Erin McGreehan (Fianna Fail)
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I call Senator Victor Boyhan. The Senator has four minutes.

Victor Boyhan (Independent)
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I thank the Cathaoirleach for selecting this important matter and I welcome the Minister of State, Deputy Peter Burke. I know this is a busy week for him in the context of the budget and his other ministerial commitments.

I will preface my remarks by saying that this matter relates to Dún Laoghaire-Rathdown County Council. I engaged in the council's county development public consultation process as a citizen. While I am here today as a politician talking about legislation and potential anomalies in the legislation, I want to share my experience as a citizen who engaged with a public consultation relating to the city and county development plan process. The latter is an important process for which the Minister of State has ultimate responsibility. I put on record my admiration for the professional way in which Dún Laoghaire-Rathdown County Council’s chief executive and elected members conduct their business. They take it seriously. One of the most important functions of elected city or county councils is the reserved function relating to mapping out the proper planning and sustainable development of their administrative areas for a period of five years. We know that work is ongoing on development plans across the country. We are talking about development plans that will come into operation in 2022.

The background to this is that I have been in touch with the Minster of State’s Department in respect of this matter before. I am somewhat surprised that it has become an issue at this stage and I am somewhat disappointed that it has not been resolved. Dún Laoghaire-Rathdown County Council has stated that there is a conflict between two interrelated sections of the Planning and Development Act 2000, as amended. The sections are section 12(3), which sets out statutory timeframes for the addition of and-or deletion from the record of protected structures, and section 12(7), which sets out statutory timeframes associated with the material alteration stage of the county development plan-making process. That is the advice being given by the professionals to the elected members of Dún Laoghaire-Rathdown County Council in respect of the current stage of the development plan process, namely, the stage to which I am referring.

I served as a member of the council for many years. As a citizen and as a someone who has a particular interest in architectural conservation and protected structures, I chose one building to focus on. The council described it as a Gothic, red-bricked, granite chapel in Tivoli Terrace in south County Dublin to be added to the record of protected structures.It fitted all the criteria, as the Minister of State will be aware, of which there are five or six including heritage, architectural, scientific significance, and the chief executive, in her report to the elected members, suggested that it might very well cover some of the criteria. That is not in dispute.

I am only one person and I am doing this on behalf of many other citizens. Yesterday I received a print off of all people who made submissions to this county development plan process. This is about what members of the public, who engaged in a public consultation process, are being told by the manager. She says that there is a conflict in the legislation and she will not be in a position to allow the elected members of this local authority to consider them further. She says the only way of doing this is by varying the plan. They have not even agreed this plan and they are being told five more years. Where does that leave Johnny the citizen - me, a member of the public who submitted in good faith and engaged in the public consultation process - for a building to be added to the record of protected structures? There is either an anomaly or there is a misunderstanding but there needs to be greater clarity on this issue and I would welcome the Minister of State's response.

Peter Burke (Longford-Westmeath, Fine Gael)
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I thank Senator Boyhan for raising the matter. With regard to the safeguarding of protected structures, Part IV of the Planning and Development Act 2000, as amended, gives primary responsibility to local authorities to identify and protect architectural heritage by including particular structures on their respective record of protected structures, RPS.

The making of a statutory development plan of a planning authority is set out in the Act and provides for the identification and protection of structures of heritage through their inclusion in the RPS. Inclusion on the RPS places a duty of care on the owners and occupiers of protected structures. Section 11 of the Act sets out the procedures and processes for the preparation of the draft development plan, including any buildings or structures to be included in the RPS.

Section 12 of the Act then stipulates the public consultation exercise to be undertaken for the draft development plan including a public display period, of minimum 10-week duration, within which period members of the public and others may make submissions to the planning authority. There is then a further 12-week period in which the chief executive of the planning authority must prepare a report, and a further 12 weeks during which time the members of the authority must consider the report on the draft plan – a maximum of 34 weeks in total. Following the planning authority’s consideration of the report on the draft development plan, the elected members may then propose that material alterations be made under section 12(6) of the Act.There is a corresponding four week period of public consultation be held for the receipt of submissions on same; a further four week period in which the chief executive of the Planning Authority must prepare a report; and, a further six weeks during which time the members of the authority must consider the report – a maximum of 14 weeks in total.

The legislation governing this stage, that is the material alterations stage, of the development plan preparation process is not explicit in specifying that a planning authority may, or may not, add to or delete from the RPS. However, it is clear that any material alteration may be made to the draft plan, which enables scope to make material alteration changes to the RPS. In this regard it is noteworthy that after public display of the proposed material alterations, when they are being considered by the elected members of the planning authority, the possibility for any further modifications to the RPS to be introduced is specifically excluded as per section 12 (10)(c)(ii) of the Planning and Development Act. There is no such specific exclusion on changes to the RPS at the material alterations stage.

Finally, it is noted that it is also possible for the planning authority to propose additions or amendments to the RPS at any time, that is, outside of the development plan making process. Section 55 of the Act sets out the procedure for doing so. In such cases there is a six week period for public consultation, with a decision to be made within 12 weeks. This is therefore the shortest of the three possible procedures, at 12 weeks in total.

Victor Boyhan (Independent)
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I am aware of all of that. I was asking about the position where a member of the public who submits a building for the record of protected structures. It is a reserved function of the elected members and not for the executive as the Minister of State well knows. A number of these were submitted and I submitted one. The elected members are being told in writing, and I have the report on my desk, that they will not be able to bring it forward. I understand they will be bringing it forward, despite all the manager's legal advice and there might be some sort of set-to in Dún Laoghaire. Where is that envisaged? Is the Minister of State telling me there is no anomaly in the legislation? That is really what I want to hear. Clearly I have options open to me and I am going to exercise them after considering all the facts. Is there an anomaly in the legislation, as the chief executive is telling elected members including Fine Gael councillors in Dún Laoghaire-Rathdown?

Peter Burke (Longford-Westmeath, Fine Gael)
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It is very clear there are differences in timeframes to reflect both the stages of the development plan process and the different nature of the development plan as opposed to a process solely focused on the listing of protected structures. These difference do not mean, however, that there is a conflict between them. They simply mean that there are different contexts in which the important function is to be undertaken. When considering the draft development plan, there are multiple matters to be considered, reported on and determined. This requires 34 weeks. The timeframe narrows considerably at the material alterations stage, which requires 14 weeks. Clearly a separate listing process is a single focus exercise, and requires just 12 weeks. These differences are appropriate and justified. All of these processes integrate the protection and safeguarding of our built heritage.

The Senator is talking about the capacity of the elected members to bring forward amendments to the list as opposed to the conflict in the timeframes under the Act. I ask that he would send me on the advice. He might have done so already but I did not see it yet. We will definitely take a look at it. Having been a local authority member myself, I know there has been frustrations where some buildings were included in the protected structure list, and sometimes getting an assurance etc. has been difficult. Some amendments have been justified. There is potential concern about the capacity of members to bring forward additions, and to get it on the table so that a decision can be made. I can look at that aspect of it for the Senator.