Alice-Mary Higgins (Independent)

I have a number of key concerns on the Bill and the context in which they sit. I feel there is also an element of us having been here before in the shocking announcement that was just made of the intention to add last-minute major and substantial amendments, changes in our planning laws put in at the very last minute just before a recess, and to ram it through without proper democratic oversight. This is a pattern that was exhibited by the previous Government, particularly in the area of planning.

I will go through and highlight some of the specific issues in this Bill. Section 16 amends section 42 of the 2000 Act. This is entirely in violation of our obligations under the Aarhus Convention. This section allows for the extension of permission for uncommenced developments of one or more houses. The key point here is what it leans on, what it is extending, which is section 42 of the 2000 Act, was found to be non-compliant with the Aarhus Convention. Again, this is not about the question of extensions but of how it is being done and the fact that it is being done without giving any rights to public participation or input or any reflection on how situations may have changed. Even environmental factors may have changed over what can, in some cases, be a very long period of time.

Section 42 the 2000 Act was reviewed by the compliance committee of the Aarhus Convention. To be clear, the Aarhus Convention is not an aspirational document or something that we have signed up to in a general sense as a goal for the State. The Aarhus Convention is legislation. It is law and it is legally binding. Ireland is committed to it and has signed up to it. The compliance committee of the Aarhus Convention has previously clearly found that section 42 of the 2000 Act was not compliant with the Aarhus Convention in failing to consider the obligation of public participation requirements when updating or revisiting a consent. This is required under Article 6.10 of that convention.

The amendments to section 16 will compound those issues because they are going to extend again the context in which this flawed section will be relied on. Again, this was highlighted when the 2024 planning Bill was coming through. I heard it multiple times in the Chamber. It is a pity to now again read the text that came from that. Clearly the Aarhus Convention has said that section 42 of the 2000 Act was found to be non-compliant. The Government claimed that the changes it would make in Chapter 5, Part 4 of the 2024 Bill would address those concerns in relation to compliance. Then the compliance committee of the Aarhus Convention, the people whose job it is to determine this, literally published a report in which they said, "In the light of the above considerations, the Committee does not consider that, if enacted in their current form, proposed sections 133 and 135(2)(b) and (d) of the Planning and Development Bill 2023 would fulfil the requirements of paragraph 4 (a)(i) of decision VII/8i." Basically it was found to be non-compliant and found to be in breach of the Aarhus Convention. Then a couple of measures were produced in the planning Bill last year which the Government claimed would address it. During that time and prior to that Bill going through these Houses, the compliance committee had already looked at these draft proposals and said this would not fix it and that we would will still be non-compliant if we brought forward the legislation in this form. I raised this at the time and made it very clear. I read those concerns during the course of that 2024 debate. I was told that the Attorney General was working hard on it and would come up something to address the concerns of the compliance committee. Instead of addressing the concerns of the compliance committee the Government is now looking to lean even more on that original flawed element of the original Bill, which, as we have been told, was not fixed by the 2024 Bill, and have even more things happen under it. We have even more decisions that are happening in a way that is not going to be compliant with the Aarhus Convention.

This is wrong. It is wrong in the context of the law and our legal obligations but it is also really wrong given the simple things that were asked for, which were appropriate mechanisms for public participation and some engagement with the public, in recognition that if five or ten years have passed, sometimes an environmental context has changed - sadly environmental contexts are changing quite rapidly at the moment - and that the public may have concerns and should have the right to be concerned about something that is going ahead. Maybe a new local development plan has happened during that period of time. Maybe it needs to be considered as well by the councillors and what they have put in and signed off on needs to be included. A lot can have happened and the idea of public participation was meant to ensure that it would be reflected. This is the issue with section 16 of the Bill.

At the moment the threshold being granted is provided as "the development will be completed within a reasonable time". This is the language for the proposed provision. It is incredibly vague and is likely to cause issues. There is no requirement to justify the delay. Even the original section 42 of the 2000 Act had what were called the NAMA clauses with the requirement to say why development was not done and what happened. Now we have "completed within a reasonable time" and there is no requirement to justify why it is reasonable or what has to happen and so forth. Developers are being rewarded for sitting on development permissions, for no good reason in many cases, allowing them to squeeze supply and drive up prices.

Section 13 also has concerns that are similar in relation to this. It suspends consents that are subject to judicial review. This allows for a de facto extension of duration of permission. Again the problem is that such a time period can be very long. The issues there are not related to individuals taking judicial reviews but to the huge delays we have in the courts system.We also still have a narrative, which it is important to puncture, that it is terrible what all these judicial reviews and objectors have stopped. We heard from Senator Boyhan that they account for a tiny portion of the 50,000 planning permissions that exist. There are very few cases where delays are caused by planning. In most cases it is developers sitting on planning permission and not using it. Crucially, on those judicial reviews, 40% of them are taken by developers, so 40% of those terrible judicial reviews are being taken by developers who literally are saying "we have put in something, the Planning Authority has found it violates the planning laws and not given us permission, but we are going to push on." I think of all the ire that was directed at every local residents association in terms of judicial review, yet it is often the developers who are delaying things because they are greedy and want more in some instances.

There is a lacuna. The lacuna has been addressed around which section will commence at which point in terms of costs. I highlighted that gap when the 2024 legislation was coming through. It should have been fixed then rather than now. What is really unacceptable, and it tags onto that, are these proposals for a €35,000 limit, a ceiling in terms of what environmental objectors and others will be able to do. This is not in the Bill but it is what is proposed and it is cap so that developers, with their bottomless pockets, can take any judicial review they want and those who are bringing concerns as a citizen will effectively be capped in what they can get.

The idea of bringing in lower standards for apartments at the last minute is an insult to the public, not just in terms of democracy but in terms of basic decency with respect to how we expect people to live. These are situations where there is already planning permission. It is not addressing any actual problem. It is addressing a situation where investors say they would like more. It is rewarding those who have sought to profiteer more and have delayed using the planning permissions they have. It tells them if they hang around long enough, the Government will get desperate enough to give them whatever they want, as they have done on strategic housing development, as they did when they lowered standards previously, when they tied the hands of those who would object to developers' proposals, as they have done again and again.