Thursday, 14 July 2022
Planning and Development, Maritime and Valuation (Amendment) Bill 2022: [Seanad Bill amended by the Dáil] Report and Final Stages (Resumed)
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 Senators' convenience, I have arranged for the printing and circulation of the amendments. The Minister will deal separately with the subject of each related group of amendments.
Senators have tabled several amendments which arise from the changes made to the Bill by the Dáil. In view of the number of amendments and to avoid repetition of debate, I propose that the amendments made by the Dáil and related amendments tabled by Senators be debated together in related groups. Decisions on the amendments tabled by Senators will be taken when the discussion of all groups of amendments has concluded. I have also circulated the proposed groupings to the House. A Senator may only contribute 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 amendments tabled that arise from the amendments made by the Dáil.
The first Government amendment relates to short-term letting provisions in the planning Act. The Government recognises that a significant number of properties have been withdrawn from the long-term rental market in recent years and been diverted for use as short-term lets. It also recognises the associated negative impact this has had on the supply and availability of private residential rental accommodation, with knock-on implications for rental prices. Further amendments will be brought forward to address this issue. Supplementary to these new legislative provisions, we propose to issue guidelines to planning authorities updating the criteria to be taken into account in determining applications for change-of-use planning permission in respect of short-term let properties in rent pressure zones, having regard to the extraordinary pressures prevailing for properties in the private rental market.
Group 2 concerns ministerial directions regarding statutory plans and related provisions in the Planning and Development Act 2000. This is the subject matter of amendments Nos. 6 to 15, inclusive, and Seanad amendments Nos. 1 and 2.
The second set of amendments relates to ministerial directions on statutory plans as provided for in the planning Act. Since the April 2019 commencement and operation of the Office of the Planning Regulator on foot of implementation of the Planning and Development (Amendment) Act 2018, a number of technical matters have come to light regarding the legislative procedure relating to section 31 of the Planning and Development Act 2000, including, but not limited to: sections 31AM and 31AN, concerning development plans and variations; sections 31AO and 31AP, concerning local area plans; and the interrelationship of same. Minor and technical amendments are required to address cross-referencing, standardised wording, notifications and consistency in procedure for both the draft direction stage and the final direction state. These technical and procedural amendments, introduced by this Bill, will provide clarity and consistency of language and procedure for all stakeholders, including local authorities and the wider public.
Amendment No. 1 seeks the deletion of the new subsection (6) inserted via the Dáil amendments into section 32B of the principal Act. That subsection inserted by the Minister provides that a request from a large-scale residential development applicant may include a request that the meeting be treated as a meeting for the purposes of an application under a section 32I.
Amendment No. 2 seeks the deletion of the section inserting the new sections 32H and 32L into the principal Act. These new sections 32H to 32L to be inserted into the principal Act set out details regarding the pre-application process for persons seeking to submit a flexible application under section 34 of the principal Act. Section 32H, to be inserted by the Minister, would mean that a person who intends to apply for planning permission may request a meeting with the planning authority in whose area the proposed development would be situated, under section 34 of the principal Act, for the purposes of attaining an opinion or whether it is appropriate that a flexible application for permission be made. This section sets out the documentation required to be submitted in respect of such a meeting request, including information in respect of the details of the proposed development that are likely to be unconfirmed at the time of the planning application. The planning authority should hold a meeting within four weeks on receipt of the request. The meeting would be attended by planning authority officials and so forth with relevant knowledge and expertise. Again, that is what the Minister would insert. I will come back in a moment to my amendments Nos. 1 and 2, which would delete the measures inserted by the Minister.
Section 32I, as inserted by the Minister, indicates the planning authority must insert an opinion or notification within four weeks of the meeting taking place whether it is appropriate that the proposed application be made. That is in terms of a flexible development and I will come back to that again. An opinion would set out the details that need to be confirmed by the applicant at a later stage and circumstances that allow the planning authority to allow a flexible application.
I will not go into full detail but rather than just describing these amendments as technical, it would have been useful for the Minister of State to outline what the amendments do. They are doing quite a lot and it is not purely technical. In outlining my amendments of deletion, I am stating what would be deleted. That was not mentioned by the Minister of State.
Yes. I was making the point that it would have been useful to have the Minister of State rather than me outlining what is happening with the sections to be inserted, and where our permission for them to be inserted has been requested. We would have been clear about what they were doing.
As I understand it, my amendments Nos. 1 and 2 seek the removal of measures to be inserted by the Minister in group 3. Is that correct? I am not using my speaking slot now but seeking clarification in respect of the grouping. It is the problem and may be why what the Minister of State outlined is disjointed compared with the grouped amendments. My amendments respond to the principle on flexibility.My amendments are responding to that principle on flexibility and I cannot not have my opportunity to speak to them. This is a dilemma. There may be issues with the groupings. I do not want to stop talking because then I will not be able to continue, but I would like if there could be an indication that there has been a mix-up. I will pause for a moment.
As this is a point of order, I will allow it. I will double-check regarding the groupings. We will allow flexibility on speaking on the groupings. The Senator is going to speak to amendments Nos. 1 and 2, as well as the third grouping of amendments.
Regarding the amendments in group 2, then, these relate to the provisions in the Planning and Development Acts and the idea of the ministerial directions regarding statutory plans. I will be brief. As part of a topic we will discuss in more detail later, namely, what has been an extraordinary, relentless and systematic removal and diminution of power at local level, one of the major starting points in that regard was when these ministerial directions were brought in by the former Minister, Eoghan Murphy. Those regulations concerned building density, about that aspect being trumped by interpretations that local authorities had to have regard to. We then moved to the point where the new local statutory plans had to comply and show consistency with those ministerial directions.
I am not going to dwell on the local development plans at great length here. I will highlight the relationship between central government, the local development plans and local plan-making in general. The role of ministerial directions in respect of local planning and decision-making has been a concerning one because it has involved matters of extreme concern in respect of the balance of powers and judicial freedom. I will not speak at length to those aspects but I reiterate that these are 48 pages of amendments. These are extensive amendments. This House should be concerned about them because they also relate to the relationship between local authorities, local development plans and ministerial directions. These amendments should have been afforded proper scrutiny and they should have been part of pre-legislative scrutiny. I will leave my comments on these amendments there. I will speak to my Report Stage amendments Nos. 1 and 2 in the next grouping of amendments concerned with flexibility.
No disrespect to the Bills Office, because the people there are completely run off their feet, but the fact that nobody even spotted the problem with these amendments, and I am not referring to the Chair but to the Minister of State, shows us how shoddy this procedure has been. No disrespect is intended. The Minister of State is bringing in 48 pages of amendments with no oversight, no pre-legislative scrutiny and no time for us to even go through them and assess them. These are major changes. It must be recorded that what is going on today is a shameful act in respect of these changes. It is extremely bad practice. I echo the calls of An Taisce, the Irish Planning Institute, IPI, the environmental pillar, the journalist Mick Clifford and the environmental lawyer Fred Logue. We can discuss these amendments all we want today and try our best to get our heads around them but this procedure is absolutely shameful and shows complete disrespect to the House.
I might add it shows disrespect to the Dáil as well, because how many of them were discussed in that Chamber? Forty-eight amendments were put down on six areas, most of which were not discussed in the Dáil. There was also no outside scrutiny or advice in this regard. We are being asked therefore to consider amendments that the Dáil has not considered. It is a complete joke. I support what Senator Boylan said about the organisations in this context, such as An Taisce, the IPI and the environmental pillar, which is the umbrella organisation for all the NGOs concerned with this area. This is a bit of a joke at this stage.
Right. Okay. I have prepared something so I will continue. A headline I saw yesterday encapsulates the essence of this Bill and the amendments presented to us today. It came from the satirical Waterford Whispers News website. The headline was, "Government Celebrate Winning Confidence Vote By Ramming Through Planning Laws Only Developers Want". The amendments before us undermine citizens' rights to access justice and are contrary to the letter and spirit of the Aarhus Convention. This Bill is opposed by several organisations, including the IPI, An Taisce, and the environmental pillar. They are all drawing attention to the fact that not enough time is being given to allow the amendments to be studied.
The passing of the Bill and its accompanying amendments seems premature. I question the need for this Bill at a time when the Attorney General and the planning advisory forum are studying the operation of the Planning and Development Acts. To highlight the insanity of the situation today, Members of the Oireachtas only received this slew of amendments, which are unrelated to the content of the original Bill, last Thursday. The public did not see these amendments until last Friday. Deputies and Senators were not briefed until after the deadline for input on Monday and there was less than three hours of parliamentary debate before Members were forced to vote.
These new provisions create wide-ranging and confusing changes that will lead to further litigation and delays to planning and development as a result. The Government is actively muddying the waters around these procedures. The amendments will result in greater cost and legal uncertainty around judicial reviews and will fall foul of EU law. It is not me just saying that. These are the words of An Taisce. Ms Phoebe Duvall, the planning and environmental policy officer with An Taisce stated:
The proposed amendments are a stealth attack on public participation in the planning system - they are not ‘administrative’ or ‘streamlining’ changes as described by Government. These amendments will have far-reaching consequences.
In a letter addressed to the Minister for the Environment, Climate and Communications, Deputy Eamon Ryan, An Taisce condemned amendments Nos. 12, 13, 14, 41, 42 and 77. The solution proposed in the amendments is to allow an applicant to propose a range of options and, subsequently, notify the planning authority after planning permission has been granted. There is no requirement for the planning authority to have to agree to any section at the time of implementation. This raises serious concerns about environmental impact assessment, the habitats directive, public participation etc. There are simpler, legally compliant and more effective ways to address these challenges without creating further legal problems. An Taisce also condemned amendments Nos. 25 and 26, as well as the judicial review aspect. Amendment No. 26 proposes changes requiring that prospective litigants exhaust all possible administrative options to correct errors by planning authorities before applying for leave to take a judicial review. Equally, no clarity is provided on the cost implications, which would be challenged.
It is worth noting that this is incompatible with EU law. See, for example, the ruling in Case C-73/16, Puškár, paragraph 7. Ms Attracta Uí Bhroin, environmental law officer with the Irish Environmental Network, IEN, said the amendments were "throwing a minefield into the judicial review process". Last Thursday, Opposition Deputies and Senators received 48 pages of amendments that had been added to this legislation, which was originally 18 pages long. This left just three working days for an examination of this material before this legislation was voted on in the Dáil. Given the complexities of planning law and how complex the interaction between the courts and the judicial review process and planning is, it is reckless to be making these changes without proper time and scrutiny. We do not know, nor can we know, the full implications of what this legislation will entail. In all likelihood, the party line will be toed and what little credibility the Government has left on this issue will be undermined. I am glad the Government has confidence in itself, because after witnessing the antics in the Chamber and in the Dáil, I certainly do not.
I thank Senators for their contributions. In the first instance, I flagged the substantive changes in this Bill in the Seanad last April and our intention to bring forward these amendments. Second, we had a number of briefings on 25 May for Senators, and this week we had a second briefing for over an hour and a half, but the full allocated time was not taken up.
Regarding those amendments, it is very interesting to hear Senators make a charge with regard to the Office of the Planning Regulator, an office that was established on foot of the Mahon tribunal on planning matters, conflicts of interest and lobbying. The amendments we are making are to ensure consistency and to put in better timelines to make it transparent for the public when a chief executive issues his or her report back to the Planning Regulator and for timelines for the Minister to act on recommendations made by the Office of the Planning Regulator. That will make it more consistent in terms of local area plans as well as ensuring transparency in the system. Those amendments I specifically referenced in the debate are technical in nature and I am confident they are for the better.
Group 3 is flexibility in planning applications in the Planning and Development Act 2000 and is the subject matter of amendments Nos. 16 to 18, inclusive, and Nos. 20 to 31, inclusive, and Seanad amendments and Seanad Report Stage amendments Nos. 3 to 5, inclusive, and Nos. 7 to 13, inclusive. I will also allow amendments Nos. 1 and 2 on this Stage.
The third set of amendments relate to planning flexibility applications in the Planning and Development Act 2000. These amendments address the decision of Humphreys J. in the case Peter Sweetman v. An Bord Pleanála, Ireland and the Attorney General, and Bord na Móna regarding the design envelope approach for the submission of certain planning applications which require a degree of flexibility at the planning application stage as the final details of such developments may be unconfirmed at that stage. The High Court judgment disapplies also to flexibilities and replaces them with a very limited range of flexibilities which is insufficient for the operation of a modern and effective planning system. The amendments will introduce a pre-application procedure for planning applications seeking a level of flexibility with regard to details of the proposed development to be submitted as part of the application and are intended to legislate for an approach which facilitates flexibility while providing sufficient clarity to allow planning authorities to consider what level of information is appropriate on a case-by-case basis while also providing appropriate safeguards for environmental assessment. While it is intended the amendments will be of assistance to renewable energy applications, in particular, they are drafted to apply to planning applications generally. Any request for flexibility must be considered by the planning authority or, given the specific circumstance of the planning application, it is appropriate for the application to be made on a flexible basis.
I will speak to my amendments Nos. 1 and 2. The Minister of State used the word "flexibility". His own speech gives an example of how ambiguous that can be. He has described how he told us he was going to do something and that we should not be surprised by what is being done when it is being done very suddenly and quickly. However, he did not tell us what he was going to do, just that he would be making changes. I want to be clear for the record that all 48 pages of these amendments were published last Friday. It is an example of the flexibility we are now being asked to give to developers in the planning process. They will have a discussion about how they are going to mix things up a little. It is a flexible planning application for flexible planning permission and we will see how it turns out. They will explain further down the line why they decided to make the choices they made. In what we have seen in the legislative process and what is happening in the planning process, we are seeing a mirroring of a disregard for democracy and transparency.
I will come to each of my amendments, but they come to the same pieces, which are that the Government is consistently seeking to tweak and change the planning process so it gives favourability and flexibility to developers and protects them in every way. We already know about the financial de-risking for developers that is happening now. Here we have the planning process itself being made a little blurry and easier for the developers so they can apply for and have special meetings about these flexible planning permissions. Meanwhile, we are going to come to another section in which we are trying to tie the hands of the public behind their backs in their participation in the planning process. It appears to be a constant process of trying to put a finger on the balance of the scales of justice against the public and giving a little boost to those seeking development. Let us be clear on some of the amendments and on what it is proposed they can do. There is the large-scale residential developments theme, subsequent to the strategic housing developments where we were told that local authorities were the big problem and we needed to fast-track things. They failed to deliver proper housing and were acknowledged as a failure. When they were brought forward in 2017, we said they would not work because we said the wrong problems were being identified.
The developers can request meetings with the planners. What are referred to as design envelope changes in planning are being brought forward not just in areas where, for example, there is technology that is changing very substantially over a speedy period of time, and that case has been made previously such as in some of the debate that occurred on maritime area technologies and those changes, but the Bill is also bringing forward this flexibility in the planning application process to ordinary planning applications, large-scale residential developments, strategic infrastructure and marine development. It is bringing it into the entire planning process. There has been no adequate explanation of exactly why we need this flexibility in ordinary planning applications or planning applications for large-scale residential development.
Apart from the legal issues, the issues that have been identified in the Derryadd and Bord na Móna Powergen cases could have been addressed differently because those are issues that are specific where there are questions regarding technologies. There is a case that can be made there for doing something differently, but there are more effective ways to do it. Serious legal concerns have been raised on assessment and participation rights and on the EU and Aarhus obligations. The measures are regressive in terms of the participation rights in the planning system, which is a very serious matter because now the public are only getting to give their opinion when they do not know what they are giving their opinion on. They are giving their opinion on a flexible planning application, which may change and has a series of variables in place, so it is not clear what the public are commenting on. The changes will also have a profound effect on the planning system by compromising clarity on what is going to be developed and when, at a time when we need more clarity on the delivery of homes for people. There is a danger they will incentivise developers to delay until they can maximise profits and reduce costs, while continuing to lobby for further changes in planning legislation and building regulations to their advantage.
Another set of measures we were told would somehow shift the logjam but, in fact, incentivised speculation was when we were told to lower standards in different areas, that we needed to be more flexible about the standards of apartments and so forth and that this would get things built. It meant many planning applications that secured planning permission did not get built.People saw they could speculate a little further, could possibly squeeze a few more concessions from the Government and, therefore, squeeze a little more from the value of their investment. The Minister of State indicated last night that his officials have been working on this for some time. If that is the case, why has there not been a briefing on it? Why have these proposals not been presented in detail? Why are we not seeing the case being made for this flexibility in ordinary planning permissions for large-scale residential development? I note the briefing provided to the Oireachtas joint committee is not the same as pre-legislative scrutiny of measures. That deals with amendments Nos. 1 and 2.
I will move to amendments Nos. 3 to 5, inclusive. Amendment No. 3 seeks the deletion of the section inserting sections 37CC and 37CE into the planning Act. These sections set out details regarding the pre-application process for persons who want to submit a flexible application. I could detail what the measures do in respect of a person who intends to apply for planning permission, but I will point to some of the wider issues. Section 37CC is around detailing the request for a meeting to get an opinion. I will note that the pre-meeting, where matters can be sorted out a little in advance, is again part of the head start we give to developers, while increasing the costs and narrowing the window for those who wish to object. I also note it mirrors one of the problems in the Bill as a whole because, to be clear, this was a bad Bill before the Government added 48 pages of amendments. That Bill had a provision for a special pre-meeting for those who have a development that does not have proper environmental scrutiny and so forth to see if they want to apply for substitute consent or not. It fits a dynamic of very cosy meetings in advance, which means the public are presented with a short window to engage and, once these measures go in, an unclear development planning application on which they will comment.
Amendment No. 11 outlines the details of the pre-application process. It seeks the deletion of section 37 of the Bill, which inserts new sections 182F to 182H into the principal Act. These new sections set out the details regarding the pre-application process for persons who want to have a flexible planning application. A person who intends to apply for approval under section 182B may also request a meeting - I will not go through section 182G again - in respect of the board issuing an opinion or notification as to whether "it is appropriate that the proposed application be made and decided before the prospective applicant has confirmed ... [certain] details".
Amendment No. 12 seeks the deletion of section 38 of the Bill, which amends section 246 of the principal Act, providing the Minister with the power to prescribe fees by way of regulations. Amendment No. 13 relates to section 39 of the Act, which is the Fifth Schedule to the Bill, and the conditions that require the developer to supply actual details prior to commencement. To be clear, the flexible planning application comes in when we say these are the areas where we are not sure exactly how we will do it yet. The board then states this is a set of conditions about how applicants might think about that, and applicants then notify the board about what they have actually decided in the end. It is a conversation that makes the participation of the public much more difficult.
Is amendment No. 6 in this group?
I apologise. I will skip over that. Since we are only seeing these groups at short notice, we have to anticipate.
I will move to amendment No. 13. In effect, this set of amendments addresses the flexibility piece. The Minister of State talked about losing a case and, as there are now limitations on the flexibility we can have, we need to change the law again. It is part of a very worrying dynamic, namely, if we are found to be in breach of the law, then we change the law. That is what we see again and again. That is not an appropriate relationship. This is relevant to judicial reviews that An Bord Pleanála loses consistently because it is found not to have applied the process and the law properly. Rather than address that, we are trying to make judicial reviews more difficult. I will come to that in the next group of amendments.
Similarly, it has been found that the State has been excessive in its flexibility and needs to be more constrained in the flexibilities it affords, but the State's response is that it will change the rules again and will pass new laws to let it do whatever it would like to do. The case has not been made in respect of large-scale residential developments, issues relating to ordinary planning permission and maritime areas and infrastructure that there are better and more effective ways to address the issue at hand.
I will speak to amendment Nos. 1 and 2 in group 3. Amendment No. 1 is around the design envelope flexibility for large-scale residential developments. Senator Higgins has gone into incredible detail on what these two amendments are trying to do. Nobody is saying we do not need design flexibility, especially when it comes to large offshore wind projects, but we do not believe replacing the deeply flawed strategic housing development system with design flexibility for large-scale residential developments is the way to go. We have real issues with the public having no participation in the application of that flexibility, the decision-making or the implementation stage.
My understanding is the developer would simply have to notify the decision maker of the flexibility. The developer does not even have to outline the changes they are making. It beggars belief because this is being proposed at a time when it seems our planning process is probably at its weakest point when it comes to the level of public trust in the planning system, given what has come into the public arena in the past number of weeks. Instead of just addressing the issues we need to address in order to reform our planning system and screen out bad applications, we are now changing the law to allow large-scale residential developments to come in with design flexibility from which public participation will be, in effect, eliminated. The public will not have a say on the flexibility of the application, the decision or its implementation. There is no space for design flexibility in LSRDs.
Amendment No. 2 addresses the issue more generally around the design envelope procedure. As was said, we do not have a fundamental objection to allowing some flexibility, but we cannot eliminate public participation from that flexibility. We have a particular issue with this being in breach, especially as regards offshore wind, of the habitats directive, environmental impact assessments, water directives and the Aarhus Convention, and that it will, in effect, be carte blanchefor private developers.
We again urge the Minister of State to withdraw these amendments, allow the proper pre-legislative scrutiny to take place, and allow the committee to tease out the details of this. As Senator Higgins also said, when the Minister of State came to the Chamber on 6 April to say he would be making changes - we will get to the judicial review - he made no reference to the detail of what those changes would be.I do not think anybody would expect him to flag that he was going to bring in changes and then to bring in 48 pages of proposed changes to what was originally an 18-page Bill.
I remind the House what happened in the Dáil last night. The debate reached amendment No. 13 of 82 amendments, meaning the others had no scrutiny. The only people who are in favour of some of these amendments are the Construction Federation of Ireland. Everybody else, such as the planning association and the environmental pillar, An Taisce, opposes these amendments. The Government got through only 13 of them and it has then come to this House today to present them. There are issues also with the groupings and the amendments not being produced until Friday evening. It is farcical, but we are here and will engage with the process. We urge the Minister of State to withdraw the amendments.
Section 10 is a procedural amendment relating to the flexibility opinion process for applications under section 34 of the principal Act. Large-scale residential development, LRD, applications come under section 34 of the Planning and Development Act, and a pre-application procedure is in place in respect of LRD applications. The section provides that a prospective LRD applicant seeking a meeting regarding flexibility may request that the existing LRD pre-application meeting also be held for that purpose. The aim of the amendment is to introduce efficiency into the system in order that where cases where flexibility is sought in regard to an LRD application, two separate pre-application processes will not be required.
The section is part of a group of amendments that provide for the principle of flexibility with regard to planning applications to be inserted into the planning Act. The planning flexibility amendments are required to address a High Court decision from last summer that disapplied the concept of flexibility in planning applications. Prior to the judgment, a degree of flexibility in planning applications was accepted as a feature of the planning system and was successfully applied up to this time in respect of all types of development. These amendments provide for a process whereby a prospective applicant who wishes to avail of flexibility in his or her planning application may request a pre-application meeting with the planning authority for applications under section 34 of the planning Act or the board in regard to development of a strategic nature or in an outer-maritime area from the perspective of receiving an opinion on whether it is appropriate an application for permission be made on a flexible basis, that is, on the basis of specific options or parameters.
An opinion will be granted only where the flexibility sought is deemed appropriate by the planning authority. As part of the planning application, the applicant will have to submit sufficient information to allow the planning authority or the board to assess the impacts of any type of development that falls within the flexibility sought. Where options are proposed, the specifications of these options will be known to the applicant and will have to be submitted as part of the planning application. Where parameters are proposed, the applicant will have to detail the maximum and minimum points of the parameters and provide sufficient information to allow the impacts of any development that falls within those parameters to be assessed. The information provided will have to be sufficient to enable the planning authority or the board to consider the application and carry out any environmental assessments required.
The principle of flexibility is acceptable from an environmental impact assessment, EIA, perspective. In 2020, the European Commission published guidance on wind energy developments and EU nature legislation, illustrating how an options- or parameters-based approach can be used in assessing environmental effects where some details of an application are unconfirmed. Furthermore, the Commission's plan published in May 2022 recommends renewable energy developers be allowed to avail of the most innovative technology available at the time of construction, so we are ahead of the game with regard to implementing this recommendation. Where the planning authority or the board subsequently grants flexible planning permission, conditions will be attached to the grant of permission clearly setting out the permitted options or parameters for any unconfirmed details and requiring the applicant to confirm the details of the development prior to the commencement, or the part of the development to which the flexibility relates. The primary legislative amendments will be supported by supplementary regulations that will provide that newspaper notices, site notices and weekly lists for any flexible application will all need to indicate the application relates to a flexible application. This will ensure greater transparency and public awareness in respect of flexible applications. Moreover, to facilitate meaningful public participation, such an application will have to be accompanied by an overview or a statement of flexibilities that highlights which details are unconfirmed and specifies the information being submitted in regard to those details.
The marine amendments have been provided to ensure a consistency of approach between nearshore applications submitted under section 34 of the planning Act, which are covered by the amendments to the onshore section 34 planning application process, and outer-maritime area applications submitted under section 291. These amendments have been prepared on the advice of, and in conjunction with, the Office of the Attorney General to form part of the overall response to address issues raised by the High Court judgment. These procedures will make the planning system more effective and efficient and result in better quality applications while, in general terms, they will be particularly important to renewable energy projects and the roll-out of wind energy development, especially in the maritime area, in light of the maritime area consent, MAC, applications coming down the line. As such, it is critical we bring forward these amendments at this time.
In general, planning permission legislation tries to avoid setting different requirements for different types of development, such as wind energy development. It would not be possible to prepare a complete list of every scenario where flexibility may be appropriate, given this can be specific. Prescribed flexibility in respect of certain types of development would indirectly remove flexibility for all other types of development. The applicant must set out the nature of the overall proposed development and identify the specific details that will be unconfirmed and the circumstances as to why it would be appropriate to make an application without confirming those details. The procedures, therefore, allow the relevant planning authority or the board to consider what is appropriate in a given circumstance. We have to respect the work of the professional local authority, planners and the board when it comes to making the recommendation on planning applications, taking into account all relevant considerations.
The High Court judgment relating to the wording in the planning regulations applies to all planning applications and, therefore, our fix equally applies to all types of applications. I do not foresee the provision being used on a widespread basis. Although I have made the process as simple and efficient as possible, the additional time, cost and environmental considerations involved will mean the process is utilised by prospective applicants in limited circumstances. It is important, however, that the process be available for those limited circumstances, wherever they may be. The proposals have come on foot of a High Court judgment. The Department received legal advice on the judgment and there is ongoing engagement with the Attorney General's office. The judgment did not rule out the possibility of a flexibility-type approach being used in the Irish planning context; it simply found the wording of the current regulations do not allow it. The purpose of the primary legislative amendments is to ensure a robust response to the judgment and to insert the principle of flexibility into primary legislation to underpin the supplementary regulations being developed.
A pre-application procedure, as proposed, is not incompatible with an EIA and the habitats directive. Furthermore, a planning application containing options or parameters is acceptable from an EIA perspective. In 2020, the European Commission published guidance on wind energy developments and EU nature legislation, illustrating how options or parameters can be used in assessing environmental effects where some details of the application are unconfirmed. These proposals relate to the pre-application stage, which is not part of the decision-making process, and no specific development proposal has been considered or consented to as part of the opinion process. Opinion does not confer any development rights and, therefore, the public participation requirements of the Aarhus Convention and the EIA directive do not apply to such procedures, given they are not part of the development-consenting authorisation process. The amendments provide that all pre-application records, including meeting requests and any supporting documentation, the record of the names of attendees at the meeting and the opinion, will be retained by the planning authority or the board and made available should any subsequent application be submitted.
To ensure greater transparency and public awareness in respect of flexible applications, the supplementary regulations will provide that newspaper notices, site notices and weekly lists for any flexible application will need to indicate the application relates to a flexible application.Further, to facilitate public consultation, the supplementary regulations will provide that a flexible application will be required to be accompanied by an overview or statement of flexibilities that highlights which details are unconfirmed and specifies the information being submitted in respect of those details.
The fourth set of Government amendments relates to judicial review provisions in the planning Act. New amendments will require the court to consider whether there is an adequate appeal or other available administrative remedy and, if so, it should not grant leave. This is not as absolute as the amendment that was originally proposed but it is compliant with EU law and creates a presumption, which the court is required to implement, that issues arising from determinations of planning authorities ought to be appealed to the board unless there are special circumstances. In effect, an appeal, rather than a judicial review challenge, should be the default position in the first instance.
The final amendment introduced is designed to assist developers in obtaining remittal and to address the judicial reluctance that has manifested itself recently to remit matters to planning authorities following a successful judicial review challenge. At present, some judges refer matters back to the planning authorities to make a new decision, while other judges are reluctant to do so. To address this, it is proposed to provide for an effective presumption that the matter can be remitted to the board at the commencement of the legal proceedings in order that the errors can be corrected quickly, thereby avoiding delays associated with such proceedings.
The planning laws are under review, and we are due to see the result of that review by the end of the year. Judicial review legislation is due in the autumn, so I have to ask why we are trying, at breakneck speed, to introduce quite serious changes to the judicial review process that have a fundamental impact on people's right to access justice. We are not going to stop judicial reviews from happening if we cannot screen out the bad planning. As we know, the significant majority of judicial reviews are won. I believe the success rate is around 70%, so there is clearly an issue with the applications being submitted.
What the Government is trying to do is address three parts of the judicial review. The first aim is to allow An Bord Pleanála to amend its decision after a judicial review process has started. It can be as sloppy as it wants but it will be facilitated in cleaning up as it goes along. I draw attention again to the information now in the public domain regarding what has been happening with An Bord Pleanála. We are basically saying today to An Bord Pleanála that if it makes an error or mistake, it should not worry about it because it will be able to clean up as it goes along.
The second element is that the Government is now going to require applicants to ensure they have exhausted all administrative avenues before they can take a judicial review. I find that ironic because, under the Comprehensive Economic and Trade Agreement, CETA, provisions, which the Government is also trying to railroad through, big corporations do not have to exhaust all avenues in the domestic courts before taking legal challenges. The problem with judicial reviews and insisting people exhaust all legal avenues is that judicial reviews can be taken at any stage. It is at the discretion of the judge. Our independent Judiciary decides whether to grant leave to take a judicial review based on the information presented to it. It can also insist that people exhaust all other options. The proposed change is fundamental and interferes with the independence of the Judiciary.
There are areas in respect of which it is important to be able to initiate judicial reviews speedily. For example, if a special area of conservation were being damaged or decimated and an NGO tried to stop that environmental damage, would the Government seriously say the entire administrative process should have to be exhausted? Consider how long it would take before we could stop the damage being done. Consider also the case of a quarry carrying out its actions illegally and the related matter of substitute consent. Major issues arise in that the Government is blocking people from taking judicial reviews where doing so might be expedient in stopping a development causing damage.
The third change is quite sinister. It requires the High Court to send the case under review back to the planning authority when a decision has been made on the judicial review. Effectively, people will make an application for a judicial review and make their legal case, and then the Government will send back to An Bord Pleanála the legal case of the applicant trying to stop the development or to do the right thing by taking the judicial review, in order that An Bord Pleanála can just adapt and tweak it. As I have heard somebody explain it, it is changing the goalposts halfway through the match. That flies in the face of anything we could call proper access to justice.
I am aware the Minister of State withdrew one amendment in the Dáil regarding judicial review. I urge him to withdraw the proposal before us and wait until the review in September. That is when to introduce any changes he wants to make to the judicial review process. In September, the committee will be able to carry out full pre-legislative scrutiny and properly analyse what exactly the Government is trying to do. This is desirable because these are huge changes proposed to the right of access to justice. I cannot understand how the Minister of State can sit there and justify making changes like these to try to stop people from accessing justice.
The fact the Government has withdrawn, under extreme pressure, one of the problematic amendments is welcome, but it highlights again how incredibly ill-considered the changes are. In the tiny window the public has had to react to this, or since Friday, they have seen the issues with the changes. They regard the proposed changes as an attack on their participation and ability to effect change. One environmental NGO has described the changes as a black hole in respect of judicial reviews. There is a dysfunctional effect on the quality of decisions. This is at a time when public confidence in planning is at an all-time low. Curtailing the public's access to the courts is extraordinarily problematic.
I am going to go through a couple of the issues. The moving of the goalposts is one. That we all have to dig to find analogies for unfairness in different frames is part of it. One of the analogies I used earlier is very clear. I referred to the head start given with the pre-application discussions.
What we have here is the referee who makes the wrong call insisting that the matter go back to him or her. An Bord Pleanála has lost many judicial reviews because it has been found not to be applying our planning laws properly.A body which was initially conceived to ensure more rigorous planning and application of not just local but national, EU and international laws on planning has been seen to be a place where those laws get thrown to the side. I had a long list of quotes reflecting the language judges have used when describing An Bord Pleanála's decisions. I will not read out all of them. An Bord Pleanála is losing these decisions because a judicial review can be taken only if there seems to be a concern about the process. This is not a matter of whether someone liked a project or did not like it. People win judicial reviews only when the process itself was not properly applied. I have one quote, for example, from a judge highlighting how the board showed a laxity in scrutiny involving, in effect, the cutting and pasting of the developer's materials without adequate critical interrogation. There was cutting and pasting of what the developer had sent the board in the board's decisions. Then it was said, "If you get caught on that, you should be able to change it up." That was one of the proposals. There is almost a dynamic of developers seeing how much they can get away with and then, if they get caught, trying to make sure there is no comeuppance. In the context of judicial reviews, the kinds of judgments An Bord Pleanála is losing are those where it seems to be cutting and pasting what developers have sent it. That is one example. I have a litany of examples of the decisions made by the courts against An Bord Pleanála.
The response to the very poor record An Bord Pleanála has had and the incredible damage that has been done to public confidence in the planning system has been to double down again and again. As a whole, and leaving aside the bad amendments, the Bill had already provided that those who had not applied proper environmental standards and so forth, where consent had to be given retrospectively when proper planning standards were not met in the first place, would be allowed to fast-track additional applications and planning applications, not even on the original site but on an adjoining site. A developer with an illegal quarry can add in something else on the site next door that does not even have to connect or have anything to do with the original site. That goes straight to An Bord Pleanála, bypassing the local authority stage. That was being brought in by the Government even as members of An Bord Pleanála, who were former officials in the Department, were having to step down in respect of the poor quality and moral ambiguity of the decisions that had been made.
That is the context, and in that context we now have decisions that An Bord Pleanála should be able to correct its homework after the fact. That was one proposal, which I think has been withdrawn. There is still provision in the Bill that, before winning a case, someone first has to exhaust administrative solutions. There is the helping hand of the pre-meetings for the developer and the helping hand with flexibility as to what is applied for. There is a lifting of that side of the scales of justice and the pushing down of the scales of justice when it comes to the public. I wish to mention groups such as the Dublin Democratic Planning Alliance, which have described how these measures relating to judicial review are contrary not just to the letter but to the spirit of the Aarhus Convention. That idea of public involvement in decision-making is at the core of democracy. Sometimes people are very disaffected. When I try to persuade them to engage with politics and to believe in democracy and policy, when I tell them they can have their say and be part of shaping their lives and their world, the line I use again and again is how policy and politics are the decisions we make as to how we live together. Some of the most important decisions we make as to how we live together are those that relate to what gets built and what happens in our towns, our cities and our communities and what happens to the rivers and the forests of the natural environment we share. That is all part of how we live together and part of democracy. The public are now having obstacles placed in their way. They must exhaust administrative solutions while a clock ticks on their ability to submit judicial reviews and while a bill runs up for those people, who do this not just for themselves but for future generations. All of these obstacles are put in their way while they have not just one but maybe both hands tied behind their backs. Meanwhile, we have the pre-meetings, the extra period, the boards and so on happening on the side of the developer. That is imbalance and injustice. They all fit together.
We talk about separation of powers. I have talked about planning as part of democracy and about having a properly independent Judiciary that makes its decisions as part of a democracy and a proper independent legal process. The Minister, however, is seeking to tell the courts they already have the power to remit a decision to An Bord Pleanála if they point to where they believe it went wrong. They may wish to send it back or to look at it from a certain point. They may point to what needs to be addressed. They already have that discretion, but the Minister is trying to take away their discretion and, effectively, oblige them in most circumstances to send the poor decision that was made back to An Bord Pleanála. More judicial reviews are being taken because worse planning decisions are being made, much like more forestry appeals were being taken because the Minister for Agriculture, Food and the Marine had to stand before the Dáil and admit we were called out by Europe for not applying environmental standards in our forestry licensing. The reason there are more judicial reviews is there are worse decisions being made in that the process has not been properly applied. Now we are punishing people for that and telling developers to do what they want, to push their applications in and, in some cases, go straight to An Bord Pleanála with them. Maybe people will be able to take a judicial review but we will make it harder for them, they will have to wait a while and we will make them show all their cards and explain all the problems to the board first. The Government tried to make it so that one could change what one wrote about facts and correct factual inaccuracies after the fact. The Government has not put that in the Bill because it is so blatantly illegal. What we now still have in the Bill, however, is a provision that even if someone wins a judicial review, if the courts find in favour of the public, that will go straight back to An Bord Pleanála. There are so many ways for the public to lose now. Some of these developers had totally inappropriate relationships with An Bord Pleanála, it seems. Of course, we will have to see how the investigations unfold. That is the situation, though, and that is the imbalance that has been created.
I urge the Minister of State at this late stage to withdraw at least the amendments on judicial review. If the Government is going to trample over some parts of the planning process, it should at least ensure the independence of our courts is protected. Also, for the record, there was no indication of the Minister of State's intentions, in his speech in April, to change the judicial review processes. The idea the Government would come after one of the pillars of democracy, namely, the independence of the Judiciary, without pre-legislative scrutiny is completely unacceptable. The short debate yesterday and the short debate today are no substitute.
I will pick up on what Senator Higgins said. There was no indication of this in April. We call on the Minister of State to withdraw the amendments in respect of judicial reviews. An overall review of judicial reviews will happen in the autumn. The Minister of State withdrew one of the amendments in the Dáil related to judicial reviews. He needs to do so again here. I know the Government thinks it will speed up planning, but this will only make things worse and cause more delays, more confusion and more uncertainty. Why not put our efforts into establishing a stand-alone environmental court?
The first proposed change relates to the insertion of a new provision in section 50A of the Act to provide that the court shall not grant leave to apply for a judicial review challenge unless it is satisfied that the applicant has exhausted any available appeal procedure or any other administrative remedy available to him or her in respect of the decision or act concerned. This amendment effectively means that the courts will be required to consider whether there is an adequate or other administrative remedy available to address the issue that is the subject of the challenge and, if so, should not grant leave. Therefore, this amendment will create a presumption that the issues arising from decisions of planning authorities ought to be appealed to the board in the first instance unless there are special circumstances. In effect, an appeal to the board rather than a judicial review challenge to the courts should be the default position in the first instance.
This proposed change is in line with EU law and international law under the Aarhus Convention on access to justice. In this regard, Article 11.2 of the EIA directive, which transposes the Aarhus Convention into EU law, provides that member states shall determine at what stage planning and other environmental decisions may be challenged. Article 11.4 of the directive further provides for the possibility of a preliminary review procedure before an administrative authority, which shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures where such a requirement exists under national law. This proposed change has been flagged with the European Commission, which has not raised any issue.
The second proposed change relates to the insertion of a new subsection (9A) in section 50A to provide that, if the court decides to quash a decision or other act further to a judicial review challenge, it can, on request by the planning applicant, remit the matter back to the planning authority concerned or the board for reconsideration to correct an identified error, which will enable restarting the case from the point of the process at which the error occurred, thereby avoiding the delays associated with such proceedings. One of the benefits of this proposed change is that it will enable the courts to remit the decision back to the planning authority concerned or the board, whichever the case may be, for consideration without the planning applicant having to submit a new revised planning application and start the process again from the beginning, thereby assisting in streamlining the overall planning process in respect of the development concerned. This is already happening in practice in some judicial reviews before the courts. The amendment is essentially providing a statutory underpinning to the adoption of this approach.
These proposed changes are designed to improve the efficiency of the case management procedures by which judicial review cases are handled in the courts so that cases can be more speedily addressed and rectified, thereby potentially reducing the number of judicial review cases and the time taken up in the courts dealing with such cases. On Second Stage, I referred to the judicial review changes.
The Senator would never consciously make an error of that kind.
Group 5 on the Maritime Area Planning Act 2021 is the subject matter of amendments Nos. 31 to 64, inclusive, and Seanad Report Stage amendments Nos. 14 to 21, inclusive.
I just took a look there - I referred to exactly what we are doing now. I was reading from my Second Stage contribution on judicial reviews of the administrative process word for word. There is a great deal of misinformation going around in Senators' responses today.
The sixth set of Government amendments relates to technical amendments to the Maritime Area Planning Act 2021. These amendments were recommended and drafted by the Office of the Attorney General. Section 56 of the 2021 Act will be amended to allow for the appointment of a chief executive officer designated by the Minister ahead of the establishment of the Maritime Area Regulatory Authority, MARA. Others of the amendments provided are technical in nature to support the establishment of the new marine planning system.
No matter how the Minister of State says it, the Government published the amendments on Friday, so this is the first time we are seeing these proposals in writing. Someone simply saying that he or she aspires to do something in the future is not the same as tabling something. That this is now a maritime Bill as well is just the latest example of that.
Amendments Nos. 14 to 21, inclusive, seek the deletion of the proposed new subsections to section 3 of the Maritime Area Planning Act 2021, or the MAP Act. These Government amendments purport to define more precisely the application of the MAP Act in respect of a public body. My proposed amendment will ensure that there is consistency between that Act and the Maritime Jurisdiction Act 2021. The Minister of State is introducing these changes. Under our amendment, and with the exception of the one subsection that is mentioned, the public body would not be able to perform in respect of any other matter one or more of its public functions by virtue of a matter relating to, whether in whole or in part, the continental shelf. By virtue of this subsection, the public body might perform the public function relating to the matter as if the continental shelf, or the part thereof concerned, was a part of the State, where the public body might perform such a function. The other provisions of the Bill or any other enactment should be construed accordingly.
Our amendment would provide that the holder of a MAC in carrying out maritime uses authorised under this Bill would have to act in accordance with certain matters. My amendment would provide that the holder of a MAC should not accrue a financial benefit or any other benefit or interest from the development of seagrass or seagrass meadows in respect of an area that the holder holds and for which a MAC has been authorised under this Bill. Notwithstanding anything else in the Bill, such benefits and interests would remain the State’s exclusively. In light of the sustainable development goal, SDG, on life below water and so on, it is important that we have a very thoughtful approach to the State’s maritime resources. It is also important that we make it clear that a MAC should in no way concede financial or proprietary benefits or interests to other parties. The State must remain the exclusive holder of benefits and interests where consents have been given.
My amendment provides that, "For the purposes of this section, ‘foreshore’ means the bed and shore, below the line of high water of ordinary or medium tides, of the sea and of every tidal river and tidal estuary and of every channel, creek, and bay of the sea or of any such river or estuary" seawards out to the outer limit of the continental shelf.
Amendment No. 15 seeks to amend subsection (5) of the proposed section 33A by changing the timeframe for which an application for leave to apply for judicial review under order 84 is made. Extending the period is important. It is becoming much more difficult to be clear about exactly what is being applied for and there are requirements relating to administrative engagement and so forth. Amendment No. 15 would extend the period for applying for a judicial review under order 84 from eight weeks to three months. This would be appropriate and would indicate some good faith and a desire to ensure that the public have a suitable window of time in which to exercise their rights under judicial review.
Amendment No. 16 seeks the deletion of section 33B(3)(b), which has to do with appealing the granting of leave under section 33A where the court is satisfied that "the decision or act concerned relates to a development identified in or under regulations".My amendment replaces the changes put forward by the Minister in section 33B with a provision that a court would not grant leave under section 33A unless it is satisfied that "where the decision or act concerned relates to a development which may have significant effects on the environment, the applicant is a body or organisation (other than a State authority, a public authority or governmental body or agency) the aims or objectives of which relate to the promotion of environmental protection". There are certain areas where permissions may be allowed in the context of the goal of environmental protection and it is appropriate that a different standard would apply in that circumstance, but that should not be extended to all circumstances in the context of leave under section 33A.
Amendment No. 17 seeks the deletion of section 49. The Minister has described it as a technical amendment but it raises concerns.
Amendment No. 18 inserts a new section 8A into the proposed section 143 of the Maritime Area Planning Act to provide that, "[i]n circumstances where the MARA has determined that swifter action is needed to either avoid or limit environmental damage related to the matter the subject of the enforcement notice", the timeframe may be reduced. This recognises that there are situations where environmental protection and urgent environmental action might be needed.
On the issue of the environment, we have heard about the windmills and that this is the big justification in that regard. I am worried, however, about these big changes being made. This is not strictly related to the amendments but it does relate to the environmental argument in respect of these changes to the planning process. Let us be clear that when the planning and judicial review processes are changed in the way that is happening in the legislation, as well as in respect of issue such as substitute consent and that general thrust of the legislation, there may be windmills out front but sitting right behind them are the big data centres, the big Glanbia proposals and all the others. When the rules and goalposts are changed, they are changed for everyone. If the desire was to specifically address areas of particular climate urgency, more specific and tailored legislation would have been brought forward. That is the case in the maritime area in terms of offshore energy, but also in terms of provisions relating to planning more widely. It is a fact that flexibility is also being given to hotels and everybody else, rather than solely to areas of technological complexity.
Amendment No. 19 seeks the deletion of the proposed section 166A(2) of the Maritime Area Planning Act. That section relates to the persons and organisations exempt from rights of action by an estate in respect of a maritime area. It extends the list of those who have that protection from rights of action.
Amendment No. 21 seeks the deletion of section 73 of this legislation. Section 73(a) inserts section 279A into the Planning and Development Act 2000 to make clear that MARA should be recognised as a prescribed body for maritime development applications. That is important. In effect, what are being referred to are design envelope changes in the planning Bill being brought across the board in all these different areas, including the maritime area. They are substantial changes with significant effects. We talk about the MAC and those maritime processes but one must bear in mind that we are in a dangerous time, environmentally. Marine development is also being affected by that flexibility. I have spoken on the issue of wind energy. Let us be clear and honest that members of Government parties, including the Commissioner, Mairead McGuinness, are in Europe arguing for gas to be defined in the taxonomy, absurdly, as green development. I have concerns in respect of the offshore space and the dangers of potential expansion. Provisions have been made but those that were made in the climate development Act were not narrow or constrained enough. They allow for situations relating to where, for example, exploration, or even discussions about exploration, had happened in the past. That is why I am concerned in respect of our maritime area. I wish that we had marine protected areas, MPAs, in place. It would be better if we had them. A significant number of changes are being made in the Bill but it seems there is a rush to do everything except for moving forward with MPAs.
That is important because it comes back to the core issue in respect of planning that feeds into judicial reviews. Some judicial reviews are taken for other reasons, such as people wanting to have a liveable city, town or society. They want cities, towns and communities in which they can live - where they have sunlight, with people of different ages, access to green spaces and all those important things that make life worth living. Other judicial reviews are taken on environmental grounds and in terms of that wider piece of trying to protect, mind and nourish the part of the planet that our country covers and, more widely, to which our continental shelf extends. That is incredibly important. It is a motivation for many of those involved. That is why, when I speak about marine protection, I am speaking about these environmental ideas.
I am conscious this is the final grouping so it will be my last chance to come in on the matter. We need to start doing things properly. When people and groups who want planning permissions for windmills and all the rest came before the Oireachtas Joint Committee on Environment and Climate Action, they said they did not need a truncated planning process, but more resources to be allocated by the State to do planning better. I do not wish to be inaccurate. I think that only two of the An Bord Pleanála inspectors have expertise in the environmental area and can address those issues. We need more officials and inspectors to be in a position to do so. We need massive resourcing of the National Parks and Wildlife Service. We need NGOs to be resourced so that we can have better EIAs earlier in the process and better planning decisions can be made from the beginning. If that is done, there will be no need for judicial reviews. It is at the beginning of the process that more investment is needed, rather than it being done in this way of limiting those who try to apply a safety net after all suitable other precautions have not been taken. It is not about cutting holes in the safety net.
The Maritime Area Planning Bill was enacted on 23 December 2021 and established the legal framework for a new planning system for the maritime area. One of the main features of the Act is the creation of a new State consent, namely, the maritime area consent, as a first step in a new and streamlined planning process. The Minister approved and signed a commencement order on 10 March 2022 to commence certain required elements of the Act, namely, sections 72(4) and 72(6). Section 72(4) sets out the process for the application for, and grant or refusal of, MACs. The commencement of these sections enabled the opening of the MAC window for relevant projects in accordance with the transition protocol as set out in the Act. Under the transition protocol, the Minister for the Environment, Climate and Communications has responsibility for assessing and granting the MACs for the relevant projects, that is, the first batch of offshore wind energy projects eligible to apply. The Department of the Environment, Climate and Communications engaged the Chief State Solicitor's Office, CSSO, to advise on the drafting of the terms of reference for MACs.The CSSO engaged senior counsel who identified the need to redefine elements of the Act to further safeguard the interests of the State and to enable the practical implementation of the legislation in granting maritime area consents. On foot of these findings, the Attorney General has advised of a number of technical amendments required to facilitate the operation of the Act. The policies and principles of the Act remain unchanged.
The Government has proposed amendments on section 3 on the advice of the Attorney General. The amendment proposed by the Senator does not accord with the advice of the Attorney General. This amendment seeks to alter the application of the Maritime Area Planning Act to specifically promote the conservation of seagrass. This is a policy objective and would be more appropriately addressed as part of the maritime protected area or designated maritime area plan. The managed conservation of seagrass is something this Government feels very strongly about both in terms of its use as a natural carbon sink and its potential to be part of the coastal erosion solution. We are open to a development of a maritime area plan to facilitate further this goal. However, it is not appropriate to identify a single objective in the application of the entire Maritime Area Planning Act.
Amendment No. 15 seeks to increase the period when judicial review proceedings under Order 84 can be brought from eight weeks to three months. Applying such an amendment was introduced an inconsistency in the planning legislation by creating a disparity of time periods between the Maritime Area Planning Act and the Planning and Development Act and as such would cause uncertainty among the public.
Furthermore, eight weeks is a timeframe that has been recommended by the Attorney General. Section 33A(6) provides that the High Court may extend the eight-week period within which an application for leave may be made if it is satisfied that there is a good and sufficient reason for doing so and the circumstances that result in the failure to make an application for leave within the period so provided were outside the control of the applicant for the extension.
On Opposition amendment No. 16, the Government amendment providing for the insertion of chapter 8A in Part 2 introduces specific judicial review provisions including that:
The Court shall not grant section 33A leave unless it is satisfied that—
(a) there are substantial grounds for contending that the decision or act concerned is invalid or ought to be quashed, and
(b) (i) the applicant has a sufficient interest in the matter which is the subject of the application, or
(ii) where the decision or act concerned relates to a development identified in or under regulations made under section 176 of the Act of 2000, for the time being in force, as being development which may have significant effects on the environment, the applicant [and so on].
The Senator's amendment seeks to remove the requirement that a development be identified under section 176 of the 2000 Act. Since section 176 of the Planning and Development Act relates to prescribed classes of development that may have significant effects on the environment and wider area that require assessment, the Senator's amendment is a significant change of policy of the section and I therefore oppose the amendment.
On amendment No. 17, the Department of the Environment, Climate and Communications engaged the Office of the Chief State Solicitor to advise on the drafting of terms and conditions for the maritime area consents. Legal counsel has been engaged and on foot of those findings, the Attorney General has advised on the technical amendments. This includes the technical amendment that was proposed by the Government to section 85 relating to the assignment of MACs. That amendment includes the regulation-making power for classes of MACs assignment, as well as for the procedures that will apply to an application by the proposed MAC assigner or the proposed MAC assignee. The Government amendment of section 85 will allow for scenarios such as the future transfer of transmission assets to EirGrid.
Amendment No. 18 seeks to remove procedural fairness from the issuing of special enforcement notices by MARA. I will therefore oppose the amendment.
On amendment No. 19, the Government amendment that inserted Chapter 8 was drafted on the advice of the Attorney General. I am satisfied that it was significantly complete. Furthermore, section 137(1) of the Maritime Area Planning Act provides that MARA may appoint persons to be authorised officers for the purposes of all or any of the provisions of the Act as it thinks appropriate. I will therefore oppose the amendment.
Amendments Nos. 20 and 21 seek to delete provisions for design flexibility in the outer maritime area which have been provided for in accordance with Government amendment No. 77 on Committee Stage. The amendment to provide for design flexibility for planning applications introduced a preplanning application procedure for planning applications seeking a level of flexibility with regard to the details of the proposed development to be submitted as part of the application. The design envelope approach will be based on options or parameters, all of which will be thoroughly assessed as part of the planning application. The flexibility will be limited to that which is assessed as part of the application. The amendment is intended to legislate for an approach which facilitates flexibility and provides for significant clarity to allow An Bord Pleanála to consider what level of information is appropriate on a case-by-case basis, while also providing appropriate safeguards for environmental assessment. Such flexibility is particularly fundamental for renewable energy projects where the technology is continually improving and may not be finalised prior to the submission of the planning application. A number of members of the Committee on Housing, Local Government and Heritage wanted to design flexibility to be included in the Maritime Area Planning Act and raised this during the committee hearings on the Bill. At that time we were cognisant of the need to apply principals across both terrestrial and maritime to avoid confusion and we were not yet ready for those to be developed. Since then, we have taken the time to revisit the issue in a joined-up manner and are now moving to address it. I think this addresses the committee's opinion expressed during the hearings.
The achievement of our 2030 renewable energy targets is dependent on robust planning legislation that is transparent and affords adequate protection to the environment while facilitating necessary and appropriate development. Therefore I oppose both amendments.
Niall Blaney, Paddy Burke, Jerry Buttimer, Maria Byrne, Micheál Carrigy, Shane Cassells, Martin Conway, John Cummins, Emer Currie, Regina Doherty, Aisling Dolan, Mary Fitzpatrick, Robbie Gallagher, Seán Kyne, Tim Lombard, Eugene Murphy, Joe O'Reilly, Mary Seery Kearney.
Garret Ahearn, Niall Blaney, Paddy Burke, Jerry Buttimer, Maria Byrne, Micheál Carrigy, Shane Cassells, Martin Conway, John Cummins, Emer Currie, Regina Doherty, Aisling Dolan, Mary Fitzpatrick, Robbie Gallagher, Seán Kyne, Tim Lombard, Erin McGreehan, Eugene Murphy, Joe O'Reilly, Mary Seery Kearney.
I move amendment No. 14:
In page 35, to delete lines 20 to 39 and substitute the following: “(2) Where, but for this subsection, a public body would not be able to perform, in relation to any matter whatsoever, one or more than one of its public functions by virtue of the matter relating, whether in whole or in part, to the continental shelf or any part thereof, then, by virtue of this subsection, the public body may perform the public function concerned in relation to that matter as if the continental shelf or the part thereof concerned were a part of the State where the public body may perform such function, and the other provisions of this Act or of
any other enactment shall, with all necessary modifications, be construed accordingly. This subsection extends the provisions of the Maritime Jurisdiction Act 2021 and shall be construed as one with that Act and may be cited together as the Maritime Jurisdiction Acts 2021 to 2022.
(3) The Government, a public body, including the MARA, the Minister before and after establishment day, and any chief executive of the MARA including any chief executive designate of the MARA appointed prior to establishment day under subsection (9) of section 56 (inserted by section 28of thePlanning and Development, Maritime and Valuation (Amendment) Act 2022), shall, in the performance, in relation to any matter whatsoever, of its functions under this Act or any enactment amended by this Act shall—(a) comply with—(4) The holder of a MAC in carrying out maritime usage authorised under this Act, shall act in accordance with the matters set out in subsection (3)(a), and shall act in accordance with requirements indicated by any body in accordance with subsection (3)(b).(i) the obligations placed on the State by the Convention,(b) have regard to and promote the conservation of seagrass and seagrass meadows for the sequestration of carbon and its ability to halt the spread of marine plastic and, where such conservation in not practically compatible with the marine usage concerned, the provision of compensatory measures promoting the growth of seagrass and seagrass meadows elsewhere.
(ii) the obligations in respect of the rights of the public or any class of the public over the foreshore in relation to navigation and fishing,
(5) The holder of a MAC shall not accrue any financial or other benefit or interest from the development of seagrass or seagrass meadows in respect of any area they hold for which a MAC has been authorised under this Act, and notwithstanding anything elsewhere in this Act, such benefits and interests remain the exclusive interest of the State.
(6) For the purposes of this section, ‘foreshore’ means the bed and shore, below the line of high water of ordinary or medium tides, of the sea and of every tidal river and tidal estuary and of every channel, creek, and bay of the sea or of any such river or estuary, and shall extend seaward to the ‘outer limit of the continental shelf’ as defined in Part 4 of the Maritime Jurisdiction Act 2021. This meaning is without prejudice to the general definition of ‘foreshore’ in section 2 of this Act.
(7) For the purposes of this section, ‘public authority’ shall not include Coillte or Bord na Móna.”.
I move amendment No.16:
In page 38, to delete lines 8 to 18 and susbtitute the following: “(ii) where the decision or act concerned relates to a development which may have significant effects on the environment, the applicant is a body or organisation (other than a State authority, a public authority or governmental body or agency) the aims or objectives of which relate to the promotion of environmental protection.”.
I move amendment No. 18:
In page 46, between lines 8 and 9 to insert the following: “(8A) In circumstances where the MARA has determined that swifter action is needed to either avoid or limit environmental damage related to the matter the subject of the enforcement notice—(a) the requirement of subsection (4) shall not apply, and
(b) the timeframes specified in subsection (8)(a) may be reduced and determined by the MARA.”.
I move amendment No. 19:
In page 50, to delete lines 14 to 19: “(a) the MARA,
(b) a member of staff of the MARA (including a person referred to in section 64(5)),
(c) an authorised officer,
(d) a member of the Garda Síochána,
(e) an authorized officer of the National Parks and Wildlife in performing its functions including relation to the conservation of seagrass or seagrass meadows or in respect of habitats or species or habitats for species protected under any national enactment or any obligation consequent on the State’s membership of the European Union, or any International Treaty to which the State is party to,
(f) any officer authorised under any enactment of the State where the officer is pursuing the conservation or protection of the environment or any element thereof,
(g) the coastguard,
(h) the defence forces, or
(i) a member of a public body in the performance of that body’s public functions, including public functions on the continental shelf referred to in section 3 of this Act (as amended by the Planning and Development, Maritime and Valuation (Amendment) Act 2022), or a person or body authorized to act on their behalf.”.
Garret Ahearn, Niall Blaney, Paddy Burke, Jerry Buttimer, Maria Byrne, Micheál Carrigy, Shane Cassells, Martin Conway, John Cummins, Emer Currie, Regina Doherty, Aisling Dolan, Mary Fitzpatrick, Robbie Gallagher, Seán Kyne, Tim Lombard, Erin McGreehan, Eugene Murphy, Joe O'Reilly, Mary Seery Kearney.
I thank all Members, staff in the Seanad Office, including Mr. Martin Groves and Ms Bridget Doody, for their assistance. I thank the ushers, in particular, and all those who work in the Bills Office who have been working late into the night and early into the morning to get all of this done.