Seanad debates

Tuesday, 21 June 2022

Planning and Development (Amendment) (No. 2) Bill 2022: Committee Stage (Resumed)

 

SECTION 17

Question again proposed: "That section 17 stand part of the Bill."

12:00 pm

Photo of Alice-Mary HigginsAlice-Mary Higgins (Independent)
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Section 17 amends section 177L of the principal Act to reflect the repeal of section 177D, which relates to applications for leave. Section 177D, which is being repealed by section 21 of the Bill, which I will be opposing, provides for the decision of the board not to grant substitute consent. In its submission to the Joint Committee on Housing, Local Government and Heritage on the pre-legislative scrutiny of the Bill, the Irish Environmental Network recommended that there would be an amendment to the existing gateways in sections 177B to 177D, inclusive, and a simplification of section 177K to allow that there would be a process of preliminary examination relating to exceptional circumstances with public participation and additional obligations in terms of making all of the relevant materials available to ensure there would be robust and speedy access to the necessary information rather than a straight repeal, as this legislation proposes.It basically comes down to the same crunch, namely, there is a very clear obligation that these measures and substitute consent be only made available in exceptional circumstances. I will bring forward amendments on Report Stage to try to address that and look to what the processes might be in evaluating and considering whether a proposal meets exceptional circumstances, with strong and clear public participation mechanisms and full transparency regarding all relevant materials. Strengthening the existing process would be a better approach than the proposal before us that effectively changes the process and indeed makes it excessively streamlined and developer-led in this regard. I am opposing the section on that basis and will come to the linked issue of section 21 in due course.

Photo of Peter BurkePeter Burke (Longford-Westmeath, Fine Gael)
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Senator Higgins's opposition to section 17 concerns technical drafting amendments with respect to remedial environmental impact statements as a result of the substantive changes in the Bill. I cannot accept the opposition to these sections. They comprise technical amendments necessary as a result of the repeal of section 177D and ancillary provisions relating to the decision of the board whether to grant leave to apply for substitute consent. The removal of the leave to apply stage when applying for substitute consent is one of the core elements of what is being proposed. For this reason, I cannot assent to its removal nor that of any ensuing technical amendments elsewhere in the Bill.

Question put and declared carried.

SECTION 18

Question proposed: "That section 18 stand part of the Bill."

Photo of Alice-Mary HigginsAlice-Mary Higgins (Independent)
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Section 18 amends section 177M of the principal Act to reflect the repeal of section 117D, which relates to application for leave, amends the reference to section 261A and channels applications to 177E, which has been amended. A key element in this section is the deletion of the phrase "in a case where it granted leave to apply for substitute consent on the grounds that exceptional circumstances exist, or in a case where the application is made in compliance with a direction to apply for substitute consent under section 261A".

Subsection (2) more broadly provides:

Where the Board grants an application for substitute consent under section 177K in a case where it granted leave to apply for substitute consent on the grounds that exceptional circumstances exist, or in a case where the application is made in compliance with a direction to apply for substitute consent ... it may determine that a sum or sums is or are required to be paid in order to defray some or all of the costs incurred by the Board or the planning authority during the course of consideration of the application...

This is again the core issue. I do not believe the case has been properly, clearly or strongly made. This is not the issue of whether there should be a mechanism for substitute consent. It is fine there would be a mechanism but the issue is what the mechanism is. This is another place where we are moving away from the situation whereby there is scrutiny by the court of whether the exceptional circumstances test has been met, that is, if somebody is seeking legal leave to apply for substitute consent that he or she would first have met a standard in terms of exceptional circumstances and been allowed to seek substitute consent on that basis. It also relates to the removal of the power of local authorities to direct a developer or the owner of a development to apply for substitute consent.Again, it has not really been clear to me what the situation is if there are developers who do not wish to seek substitute consent when local authorities can no longer request that they regularise their position. That has been removed by this legislation. Also removed are provisions that would have allowed for the costs of evaluation. Maybe sums would have been contributed.

Photo of Peter BurkePeter Burke (Longford-Westmeath, Fine Gael)
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Senator Higgins has detailed the reasons for her opposition to section 18. The section contains technical amendments with respect to remedial environmental impact statements as a result of the substantive changes to the Bill. I note the concerns raised by the Senator. However, the removal of the leave-to-apply process when applying for substitute consent is one of the core elements of the Bill proposed and therefore we cannot consent to its removal.

Question put and declared carried.

SECTION 19

Question proposed: "That section 19 stand part of the Bill."

Photo of Alice-Mary HigginsAlice-Mary Higgins (Independent)
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I wish to speak on section 19. The section amends section 177N of the principal Act and deletes the phrase "for leave to apply for substitute consent" throughout. Section 177N provides for the powers of the Minister to make regulations regarding substitute consent. This section will remove the powers of the Minister to make regulations in respect of leave to apply for substitute consent. To be extremely clear, it would mean a more favourable situation for developers, something that I believe risks a bar of incentivisation or reward for developers.

I know the Minister of State will not accept what I propose because the fundamental purpose of this Bill is effectively to change our mechanism for substitute consent. Ireland has been called out for failing to do what was required of it properly and it put together, however imperfectly, a mechanism around substitute consent. The decision made a very short period later to start diluting the associated process and the checks and balances within it, including in respect of seeking leave to apply for substitute consent and the power of local authorities in terms of requesting it, is a regressive step in terms of oversight. In that context, I just have to oppose section 19.

Photo of Peter BurkePeter Burke (Longford-Westmeath, Fine Gael)
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We note Senator Higgins's opposition to section 19 of the Bill and the technical amendments with respect to the remedial environmental impact statements. We cannot accept the proposed opposition. These sections comprise technical amendments necessary as a result of the repeal of section 177D and ancillary provisions relating to the decision of the board on whether to grant leave to apply for substitute consent. The removal of the leave-to-apply stage when applying for substitute consent is one of the core elements of the Bill proposed and therefore we cannot consent to its removal.

Question put and declared carried.

Section 20 agreed to.

NEW SECTION

Photo of Alice-Mary HigginsAlice-Mary Higgins (Independent)
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I move amendment No. 12:

In page 13, between lines 31 and 32, to insert the following: "Threshold for substitute consent

21. The provisions of this Act including the right to apply for substitute consent shall not be applicable in respect of projects which have an estimated commercial value of greater than €5,480,000.".

Amendment No. 12 would insert a new section into the legislation that would state: "The provisions of this Act including the right to apply for substitute consent shall not be applicable in respect of projects which have an estimated commercial value of greater than €5,480,000." This is the same threshold as in the 2014 EU directive. I picked it as the threshold the EU has set for what are considered to be "major works". Irrespective of whether the Minister of States wants to accept the amendment, I have used this threshold because it is recognised within the EU as the one pertaining to a project of great significance, a project with a value of over €5 million.I am open to other thresholds that might be inserted.

I might reserve the right to bring forward more amendments on this on Report Stage given the very substantial benefit that may accrue to a developer in respect of the measures in the Bill. Given that developers can avail of the approach that it is easier to look for forgiveness afterwards than permission at the time, it is important that the stakes are quite high. We should not have projects worth €5 million, €4 million or even €3 million that can get under way and simply absorb whatever fines, other measures or legal processes around applying for consent after the fact, and not have that be significant. If a project is worth a significant amount of money, we know there are those who can simply absorb the costs of substitute consent after the fact. As I have mentioned, I am extremely concerned the Bill creates perverse incentives and is in danger of being out of tune with the EU ruling which made it extremely clear there should be nothing that would serve to encourage development without proper planning standards or permissions or in any way reward those kinds of practice. However, as we have discussed, the provisions of the Bill allow not only for people to seek substitute consent, which was already in place, but for a developer to have a meeting with An Bord Pleanála to decide whether he or she wants to seek substitute consent. A developer is, therefore, not taking a risk or a gamble given he or she can have a meeting.

We need to bear in mind that the power of others, such as local authorities, to make a developer seek consent and go through the process have been removed. Therefore, all of the power is in the hands of a developer. The developer decides if he or she wants to seek substitute consent, based on a meeting with no risk, and can then seek that. If a developer seeks substitute consent, not having obtained the proper permissions or engaged in proper environmental scrutiny at the time of the application, he or she is rewarded by being allowed to attach to the process other developments on other sites that may not be related developments but rather are new and different developments. Such developments may not be on the same site but rather on adjoining sites.

The person seeking substitute consent for something he or she did in the past may want to do remedial work to address that. That is not solely what developers are seeking. Somebody could put in a massive application for anything on an adjoining site and bypass the usual process through local authorities by going straight to An Bord Pleanála. That means the developer who has a previous record of non-delivery in terms of environmental standards is, in fact, in respect of a new development on a new site, in a better position than somebody else who has followed the rules and is applying for planning permission on a site.

They also deal with applications for substitute consent, but they already had to do that. The fact is developers like that will be a lot better off and incentivised to engage in such practices after the passage of the Bill than they were before. That is why putting a threshold on this is important. If the Minister of State will not put a threshold on the original development because of the cost of breaking that down and all of the other issues that were discussed, the Government should, at an absolute minimum, be open to putting a threshold on the value of a new development that may be fast-tracked through the legislation.

The owner of a quarry may not have carried out an impact environmental impact investment and everything else. He or she may have an adjoining site and be able to submit an application for a €5 million development on that and tag that into regularising the quarry. A developer on small development that did not seek substitute consent would be able, on a neighbouring site, to fast-track a project worth more than €5 million. That is wrong.It is a massive overreach. It is a gift. The Minister of State should bear in mind that this is not a matter of just housing development. This is not constrained, but can be for whatever one may want to put in. As a minimum, if the Minister of State will not accept this amendment which seeks to put a €5 million threshold on development, he might be able to put another threshold in place or he might be able to put a threshold on the value of the additional developments that get tagged along with the application for substitute consent.

Photo of Peter BurkePeter Burke (Longford-Westmeath, Fine Gael)
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I will address amendment No. 12, as tabled by Senator Higgins, which seeks to insert a new section 21 into the Bill relating to the thresholds of substitute consent. The amendment seeks to insert a provision whereby the provisions of this Bill, including the right to apply for substitute consent, shall not be applicable in respect of projects that have an estimated commercial value of greater than €5.48 million.

I am opposing the proposed amendment No. 12. The amendments that have been proposed by the Government by way of this Bill are intended for exceptional circumstances. I note that the Senator did not refer in her contribution to the fact that the developer has to prove its bona fides in this case, as has been outlined clearly in section 16(8)(g), irrespective of the commercial value of the site. In the rare cases where a substitute consent is being sought, it is done so after the bona fide mistake has been realised by the developer, which is often following a court judgment has revised a common legal understanding of whether a development or class of developments were in breach of the law or not, where a developer thereafter seeks formally to correct that mistake and where the developer is also exposed to the significant negative risk of mandatory enforcement and remediation of the site if substitute consent was to be refused. It is not the intention of this Bill to preclude any site from being brought back into the planning system by way of substitute consent on commercial grounds. Therefore, I am opposing the proposed amendment No. 12.

Photo of Alice-Mary HigginsAlice-Mary Higgins (Independent)
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I note that the Minister of State has not addressed my point on the additional applications. Perhaps he might expand on that, given as I say that this not an arbitrary threshold. This threshold is recognised in the EU in procurement laws and others as major works. Does the Minister of State feel that it is appropriate or acceptable for a project or a proposed development of more than €5 million on adjoining land to be attached to an application for a substitute consent on a site? Can the Minister clarify his position in relation to the additional applications? If massive projects of that size are to go through a shorter process, that raises a concern. This issue is quite separate to the position of the regularisation.

Again, I have not received an answer about the situation for those who do not seek substitute consent, but who are found for example to be in a class of development or a development that has not properly applied the planning laws? Previously, the local authority could initiate the substitute consent process and thereby could allow a developer to regularise its status. Now, however, it is only initiated by the developer. The risks are very much reduced for the developer unless there is a parallel process. There may well be one and the Minister of State might indicate what that process is. I have two specific questions on that.

Photo of Peter BurkePeter Burke (Longford-Westmeath, Fine Gael)
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In relation to the additional application, section 16 is clear that they are linked to substitute consent. In relation to those who do not embark on substitute consent, the planning enforcement mechanism that currently operates with the local authority system would be enforced.

Photo of Alice-Mary HigginsAlice-Mary Higgins (Independent)
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To be clear, section 16 does not say that they have to be linked to the current use. This could be, as I understand it, any use on an adjoining site. Effectively, this case will arise when there are two properties beside each other. Therefore, it is not linked to the substitute consent, which is its application. There is that question. This does not really answer the question. In fact, neither of the questions have been answered. It is in that context that I will press the amendment.

Amendment put.

Photo of Alice-Mary HigginsAlice-Mary Higgins (Independent)
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Vótáil.

Photo of Mark DalyMark Daly (Fianna Fail)
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The question has been put on amendment No. 12, that the new section be there inserted, and on the question a division has been challenged. However, in accordance with Standing Order 61, I propose to put the question again.

Amendment put and declared lost.

SECTION 21

Question proposed: "That section 21 stand part of the Bill."

Photo of Alice-Mary HigginsAlice-Mary Higgins (Independent)
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Section 21 repeals a number of really important provisions in the principal Act and the original measures we had for substitute consent.I will not go through all of them but I signal I may bring forward amendments on Report Stage on the specific different provisions being repealed in this section.

While I will oppose the section which relates to the repeal of a group of provisions of the principal Act, I am conscious some colleagues may agree with me on some of the areas and not on others. This section repeals sections 177k(1B) to (1l) of the principal Act, which are related to criteria for the decision of the board on an application of substitute consent. This section repeals sections 177K(1A)(b) and (c) of the principal Act, which provides that when deciding whether to grant such a consent the board shall not be bound by, take account or otherwise have regard to any decision of the board under section 177D.

A number of areas are covered but one that is relevant to this House is section 177D of the principal Act providing for a decision of the board not to grant substitute consent. Section 177B of the principal Act is the provision covering an application to apply for substitute consent where a notice has been served by a planning authority. That section is important because it provides for a power local authorities had in respect of a development that was in breach and had not met the core environmental and other standards that were needed. That was a crucial power local authorities had to require a developer to seek substitute consent to regularise the position. This measure, along with a long series of decisions made in this House during the past two years, signifies yet another power of local authorities that is being eroded.

Many of us are sick of hearing things local authorities cannot do with respect to vacant properties and dereliction. Where a project has been found not to have met proper development standards or where the developer has not done the right thing in securing proper planning permission or proper consent, the local authority will no longer be in a position to require the developer to seek that consent. There is no start button any more for the local authority to address that.

Bearing in mind some of the projects that would be relevant in this respect, it is not simply related to buildings or developments, it is related to projects such as quarries, which have massive environmental impacts in local areas. A local authority will no longer be given the power to request, seek, suggest or serve a notice requiring a developer to seek consent. That is leaving aside the other powers of local authorities which are also being eroded by this Bill, that is, local authorities are being cut out of the planning process in the meaningful way and role they have with respect to additional developments attached not to the same sites but adjoining sites that get attached to an application for substitute consent. A quarry development is one such example. If subsequent consent is sought for a quarry, an application for a new quarry or a new project can go in beside that application and local authorities will not be, as they usually would be, the key first tier in the planning process. They are losing that power but specifically, under this section, they are losing the power to serve a notice requiring an application for substitute consent to take place. That is why I fundamentally oppose this section.

I reserve the right to bring forward amendments on Report Stage specifically on that aspect. I urge Members to think in the interim period between now and Report Stage and to get answers, which I have still not got, as to why exactly the powers of local authorities to serve a notice requiring an application for substitute consent are being removed. I have not heard why that is being done or even an attempt to explain why it is being done.

Photo of John CumminsJohn Cummins (Fine Gael)
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I have been thinking about what the Senator has suggested on all of the points and I keep arriving back at the same point. If I am applying for something adjacent to a site that requires substitute consent – let us say I want to build a house - why in my right mind would I attach an application for a genuine development to something so toxic that it requires substitute consent? I would not do that. One would not attach a proper clean development to something that requires substitute consent and is viewed as being so toxic. I would just go through the normal planning process. No matter what way I try to arrive at a point that matches the suggestions made by the Senator, I keep arriving back at that point. If someone has a genuine application for a house or other building on adjoining land, they would go through the normal planning process. No one in their right mind would ever tie something to a toxic development that requires substitute consent.

Photo of Alice-Mary HigginsAlice-Mary Higgins (Independent)
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Why is it inserted in the Bill? If it is such a terrible thing that nobody wants to use, we could easily remove that.

Photo of John CumminsJohn Cummins (Fine Gael)
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It is not an issue.

Photo of Alice-Mary HigginsAlice-Mary Higgins (Independent)
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This is additional. This is what is getting added in. It is not getting added because nobody wanted it. Basically, it means this goes straight to An Bord Pleanála. Of course, people can apply through the normal process and that is already there. This is a different route that is being inserted. If it is such a terrible route that nobody would ever want to take, why have it in the Bill, why introduce it? Why create it today, in June 2022? Why suddenly insert this new provision if nobody wants it and it is so terrible and inadvisable? Maybe there are those who just do not get that embarrassed about having to look for substitute consent and, for them, there is the bonus of just being able to go straight to An Bord Pleanála as it speeds up the process in another way. Again, if it is so terrible, then we do not need to put it in the Bill. It is not necessary for the substitute consent. A key point is that these are ones that do not necessarily relate to additional proposals on the same site related to the same matter, for which there may be a case. Senator Murphy made the point that if someone is developing a road and needs to change that road or do a new thing to fix up the project, that is one thing. These are additional applications on other sites.

Photo of Peter BurkePeter Burke (Longford-Westmeath, Fine Gael)
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Despite the proposed opposition to this section, it is essential to the operation of the Bill. As I articulated on previous amendments, it is technically essential to facilitate the leave process and is one of the core elements of the Bill.

I want to deal with some of the points made regarding local authorities. Everything I do as Minister of State is to try to enhance powers of local authorities. It simply misunderstands the genesis of the legislation to suggest that section 177B removes powers from local authorities, which it absolutely does not. It means that normal enforcement procedures under the planning Act now take place under the power of, and with adjudication by, the local authorities. Let us be very clear on that. The local authority has its full enforcement powers under the planning Act.

This comes at a time when the two-stage process has been restored in local authorities, SHD has been wound up, our Town Centre First implementation programme has been launched, with town regeneration officers going into each local authority, we are trying to tackle vacancy by bringing in a zoned land tax where local authorities are central in terms of adjudicating on the mapping process, and we are bringing derelict homes officers into each local authority by quarter 2 of this year. To suggest that we are watering down the powers of local authorities in any shape or form is incorrect. Indeed, given the conditionality that we are improving for the members to operate in those very difficult circumstances in local authorities, it is absolutely untrue. I remind Members that it is important to read the legislation properly before making the totally inaccurate suggestion that one section is watering down the powers of local authorities when it is not.

Photo of Alice-Mary HigginsAlice-Mary Higgins (Independent)
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I have an amendment coming up that will allow for the issue to be surveyed and then, good or bad, for the consequences or the impacts to be assessed.

Question put and declared carried.

Section 22 agreed to.

NEW SECTIONS

Photo of Alice-Mary HigginsAlice-Mary Higgins (Independent)
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I move amendment No. 13:

In page 14, between lines 34 and 35, to insert the following: “Report on substitute consent

23.The Minister shall, within 18 months of the passing of this Act, lay a report before both Houses of the Oireachtas outlining-
(a) the number of applications for substitute consent received in the preceding 18 month period which were made and the number granted

(b) any impacts identified in respect of other planning applications, and

(c) the relevant exceptional circumstance in respect of each successful application.”.

Again, the amendment seeks a report on substitute consent, which is fundamental to assessing the concerns I have outlined. Maybe they will come to pass and maybe they will not, or maybe there will be the scenarios that Senator Cummins has outlined, where nobody will want to use these provisions at all, but let us see what happens and let us have a report so we can debate it.

The amendment suggests that within 18 months of the passing of the Act, a report would be laid before the Houses of the Oireachtas outlining how many applications for substitute consent were received in the 18-month period, how many applications were made and the number granted, and whether there were impacts on other planning applications. My concern is that this would become a route that is used rather than the other route. Perhaps people will still continue to use the other route or perhaps they will not, but this is the point where we would make sure that we do not have any adverse consequences - some might say unintended or inadvertent consequences, but certainly potential consequences - which I foresee could happen under the Bill.

With anything like this, we want to be proven wrong and we want it to turn out fine, but let us have a report where we can look to the patterns and, crucially, see the relevant exceptional circumstances in regard to each successful application. This is fundamental because, previously, those seeking the application had to go through a High Court process and a scrutinising as to whether they met the exceptional circumstances criterion. The point is that every individual application, and certainly every successful application, should have been able to prove that it was an exception and that the particular application was not the norm and was an exception that was different from others. That is why ensuring that the granting of substitute consent has remained an exception and not become a rule is important. Paragraph (c) of the amendment is so we can identify the patterns and the kinds of exceptional circumstances behind decisions that have been made in respect of each application. Again, the question is whether they are genuinely exceptional rather than rules or blankets. It is very clear that each individual application will need to have such a circumstance attached, so I ask why not look at it in 18 months.

I have suggested to the Houses of the Oireachtas that if the Minister preferred to bring such a report to the relevant committee and have it survey this, that would also be very valuable. However, it is very important, when we do something like this, that we try to make sure we monitor how it unfolds. We have had many situations in planning where we are fixing problems after the fact and then trying to remove fixes around other problems again and again. This is a chance to monitor a very significant set of decisions to see how they are folding out within 18 months, so we have time to either adapt or reverse course, if necessary.

Photo of Victor BoyhanVictor Boyhan (Independent)
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I welcome the Minister of State and his officials. I can recognise some of the logic in what Senator Higgins is saying but she might have made a proposal within her own argument. The Joint Committee on Housing, Local Government and Heritage is, and has always been, for as long as I have been around, a very active and progressive committee, and perhaps, as she suggested, it is something the joint committee could look at. It has a work programme, as every committee has, and it could be matter for it at any time if it wanted to have a specific focus on this particular area. All the planning authorities will have this data and sometimes it is about pulling all of that together. While pulling it all together is time-consuming, at least it would be there somewhere.Perhaps that is something that the Joint Committee on Housing, Local Government and Heritage, of which Senator Cummins is also a member, would be interested in examining after a considerable period of time. We do not want to be too premature. This will need to run. There are mechanisms there and perhaps the suggestion of the committee is a better one than a report. It seems with all legislation now that there is a request for reports to be laid before the Houses and we simply do not have the time to get through them all. If we want to delve into and analyse matters in granular detail then the aforementioned committee would possibly be the best way to do that. The committee could request the relevant information from the Department at any time but this legislation needs to run for a considerable period before we would even look at that.

Photo of Alice-Mary HigginsAlice-Mary Higgins (Independent)
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When the Minister replies to me and Senator Boyhan, he might comment on my concern as to whether the information would be available. Would information on things like the relevant exceptional circumstance in relation to each successful application be available? Perhaps it would. I ask the Minister to indicate whether he is confident that all of the three relevant items of information would be available so that a committee could choose to scrutinise them.

Photo of Peter BurkePeter Burke (Longford-Westmeath, Fine Gael)
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I thank Senators Boyhan and Higgins for their contributions. Amendment No. 13 seeks to insert a provision that provides for the laying of a report by the Minister before both Houses post the introduction of these proposed legislative amendments. Specifically, it seeks to impose a ministerial obligation to lay a report before both Houses of the Oireachtas within 18 months of the passing of this Act, outlining data on substitute consent applications received and-or granted, any impacts identified in respect of other planning applications, and the relevant exceptional circumstance in respect of each successful application.

While I understand the intention behind the proposed amendment, I am opposing amendment No. 13 as existing planning reporting arrangements are already in place that are robust and fit for purpose. All planning decisions and related information are published promptly to the website of An Bord Pleanála and specific arrangements are in place to allow Members of both Houses to make direct inquiries of the board in relation to substitute consent planning matters. For these reasons, I am opposing amendment No. 13.

I am confident that all of the detail in terms of the assessment of exceptionality criteria will be detailed and published on the website of An Bord Pleanála. All of the data will be centrally contained there, along with the assessment criteria.

Photo of John McGahonJohn McGahon (Fine Gael)
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Is the amendment being pressed?

Photo of Alice-Mary HigginsAlice-Mary Higgins (Independent)
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No, given the Minister of State's engagement and his indication that he is confident that such information will be made available, I will withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Alice-Mary HigginsAlice-Mary Higgins (Independent)
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I move amendment No. 14:

In page 14, between lines 34 and 35, to insert the following: “Report on implications of Act

23. The Minister shall, within 6 months of the passing of this Act, lay a report before both Houses of the Oireachtas outlining the implications or impact of this legislation in

respect of:
(a) the powers of local authorities in respect of the substitute consent process;

(b) the appropriate consideration of Local Development Plans in planning;

(c) public consultation in respect of planning;

(d) the right of the public to participate in environmental decision making as provided for under the Aarhus Convention.”.

This is another really important amendment in terms of the implications of the Act. We have heard different opinions on what unfolds and again, the period is six months. Perhaps, as Senator Boyhan has suggested, that should be longer. It could be ten months, 18 months or two years but I think it is better to catch problems quickly rather than letting them run and repairing them afterwards.

This amendment provides for a report which would outline the implications of this legislation in respect of a number of key areas. These are my key areas of concern, as I have outlined throughout the debate, leaving aside the issue of how exceptional circumstance is interpreted which is a separate one.

This amendment does not prejudice what the implications will be. They may be as Senator Cummins has outlined or they may be as I have outlined. Both are possibilities but we will be able to see which is the case if we have a report examining the impact of this legislation in terms of the powers of local authorities in respect of the substitute consent process and whether those powers are lesser or greater. I believe that they will be lesser in respect of the substitute consent process and the amendment provides for a report which determines that question.

The report will also look at whether there is appropriate consideration of local development plans in planning. I included this provision because one of the reasons for having local authorities as the first tier of decision making in relation to planning applications is that they are able to engage in a very detailed and knowledgeable way on local development plans. That is somewhat different to what An Bord Pleanála brings to the table, although it may consider those local development plans in general.Having the two-step process, whereby local planning authorities consider decisions first, brings important issues to light. Because there will be planning applications under this legislation that will go directly to An Bord Pleanála, I am concerned of what the implications may or may not be on local development plans and whether they will be appropriately considered. Again, the Minister of State may be confident An Bord Pleanála will appropriately consider them. However, the report can show that.

In terms of public consultation on planning, a tier of such consultation will be lost when we move from having that two-stage process of local authorities and An Bord Pleanála to a direct move to An Bord Pleanála. It is also very important in terms of "(d) the right of the public to participate in environmental decision making as provided for under the Aarhus Convention". Decisions that are taken on substitute consent for projects that have not had proper environmental impact or other proper assessments and the rights of citizens in respect of other associated planning applications that may be attached to application for a substitute consent are very important and are core issues here.

This amendment clearly addresses the concerns I have highlighted, but it does not seek to prejudice what the outcome on them may be. If there is nothing to fear and if everything is fine, why not have a report that examines it? If the Minister of State were to suggest a different timeframe for such a report, I would be open to that. Senator Boyhan made a good point that the periods of time I have allowed may be too short. However, we need to examine this and we need to make sure we get in quickly.

The Minister of State mentioned strategic housing developments, SHDs, and that we are winding them down. As someone who raised concerns about SHDs, who highlighted the problems that were likely to emerge, who asked that those concerns be taken on board, who raised flags about the problems that were unfolding, and who had to wait a number of years before the Government - a new Government, in fact; this Government - took on board the concerns about how the SHDs were unfolding, what I am trying to avoid here is what happened in the previous Oireachtas where we flagged concerns that were not listened to, and we then had to fix them very long after the fact. This is a genuinely constructive proposal to avoid inadvertent or undesirable consequences from this legislation.

Photo of Peter BurkePeter Burke (Longford-Westmeath, Fine Gael)
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Amendment No. 14 seeks to insert a provision that provides for the laying of a report by the Minister before the Houses post introduction of the proposed legislative amendments. Similar to my response on amendment No. 13, amendment No. 14 seeks to impose a ministerial obligation to lay a report before the Houses of the Oireachtas, within six months of the passing of this Act, outlining the implications or impact of this legislation in respect of the powers of local authorities in respect of substitute consent processes, the appropriate consideration of local development plans in planning, public consultation in respect of planning, and the right of the public to participate in environmental decision-making as provided for under the Aarhus Convention. While I understand the intention behind the proposed amendments, I am opposing amendment No. 14, because existing planning reporting arrangements are already in place that are robust and fit for purpose. All planning decisions and related information are published promptly to the website of An Bord Pleanála and, additionally, these provisions will have no substantive implications for local development plans and consultations thereof. The right of public participation in the environmental decision-making element of substitute consent is provided for in the planning Act, as amended by this Bill. For these reasons, we will not accept amendment No. 14.

I assure Members in relation to misinformation about the watering down of powers to local authorities that, in the first instance, the powers relating to substitute consent for local authorities are unchanged. They provide a detailed planning report in the substitute consent process to An Bord Pleanála. Second, on enforcement, normal enforcement powers apply under normal planning rules under the planning Act.

Photo of Alice-Mary HigginsAlice-Mary Higgins (Independent)
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I would like to respond very quickly. It would be useful to have, between now and Report Stage, a note on the normal enforcement powers. Local authorities can give an input into An Bord Pleanála, but they will not get to start the process of a substitute consent application in the same way they will have been able to. That is the key concern here.

In terms of local development plans, it is not consultation on local plans that is at issue.The concern is around the way in which local development plans are considered in regard to specific planning decisions. While information on individual planning decisions is available, what I am looking for is a report that would identify the patterns and any potential links between the provisions in this Bill and decisions made.

Amendment put:

The Committee divided: Tá, 6; Níl, 25.



Tellers: Tá, Senators Alice-Mary Higgins and Fintan Warfield; Níl, Senators Seán Kyne and Robbie Gallagher.

Amendment declared lost.

Section 23 agreed to.

Title agreed to.

Bill reported without amendment.

Photo of John McGahonJohn McGahon (Fine Gael)
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When is it proposed to take the next Stage?

Photo of John CumminsJohn Cummins (Fine Gael)
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Next Tuesday.

Photo of Alice-Mary HigginsAlice-Mary Higgins (Independent)
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The Bill is not reported. I wanted to have a vote.

Photo of John McGahonJohn McGahon (Fine Gael)
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The Title was agreed to and the Bill is reported without amendment. Is it agreed to take Report Stage next Tuesday? Agreed.

Report Stage ordered for Tuesday, 28 June 2022.