Michael McDowell (Independent) | Oireachtas source

I intend moving amendment No. 70 in my name which is to remove a reference.

I want to say a few words about this Bill. I fully recognise that the former Attorney General, Mr. Paul Gallagher SC, embarked on a massive task in seeking to consolidate planning law and to update it in the manner that this Bill provides. It was a project which he took personal interest in. It is impressive in its size but I have to say that I have come to the conclusion in looking at the Bill itself that this is not a step in the right direction. It is a step in the wrong direction. For many reasons, I believe that to be the case. Senator Higgins referred to the national planning strategy and the national planning statement and I look at these provisions of this Bill and the central function that is given to the Office of the Planning Regulator in relation to the enforcement of those instruments of national planning policy with some degree of scepticism and, I have to say, a growing sense of horror.We are now ignoring our solemn international obligations under the Council of Europe's treaty to do with local government. Ireland amended its Constitution by putting in Article 28A to recognise at a constitutional level the whole principle of local government, and it did so on foot of an international treaty obligation that this State voluntarily undertook, to accord constitutional, real and substantial status to local democracy. I judge this Bill, and in particular the position of the Office of the Planning Regulator, by reference to whether the spirit of that European charter on local government – to which we have re-signed up - is being met or not being met. I remind the House of the concept of local government. First of all, each adherent said that "The principle of local self-government shall be recognised in domestic legislation, and where practical in the constitution." We did it. We put it into the Constitution that there would be constitutional recognition. The concept of local government was then stated to be the following:

Local self-government denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population.

The charter also states:

This right shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and which may possess executive organs responsible to them. This provision shall in no way affect recourse to assemblies of citizens, referendums or any other form of direct citizen participation where it is permitted by statute.

The charter then speaks of the scope of local self-government:

The basic powers and responsibilities of local authorities shall be prescribed by the constitution or by statute. However, this provision shall not prevent the attribution to local authorities of powers and responsibilities for specific purposes in accordance with the law. [...] Local authorities shall, within the limits of the law, have full discretion to exercise their initiative with regard to any matter which is not excluded from their competence nor assigned to any other authority.

That is the point. We have internationally said that we are giving local authorities full discretion. At the same time, you look at this Bill and you say that nearly every bit of it is a detraction from local discretion. Nearly every single bit of it is a step back towards centralised oversight and administration of local government.

Senator Higgins referred to the provision of section 25 on national planning statements. As I understand it, national planning statements are intended to replace what used to be ministerial guidelines. There was a considerable volume of High Court decisions, interestingly enough, relating to ministerial guidelines, which were expressed at the time they were originally introduced as being matters to which local authorities should have regard when they were making decisions. That was the principle of it but it has slowly transformed into directives, effectively, dressed up as national planning statements. The Minister is being given a power under section 25 of this Bill when it is made into law, to lay down national policies on planning matters to support proper planning and sustainable development and guidance as to the implementation of them, and to publish these on a website. That is fine if you want guidelines, and you really are leaving discretion under them with local authorities. However, this is where I really have to express fear, we then go on to establish the consequences of, for instance, national planning statements, what happens and what their effect actually is. If you look at section 36 you find that the Office of the Planning Regulator has extraordinary powers to effectively inquire as to whether decisions being made in the planning realm by local authorities comply with ministerial planning statements, and to require the effective cancellation, by direction, of aberrant local authority planning decisions and practices on the basis that they are not consistent with ministerial statements. We have a national spatial strategy adopted by the Government in its entirety, but we have what used to be planning guidelines now rechristened as national planning statements, which are policed by the Office of the Planning Regulator, and which in effect are made mandatory for local authorities. I saw a number of planning decisions where the court said the old guidelines were things to which planning authorities had to have regard, but they were not bound by them. However, the Department twisted the screw by successive legislative measures to make sure that "having regard to", actually now meant obeying ministerial guidelines and not contravening them. What we are doing here is putting into law this provision for the Office of the Planning Regulator to effectively police the activities of local authorities and throughout this Bill to assess virtually everything that is done, like regional planning and local authority development plans. Everything is assessable by reference to national planning statements, which are emanations of the Minister for the time being, published on websites. The worry I have, is that through the Office of the Planning Regulator, we are dragging back from local authorities the tiny areas of discretion enjoyed by them at the moment.

The European charter says that the executive in local authorities is answerable and responsible to the elected members. Well, that is true up to a point, but is untrue in substance. In many respects the local authorities are not really in command of their executive. They can get answers from it and it that sense you can say it is responsible. However, in so many areas they cannot direct anything in particular to be done by the planning executive. I draw the House's attention to what we are doing with the Office of the Planning Regulator. In section 499, we say that, "The Planning Regulator shall, subject to this Part, be independent in the performance of his or her functions." That sounds good. Here is a person who is supposed to be independent. A lot of this flows from the decisions of the tribunals, which were concerned about corruption in local government and the potential for corruption of elected members in relation to zoning matters and the like.The outcome of the various tribunals suggested that there had to be some kind of policing of the manner in which planning decisions were made by members of local authorities. I have no problem about accountability or ferreting out corruption but it does not seem this should mean an independent officer effectively taking over the role of micromanaging and supervising the manner in which local authorities carry out their functions. Having stated the Office of the Planning Regulator is to be independent, Members should note thatsection 504(3) provides "The Office shall, in performing its functions, have regard to - (a) the policies and objectives for the time being of the Government (including National Planning Statements)". Consequently, it is not simply that national planning statements are the only thing the Office of the Planning Regulator is supposed to have regard to in carrying out its functions, as day-to-day policy statements by the Government are to be matters to which the Planning Regulator has to pay attention. Then you ask yourself, what is left of this charter of local government? What is left of the principle we all apparently signed up to in the 1980s, and amended our Constitution to recognise, whereby we would give the maximum devolution of self-determination to elected bodies as provided for in the manner that I mentioned if in the end, the Government's policy can trump virtually anything? Why are we doing that?

My rooted objection to what we are doing with the Office of the Planning Regulator is that it is effectively the enforcement agency for a one-size-fits-all policy across this island. I am aware in the planning statements and planning guidelines this Bill envisages being brought about that there will be differentiation between urban areas and rural areas but I do not believe the planning requirements of Galway County Council, for example, or the planning issues faced there are the same as those in Kildare. Kildare now has a huge population. It is a massive population and it is part of the greater Dublin conurbation for many purposes though not for all. Across rural Ireland, depopulation is gathering pace. Local GAA clubs are losing members and they cannot field teams. Local institutions, shops, banks, facilities and Garda stations are melting away like snow on a ditch. It strikes me that were I a Galway county councillor, I would not want to be bound by ministerial planning statements on housing densities and issues of that kind, which may well be suitable for some parts of the country and may well not be suitable for others. I am aware there is a provision for regional diversity but even within the regions there is such a massive diversity, for instance between rural Wicklow and Bray there is such a huge divergence, in what local planning requires.

I have tabled a whole pile of amendments - and I do not apologise for doing so - objecting to the references in this legislation to the Office of the Planning Regulator because I believe we are strategically making a significant blunder in this legislation. With regard to the office, once one is appointed to it, and it has to be on foot of a competition run by the Public Appointments Service, one cannot be removed from the office except for stated misbehaviour. Subject to these very strange provisions whereby one is obliged to have regard to Government policy, the Planning Regulator is effectively being put in the place almost of the Director of Public Prosecutions. In case people think I am exaggerating, there is provision in section 508 and remaining sections for the OPR to send reports to An Garda Síochána and to the Standards in Public Office Commission and the like to supervise the actual complaints in relation to the day-to-day activities of local authorities.

I ask myself whether we are enacting a law that is increasing the power of the Department, coupled with this office of planning regulation, and decreasing the discretions and the devolved freedom to determine what local government requires, which is implicit in the Council of Europe charter that we signed up to and to which we gave nominal obeisance by including Article 28A of our Constitution.

I admire the determination of the former Attorney General and of those people who think the time has come for a major change in planning law to stop some of the nonsense that has the protection of bats put so high when compared with the housing of people. I can tell Members that people have found bats in parts of Dublin that they never knew there were bats in before.