open during the preparation of regulations which may have a significant effect on the environment.This proposed amendment goes back directly to the Aarhus Convention. It proposes that if the Minister is making regulations that will have a significant impact in relation to the environment, there should be a public consultation on those regulations. This is again something required by Article 8 of the Aarhus Convention.

Amendment No. 14 seeks to insert a new subsection into section 4 that would specify a number of areas where regulations arise and specify they would require resolutions of both Houses of the Oireachtas in terms of the order to be made. This would mean that where regulations were made in respect of these particularly important areas, it would be done through the previous system whereby the approval of both Houses of the Oireachtas would arise. It would not have any effect on the interim things. We have seen issues arise when regulations are done poorly. For example, the provisions of the Airbnb statutory instruments had to be deactivated after they had been commenced because of failures in setting out the regulations properly. I am absolutely in favour of the regulation of Airbnb, but a statutory instrument done in a problematic way defeats the purpose.

I am not going to list all the areas where I think the current system should apply because it is a long one. To mention just a few that are crucial, these include regulations in relation to an coimisiún pleanála, the Office of the Planning Regulator, the powers of planning authorities, environmental assessment, development consents, plans, policies and related matters, strategic development zones and urban development zones. These are just some of the areas where the regulations will be significantly impactful and consequential and a proper process of scrutiny should be applied. In those cases, I suggest the draft of the regulations should be laid before both Houses and the regulations should not be made until a resolution of both Houses has been passed.

Amendment No. 15 seeks the deletion of section 4(6). I may submit a slightly different amendment because I may have included an extra line or two in this one. I may introduce a narrower and more focused version of this amendment on Report Stage. Section 4(6), which I am trying to address, is states:

If, in any respect, any difficulty arises in bringing any provision of this Act into operation or in relation to the operation of any such provision, the Minister may, by regulations, do anything which appears to him or her to be necessary or expedient for removing that difficulty.

This is another very sweeping power for the Minister to have if it turns out there are problems with any area of the Bill. I can tell the House now there are going to be problems with many areas and provisions of the legislation because it will not be properly and fully scrutinised. We know this and I have signalled some of the problems. It is not good enough to state the Minister will deal with these issues by regulations according to how he thinks it is "necessary or expedient". That is problematic.

Amendment No. 16 belongs to someone else and I will yield the floor.