Alice-Mary Higgins (Independent) | Oireachtas source

Amendment No. 26 seeks to include a change in use of an artistic or cultural premises to a primarily retail or commercial purpose, among the listed items. On page 44, there is a list of the kinds of development that are exempted. I have spoken in general about my very serious concerns regarding these exempted developments because it is not clear how wide or extensive this may be in terms of forms of development that are going to be bypassing what we would normally regard as the proper planning process.

In terms of the amendment and its insertion between lines 8 and 9, the Bill at line 9 refers to "premises used for retail purposes, a change in use from a prescribed retail purpose to another prescribed retail purpose". I wanted to include an amendment dealing with situations where an artistic or cultural premises is changed to a primarily retail or commercial purpose. Actually, I am going to bracket that and set it aside because I am not happy with it as it is currently worded.

Amendment No. 27 speaks to one of the core issues that the Aarhus Convention compliance committee has raised with Ireland. It provides that "where an environmental impact assessment or appropriate assessment has not been required under any such enactment, but the activity may have a significant impact on the environment, public participation has been provided for prior to the authorisation or permitting of the activity." This refers back to the same issue that came up relating to the section that the Aarhus committee recognised as being non-compliant. Again, it is really important to say for the record that this is not a matter of opinions. It is not a matter of some people thinking it is compliant and others thinking it is not. To be explicitly clear, the Aarhus compliance committee, who are the people who decide if it is compliant, have found that Ireland is non-compliant with Aarhus. Specifically, in its progress report, which was not considering whether Ireland was compliant but was examining whether Ireland had done anything to address the fact that it was non-compliant with Aarhus, the committee was very clear that the provisions in this Bill in the chapter it was asked to examine do not make Ireland compliant. It is very important when we are speaking about this that we are really accurate because this is not a matter of opinion or a question of legal advice. The deciding body has decided and the question now is whether Ireland is doing anything to become compliant.

It is very disturbing that in his responses the Minister of State has consistently not spoken at all about any changes that the Government plans to make in order to make Ireland compliant with the Aarhus Convention. Earlier I brought up the really specific issue of commencement and the potential lacuna in the commencement of Chapter 1 under Part 9, the non-commencement of Chapter 2 and the fact that there could be a lacuna vis-à-vis provisions that currently stand in law whereby there were no rules in place regarding the costs for judicial review but the Minister of State did not address that at all in his response. There seems to be this idea that we will just keep not talking about things and keep making factually inaccurate statements about the Bill being compliant with the convention and then the problem will go away but it will not because it is a legal problem. It is a question of legal compatibility.

One of the core reasons that Ireland was found to be non-compliant with the convention was it has been applying the wrong test in respect of whether something is a matter that requires public participation, in terms of that something being environmentally significant. The test under the convention is whether a decision has the potential to have a significant impact on the environment.That is the question to be examined in considering whether public participation is required with regard to a decision, including planning decisions such as the one the Aarhus compliance committee examined, namely, the extension of permissions, or this section which deals with the kinds of developments that should be exempted from the normal planning process.

In the area of planning retention, where non-compliance was found, and in this section, the Government is applying the wrong test. It is simply asking whether it requires an environmental impact assessment or an appropriate assessment and using that as a proxy to say that if such assessments are not required, we assume that it does not have a significant environmental impact. However, an appropriate assessment is only related to special areas of conservation which may or may not be near the site. Similarly, an environmental impact assessment assesses very narrow factors. However, something can have a very significant environmental impact without having the signals that require an environmental impact assessment or appropriate assessment. The Aarhus compliance committee has already found that the need for an appropriate assessment or environmental impact assessment is not a sufficient test of whether something is a matter with significant environmental impact. We need to be able to consider other forms of significant environmental impact and other things that may happen, such as the environmental impact something may have on rivers, species and surrounding nature, and which may or may not come under an environmental impact assessment but are nonetheless factors that are significant enough that members of the public should have a say. Again, members of the public do not get a veto but they would be participants in the decision-making. This is clear under the Aarhus Convention, and the Government has again done it wrong with regard to extensions of permission. It has been found to have done it wrong by the Aarhus compliance committee and it has suggested a way to fix it that the compliance committee said does not fix it. I do not want to keep reading into the record paragraph 47 of the Aarhus compliance committee's report, but it is clear that it does not fix it.

The same kinds of mistakes are being made with regard to exempted developments whereby the Government is simply saying if it is not required to have an EIA or an appropriate assessment, the assumption will be that there is no significant impact on the environment. That is not adequate. It is not an adequate test. It does not meet the standard of the Aarhus Convention or what the Aarhus compliance committee told Ireland in relation to other provisions. It is actually worse here because with regard to the extension of permission, at least one could assume or hope that an initial planning process may have been applied and is being extended. However, in this section on exempted development much of the planning process will be skipped and the developments will be exempted from having to go through the normal process, the normal scrutiny and the appropriate and correct checks to see if they should or should not be built. Those are being short-circuited, so it is actually worse than simply retention. It is a matter of actual pure exemption and, again, the same wrong test is being applied. As a result, it is clear that the Bill allows for developments to be exempted even though they have a significant impact on the environment and that the public is to be denied the right to have proper participation in the authorisation or permitting of that activity. Amendment No. 27 is, therefore, extremely significant. It is an attempt to help the Government to avoid definite non-compliance with the Aarhus Convention in section 9. I recommend strongly that it accept the amendment, which widens the test in an appropriate way.

The Government has tabled a number of amendments on this section. I will come back to those in a moment. We have seen a move from the word "may" to "shall". At least here, where regulations will affect a State authority, it "shall" consult that State authority. They are fairly minimal.

Amendment No. 31 is crucial because it is about who can engage in terms of finding out about a declaration as to whether a development is an exempted development. There is a strange phenomenon whereby an exempted development can be built and people try to find out whether it is an illegal, horrible thing that is being built or whether it is an exempted development and someone is entitled to do so under some legislation. However, there are huge limits on who can find out whether the thing that is being built is an exempted development and who can say it is an exempted development that is circumventing the planning process or just somebody building something and not bothering with the planning process. I refer to having a proper declaration that it is an exempted development and why and on which grounds it is being exempted and allowed to be built without the normal process and without members of the public having a say in it. It is constrained as regards who gets to find out whether something is an exempted development. The person who is building it can find out. The relevant person who can find out what is happening is the "owner of the land" or the occupier of the land, that is, the person who is carrying out things on the land. It is a certain kind of company but a very constrained one "formed ... not later than one year before the making of the request concerned". The company has to have formed prior to this new development having appeared and, again, there are a number of constraints. It must have pursued objects previously, must have no fewer than ten members and must have passed various resolutions. My amendment simply provides that:

“(f) an organisation, group or association— (i) whose primary purpose, or whose constitution includes objects, which relate to the promotion of environmental protection of relevance to the request concerned, and

(ii) which shall additionally provide a simple written statement when requesting the declaration, review or referral, that it is credibly and reasonably pursuing those objectives, including in the context of a voluntary organisation.”.

That is the constrained version of my amendment. In amendments Nos. 32 and 33, I insert "any person" because any person should be able to find out of something is being built under the very wide exemption space that is created in this legislation or if it is simply being built in an arrogant way without any appropriate provision. I do not see the benefit of constraining who can get that declaration. It should be "any person", as provided for in amendments Nos. 32 and 33. If it is to be limited, however, the idea of limiting it only to companies that have already been established and that existed beforehand seems explicitly designed to disenfranchise and disempower residents' associations, local groups that may have formed because something with a significant environmental impact is going to happen in their immediate area or groups of children. We know as regards schools that children have taken actions that have been key in challenging developments that affect their lives and quality of life.There is no scope for the people who live in the places where these developments are happening to get together and be told about the structure that is being built, what they are looking at or listening to every day, what is taking all of their light away, what is polluting their immediate environment and the basis on which it is being built. At a minimum, any voluntary group, organisation or association should be able to get a declaration. It is shameful that such bodies cannot. Amendment No. 31 suggests a wider definition of “company”. Amendments Nos. 32 and 33 suggest that any person should be able to get information. This section potentially falls foul not only of the Aarhus Convention, but also of the directive on the right of access to environmental information by excluding persons from accessing such information.

Regarding amendment No. 34, in requesting a declaration setting out what is happening on land or a maritime site, the Bill is not only limited in terms of who can seek a declaration and information, but the person making the request is also required to notify the owner of the site in writing of the making of that request. Persons should only have to make reasonable attempts to notify the owners. It should not be the case that, where something is being constructed or developed on a site, the owner making himself or herself unavailable for receiving notices of declarations can be grounds for the public not getting the relevant information immediately.

In amendment No. 35, I suggest the period be three working days. There could be a crucial matter of time, so the earlier people get the information they are seeking, the better.

Amendment No. 36 is on ensuring that, when the commission gives a declaration, it should be free of charge. This is about costs not being an obstacle to access to justice or the receipt of environmental information.

There are also Government amendments in this grouping.

Amendments Nos. 37 and 38 would provide that any person could seek a declaration and ensure consistency with the acceptance of amendments Nos. 32 and 33.

Are amendments Nos. 42 to 52, inclusive, in this grouping?