Seanad debates

Thursday, 17 December 2020

Planning and Development, and Residential Tenancies, Bill 2020: [Seanad Bill amended by the Dáil] Report and Final Stages

 

12:30 pm

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 148, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. For the convenience of Senators, I have arranged for the printing and circulation of those amendments. The Minister will deal separately with the subject matter of each related group of amendments.Senators have tabled several amendments arising from changes made to the Bill by the Dáil. In view of the number of amendments and to avoid repetition of debate, I propose that amendments made by the Dáil and related amendments tabled by Senators will be debated together in related groups. Decisions on the amendments tabled by Senators will be taken when discussion on all groups of amendments has concluded. I have also circulated proposed groupings to the House. A Senator may contribute only once on each grouping. I remind Senators that the only matters that may be discussed are the subject matter of each group of amendments made by the Dáil and the tabled amendments which arise out of the amendments made by the Dáil.

Question proposed: "That the Bill be received for final consideration."

Photo of Darragh O'BrienDarragh O'Brien (Dublin Fingal, Fianna Fail)
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Gabhaim buíochas leis na Seanadóirí. Táim lán-sásta a bheith ar ais sa Seanad inniu.

This is an important Bill, which I initiated in the Seanad. I was grateful for the co-operation of colleagues in allowing this Bill to pass the Dáil without dissent yesterday evening, following protracted discussions and debate. This legislation is about strengthening the protections for tenants which we introduced in July of this year and which took effect from 1 August. These protections have worked and are working. The Bill also deals with Covid-19 matters, planning and the issue of substitute consent, which has become acute. Ireland remains subject to fines for non-compliance with the orders of the Court of Justice of the European Union pertaining to the Derrybrien wind farm. This is the first opportunity to deal with the matter of substitute consent in line with the advice of the Attorney General so that An Bord Pleanála can move forward. It does not define An Bord Pleanála's decision. So far we have paid a lump sum of €5 million, with another €2.475 million due. If this is dealt with and wrapped up by the middle of next year, the State will probably be liable for between €12 million and €15 million. I thank the Leas-Chathaoirleach for allowing me to give some context.

I will now report on group 1 of the amendments passed by the Dáil, that is, amendments Nos. 1 to 9, inclusive, and amendment No. 18. I am grateful for the opportunity to return to this House with the Planning and Development, and Residential Tenancies, Bill 2020, as amended by the Dáil. There have been several amendments to the Bill since it passed Committee Stage in the Seanad. Some are substantial in nature and some are technical.

Amendments Nos. 1 to 9, inclusive, are of a technical nature and concern changes made to the Title, definitions and citations. I will quickly explain them because it is important that the reasons for them are on the record of the House.

Amendments Nos. 1 and 2 are supplementary drafting amendments made to the preamble and the Long Title to reflect the Dáil amendments. For example, recitals have been provided to set out the policy context in which the temporary and limited restrictions on landlords' constitutionally protected property rights contained in Part 3 can be legally justified as a fair, proportionate and rational State intervention to achieve an important overriding objective for the social common good.

Amendment No. 3 provides for updates to the Short Title, citations and commencement of the Bill to reflect the insertion of urgent planning and residential tenancies amendments, some of which I brought to the House on Committee Stage. The Bill is now known as the Planning and Development, and Residential Tenancies Bill 2020. Part 3, entitled "Residential Tenancies", will commence on 11 January 2021. This must be passed this week so that those protections will automatically kick in on 11 January when the Dáil and Seanad will not be sitting.

Amendment No. 4 amends the Bill's definitions so that the new Parts 2 and 3, which amend the Planning and Development Act 2000 and the Residential Tenancies Act 2004, respectively, provide their own definitions for the purposes of those parts. The definitions, therefore, for general application to the Bill itself are as follows; "Act of 2020" means the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 and "Covid-19" has the meaning assigned to it by the Emergency Measures in the Public Interest (Covid-19) Act 2020.

Amendment No. 5 provides for an amendment to the Planning and Development Act 2000, as set out in Part 2, entitled "Planning and Development". The amendment provides that for the purposes of Part 2, the "Act of 2000" means the Planning and Development Act 2000.

Amendment No. 6 replaces a reference to the "Principal Act" in section 4 with "Act of 2000". That section amends section 11 of the Act of 2000, which concerns the holding of public meetings for the purposes of proposed development plans.

Amendments Nos. 7 and 8 are technical drafting amendments to reflect amendment No. 4, which provides the definitions of the "Act of 2020" as Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 and "Covid-19" as the meaning assigned to it by the Emergency Measures in the Public Interest (Covid-19) Act 2020 and is of general applicability to the Bill itself. The definitions in section 4 as passed on Committee Stage are now superfluous as a result of amendment No. 4 and are to be deleted.

Amendment No. 9 is supplementary to amendment No. 5, and replaces a previous reference to the "Principal Act" with "Act of 2000".

Amendment No. 18 inserts a new section 13 to provide for necessary technical amendments to the Residential Tenancies Act 2004 which are consequential to the introduction of Part 3 of the Bill.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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I thank the Minister. Before calling the first Senator, I note that he said that the amendments in group 1 pertain to the Title, preamble, definitions and citations. They include amendments Nos. 1 to 9, inclusive, and amendment No. 18.

Róisín Garvey (Green Party)
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Did the Minister mention an amendment to section 11(3)(b) of the Planning and Development Act 2000, concerning public meetings?

Photo of Darragh O'BrienDarragh O'Brien (Dublin Fingal, Fianna Fail)
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We are dealing with group 1, amendments Nos. 1 to 9, inclusive, and amendment No. 18. These amendments have been passed by the Dáil. We are not dealing with Senators' amendments yet.

Róisín Garvey (Green Party)
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I am not sure when I will get to speak. My notes say we are dealing with section 11, but it is actually section 4.

Photo of Darragh O'BrienDarragh O'Brien (Dublin Fingal, Fianna Fail)
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I will explain. This Bill was introduced in the Seanad and has been amended in the Dáil. I have to report to the Seanad on the Dáil amendments. Group 1 includes amendments Nos. 1 to 9, inclusive, and amendment No. 18. These are not the Senators' amendments, but those passed by the Dáil. They are all pretty technical and concern matters such as changes to the Title. The Seanad amendments are listed elsewhere.

Rebecca Moynihan (Labour)
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I do not wish to discuss these amendments, but I would like some clarity on what we are working on. We were given a Bill as amended by the Dáil. The Minister has now spoken to the amendments. Are we working off the Bill that was sent to us as amended?

Rebecca Moynihan (Labour)
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I thank the Leas-Chathaoirleach.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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We now move to the amendments in group 2, which pertain to planning and development and substitute consent. The Minister will discuss the subject matter of amendments Nos. 10 to 12, inclusive, and Seanad Report Stage amendment No. 1.I hope that is clear and I ask the Minister to address this group of amendments.

Photo of Darragh O'BrienDarragh O'Brien (Dublin Fingal, Fianna Fail)
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This grouping, group 2, deals with three Government amendments passed by the Dáil, which I must read into the record here. There is an Opposition amendment within the grouping from Senator Warfield, namely, amendment No. 1.

The Planning and Development Act 2000 and regulations were amended following a 2008 decision by the Court of Justice for the European Union, CJEU, in the case C-215/06, known as the Derrybrien wind farm case. This CJEU case necessitated a ban on granting retention planning permission for developments requiring environmental impact assessment, EIA, except in exceptional circumstances, to avoid the circumventing of any environmental assessment obligations under the EIA directive. In this context, Part XA of the Planning and Development Act came into operation with effect from 21 September 2011, providing for a procedure known as substitute consent, that is, a process for the regularisation of certain developments in exceptional circumstances, which had not undergone the necessary environmental assessments, by allowing such developments to undergo a retrospective EIA or appropriate assessment under the habitats directive, to address any environmental effects of the development. Substitute consent is generally a two-stage process requiring either a direction to apply from a planning authority, or a first stage leave to apply for substitute consent from An Bord Pleanála followed by the making of a second stage application for substitute consent to the board.

Leave to apply to the board for substitute consent is set out in sections 177C and 177D of the Planning and Development Act and can be sought on the basis of two distinct grounds, the first requiring that the board must consider whether an existing planning permission is legally defective in some way, for example, by virtue of being judged so by a court by reason of omission or error in the environmental impact assessment report or Natura impact statement, or both, or any error of fact, law or procedure. The second ground requires the board to consider whether exceptional circumstances exist such that the board considers it appropriate to permit the opportunity for regularisation by allowing a substitute consent application to be made. Where the board is satisfied that either of those grounds exists, it directs the applicant to submit an application for substitute consent.

The existing criteria for the board’s consideration of exceptional circumstances are outlined in section 177D(2) of the Planning and Development Act and include: whether regularisation would circumvent the environmental impact assessment directive or the habitats directive; whether the applicant reasonably could have believed that the development was authorised; whether the ability to carry out an environmental assessment of the development impacts, and public participation in such an assessment has been substantially impaired; the actual or likely significant effects on the environment or adverse effects on the integrity of a European site resulting from the carrying out or continuation of the development; the extent to which significant effects on the environment or adverse effects on the integrity of a European site can be remediated; whether the applicant has complied with previous planning permission granted or has previously carried out unauthorised development; and such other matters as the board considers relevant.

In order to the comply with the findings of the Supreme Court judgment of 1 July 2020, it is necessary to amend the substitute consent provisions at Part XA of the Act of 2000 to provide, first, that exceptional circumstances must be considered by the board in the substantive or second stage application for substitute consent at section 177K of the Planning and Development Act, and second, that public participation is facilitated, where required, with respect to the consideration of exceptional circumstances, as well as on the wider application. Specifically, amendments are required to ensure that any new applications for substitute consent must demonstrate exceptional circumstances and, in turn, the board must be satisfied that such circumstances exist while also complying with the existing public participation requirements of sections 177K and 177H of the Planning and Development Act and as prescribed by regulations under section 177N. In the case of existing applications pending before the board, the exceptionality test is similarly applied in respect of any grant or refusal, while also ensuring that a further round of public consultation is facilitated in respect of these applications on hand to ensure the public is given the opportunity to comment on the existence of exceptional circumstances or not, as may be the case.

In this context, amendment No. 10 inserts a new section 6 into the Bill to amend section 177E of the Planning and Development Act concerning the content of applications for substitute consent. This amendment enables an applicant for substitute consent to submit with his or her application any other documents that the applicant considers would be of assistance to the board in making a decision in relation to his or her application. This is to allow the applicant the opportunity to furnish material to support his or her case with regard to exceptionality circumstances, which previously would only have been required at the leave stage of the process.

Amendment No. 11 puts a new section 7 into the Bill to amend section 177H(1) of the Planning and Development Act, which currently provides that any person other than the applicant for substitute consent or a planning authority may make submissions or observations in writing to the board in relation to an application for substitute consent, to clarify that this includes submissions or observations regarding the existence or absence of exceptional circumstances justifying a grant of substitute consent.

Amendment No. 12 inserts a new section 8 into the Bill to amend section 177K(1) of the Planning and Development Act to provide that the board may, subject to new restrictions set out at subsection (1A), grant or refuse an application for substitute consent. These new restrictions on the board’s decision-making powers in respect of substitute consent applications under the new subsection (1A) are that the board is both precluded from granting substitute consent where it is not satisfied that exceptional circumstances justifying a grant exist, and that when making its decision, the board is not bound or permitted to take account of, or have regard to, any decision it made at a previous leave stage as to the existence of exceptional circumstances. The exceptionality test at section 177D(2) which I previously outlined will apply for the purposes of this consideration. Furthermore, a member, including the chairperson of the board, will now be precluded from being involved in a decision to grant substitute consent where he or she had been involved in the decision on a previous leave stage in respect of that development.

New subsection (1B) provides that the restrictions set out in subsection (1A) apply to both new applications for substitute consent made to the board and, importantly, existing applications on hand in the board pending decision. New subsection (1C) concerns the submission of further information to the board by the applicant in respect of applications for substitute consent on hand upon commencement of these new requirements in Part XA of the Planning and Development Act. Paragraph (a) requires the board to invite the applicant to submit information to the board, within a specified period, that he or she considers relevant for the purposes of the board satisfying itself as to the existence of exceptional circumstances. The making of this invitation by the board is mandatory but the applicant is not obliged to provide such information where he or she does not deem it necessary. In contrast, paragraph (b) gives the board discretion to make a request of further information from the applicant concerning the existence of exceptional circumstances, notwithstanding that further information may have been previously requested. Under paragraph (c) where the applicant fails to comply with such a request, the application shall be deemed to be withdrawn. New subsection 1D facilitates additional public consultation in respect of applicants for substitute consent on hand in the board, which will now include consideration of exceptional circumstance. In this regard, notwithstanding that any or all of these things may have been done in respect of the application for substitute consent previously, the board must require the applicant to publish an additional newspaper notice, including advertising any additional information submitted under subsection 1C. The board must also make the application for substitute consent, including any additional information submitted, available for inspection at its offices and online on its website. It must also give notice of the application, including any further information to the prescribed bodies required to be notified of such applications. It must, furthermore, give a copy of any further information received in accordance with subsection 1C to the relevant planning authority. The planning authority will have previously been given a copy of the application itself upon receipt by the board, and request the planning authority to consider that information, as part of its report, be submitted under section 177I on the application, including the relevant environmental reports, which shall include amending that report, where required. The planning authority is given an additional five weeks to do so. The board must require the applicant to give additional site notices of the application, copies of which must be submitted to the board.

New subsection 1E requires an applicant to comply with any requirement of the board under subsection 1D. Similarly, new sections 1F and 1G places an obligation on the relevant planning authority to comply with any request of the board, and to enter details of any further information it receives from the board into the planning register.

Subsection 1H requires that the board must consider submissions or observations made, including any made arising from the further round of public consultation, facilitated under subsection 1D, in making its decision, which it only may do after it is carried out the public consultation steps in subsection 1 D, and where the applicant and planning authority concerned have complied with any requests. Under subsection 1I the board is given discretion to extend the timeframe within which a planning authority is required to submit its report and application.

I have dealt with amendments Nos. 10 to 12, inclusive, which were the Government amendments that were made in the Dáil yesterday evening. In this grouping is also Opposition amendment No. 1 that was tabled by Senators Warfield, Ó Donnghaile, Gavan and Boylan. I shall, if I could, respond to the amendment as part of this grouping.

Amendment No. 1 to section 8 of the Bill, as passed by the Dáil, and jointly tabled by the Senators that I have mentioned, seeks to insert provisions into section 177K(1)(d), which would require the board, in the case of applications pending before the board upon such commencement, to make available online all information considered by the board, in making a decision, to grant or refuse leave to apply for substitute consent.

Under section 177D, all information considered by a planning authority, under section 177B or section 261A(3), at the notice stage giving rise to a direction to the applicant to make the application for substitute consent, any information received from the local authority, under section 177K(1)(d)(e), and any public consultation shall not commence until the information referred to in this subsection is available online. The consultation period, provided for the public and prescribed bodies, shall not be less than eight weeks.

I cannot accept this amendment as the new subsection 177K(1)(d) sufficiently provides for the making available online, and at the offices of the board, any information relevant to a decision being made under this section in respect of applications pending before the board upon such commencement. In addition, supplementary and consequential amendments to the Planning and Development Act 2001 will be introduced concurrently with the commencement of these amendments to Part XA to set out in finer detail of this further round of public consultation to facilitate the consideration of exceptionality of substitute consent applications already on hand in the board. This will largely mirror the existing public consultation provisions set out in Part 19 of those regulations with some modification. In this context, it is my intention that the public will be given five weeks to make submissions or observations concerning the application for substitute consent, including their opinion as to whether exceptional circumstances exist or not, and that those who have previously made submissions and observations on the application, when it was originally made, will be notified by the board. As I have previously set out, the board is required under section 1H to consider these further submissions and observations before granting or refusing substitute consent. Having regard to new section 1A, it is precluded from granting substitute consent where it is not satisfied that exceptional circumstances exist.

Furthermore, such an amendment, as tabled by the Senators, would run contrary to the insertion of subsection 1A in section 177K. Section 177K(1)(a) specifically precludes the board from granting substitute consent unless it is satisfied that exceptional circumstances exist that would justify the grant of such consent. Also, when making its decision, the board will not be bound by or permitted to take account of, or have regard to, any decision it made at a previous leave stage, under section 177D, as to the existence of exceptional circumstance.

Subsection 1AC will also preclude a member, including the chairperson of the board, from being involved in a decision to grant substitute consent where he or she has been involved in the decision on a previous leave stage, under section 177D, in respect of that development.

In respect of the report submitted by a planning authority to the board, pursuant to section 177K(1)(d)(e), and in accordance with section 177I, updates to reports made by local authorities, under section 177K(1)(d)(e), are not made available to the public as part of the public notice and the consultation process under 1D. Such reports comprise opinions of a consultative body, which body is not in itself a decision-maker in the process. The decision-maker being the board. This is a standard procedure throughout the planning system whereby consultative bodies are invited to provide their views, alongside the views of the public, for consideration by the decision-maker, which obviously in this case is the board. Such reports, alongside the submissions of the public form part of the deliberative process whereby the decision-maker takes account of all of these opinions and concerns.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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Am I right in saying that we have two hours to debate the Bill?

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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No, we have three hours.

(Interruptions).

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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We will proceed. I do not think that we will have a problem in that department.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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Senator Warfield, without interruption.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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Amendment No. 1 is necessary because the State has failed over many years to properly legislate for the substitute consent process and ensure what are, effectively, retrospective environmental impact assessments have enough community input and scrutiny as a fresh one carried out today. The cost of not bothering to do this has brought misery to the community of Derrybrien and many others. Ultimately, the taxpayer will end up paying €15 million in fines that the European Union levied against Ireland by the end of the year.

The amendment, which the Minister has read out in full, gives the public and affected communities a say at all stages of the substitute consent process. It also allows access to all of documentation and evidence submitted by applicants at earlier stages. The cost of not doing this has led to significant fines by the European Union.This amendment ensures that we have as much community input and scrutiny in those applications as any application that would be carried out today.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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I wish to point out that it was agreed on the Order of Business this morning that this debate would last for three hours. It began at 3.10 p.m. and will finish at 6.10 p.m. That is to give clarity on the timing in response to Senator Warfield's reasonable query in that regard.

We will now move on to group 3, residential tenancies - tenant declaration, the subject matter of Dáil amendments Nos. 13 and 14 and Seanad Report Stage amendments No. 2 and Nos. 4 to 8, inclusive. I invite the Minister to deal with group 3.

Photo of Darragh O'BrienDarragh O'Brien (Dublin Fingal, Fianna Fail)
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When will Senators vote on the amendments?

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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The voting will take place later. We are addressing the groups of amendments first. We will discuss the groups first and then we will have a voting process, at which point Senators have the option of pressing their amendments and so forth.

Photo of Darragh O'BrienDarragh O'Brien (Dublin Fingal, Fianna Fail)
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I will abide by the Leas-Chathaoirleach's ruling. The amendments are not being moved as we go along.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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No, not at this stage.

Photo of Darragh O'BrienDarragh O'Brien (Dublin Fingal, Fianna Fail)
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They will all be moved later. That is fine.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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I invite the Minister to address group 3.

Photo of Darragh O'BrienDarragh O'Brien (Dublin Fingal, Fianna Fail)
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I will do so but I wish to respond to Senator Warfield briefly first. I will not be accepting his amendment for the reasons outlined already. I know that Senator Warfield agrees that it is imperative that we deal with the issue of substitute consent. As Minister, I have used the first opportunity presented to me, which is this Bill, to try to deal with the issue as expeditiously as possible. My aim is to ensure that the State does not continue to be liable for daily fines into the distant future. It is still going to take time to fully resolve this because by resolving the substitute consent issue, we are not telling the board what to do but are just allowing it to move on and make its decisions. As Members will be aware, we are incurring fines of €15,000 per day in relation to the Derrybrien site. We have already made a lump sum payment of €5 million and another stage payment of almost €2.5 million. The continuation of this is not something that any of us can countenance which is why I am using this opportunity to rectify the situation and to allow the board to move on. I will not be accepting the amendment tabled by the Sinn Féin Senators.

I will now address group 3, which consists of amendments Nos. 13 and 14 and Seanad Report Stage amendments No. 2 and Nos. 4 to 8, inclusive. Amendment No. 13 inserts a new section 9 into the Bill to provide for the interpretation of Part 3 and defines the emergency period to mean the period from 11 January 2021 to 12 April 2021. This is effectively a further extension of the protection period provided for in the Residential Tenancies and Valuation Act 2020. This means that the protections introduced in March will have lasted for more than a year. As I said to Senators previously, if I feel that we need to come back and do more, I will do so. Indeed, we have done that twice already. We also have the permanent protections, should the State have to go back into level 5 restrictions although we all hope that will not happen. If it does, however, the blanket ban on evictions will automatically come back into play on foot of the decision made by the Dáil and Seanad a number of months ago.

Amendment No.14 inserts section 10 into the Bill, which sets out that the new Part 3 protections shall apply where a tenant makes the necessary written declaration that he or she is unable to pay the rent due to Covid-19 and is at risk of losing his or her tenancy and at the same time serves a notice on the Residential Tenancies Board, RTB, requesting assistance to obtain advice from the Money Advice & Budgeting Service, MABS and within five days of making his or her declaration, serves a notice on his or her landlord seeking consultation to make arrangements to pay rent due. The new Part 3 applies to tenants who have made a declaration under the Residential Tenancies and Valuation Act 2020, subject to certain conditions.

I cannot accept Opposition amendment No. 2 to amendment No. 13, which proposes to increase the new emergency period under Part 3 from three months to a total of five months ending on 12 June 2021. This is in line with advice from the Attorney General. The Government seeks to limit as much as possible its interference with the constitutionality of protected property rights of property owners. We must balance these rights with protections for tenants. It is the hope of the Government that the situation for tenants will have improved by 12 April so there will be no need for the provisions contained in Part 3. As I have said previously, and the Government's bona fides have been proven in this regard, should we need to revisit this at the appropriate time and provide for a further proportionate extension, I will do so. I have already done so twice this year. Covid-19 has brought much uncertainty and we will need to continue to work together between now and April to protect tenants and wider society and we will do so, post that date, if required. We might need to review the situation closer to April and will do so if necessary.

Opposition amendment No. 4 relates to section 10 of the Bill. I cannot accept this amendment to Government amendment No.14, which proposes to delete the requirement for a tenant to be a "relevant person" as defined in subsection (6) of the new section 10 and replace it with "he or she anticipates falling into rent arrears in the near future". The definition of "relevant person" in this Bill is modelled on the definition contained in the Residential Tenancies and Valuation Act 2020, which was passed in the Houses in late July. It was accepted then that the law needed to clearly set out which tenants in rent arrears are considered vulnerable due to Covid-19 and in need of enhanced tenancy protections. The updated definition in this Bill is the Government's assessment of which tenants need most help. We aim to protect tenants whose finances, through no fault of their own, have been negatively impacted by Covid-19, causing rent arrears and putting them at risk of losing their tenancy. State assistance is available to support rent payments through the emergency rent supplement scheme. Again, I urge and encourage those who have difficulty paying their rent to access that scheme. It might take some tenants longer than others to access the income supports that are available and these are the tenants we wish to protect in the short term under Part 3. The protections in Part 3 are quite rightly targeted at those tenants who need them the most. These protections have been working. If a tenant falls into arrears as a result of Covid-19 and is at risk of losing a tenancy, he or she can make a declaration under the July Act before 10 January or under Part 3 of this Bill from 11 January onwards.

I cannot accept amendment No. 5 to Government amendment No. 14. The text of subsection (3) of section 10 of the Bill has been carefully considered from a policy and legal perspective. The law needs to be strong and robust. The tenant declaration is the key to activating the protections under this Bill and a false or misleading declaration in a material respect is a serious matter, whether that be made by a landlord or a tenant. The provision for an offence is required to counter any temptation for anyone who has not been financially impacted by Covid-19 to wilfully withhold rent due and avoid a lawful rent increase while fraudulently relying on protections under Part 3. One would imagine that this would happen in only a very small minority of cases but I do not think anyone in this House would support the wilful withholding of rent. We must remember that approximately 86% of landlords own only one or two properties. There are two parties to every tenancy. We must consider the interests of both the tenant and the property owner. The issue is balancing that, and this Bill and the extension to the provisions we introduced in July do that. I am satisfied that section 8(3) is appropriately drafted and I cannot accept the amendment. A tenant has nothing to fear if he or she makes a truthful application or declaration. The declarations that have been made have been accepted and I repeat that there have been no issues with regard to any reports of false or misleading declarations. The provision ensures that the declarations are robust. If there is a doubt, the RTB is available to help tenants and all relevant documentation will be on its website. We further resourced the RTB in the budget with more financial and physical resources to assist it in carrying out its duties under the additional responsibilities we have given it.

I cannot accept amendments Nos. 6 and 7 to the Government amendment. In the context of the three-month emergency period and the assistance that will be available from the RTB in providing the necessary declarations and notices on its website, it is reasonable to require a tenant in rent arrears who makes a declaration to be protected under Part 3 also to serve that notice. The notice is simply advising the landlord within five days of the declaration, to request that he or she consults to try to deal with any rent arrears issues. That can help resolve it. We should remember that less than 2% of tenancies end up in any type of dispute. In the vast majority of cases these measures will not apply, but we must have the protections in place. The tenant is also required to serve the landlord with a true copy of his or her declaration to the RTB to be protected under Part 3. Again, we have had no issues with this. The landlord will be expecting to hear from the tenant with regard to paying the rent. The requirement here is simply to serve the notice on the landlord within five days to seek a consultation on making rent payment arrangements. It is not a requirement that the agreement be made within those five days. It is simply to make contact, and that is reasonable.

In practice, the RTB website will provide a template for the tenant declaration, in duplicate for serving to the RTB and the landlord, and a notice for the tenant to request the RTB's assistance in obtaining the advice of MABS. The Act passed in July tied MABS into this resolution process. It is a permanent fixture and is one that all have welcomed. There is also a notice for the tenant to request the landlord to consult on a rent payment arrangement. The RTB will make it as easy as possible for tenants. Rather than waiting for the five days, it is more likely a tenant will deal with the requirements under Part 3 at the same time as making his or her declaration to the RTB. Certainly, we aim to assist tenants to do so. The RTB will be writing to all tenants who have made a declaration under the Residential Tenancies and Valuation Act 2020 to outline precisely what steps they should take if they need the protections under Part 3 to continue to next April.

The Bill is scheduled for early enactment. The five-day window for those protected under the Residential Tenancies and Valuation Act 2020 to fulfil requirements under Part 3 of the Bill, if not already fulfilled, does not commence until 11 January 2021. The RTB advises that, up to the end of November, 328 tenants have made the necessary declaration to become protected under the Residential Tenancies and Valuation Act 2020. The RTB will have adequate time to assist these tenants to fulfil any new requirements by midnight, 15 January 2021. The provisions seek to ensure that tenants act in a timely manner by engaging with State supports, and that will help in that regard, and with their landlord to resolve any rent arrears issues at the earliest juncture. It is in everyone's interests to do so. We do not want to have a needless accumulation of rent arrears, an issue that has been discussed both here and in the Dáil. We are helping tenants to pay their rents, and rightly so. Landlords, as well, should not go without lawful rental income or with it being withheld. Covid-19 has impacted on both tenants and property owners.

I cannot accept amendment No. 8 to Government amendment No. 14. In line with advice from the Office of the Attorney General, the Government seeks to limit as much as possible the interference with constitutional property rights. Tenants who fall within the definition of the relevant person and are at risk of losing their tenancies can avail of the new Part 3 protections. For a tenant other than a tenant already protected under the Residential Tenancies and Valuation Act 2020 to be a relevant person under Part 3, it means he or she is unable to comply with his or her obligations to pay rent due in respect of a tenancy because he or she is, or at any stage between 1 August 2020 and 12 April 2021, in receipt of or entitled to receive illness benefit for Covid-19 absence or in receipt of or entitled to receive the temporary wage subsidy or any other social welfare payment or State support paid as a result of loss of earnings due to Covid-19. That includes rent supplement or supplementary welfare allowance.

This is an updated definition only in respect of the period of time in question for eligibility. A relevant person under the Residential Tenancies and Valuation Act 2020 must be in receipt of, or entitled to receive, the aforementioned State payments between 9 March 2020 and 10 January 2021. The person does not have to have been receiving it, just entitled to receive it. Many tenants will qualify for protections under both this Bill and the Residential Tenancies and Valuation Act 2020, subject to certain conditions. There is still time for any tenant who wishes to be protected under the Act to make an application by 10 January 2021. Any tenant who has been in receipt of the aforementioned State payments during the period from 9 March 2020 to 31 July 2020 has had a great deal of time to make necessary arrangements to be protected under the Residential Tenancies and Valuation Act 2020. There is still time to make that simple self-declaration should anybody not have done so. These new protections are carefully targeted at those tenants who are most affected by the Covid-19 pandemic, and rightly so.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I will speak on amendments Nos. 2, 4 and 6 to 8, inclusive. I have a few comments in response to the Minister's contribution. He says that less than 2% of tenancies end in dispute. I wonder if that is because there are options open to the landlord if he or she wants the tenancy to come to an end, be it to end the tenancy on the basis of a family member moving in or on the basis of selling the property, which is not always the case. The Minister also said that there are two parties to every tenancy. That is true, but one is more vulnerable than the other. One of the parties is also maintaining a home, contributing to the community and creating a sense of place in that community. That is not being reflected in the current situation.

We should also remember that we are discussing a very bureaucratic procedure. That is evident in how technical the Minister's contributions are. There are 299,000 renters in the State. Am I right that approximately 400 people have made declarations with regard to what we are discussing today? There are 299,000 renters, but it is not a great place to be at times. I have friends who do not hear from the landlord and who would never approach their landlord, even about structural ageing of the house. The attitude is not to mention it or say anything, and that if they do not hear from the landlord, he or she will not hear from them. It is a vulnerable place to be. I believe this is quite a bureaucratic process and that should be put on the record.

In all the amendments, we are discussing limited and narrow protections for which only 400 renters have applied. Was the Minister disappointed with the uptake and does he not think more could have been done by way of an information campaign? We want these people to continue to be protected. With over 299,000 renters in the State, we welcome any extension in these limited protections, but the Government could have gone further. Our amendments simply seek to extend further the period of the same protections that we criticised as narrow and weak when they were introduced in August.

John Cummins (Fine Gael)
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The Minister has outlined the protections for tenants in great detail.He referred to the time sensitivity of same give that the residential protections under the Residential Tenancies and Valuation Act 2020 will expire on 10 January. I take issue with Senator Warfield's comment that the vulnerability is one-sided. It is not always the case that only tenants can be vulnerable. We also have landlords who are in negative equity or may have lost their jobs and have no income. The Minister was correct that the aim here is to find a balance between both. That is what governments and states must do because we cannot have a proper functioning rental market without landlords. Of course, tenants need protection. The Government has protected tenants during the Covid-19 pandemic. Twice, it has not been found wanting when it put legislation protecting tenants' rights before the House. As the Minister said, if it is necessary to extend these beyond 12 April, as has been identified, he will come before the House with further protections. I accept his bona fides and share his optimism and hope that those circumstances will not arise and that the vaccine roll-outs will see the end of Covid-19.

Rebecca Moynihan (Labour)
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I am disappointed that the amendments, which are not far-reaching, are not being accepted. I refer, in particular, to the proposal to substitute five days with 28 days. We are asking people in vulnerable tenancies in the middle of a pandemic, just after Christmas, to register their tenancy as being in financial arrears and engage with MABS, which, as Senator Warfield said, involves going through a bureaucratic process at that stage. It is not unreasonable to extend the period to 28 days. People have contacted me who, for whatever reason, be it being overwhelmed or losing their job, have not managed to make their declarations within the specific time period and are in the process of being evicted.

I will also touch on something Senator Cummins said. This is the third time we have discussed residential tenancies since I was elected to this House in March. I keep hearing about the need for balance and reminders that 86% of landlords have one or two-person tenancies. Tenants living in rental property are the most vulnerable. We know the highest rates of people who enter homelessness come from the private rental sector. We, on this side of the House, are asking for balance but it must be in favour of tenants' rights. Tenants are not left with a capital asset at the end of a tenancy. It is their home. As Senator Warfield said, they are contributing to communities. I have heard more often in this House about the plight of landlords than I have about the plight of tenants.

I ask the Minister to provide information on a couple of technical points. If somebody has previously registered a tenancy under this Act, must they do anything within the five-day period or will their registration be automatically carried over? From our interpretation and reading of the Bill, it is not clear whether tenants must engage with MABS at that stage and must re-register the tenancy as being in danger within five days of 11 October. I would like some clarity around that.

Mary Seery Kearney (Fine Gael)
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This amendment and legislation are good news. This is a good news story. The reason one finds Government Senators addressing the plight of landlords is generally because the Government is advancing legislation which advances rights for tenants. As a consequence, the Opposition says it is not enough. We must stand up and say a balance needs to be struck. That is the obligation of government. We cannot just say let us have it all free or whatever. It is disingenuous to consistently speak as though nothing is being advanced by the Government that protects anybody's rights.

This is good news for two groups of people or sets of tenants. The first are the people who have already invoked the declaration and fall under its protections. They will get a letter and the opportunity to have a further extended period of protection. That they have a longer period is exceptionally good news for them. Hopefully, the economic problems and all the other factors bringing about these emergency periods will have abated by the time that period expires. We will be optimistic on that. The second group is the people who need to invoke the declaration on the RTB website. The website is not bureaucratic. The documents are laid out and easily downloadable. The officials in the Department have been exceptional in responding to our questions and concerns, such as whether the five days should be longer. We have had this discussion backwards and forwards. The document the tenant downloads has a number of parts. We are assured the new document in response to this legislation will have additional templates, as the Minister has said. One document will be available containing everything a tenant needs and the two different notifications to the landlord and the RTB can be sent in one envelope on the day. The same applies to the landlord and the tenant must furnish the landlord with the true copy of the declaration in any event.

As to the idea that people need longer, the process is being made simple. To suggest otherwise is misleading and untrue because it is straightforward. There is already an appreciation that people are in chaos. They have a horror and fear of homelessness. There is already and appreciation of that and, hence, the system has been made as straightforward and simple as possible to assist that. The documentation has been made available.

The five-day period is sufficient. We raised that as a concern. It is sufficient because tenants download the document and send it there and then. It is not that they must go off and do something else; they do not. They fill in the document there and then, put it in an envelope and send it in. No other mechanisms are required. The process is straightforward and an extended period is not needed.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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What about the-----

Mary Seery Kearney (Fine Gael)
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I believe we should debate through the Chair.

John McGahon (Fine Gael)
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The Senator should conclude.

Mary Seery Kearney (Fine Gael)
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One can do what one wishes with this but the fact is that the Bill extends protections and supports. It makes sure that vulnerable people in this difficult time have additional supports from the State. It is good legislation for which I thank the Minister.

Photo of Darragh O'BrienDarragh O'Brien (Dublin Fingal, Fianna Fail)
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I thank Senators for their responses. Senator Seery Kearny is 100% correct that this requires two pieces of paper to be downloaded. We sent out 450,000 letters and engaged in radio communications on the new tenancy rights and protections. Threshold is part of the homelessness task force, which I chair, and has met the RTB on this issue. The new system is working well.

I will quickly answer a couple of the queries because I know there are other amendments to be discussed. It is not a disappointment that only 328 people have sought protections under self-declaration. It is good that people do not feel they need to seek the protections. The protections work well because they are available.

To answer Senator Moynihan's question, if a tenant has made a declaration, he or she is covered under the current Act. That will continue into next year but that person needs to have made contact.If someone made a declaration on 1 August and has not made any contact with his or her landlord, he or she would now be required to make contact with the landlord, but there is no need to make another declaration. Right now, people have up to and including 10 January to make a declaration under the current arrangement.

I thank the officials and I thank Senator Moynihan for acknowledging the work they have done. They have done an incredible amount of work in a relatively short space of time. We have made sure that briefings have been made available for members of the joint committee and for others, including housing spokespersons such as Senator Moynihan. In addition, they have responded in writing to queries. We are trying to work collaboratively.

I am acutely aware that the Act we introduced in August did not have cross-party support and that some Members did not support it. I am genuinely pleased that Opposition Members who did not support the previous protections have now looked at what is there and are supporting the extension of the Government protections. That is a good thing. Members should please take that in the manner in which it is intended. It is a good thing, because we do need to make sure our protections are proportionate.

Reference was made to something Senator Cummins said. I think it is reasonable to acknowledge this point. There are approximately 16,000 buy-to-let mortgages in arrears. From time to time, there are instances where rents are illegally withheld. Senator Moynihan, like everybody else, knows that. It is a tiny proportion of cases and should not in any way reflect on all tenants. Likewise, it should not reflect on landlords that a small number are in dereliction of their duties to their tenants and break the law. That is why I have given the RTB more powers and resources to carry out more inspections, carry out investigations and make prosecutions where landlords breach the rights of tenants or break the law. Currently, 200 investigations are taking place. That must happen.

Ideally, the Government wants to ensure there are other supports for people. Fundamentally, that is why on Monday of this week I put out a call for cost-rental schemes for working people, which is a minimum of 25% below the market price, involving long-term leases. The first will be delivered next year. We have been talking about that for long enough. That is a new tenure under which housing will be available. The Government is going to build and deliver more than 12,750 new public homes next year. Some 9,500 of those will be new builds. It will be the single biggest delivery of public housing in any year in the history of this State. That is our ambition and it is realisable. We want to make sure people can have safe, secure and affordable homes. That includes those in the private rental sector. That is why I believe the measures we are bringing forward are proportionate. We must have regard to constitutionality and the balancing of rights. I cannot just disregard that. I know people will appreciate that.

On the question of five days versus 28 days, if there is a potential rent arrears situation it is better that it is dealt with much sooner. All of the advice I get from Threshold, MABS and others is that the sooner one can engage with a rent arrears situation, or a potential rent arrears situation, the better the chance there is of resolving it before it becomes a systemic issue. While the intentions behind a 28-day period, which is effectively another month, are obviously good, in real terms it can have the reverse effect by bedding in the arrears before we have had an opportunity to deal with them. I have covered the amendments in detail. I will not be accepting them. That is my contribution on group 3.

John McGahon (Fine Gael)
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We will move on to the group 4 amendments, which pertain to residential tenancies, the disapplication of Part 3, the subject matter of amendment No. 15 and the Seanad Report Stage amendments Nos. 9 to 17, inclusive.

Photo of Darragh O'BrienDarragh O'Brien (Dublin Fingal, Fianna Fail)
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I will address these amendments as quickly as I can. As Senator Warfield mentioned previously, the legislation we are amending is of quite a technical nature. It is important that Senators are clear on what we are doing.

Amendment No. 15 inserts section 11 into the Bill to provide for circumstances in which Part 3 shall not apply, including where a landlord makes a counter-declaration to disapply the protections because of its impact on his or her personal and financial circumstances. Like with a tenant declaration, it shall be an offence for a landlord to make a declaration that is false or misleading. Rightly so, there is a balance there.

I will now deal with amendments Nos. 9 to 17, inclusive, to Government amendment No. 15. I cannot accept amendment No. 9 to Government amendment No. 15. In line with the advices of the Office of the Attorney General, the Government seeks to limit as much as possible any interference with constitutionally protected property rights. It is considered reasonable in the context of Covid-19 that rent arrears to the value of five months' rent should be the maximum protection that should apply to a tenant. We have other emergency supports available, in particular the emergency rent supplement that is administered by the Minister for Social Protection, Deputy Humphreys. The scheme is working well. Given the significant State supports available, it is not considered fair to expose a landlord to rent arrears in excess of this amount, as it would put the property in jeopardy in many instances. I have already referred to the 16,000 buy-to-let properties in arrears. The expectation is that tenants will use the time afforded by the protections under Part 3 to work to resolve their rent arrears situation.

The enhanced protections for tenants in rent arrears first came into operation on 1 August 2020, which is less than five months ago. The enhanced State income supports were first introduced in March 2020. I encourage people to access them if they are having difficulty paying their rent. We need to be fair in the legal protections we provide. Tenants have a responsibility to resolve a rent arrears situation. They are being protected while they do so, but we cannot just ignore any situation where arrears have built up. Tenants are obliged to pay their rent and they have entered into a contract in that regard.

If a tenant has rent arrears of more than five months on 10 January, they will not be protected under Part 3. Without Part 3 of this Bill, their tenancy would have been due to terminate on 11 January, or within the 90-day termination notice period, whichever is the later. The Covid-19 rent arrears in question could have been building since March, despite the State income protections and the tenancy protections available. I do not accept that the Government can justify another three months' protection to tenants in such circumstances. I do not envisage this being a major situation anyway. I understand the reason the amendment has been tabled but, thankfully, it has not come to pass under the legislation.

I cannot accept amendments Nos. 9 to 17, inclusive, to Government amendment No. 15. The protections under the new Part 3 are conditional. Requirements are rightly being imposed on tenants to engage with State supports, and to engage with their landlords, again rightly so, to resolve their rent arrears situation. I think it is reasonable that the Part 3 protections would cease to apply to a tenant who does not co-operate with the RTB or MABS in facilitating the provision of necessary financial and budgeting advice to resolve their rent arrears. I do not understand why that would be the case. Why would someone wilfully decide not to co-operate with the assistance that was given and not to pay rent? That is not a situation any of us could reasonably stand over.

It is reasonable that protections would also apply to landlords in such circumstances. The application of Part 3 should not cause undue financial hardship to a landlord. Section 78 of the Residential Tenancies Act provides for a non-exhaustive list of disputes and complaints that can be referred to the RTB for resolution. For example, where a landlord makes a declaration to the RTB and their tenant under Part 3 of this Bill, they may then proceed to serve a notice of termination on the basis of the rent arrears. It is of course open to the tenant to refer a dispute to the RTB as to the validity of the notice of termination within 28 days. We changed that earlier this year in previous legislation to extend the period. It is more likely that the validity of any declaration made under Part 3 would be considered in the context of a dispute resolution as to the validity of a related notice of termination.

I am satisfied that subsections (4) and (6) of section 11, and section 11 in its entirety, are appropriately drafted and align with the Government's policy objectives. The law needs to be strong and robust. The criteria for landlords to make a declaration are carefully set out to provide clarity and objectivity as to the circumstances where a landlord may make such a declaration. If a landlord makes a false declaration, that is also an offence, rightly so.

I have set out in detail the circumstances in which a landlord is a "relevant person" and how the protections under Part 3 can be disapplied. We must be fair.This can only be achieved by clearly defining a "relevant person" under Part 3 in the context of a landlord or, on a similar basis, a relevant person in the context of a tenant. Both landlords and tenants need to be clear on whether this Part applies in their case. Part 3 involves a cost and we must recognise that.

John Cummins (Fine Gael)
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This is one of the areas I raised a concern about on Committee Stage in respect of the disapplication element. However, I am satisfied from what the Minister's officials told us in briefings, and what he has said just now, that the fact that it will be an offence for a landlord to make a false declaration under this is sufficient protection. Senator Moynihan will be happy to hear me say it is important that making a false declaration will be an offence for the landlord and not just for the tenant. That is right and proper and I am glad the Minister highlighted it. I believe also that five months is a reasonable period because it would call the loan or a mortgage on a particular house into question should arrears go beyond a five-month period.

The provision that one must engage with MABS is a very welcome part of this and previous legislation. As public representatives all of us have engaged with the service in our constituencies on behalf of our constituents. The work it does is fantastic. It puts plans in place across a range of issues for tenants and people in financial difficulties. It is very welcome that it is part of this legislation because without such a service we would be experiencing many more difficulties in this country. It is reasonable that people would be asked to engage with the service.

John McGahon (Fine Gael)
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Does the Minister want to come back in?

Photo of Darragh O'BrienDarragh O'Brien (Dublin Fingal, Fianna Fail)
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No. I will move to the next section if the Acting Chairman wishes.

John McGahon (Fine Gael)
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We now move to the amendments in group 5, which pertain to residential tenancies – notice of termination and prohibition on rent increases, the subject matter of amendments Nos. 16 and 17, and Seanad Report Stage amendments Nos. 18 to 24, inclusive.

Photo of Darragh O'BrienDarragh O'Brien (Dublin Fingal, Fianna Fail)
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Amendments Nos. 16 and 17 are Government amendments from the Dáil. Amendment No. 16 inserts sections 10 and 11 in the Bill. Section 10 provides that a notice of termination grounded on rent arrears and served during the emergency period shall not specify a termination date earlier than 13 April 2021 and shall give 90 days’ notice, rather than the usual 28 days. The position for any tenant who made a declaration under the Residential Tenancies and Valuation Act and to whom Part 3 of this Bill applies is that their termination date will also move out to 13 April 2021. That is very significant. A tenant cannot acquire Part 4 security of tenure rights as a result of the new section 10.

The new section 11 provides that no rent increase can take effect during the emergency period and no increase in rent will be payable in respect of any time during that period to 12 April 2021.

Amendment No. 17 inserts section 12 to provide for necessary technical amendments to the Residential Tenancies Act 2004, which are consequential to the introduction Part 3 of this Bill.

I cannot accept amendments Nos. 18 to 24, inclusive, to the amendments.

Neither the Residential Tenancies and Valuation Act nor Part 3 of this Bill interferes with the right of a landlord to serve a notice of termination. The protections that apply delay the taking effect of a relevant notice of termination grounded on rent arrears, subject to certain procedures and requirements and the usual recourse to the RTB’s dispute resolution service.

I do not propose to provide for a blanket ban on the serving of notices of termination where, for example, a tenant is paying a portion of his or her rent. Tenants are obliged to pay their rent in full and the Members will be aware that significant State supports, which we have discussed, are available to assist tenants to meet their rent payments.

I cannot accept the Senators' amendments but do accept their bona fides in trying to assist tenants. Again, every tenancy has two parties and I need to balance those rights. I also cannot accept the proposed deletion of section 10(3).

The first six months of a tenancy are very much a trial period, so to speak, for both tenants and landlords. Both parties have obligations to fulfil. The payment of rent is a key obligation of tenants. I accept that Covid-19 will make it difficult for many tenants to pay rent and the key purpose of this Bill is to help get tenants in rent arrears back on track.

It is reasonable that where a new tenant makes the required declaration under Part 3 to be protected until 12 April 2021, the six-month trial period be suspended until 13 April 2021. Tenants have had strong protections, and rightly so, during Covid-19. I hope that the vast majority of tenants, with the help of the State, will get back on track during this time to sustain their tenancy. State income support is available, if required, and tenants should seek help from the Department of Social Protection. Help is available. Rent supplement and other social welfare allowances are available, including exceptional and urgent needs payments to help in once-off rent arrears cases. The State, MABS and the RTB want to help. We in government want to help. That is what this legislation is doing.

The clock on the six-month trial period starts to tick again on 13 April 2021 and where a tenant fulfils his or her tenancy obligations, including paying rent due, they will go on to accrue Part 4 rights at the end of month six.

It would not be fair to tie in a landlord with a tenant who is not paying the rent due for another five and a half years. The State has a role to help tenants who need help. We cannot leave it to private landlords to suffer large rent arrears over an extended period. We need landlords to enter and stay in the business of renting residential property. At this time, public housing is not sufficient to house everyone who needs help. That is why we are embarking on the largest public housing building programme in the history of the State in 2021. We are addressing the public housing need issues but we need to be realistic, and we also need a functioning private rental market. We need to treat tenants and landlords fairly. We must recognise also the fact that the landlord and tenant are generally strangers to each other at the early stage of a tenancy. It is only through time that people get to know each other.

I cannotaccept amendment No. 21. The new Part 3 protections provide that no rent increase can take effect during the emergency period to 12 April 2021 and no increase in rent will be payable in respect of any time during that period. From 13 April 2021 onwards, a rent increase can take effect. We are also starting the job of looking at the rent pressure zones, RPZs. That is something I expect to be coming back to the House on at some stage in the new year. It is possible that a tenant with Covid-19-related rent arrears, and at risk of losing their tenancy, has had their amount of rent payable maintained at the same level since before 27 March 2020.

Collectively, the Emergency Measures in the Public Interest (Covid-19) Act 2020 and Part 3 of this Bill protect a relevant tenant from any rent increase for a total of almost 13 months. If we compare that with other jurisdictions, our protections are robust and stand up extremely well to any fair scrutiny.

It is worth remembering the demographic of landlords. We need to maintain a good supply of quality rental accommodation. Most will say they agree with that but we have to show that in practice. I do not want to reduce the available housing stock. That is the reason any legislation we bring forward has to be proportionate.

In line with the advices of the Office of the Attorney General, the Government seeks to limit as much as possible any interference with the protected property rights.

I cannot accept amendments Nos. 22 or 23 to the new section 14. It is essential that the tenant declaration is served on the landlord to ensure that he or she is aware that the tenant intends to avail of the protections under Part 3. The declaration may be channelled to the landlord via his or her authorised agent. It does not have to go directly to him or her. It is important for the tenant to keep a record of having served the declaration, in the event of a dispute arising.

Section 12(1)(f) of the Residential Tenancies Act obliges a landlord to provide to the tenant particulars of the means by which the tenant may, at all reasonable times, contact him or her or his or her authorised agent. Any tenant has the right of access to the contact details of the landlord or the landlord's agent.I cannot foresee that arising. The Government will not be deleting section 16 from this Bill. I am not sure whether the House agrees that the public health risks presented by Covid-19 are still present. Section 16 provides that RTB tenancy tribunals are not required to be held in public during the period to 12 April 2021. This provision aims to safeguard the health and safety of participants in those tribunals and of RTB staff given the current public health circumstances. Section 16 of the Bill amends section 106 of the Residential Tenancies Act. The amendment is modelled on a number of similar provisions, including provisions under the Residential Tenancies and Valuation Act 2020. The RTB is a statutory body and it is appropriate for it to safeguard the health and safety of the participants and staff engaged in tenancy tribunals. I am certain that all of us would want that to be the case. I cannot imagine why people would not. The proposed section 16 of the Bill does not prohibit tribunals from taking place but removes the requirement that they must be held in public. It makes sense.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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These amendments, particularly amendment No. 21, relate to the treatment of tenants who are repaying arrears as per an agreement with their landlord. Where a person has experienced difficulties making repayments during the emergency period, there should not be increases in rent for six months after the end of that period. Many people will scrape to get through that period. To impose any additional increases after the emergency period is just not fair.

That is my only contribution on the group. If this is my final contribution, I wish Senators well over the Christmas period, particularly on this issue. We have a huge amount of work to do in the new year. I hope to introduce a proposal, perhaps a Private Members' Bill, reflecting our ideas on the rental sector. The Minister has mentioned the housing system as a whole and all its constituent parts. I would like to introduce a Private Members' Bill that articulates our ideas and contribution to the debate, particularly on renters.

Photo of Darragh O'BrienDarragh O'Brien (Dublin Fingal, Fianna Fail)
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I appreciate what Senator Warfield has said. Have we one more group?

John McGahon (Fine Gael)
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Group 6, on public hearings on residential tenancies. It concerns the subject matter of amendment No. 19.

Photo of Darragh O'BrienDarragh O'Brien (Dublin Fingal, Fianna Fail)
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Amendment No. 19 inserts section 16 into the Bill to provide that the RTB tenancy tribunals are not required to be held in public in the period to 12 April 2021. We have covered most of this, to be fair. Section 16 of the Bill amends section 106 of the Residential Tenancies Act in this regard. The amendment is modelled on similar provisions: section 7 of the Emergency Measures in the Public Interest (Covid-19) Act 2020, pertaining to proceedings before tenancy tribunals; and section 8 of the Residential Tenancies and Valuation Act 2020, on proceedings before the tenancy tribunal under the Act of 2004.

I am not sure of the Senators' position on the section but the Government will not be dropping its amendment. I am sure the House agrees that the public health risks presented by Covid-19 are still present, so we want to make sure staff in the RTB are protected. I am not sure of the meaning or thrust of the Senators' amendment but, obviously, in the interest of the health of the RTB staff, we cannot accept it. I would not want to put the staff at risk.

Will we get a chance to address the Bill at the conclusion of the debate?

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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The Minister has noted we have submitted our amendments in good faith. I regret that none of them has been accepted but I would like to push amendment No. 1 to a vote when we come to it.

John McGahon (Fine Gael)
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We are finished with the groups. Does the Minister want to conclude?

Photo of Darragh O'BrienDarragh O'Brien (Dublin Fingal, Fianna Fail)
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I thank all the Senators on all sides for their engagement. I am aware of their genuine interest in tenants' rights, housing and the importance of protecting those most at risk during Covid-19. I thank the Senators for their engagement at an early stage on this Bill. I initiated this legislation in the Seanad. We had to add to it substantially, which we did not necessarily envisage at first. We have done so with the co-operation of the Dáil and Seanad. This sends out a really strong message. While there will always be some disagreement on various aspects of legislation, points in this regard are put across well. I understand why the amendments have been tabled. The fact that I am not accepting the amendments shows no disrespect to the Senators who have gone to the trouble of tabling them. We have considered them. My team and officials have considered them in detail.

I wish to make a point of clarification on the substitute consent aspect. It represents an important change to the planning side of the Bill. This Bill, in no way, shape or form, is an attempt to revive the provisions of the 2019 regulations that were struck down by the High Court, which purport to enable peat extraction to continue during a transitional period. It will have no effect on the planning status of peat extraction. As a Government, we are committed to transitioning from such extraction to an approach to land use that values carbon storage and sinks in peatlands, the biodiversity of peatlands and ecosystem services. In line with this, the Cabinet approved just last month an allocation of over €108 million to Bord na Móna for the re-wetting and restoration of bogs as part of a just-transition approach to helping midland communities and workers facing the cessation of peat extraction and associated power generation in the midlands. Earlier this year, the Minister of State, Deputy Noonan, established a working group to progress the elimination of the use of peat moss in horticulture over an agreed period. Regarding the substitute consent provisions, there is no attempt to revive the former provisions.

I thank all the Senators most sincerely for their engagement not only on this Bill but also on others. As this may be my last time in the Seanad before the Christmas break, I wish all the Senators a happy and restful Christmas. I hope they get to spend time with their families, take a little time off and recharge the batteries. I thank the staff in the Seanad and the rest of Leinster House and wish them the very best over the Christmas period. Nollaig Shona do gach duine. Tá súil agam go mbainfidh siad taitneamh as an sos.

John McGahon (Fine Gael)
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As the discussion on all the groups has concluded, we will now move to the formal moving of each of the Senators' amendments. I remind Senators that, on Report Stage, each non-Government amendment must be seconded. The first amendment is amendment No. 1, in the names of Warfield, Ó Donnghaile, Gavan and Boylan. It arises out of amendments made in the Dáil and has already been discussed with group 2.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I move amendment No. 1:

In page 12, between lines 15 and 16, to insert the following: "(ba) make available online all information—
(i) considered by the Board at any leave stage under section 177D for the application now being considered for substitute consent where the application was subject to such a stage, or

(ii) in the case where the application was made pursuant to a notice from a planning authority under section 177B or section 261A(3) all the information considered by the planning authority at the notice stage giving rise to a direction to the applicant to make an application for substitute consent,

and the Board shall also make available online any information received from the local authority under paragraph (e), and any public consultation shall not commence until the information referred to in this subsection is available online, and the consultation period provided for the public and prescribed bodies shall not be less than eight weeks,".

Rebecca Moynihan (Labour)
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I second the amendment.

Amendment put:

The Seanad divided: Tá, 10; Níl, 28.



Tellers: Tá, Senators Fintan Warfield and Rebecca Moynihan; Níl, Senators Robbie Gallagher and Seán Kyne.

Amendment declared lost.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I move amendment No. 2:

In page 14, line 3, to delete “12 April 2021” and substitute “12 June 2021”.

Rebecca Moynihan (Labour)
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I second the amendment.

Amendment put and declared lost.

Photo of Mark DalyMark Daly (Fianna Fail)
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Amendment No. 3 has been ruled out of order as it involves a charge on the Revenue.

Amendment No. 3 not moved.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I move amendment No. 4:

In page 14, to delete line 19 and substitute the following: “(i) he or she anticipates falling into rent arrears in the near future, and”.

Rebecca Moynihan (Labour)
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I second the amendment.

Amendment put and declared lost.

Rebecca Moynihan (Labour)
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I move amendment No. 5:

In page 14, to delete lines 32 to 38 and in page 15 to delete lines 1 to 3 and substitute the following: “(3) (a) A person who knowingly or recklessly makes a declaration referred to in paragraph (a)of subsection (1)that is false or misleading in any material respect shall be guilty of an offence.
(b) For the purposes of this subsection, the making of a declaration that is false or misleading in a material respect includes a failure to disclose in that declaration information that a reasonable person would consider to be material to the question with regard to whether or not—
(i) the maker of the declaration is a relevant person, or

(ii) as a consequence of his or her being a relevant person, there is a significant risk that the tenancy of the dwelling concerned will be terminated by the landlord.
(c) A failure of a person, through inadvertence, to comply with the requirements of this section in relation to the making of a declaration does not of itself invalidate the declaration, unless the failure relates to the disclosure or non-disclosure of information that a reasonable person would consider to be material to the question referred to in paragraph (b).”.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I second the amendment.

Amendment put and declared lost.

Rebecca Moynihan (Labour)
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I move amendment No. 6:

In page 15, line 6, to delete “5 days” and substitute “28 days”.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I second the amendment.

Amendment put and declared lost.

Rebecca Moynihan (Labour)
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I move amendment No. 7:

In page 15, line 13, to delete “5 days” and substitute “28 days”.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I second the amendment.

Amendment put and declared lost.

Rebecca Moynihan (Labour)
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I move amendment No. 8:

In page 16, line 10, to delete “1 August 2020” and substitute “9 March 2020”.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I second the amendment.

Amendment put and declared lost.

Rebecca Moynihan (Labour)
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I move amendment No. 9:

In page 16, to delete lines 35 to 37 and in page 17 to delete line 1.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I second the amendment.

Amendment put and declared lost.

Rebecca Moynihan (Labour)
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I move amendment No. 10:

In page 17, to delete lines 3 to 7.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I second the amendment.

Amendment put and declared lost.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I move amendment No. 11:

In page 17, line 3, after “who” to insert “intentionally and deliberately”.

Rebecca Moynihan (Labour)
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I second the amendment.

Amendment put and declared lost.

Rebecca Moynihan (Labour)
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I move amendment No. 12:

In page 17, to delete lines 10 to 25 and substitute the following: “(c) if the tenant has failed or refused to comply with the terms of an arrangement referred to in paragraph (a), (b) or (d)of section 8(4), or

(d) the application of this Part to the tenant would cause undue financial hardship to the landlord.”.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I second the amendment.

Amendment put and declared lost.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I move amendment No. 13:

In page 17, between lines 25 and 26, to insert the following: “(v) the tenant may challenge such a declaration by making a submission to the Board not more than ten working days after receiving a declaration from the landlord.”.

Rebecca Moynihan (Labour)
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I second the amendment.

Amendment put and declared lost.

Rebecca Moynihan (Labour)
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I move amendment No. 14:

In page 18, to delete lines 14 to 22.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I second the amendment.

Amendment put and declared lost.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I move amendment No. 15:

In page 18, to delete lines 14 to 22 and substitute the following: “(4) A landlord may make a declaration that the application of this Part would, having regard to all the circumstances of that case,—
(a) be unduly onerous on that landlord, or

(b) would cause undue hardship on that landlord.”.

Rebecca Moynihan (Labour)
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I second the amendment.

Amendment put and declared lost.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I move amendment No. 16:

In page 18, to delete line 16 and substitute the following: “(a) the landlord is a relevant person and has provided documentation that could be considered to prove that undue financial hardship has been experienced due to their status as a relevant person in respect of the emergency period,”.

Rebecca Moynihan (Labour)
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I second the amendment.

Amendment put and declared lost.

Rebecca Moynihan (Labour)
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I move amendment No. 17:

In page 18, to delete lines 26 to 40, and in page 19, to delete lines 1 to 12.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I second the amendment.

Amendment put and declared lost.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I move amendment No. 18:

In page 20, to delete lines 11 and 12 and substitute the following: “and while a tenant is adhering to the terms of a repayment plan the landlord may not issue a notice of termination.”.

Rebecca Moynihan (Labour)
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I second the amendment.

Amendment put and declared lost.

Rebecca Moynihan (Labour)
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I move amendment No. 19:

In page 20, to delete lines 13 to 15 and substitute the following: “(3) If and for so long as a tenant is complying with the terms of a repayment plan agreed between the landlord and the tenant in respect of arrears of rent, the landlord may not issue a notice of termination.”.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I second the amendment.

Amendment put and declared lost.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I move amendment No. 20:

In page 20, to delete lines 13 to 15 and substitute the following: “(3) While a tenant is adhering to the terms of a repayment plan the landlord may not issue a notice of termination.”.

Rebecca Moynihan (Labour)
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I second the amendment.

Amendment put and declared lost.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I move amendment No. 21:

In page 20, between lines 23 and 24, to insert the following: “(c) no rents shall be increased in the six months following the emergency period.”.

Rebecca Moynihan (Labour)
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I second the amendment.

Amendment put and declared lost.

Rebecca Moynihan (Labour)
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I move amendment No. 22:

In page 20, between lines 30 and 31 to insert the following: “(c) where the address at which the person ordinarily resides is not known and an address for service has not been furnished, by delivering, leaving or sending it to the Board; or”.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I second the amendment.

Amendment put and declared lost.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I move amendment No. 23:

In page 20, between lines 33 and 34, to insert the following: “(d) by delivering it by any means to the Residential Tenancies Board in instances where the landlord has failed to furnish the tenant with a postal address,”.

Rebecca Moynihan (Labour)
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I second the amendment.

Amendment put and declared lost.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I move amendment No. 24:

In page 21, to delete lines 32 to 34.

Rebecca Moynihan (Labour)
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I second the amendment.

Amendment put and declared lost.

Question put and agreed to.

Photo of Mark DalyMark Daly (Fianna Fail)
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When is it proposed to take Fifth Stage?

Photo of Mark DalyMark Daly (Fianna Fail)
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Is that agreed? Agreed.

Question, "That the Bill do now pass", put and agreed to.