Steven Matthews (Wicklow, Green Party)
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I welcome the Minister of State, Deputy Alan Dillon.

We will recommence on the block of amendments that started with amendment No. 923. We have a couple of amendments left to discuss in this grouping, and I suggest we start with ministerial amendments Nos. 948 to 952, inclusive. I ask the Minister of State to speak to those amendments in whatever logical order he thinks appropriate.

Alan Dillon (Mayo, Fine Gael)
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Amendments Nos. 948, 949, 951 and 952 are of a technical and drafting nature and seek to bring clarity to sections 248 and 249 of the Bill, which empower planning authorities to enter private lands or maritime sites to lay cables, wires, ducts and pipelines and associated apparatus and set out procedures for confirming such power with the commission where the owner or occupier withholds consent. As currently drafted, sections 248(10) and 249(11) provide that for the purpose of Part 6, "Environmental Assessments", neither owner or occupier consent nor an order from the commission confirming the power to enter the land or site constitutes a development consent, that is, for the purpose of EIA or AA. On reflection, this provision is not clear and, therefore, the proposed amendments seek to delete these provisions and instead subject sections 248 and 249 to Part 4. This clarifies that, in addition to having the power to enter the land or maritime site under these sections, the works must have the necessary planning permission under Part 4.

Steven Matthews (Wicklow, Green Party)
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Does anybody wish to respond? No. The last couple of amendments in this block are mine. They are amendments Nos. 933 to 939, inclusive. I ask someone to take the Chair while I speak briefly to those amendments, if anybody would be willing to do so. I propose Deputy O'Callaghan. Is that agreed? Agreed.

Steven Matthews (Wicklow, Green Party)
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I submitted amendments Nos. 933 to 939, inclusive. They reflect a Private Members' Bill I have submitted that I think is on Second Stage at the moment. Essentially, this is an environmental protection measure in acknowledgement of sites in our local areas that are environmentally sensitive or of value. They might not meet the threshold to be designated as a Natura site or a natural heritage area, but in the local context they are important. I am setting out to try to create a designation for these sites, which I have deemed locally important for ecology. The amendments also refer to tree preservation orders, I think, under section 242.

Amendment No. 933 sets out a method to identify and propose these sites, the rationale for such sites and the types of sites and habitats that might be applicable. It sets out the objectives for protecting these sites. It is important to state that these sites would not prevent or stymie development. What they propose to do is focus or sharpen the mind of a developer, an applicant or a local authority that these sites are important. They could comprise something quite small, such as a small patch of wetland or trees or other natural sites. The voting process for elected members to agree or to propose such a site and the process to amend or to revoke a designation are set out. It is critical that when we designate tree preservation orders, TPOs, for these sites, there is always an opportunity to amend or to revoke them. One of the issues that has prevented some TPOs is that there is no exit strategy from a TPO at all. I have spoken to people who are very familiar with TPOs and trees in general and they are of the view that if there were an opportunity to amend or revoke such an order, it would be very likely that there would be less resistance to entering into one of these protections. I set out the requirement for the Minister to provide by regulation how this would be done and set out offences for contravening such a designation.

Amendment No. 934 expands on what is set out in amendment No. 933, that is, that the Minister issue guidelines to local authorities on how to implement, identify and designate sites and how to include them in development plan objectives.

Amendment No. 935 sets out a requirement for a register of these sites, quite similar to how we have a register for TPOs or a register of protected structures.

If I am right, amendments Nos. 936 to 938, inclusive, refer to TPOs. I think they set out how a TPO is actually started. For a TPO, the relevant section currently reads, "If it appears to a planning authority that it is expedient, in the interests of amenity". I want to include "or by resolution of members". One of the things I have found in my experience at local authority level is that TPOs often come very far down the list. Often we do not have the money to do them. They are generally done during the development plan process. They can be done outside of that but, generally, they try to do it as part of the development plan process. I think it would be beneficial for the process if local authorities had some type of funding stream that they could apply for to create TPOs. I have spoken to the Minister of State previously about this. If we were to include a resolution of the members to put forward TPOs, I think it would be beneficial.

Amendment No. 937 is one of these shall-or-may-type amendments. It relates to section 243. As it stands, the local authority "may" for that purpose make an order. Again, I suggest "shall" because if it is a resolution by the members, they should carry out that resolution if the trees being proposed meet that bar of "in the interests of amenity or the environment".

Amendment No. 938 sets out a process for a landowner to apply for a revocation or an amendment to a TPO.

Amendment No. 939 relates to the protection of trees. It is a new subsection relating to public bodies managing and protecting trees on their lands. It sets out steps that this should stop trees becoming hazardous by proper management and provides that where trees are removed, they must provide the Minister with evidence of why they were removed.

I do not think for one instant that a district engineer wakes up in the morning and decides to cut down trees. Obviously they are constrained by budgets and there is often good reasons that trees have to be removed. It is just that we do not often get to see the evidence of why those trees had to be removed. I do not think it is something that is done lightly although I have seen trees being removed and when I asked for the reason, I was told it was because residents requested it. I have never really understood that.

I have set out that we need to have a clearer TPO register so that it is clearly set out what trees are protected. In my own local development plan we have a map and you have to try to use your judgement with the little tree icon on the map whether a particular tree is the one that is to be protected. It is not often accompanied by a very clear written statement to help identify it by location settings. Essentially, this is about environmental protection, in the context of TPOs. It is about giving a little more power to local members who know their area as well as anybody – better than anybody – to be able to invoke these locally important for ecology, LIFE, sites and improve the process around TPOs.

I expect the provision with regard to LIFE sites is probably a step too far at this stage. I have a Private Members' Bill on it. I would like the Minister and the officials to consider it, especially in relation to the nature restoration law that will be introduced. One of the tenets of the nature restoration law is a concentration on the urban environment too. It is not just about rewetting bogs, which has been the focus of much of the discussion we have seen on it. It is important for urban centres that we maintain and protect ecological and natural sites.

Alan Dillon (Mayo, Fine Gael)
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Amendments Nos. 933 to 935, inclusive, seek to add a procedure for a new type of designation, “a site locally important for ecology order”. There are already significant environmental designations which are available and currently widely used. The introduction of such a new designation would add further complexity to the planning system. There is sufficient provision within the planning system to suitably protect the environment while balancing this against the necessity of promoting sustainable and appropriate development. I therefore cannot accept amendments Nos. 933 to 935, inclusive.

Steven Matthews (Wicklow, Green Party)
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Will the Minister of State outline the sufficient provisions that do exist in this Bill to designate? I have set out clearly the types of habitats or features that would be protected by this. If we have a Natura site and an SAC, for example, very strong conditions are imposed regarding what can be done within those areas. The conditions regarding natural heritage areas are a little less strong. Special areas of amenity come with the need to seek planning for all types of development within them and there are very few exceptions. I am thinking about small parts of large sites, for example in my own constituency where there is a really important clump of trees that would be very beneficial for the development that is going in there. I refer to the provision of green spaces and nice places for people to sit and look out on. The measure seeks to protect nature in urban centres. Do sufficient provisions exist for those types of small sites that are locally important to people and councillors, but do not meet the bar to be designated as an NHA, SAC or SAAO?

Alan Dillon (Mayo, Fine Gael)
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Section 48, on page 107, provides that as part of a development plan, a local authority "shall prepare a strategy for the conservation ... of the natural and built heritage". That includes landscapes, places of natural beauty and areas of natural heritage. It is covered within section 48. There are sufficient provisions in the current planning system to suitably protect the environment and to ensure that places, sites and other objects of archaeological, geological, historical, scientific and, most importantly from the Deputy's point here, ecological interest are assessed.

Steven Matthews (Wicklow, Green Party)
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I accept that is a good section - it is wide ranging and covers a lot - but it involves setting out a strategy. Does it enable the local authority to draw a line or circle on a map and say that this is a site that needs to be considered if development takes place?

Alan Dillon (Mayo, Fine Gael)
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Yes, it does.

Steven Matthews (Wicklow, Green Party)
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Okay. That is fine. Obviously, it is done through the development plan process under that strategy. I thank the Minister of State.

Alan Dillon (Mayo, Fine Gael)
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Amendments Nos. 936 to 939, inclusive, propose to amend the TPO provision in section 205 of the Bill to provide that a TPO can be made by resolution of the members in addition to being capable of being made by the planning authority; that a TPO "shall" be made rather than "may" be made where it appears necessary; that a person can apply to the planning authority seeking a TPO to be amended or revoked; that there is an appeals process regarding TPO decisions; that public bodies shall manage trees on their land that are subject to a TPO to ensure they do not become a hazard and shall report to the Minister where there is a need to cut down trees; that the development plan shall include a register of TPOs; and that any trees subject to a TPO that are removed shall be replaced. I understand the merit of the proposed amendments and would like to consider them further with a view to seeing if they can be included in the Bill. I ask the Deputy to withdraw the amendments to allow me to consider them and for my officials to discuss them with the Office of the Parliamentary Counsel. Given the complexity of the Bill, it is important that any proposed amendment is properly scrutinised and reviewed to ensure consistency with the Bill. If considered appropriate, I will bring forward amendments on this matter on Report Stage. It is on this basis that I cannot accept amendments Nos. 936 to 939, inclusive, at this time.

Steven Matthews (Wicklow, Green Party)
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I appreciate that the Minister of State will look into this further. When the TPO process is going through, there is a consultation with the land owner and the land owner can make the submissions. That happens when the TPO is being made. I am talking about a process that will apply when the TPO has been made and has been in existence for some number of years. I am seeking to ensure there is an opportunity for the land owner to say they would like to have it revoked or amended. In other words, it should not be a one-way trip into a TPO - there should be a provision whereby it can be assessed.

Alan Dillon (Mayo, Fine Gael)
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We will look at that and bring forward a response.

Alan Dillon (Mayo, Fine Gael)
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I move amendment No. 926:

In page 422, between lines 28 and 29, to insert the following:

“(4) In any proceedings for an offence under subsection (3), it shall be a defence for the defendant to prove, on the balance of probabilities, that the defendant took all reasonable steps to comply, or secure compliance by the other person, with the notice.”.

Alan Dillon (Mayo, Fine Gael)
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I move amendment No. 928:

In page 426, line 7, to delete “it has in” and substitute “assigned to it by”.

Alan Dillon (Mayo, Fine Gael)
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I move amendment No. 929:

In page 426, between lines 34 and 35, to insert the following:

“Continued application of section 180 of Act of 2000 for certain purposes

240. Section 180 of the Act of 2000 shall, notwithstanding its repeal by section 6, continue to apply and have effect on and after that repeal in relation to any request under the said section 180 made before that repeal.”.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 930:

In page 431, between lines 1 and 2, to insert the following:

“(c) its cultural importance to the community or to the nation,”.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 931:

In page 431, between lines 10 and 11, to insert the following:

“(c) its cultural importance to the community or to the nation,”.

Alan Dillon (Mayo, Fine Gael)
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I move amendment No. 932:

In page 432, between lines 11 and 12, to insert the following: “(12) (a) An order under section 202 of the Act of 2000 made (but not confirmed under section 203 of that Act) before the repeal of that section by section 6 shall be deemed to be an order made but not confirmed under this section.

(b) An order under section 202 of the Act of 2000 that, immediately before the repeal of that section by section 6 was a special amenity area order within the meaning of that Act shall remain in force on and after that repeal and be deemed to be an order confirmed under this section.

(13) (a) Section 202 of the Act of 2000 shall continue to have effect on and after the repeal of that section by section 6 in relation to a direction given (but not complied with) under that section before such repeal, and accordingly the planning authority shall comply with the direction as soon as may be after such repeal in accordance with the said section 202.

(b) An order under section 202 of the Act of 2000 made in accordance with a direction referred to in paragraph (a) shall be deemed to be an order made, but not confirmed, under this section.”.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 941:

In page 436, between lines 2 and 3, to insert the following: “(5) It shall be the duty of a planning authority to vindicate public rights of way where they exist, and to work to establish rights of way, where possible, to advance the right of people to access any monument, seashore, mountain, lakeshore, riverbank or other place of cultural or natural heritage, natural beauty or recreational utility.”.

Alan Dillon (Mayo, Fine Gael)
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I move amendment No. 942:

In page 436, between lines 2 and 3, to insert the following: “Orders and notices under section 205 of Act of 2000

247. (1) An order under section 205 of the Act of 2000 in force immediately before the repeal of that section by section 6 shall—

(a) continue in force and have effect on and after such repeal, and

(b) be deemed to be an order made under section 243, and may be amended or revoked accordingly.

(2) Section 205 of the Act of 2000 shall, in relation to a notice served and published in accordance with subsection (3) or (7) of that section before the repeal of that section by section 6, continue to have effect on and after such repeal.”.

Alan Dillon (Mayo, Fine Gael)
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I move amendment No. 943:

In page 436, between lines 2 and 3, to insert the following: “Agreements under section 206 of Act of 2000

248. Section 206 of the Act of 2000 shall, in relation to an agreement under that section made before the repeal of that section by section 6, continue to have effect on and after such repeal.”.

Alan Dillon (Mayo, Fine Gael)
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I move amendment No. 944:

In page 436, between lines 2 and 3, to insert the following: “Orders, notices and appeals under section 207 of Act of 2000

249. (1) An order under section 207 of the Act of 2000 in force immediately before the repeal of that section by section 6 shall—

(a) continue in force and have effect on and after such repeal, and

(b) be deemed to be an order made under section 245, and may be amended or revoked accordingly.

(2) Section 207 of the Act of 2000 shall continue in force and have effect on and after the repeal of that section by section 6 in relation to—

(a) a notice served and published in accordance with the said section 207 before the said repeal, and

(b) the appeal of an order under the said section 207 pending immediately before the said repeal.”.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 945:

In page 436, between lines 2 and 3, to insert the following:

“Landscape conservation areas. 247. (1) A planning authority may, by order, for the purposes of the preservation of the landscape, designate any area or place within the functional area of the authority as a landscape conservation area.

(2) (a) Notwithstanding any exemption granted under section 4 or under any regulations made under that section, the Minister may prescribe development for the purpose of this section, which shall not be exempted development.

(b) Development prescribed under paragraph (a) may be subject to any conditions or restrictions that the Minister may prescribe.

(3) An order made by a planning authority under this section may specify, in relation to all or any part of the landscape conservation area, that any development prescribed by the Minister under subsection (2) shall be considered not to be exempted development in that area.

(4) Where a planning authority proposes to make an order under this section, it shall cause notice of the proposed order to be published in one or more newspapers circulating in the area of the proposed landscape conservation area.

(5) A notice under subsection (4) shall state that—

(a) the planning authority proposes to make an order designating a landscape conservation area, indicating the place or places and times at which a map outlining the area may be inspected, and shall give details of the location of the area and any prescribed development which it proposes to specify in the order, and

(b) submissions or observations regarding the proposed order may be made to the planning authority within a stated period of not less than 6 weeks, and that the submissions or observations will be taken into consideration by the planning authority.

(6) The members of a planning authority, having considered the proposed order and any submissions or observations made in respect of it, may, as they consider appropriate, by resolution, make the order, with or without modifications, or refuse to make the order.

(7) Where a planning authority wishes to amend or revoke an order made under this section, the planning authority shall give notice of its intention to amend or revoke the order, as the case may be.

(8) A notice under subsection (7) (which shall include particulars of the proposed amendment or revocation of the order) shall be published in one or more newspapers circulating in the landscape conservation area.

(9) A notice under subsection (7) shall state that—

(a) the planning authority proposes to amend or revoke the order, and

(b) submissions or observations regarding the proposed amendment or revocation of the order may be made to the planning authority within a stated period of not less than 6 weeks, and that the submissions or observations will be taken into consideration by the planning authority.

(10) The planning authority, having considered the proposed amendment or revocation of the order and any submissions or observations made in respect of it, may by resolution, as it considers appropriate, revoke the order or amend the order, with or without modifications, or refuse to make the order, as the case may be.

(11) Before making an order under this section, the planning authority shall consult with any State authority where it considers that any order relates to the functions of that State authority.

(12) (a) A planning authority shall give notice of any order made under this section in at least one newspaper circulating in its functional area, and the notice shall give details of any prescribed development which is specified in the order.

(b) Notice under this subsection shall also be given to the Board and to any other prescribed body which in the opinion of the planning authority has an interest in such notice.

(13) Where 2 or more planning authorities propose to jointly designate any area or place, which is situated within the combined functional area of the planning authorities concerned, as a landscape conservation area, the functions conferred on a planning authority under this section shall be performed jointly by the planning authorities concerned, and any reference to “planning authority” shall be construed accordingly.

(14) Particulars of an order under this section shall be entered in the register.”.

Alan Dillon (Mayo, Fine Gael)
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I move amendment No. 947:

In page 436, between lines 20 and 21, to insert the following:

“(4) Section 209 of the Act of 2000 shall, in relation to a notice served under that section before the repeal of that section by section 6, continue to have effect on and after such repeal.”.

Alan Dillon (Mayo, Fine Gael)
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I move amendment No. 948:

In page 436, line 22, after “subsection (12)” to insert “and Part 4”.

Alan Dillon (Mayo, Fine Gael)
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I move amendment No. 949:

In page 438, to delete lines 16 and 17.

Alan Dillon (Mayo, Fine Gael)
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I move amendment No. 950:

In page 438, between lines 25 and 26, to insert the following: “(13) A consent referred to in section 182 of the Act of 2000 given, before the repeal of that section by section 6, by the owner or the owner and occupier, as the case may be,

of land shall be deemed to be a consent under subsection (4) given by that owner or that owner and occupier, as may be appropriate.”.

Alan Dillon (Mayo, Fine Gael)
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I move amendment No. 951:

In page 438, line 27, after “subsection (13)” to insert “and Part 4”.

Alan Dillon (Mayo, Fine Gael)
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I move amendment No. 952:

In page 440, to delete lines 26 and 27.

Alan Dillon (Mayo, Fine Gael)
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I move amendment No. 953:

In page 440, after line 33, to insert the following: “(14) An approval referred to in subsection (1A) of section 182 of the Act of 2000 given before the repeal of that section by section 6 for development on a maritime site shall be deemed

to be a consent under subsection (5) given by that owner or that owner and occupier, as may be appropriate.”.

Steven Matthews (Wicklow, Green Party)
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Amendments Nos. 954 to 956, inclusive, and amendment No. 979 are related and will be discussed together.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 954:

In page 441, between lines 4 and 5, to insert the following:

Judicial review of applications, appeals, referrals and other matters

250. (1) Where a question of law arises on any matter with which the Board is concerned, the Board may refer the question to the High Court for decision.

(2) A person shall not question the validity of any decision made or other act done by— (a) a planning authority, a local authority or the Board in the performance or purported performance of a function under this Act,

(b) the Board in the performance or purported performance of a function transferred under Part XIV of the Act of 2000, and which continues to be vested under section 378,

(c) a local authority in the performance or purported performance of a function conferred by an enactment specified in section 214 under the Act of 2000 and which

continues to be vested under section 377 relating to the compulsory acquisition of land, or

(d) without prejudice to the right of appeal referred to in section 325—

(i) the competent authority (within the meaning of the Aircraft Noise (Dublin Airport) Regulation Act 2019), or

(ii) the Commission in its capacity as the appeal body from decisions of such competent authority, otherwise than by way of an application for judicial review under Order 84

of the Rules of the Superior Courts (S.I. No. 15 of 1986), in this section referred to as “the Order”.

(3) Subsection (2)(a) does not apply to an approval or consent referred to in Chapter 1 or 2 of Part 10.

(4) A planning authority, a local authority or the Commission may, at any time after the bringing of an application for leave to apply for judicial review of any decision or other act to which subsection (2) applies and which relates to a matter for the time being before the authority or the Commission, as the case may be, apply to the High Court to stay the proceedings pending the making of a decision by the authority or the Commission in relation to the matter concerned.

(5) On the making of such an application, the High Court may, where it considers that the matter before the authority or the Commission is within the jurisdiction of the authority or the Commission, make an order staying the proceedings concerned on such terms as it thinks fit.

(6) Subject to subsection (8), an application for leave to apply for judicial review under the Order in respect of a decision or other act to which subsection (2)(a) applies shall be made within the period of 8 weeks beginning on the date of the publication of the decision or notification of the decision whichever is the later or, as the case may be, the date of the doing of the act by the planning authority, the local authority or the Board, as appropriate.

(7) Subject to subsection (8), an application for leave to apply for judicial review under the Order in respect of a decision or other act to which subsection (2)(b) or (c) applies shall be made within the period of 8 weeks beginning on the date on which notice of the decision or act was first sent (or as may be the requirement under the relevant enactment, functions under which are transferred under Part XIV or which is specified in section 214, was first published).

(8) The High Court may extend the period provided for in subsection (6) or (7) within which an application for leave referred to in either subsection may be made but shall only do so if it is satisfied that— (a) there is good and sufficient reason for doing so, and

(b) the circumstances that resulted in the failure to make the application for leave within the period so provided were outside the control of the applicant for the extension. (9) References in this section to the Order shall be construed as including references to the Order as amended or replaced (with or without modification) by rules of court.”.

By way of a general introduction to this group of amendments, to submit some high-level questions as to the rationale for these sections of the Bill, this would be a good place to start. This is probably the most, if not the second most, controversial part of the Bill. During pre-legislative scrutiny there was near unanimous criticism of the entire Part of the Bill from planners, legal professionals who work in this area - barristers and lawyers - residents' associations, environmental groups, local authorities and others. The two principal issues they raised were, one, that the intention behind these sections of the Bill is to deny people access to justice in an attempt to reduce the number of judicial reviews. For me, probably what was more significant was the fact that almost everybody who was an expert in this area and who commented on it said that not only would it not work but, in fact, it would open up a Pandora's box of litigation - satellite litigation and superior court litigation - all of which will lead not only to more planning applications and appeals ending up in the courts but much-needed infrastructural development, residential development and renewable energy development being delayed. It seems to me to be incredibly bizarre that the Government on the one hand would try to restrict people's rights under Irish, European and international law but to get it so badly wrong that the stated intention of its actions, which is to speed up the planning process, would actually have the opposite impact. We will go through the detail of all of that when we get into it.

My initial question is: on what basis, analysis and empirical information have the profound changes proposed in this part of the Bill been introduced? We know from the Office of the Planning Regulator that only a tiny number of planning applications in a given year are subject to judicial review. More than 30,000 planning applications, and sometimes anything up to 40,000, pass through our planning system annually between the local authorities and the board. Only about 3% of appeals to the board end up in the courts for judicial review and less than 0.4% of all planning applications end up in the courts. It really is hard to understand, given the small number of legal challenges, why we would be making such profound changes and taking such profound risks with our planning process. I am very strongly of the view that I would like to see the lowest number of judicial reviews possible. In some respects judicial reviews are a failure of the system, either bad planning applications, poor quality decisions or, in a very small minority of cases, vexatious actions by third parties. Therefore, the best way to deal with these issues is to make sure the planning system is robust and makes good quality decisions based on good public participation so that nobody feels the need to go to the courts.

Likewise, where judicial reviews do arise - and they will always arise; they cannot be removed from the system - we need to ensure the courts system is adequately resourced to expedite those decisions. While the Government recently made an announcement of three judges in the sub-panel of the High Court, it is really only two judges because two of them are not working full time on these cases. Most of the experts we spoke to suggest we need approximately five full-time judges dealing with planning and environmental issues, one of whom would probably spend more time outside of Dublin than in it to ensure JRs, if and when they do occur, happen in a very timely manner. In fact, one expert I spoke to who spent a lot of time in the courts on these matters said that if we had five dedicated High Court judges dealing with these matters through the planning and environment panel, we could be looking at timelines of three months, which of course would be ideal.

Before we get into the amendments my initial questions on the analysis of the profound changes in this Part of the Bill. Why was it changed, despite all of the advice of this committee, including from the Bar and the Law Society? Two of the most powerful presentations were from the legal representatives who not only take judicial reviews but defend against them and they told us that what is in this Part and these sections of the Bill will not work and will make things eminently worse.

We have been here before. We saw a significant increase in judicial reviews because of really bad planning law introduced by the Minister of State's party colleague, Deputy Coveney, when he was the Minister with responsibility for housing. They created enormous conflict on the ground and dramatically increased levels of judicial reviews that were upheld by the courts because of the poor-quality decision-making of the board. That eventually forced the Government to change the planning process to something many of us had argued for for a much longer time. This is a really important Part of the Bill and it is important we scrutinise each of these sections individually, and my colleagues and I intend to do that. There is a need, which has not yet been put in the public domain, to justify what is in front of us. I will be very interested to hear the Minister of State's response to that initial question before we get into the meat of the amendments.

Steven Matthews (Wicklow, Green Party)
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I thank Deputy Ó Broin. I will now go to Deputy O'Callaghan. I think we will have quite a bit of discussion on this grouping, so I will allow the time for that. I know Deputy Bacik wants to discuss her amendment as well. We will try to do the amendments in a logical order if possible.

Steven Matthews (Wicklow, Green Party)
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Does Deputy Bacik want to come in at this point?

Ivana Bacik (Dublin Bay South, Labour)
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Thank you, Chair. I appreciate that and apologise for coming in late. I will speak to amendment No. 959, which is in this grouping and the purpose of which is to introduce an offence relating to the abuse of the planning objection process for financial gain. Minister of State, I think this is my first time addressing you as Minister of State-----

Steven Matthews (Wicklow, Green Party)
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My apologies, I did not see the second dot here. That is actually in the next grouping. We are on the grouping containing amendments Nos. 954 to 956, inclusive, and No. 979.

Ivana Bacik (Dublin Bay South, Labour)
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Mine is in the next grouping

Steven Matthews (Wicklow, Green Party)
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You will be the first in the next group.

Ivana Bacik (Dublin Bay South, Labour)
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Excellent. I will reserve my words but it is my first time addressing the Minister of State in his new capacity so I congratulate him.

Steven Matthews (Wicklow, Green Party)
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I ask the Minister of State to respond to the initial questions from Deputies O'Callaghan and Ó Broin.

Alan Dillon (Mayo, Fine Gael)
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I thank the Deputies for their opening remarks and questions. I agree one of the most important areas of reform in the Bill is Part 9, which updates the processes and parameters of planning judicial reviews, as well as introducing a scale of fees relating to the judicial reviews legal fee and an environmental legal costs financial assistance mechanism. Principally, this is to ensure the costs associated with proceeding with a judicial review are not prohibitive and to maintain compliance with Ireland's commitment under the Aarhus Convention.

Deputy Ó Broin asked what analysis the Government has undertaken. The reform has been underpinned by a detailed review and advice from the Office of the Attorney General, as well as extensive engagement with stakeholders and other relevant Departments, in particular the Department of the Environment, Climate and Communications, which leads on the establishment of the scale of fees and the environmental legal costs financial assistance mechanism. A comprehensive amount of work has been undertaken and there has been extensive engagement on this. It is one of the most important areas of reform in the Bill and due diligence has been carried out.

In relation to the wider exercise around reviewing the judicial review process, that is being undertaken by the Department of Justice and the Minister, Deputy McEntee. It is not the responsibility of the Department of Housing, Local Government and Heritage.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I think we are in for a long afternoon. We are told there is an ongoing review of the judicial review process in another Department, yet profound changes to the judicial review regime are being introduced in this Bill. That seems to me to make no sense whatsoever. Generally, we are told the reason we cannot have legislative reform, for example yesterday on compulsory purchase orders, CPOs, was because there is a review between two Departments on CPOs and the Law Reform Commission's report and that, therefore, the Department of Housing, Local Government and Heritage could not proceed with some areas of reform in planning without dealing with the wider issues of CPO and valuation. Here we are being given the opposite argument, that a wide review is being undertaken but the Department has decided to press ahead nonetheless. That is the first concern.

The second concern is I do not believe there is a detailed review of judicial review. If there is, publish it. I am not saying there was not advice given by the Attorney General or discussions between the Attorney General and the group of senior counsels responsible for drafting this Bill. We are asking if there is an actual analysis of planning permissions judicial review processes that has fed into the drafting. If there is, it should be published. I do not mean legal advice but, rather, actual empirical analysis. The only data we have is from the Office of the Planning Regulator. That office publishes a really helpful report each year detailing the total number of applications, the fact the overwhelming majority of them are approved within the statutory time limits of our local authorities - there is a separate issue ongoing in the board - and the really small number of legal challenges. The evidence from the independent Office of the Planning Regulator is telling us this is not as big a problem as sometimes the political and public debate seems to suggest.

On the other hand, we used to have a relatively standard number of judicial reviews related to planning environmental matters in the courts each year. That ballooned out of control following the introduction of mandatory ministerial guidelines on building heights and design standards for apartments under the SHD process. The residential development community tells us now the large-scale residential development process has led to a dramatic reduction in judicial reviews on residential development, combined with the revised development plans. We are moving back to where we were before the SHD and SPPR impacts. What is to be fixed here if the empirical evidence suggests otherwise?

The Minister of State referred to "extensive engagement with stakeholders". That is not what stakeholders told us in this committee. Representatives of the Irish Planning Institute told us the level of engagement with them in the planning forum was very high level and they were surprised by large elements of the Bill. Many other sectors, such as environmental NGOs and legal bodies, did not give the impression the Minister of State suggests or, in some cases, were outright critical of the lack of engagement on the detail of this.

We have no idea what the cost regime will be because it is not in the Bill. The Minister of State is correct that it is being dealt with by another Department. The problem with costs, which we will get into when we deal with the sections, is that for two or three years there was an enormous backlog in the courts because of the dispute over costs in the Heather Hill case. That meant any judicial review with a similar dispute over costs could not proceed and that clogged up the courts and the system. That was resolved and there is clarity for the first time in years on costs. We are being asked to throw that certainty and clarity away for a legal aid scheme that has yet to be designed or published. Nobody understands how it will operate and be funded or how much it will cost. There is a fee-setting mechanism, which I am not against in principle, but there is no clarity on how it will work.

Here is the problem. I appreciate the Minister of State is new to the portfolio but I am sure he followed some of these debates. I do not want to see good planning applications for good quality residential development, offshore or onshore renewable energy or critical infrastructure, particularly by our semi-State bodies, stuck for several years in the courts because the Department has ditched Heather Hill and introduced as yet undefined cost protection measures which end up being litigated on and slowing everything down.

I ask again what empirical, policy-based evidence, not legal advice, are these measures based on? If there is such a thing, will it be published? Why is the Minister of State not listening to the long list of professionals who work this system, including planners and developers, whether public, private or semi-State, and legal professionals working on both sides of the litigation process? They told us in committee through clear submission and stark testimony. Some of them have been writing publicly in newspapers over the last while. The Irish Planning Institute's conference is today and this matter is being discussed on the platform as we speak. Why is the Minister of State not listening to the voices of the experts who will be working this system when they tell him he has got this wrong and it will lead to increased conflict, litigation and delay in our planning system, particularly for crucial infrastructure, residential development and renewable energy projects?

Ivana Bacik (Dublin Bay South, Labour)
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I raised this issue in my contribution on Second Stage. There is immense concern about the issue of costs generally and about the proposals on judicial review. I echo the comments of Deputies Ó Broin and O'Callaghan about the need for greater clarity, in particular on timing. The more I speak to those engaged in planning - the stakeholders and so on - the more concern I hear about aspects of the Bill and this in particular. There is a concern that more time should have been given to considering the ramifications of this and to consider better ways of making reforms.

Steven Matthews (Wicklow, Green Party)
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This is for the benefit of people who may be watching. One of the reports of the Office of the Planning Regulator had an annex that outlined in some detail judicial reviews that were determined between 2012 and 2022. Some of that data is available and people may not be aware of the fact. I just wanted to say that for clarity and information.

Alan Dillon (Mayo, Fine Gael)
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This is a really important part of the Bill, for reasons the public are well aware, regarding the speed of the judicial review process. It is our intention that we would have quicker decisions and swifter delivery of housing and infrastructure projects. In that regard, there is a requirement for reform of the process and the parameters of planning judicial reviews. That is central to this Bill. Extensive discussions have been held with the Office of the Attorney General on the legal advice on the preparation of these provisions. That analysis has taken a long time to prepare. It is embedded in this section. It is really important that we have sound advice and analysis in that regard. As the committee will understand, this legal advice is not published. However, we have enlisted many professional experts in the preparation of this section. It is a misrepresentation to say we have not. It has been an extensive process and a number of years in the making. We want to ensure that with any judicial reviews we have a quicker decision-making process and that we have an established procedure for them that is not prohibitive or expensive and maintains compliance with Ireland's commitments under the Aarhus Convention. That is really important. I look forward to debating the amendments tabled by the Opposition parties and understanding their reforming intention in this regard. From our side, we want to make the process more streamlined and more effective.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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The question has still not been answered so I will ask it again. No one on this side is misrepresenting the consultation process. We are merely saying what we were told by the people involved in the process during pre-legislative scrutiny. I urge the Minister of State to go back and read the transcripts or even ask his officials to give him a summary during the break. In fact, during PLS, many of us commented on the fact that we had extensive engagement with the officials from the Department. However, what we were told by the key stakeholders - the people who will work this system - is that the consultation was not extensive and the outcome on the other side was very surprising to them. If the Minister of State wants to accuse them of misrepresenting the process, that is fine, but they made very strong criticisms of it here. One of the most striking was from the Irish Planning Institute. The testimony of professional planners who make and decide on planning applications was very strong.

I am in complete agreement with the Minister of State. I would like to ensure that we have a system whereby when a judicial review of a planning matter is taken, it is taken as speedily as possible. As I have said, the single best way of addressing that is to resource the courts. However, the Minister of State is not addressing the specific questions that legal and planning professionals have raised with this committee and that we have an obligation to raise with him, namely, that what is being done in this section will have the opposite effect. I am not asking for the legal advice because I know that the Attorney General's advice cannot be shared and published, unless someone wants to leak it from a Government party to the press on the eve of a referendum but that is a separate day's craic.

This is an important analogy because it is directly related to the issue of JRs. When Deputy Simon Coveney and the then head of planning in the Department, Niall Cussens, who is now the Planning Regulator, introduced the strategic housing development legislation, we asked for the empirical evidence on which the legislation was based. We had to fight to get it by threatening an FOI application. We eventually got the evidence in the form of a spreadsheet showing a set number of large-scale planning applications and how long they were in preplanning, planning, further information and appeals. When we saw the actual evidence, it did not support SHD and we made that case at the time. We argued for statutory timelines at all stages of the process. We told the Government that this was the wrong approach. It was not just me who said this; other members of the Opposition, including Senator Boyhan, who is still on the joint committee, also did so. We urged the Government to take a different approach. We said that this would lead to delay and conflict. The Government did not listen. Very significant numbers of planning applications ended up in the courts or ended up in judicial review and created a backlog in An Bord Pleanála. We were proved correct and years later, the Government did, broadly speaking, what this committee and the Opposition had asked for. I will press the Minister of State again on the question. Is there empirical evidence on this? Did someone conduct a review of judicial reviews within the planning system and based on that empirical evidence come up with the proposals? The Chair is absolutely right,; there is quite a detailed annex in the OPR's report. This does not support the types of changes set out here.

Will the Minister of State tell us if there is empirical evidence underpinning this set of legislative proposals? If so, will he give it to the committee so that we can scrutinise it in advance of Report Stage? Those of us on this side are lay people trying to make our way through a very complex Bill. What does the Minister of State say to the professional bodies, the Bar Association, the Law Reform Commission, specialised committees on planning and environmental law and the Irish Planning Institute? The latter body told this committee, and has said so publicly, that what is here will make things worse, not better. There are two questions and then we will start moving into the amendments.

Steven Matthews (Wicklow, Green Party)
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I want to move on to the amendments now but it was important to set out the-----

Steven Matthews (Wicklow, Green Party)
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Does the Deputy want to put that follow-up-----

Steven Matthews (Wicklow, Green Party)
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I will try to synopsise. There have been several requests from members on the data, reports and analysis that inform this. Notwithstanding, I note the AG’s advice cannot be published. If there are data, reports and analysis that can be published, I ask that they be made available to the members of the committee.

On Deputy Ó Broin’s point, I think we all agree that a faster, speedier judicial review process would be beneficial. I think there was reference to the programme for Government, where there would be a review of the judicial review system in tandem with the establishment of a planning environmental court, which has been established, with three judges on it. That speaks to Deputy Ó Broin’s point about the better resourced courts. It is also important to recognise there seems to be a reduction in JRs because the SHD system has been removed and they were contributing to many judicial reviews, notwithstanding there are still some tailing out of the system.

Alan Dillon (Mayo, Fine Gael)
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The review and analysis was led by the Office of the Attorney General. Any research that was undertaken fed into the legal advice provided. As part of that process, the advice led to the provisions now being included in this section. With regard to Deputy O’Callaghan’s question on the assignment of more judges, that is a matter for the courts system. We have set up a specific court, but in respect of the case management and the load, that is not within our remit. We have made progress in that regard and I am sure further progress will be made in the time ahead.

With regard to the fundamentals of this section, Deputy Ó Broin specifically stated twice that this will have the opposite effect, which I disagree with. He feels we will have slower decision-making time and he feels there will be, again, a failure to deliver on housing. I disagree. It is important we get this section right. The Government is bringing forward important steps to ensure we have quicker decision-making and we can have faster delivery of housing infrastructure. That is principally the reason we have gone to great lengths to include this section. We have also gone to great lengths to get the most accurate advice from the AG and the legal advisers on the legal process for judicial reviews. That is central to what the Government is bringing forward here.

Steven Matthews (Wicklow, Green Party)
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Deputy Callaghan to respond, and then we will move to the amendments.

Alan Dillon (Mayo, Fine Gael)
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That is correct.

Alan Dillon (Mayo, Fine Gael)
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The research is within the Office of the Attorney General. It is not our research; it is contained within its department. On those grounds, we understand that research has been undertaken and has formed the process in respect of the provisions we have today.

Alan Dillon (Mayo, Fine Gael)
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Yes.

Alan Dillon (Mayo, Fine Gael)
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We cannot, as the Deputy is aware. It has been already-----

Alan Dillon (Mayo, Fine Gael)
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The Deputy needs to understand that is legal advice. To his point, it is contained with the AG’s remit.

Alan Dillon (Mayo, Fine Gael)
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The Attorney General has conducted a review and is satisfied it is in compliance with legislation.

Alan Dillon (Mayo, Fine Gael)
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The Attorney General is confident the provisions in the Bill are proportionate obligations. We can tease that out as we go through the amendments.

Steven Matthews (Wicklow, Green Party)
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I suggest we take amendments No. 954, 955 and 956. They are insertions into section 250. Is that logical?

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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We can take them one after another.

Steven Matthews (Wicklow, Green Party)
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Yes. They are all insertions into section 250, in the interpretations.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Yes, they are.

Steven Matthews (Wicklow, Green Party)
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Let us start with amendment No. 954 please. The Minister of State, Deputy Dillon, will leave us now. I thank him for his attendance this morning. I welcome Minister of State, Deputy Noonan, to committee for the rest of the session.

We thank him for his attendance. I know he was listening in.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Amendment No. 954 replaces Part 9 entirely and reinserts provisions from the existing Act in sections 50, 50A and 50B. The amendment makes some minor changes to what is currently in the legislation, particularly in terms of the counting of the eight-week judicial review window. Part of the reason is to ensure it is compliant with the European Court of Justice decision in case No. 470 of 2016, as well as doing away with undertakings, which is something the Department does in the Bill.

To justify this, I am absolutely convinced that what motivates the new Part 9 is a group of legal professionals who are fighting the last war. They are looking backwards at things that have happened that concerned them which are no longer necessarily the problems we will face in future. They are fixing things that no longer need fixing, particularly under the large-scale residential development process.

Very quickly, I want to insert into this response three related responses to the Minister of State, Deputy Dillon. They are related to the amendment. It would be entirely possible for the Department to compile a summary of the evidence base upon which the Attorney General has recommended the section I am essentially trying to remove. It is clearly the custom and practice for the Government not to release Attorney General advice, although previous governments have published an Attorney General's advice in advance of referendums in the interests of transparency. It would be possible for the hard-working officials of the Department to produce a policy summary and for this to be published and forwarded to the committee. I urge the Department to do this because, other than repeating again that we want to reform and speed up the system, nobody has set out an evidence base for why these particular proposed reforms will work in the way it is proposed they will. I press the Minister of State on that.

I want to correct the Minister of State Deputy Dillon. While the arrangements for the Courts Service are a matter for the Courts Service, the addition of dedicated judges on the environmental planning subpanel of the High Court is ultimately a matter for the Minister for Justice. The Minister for Justice has to provide the resources for this to happen. In fact, when the announcement was made recently that three judges - although it is really only two full-time judges - would work on this matter, it was a Government announcement with the Minister alongside it claiming credit. It is not the case, just to correct the record of the committee, that the expansion of the number of judges dealing with judicial reviews on environmental planning matters is a matter for the Courts Service. Ultimately, it is a matter for the Government and more should be provided.

The Minister of State, Deputy Dillon, kept using the phrase, when speaking to the Opposition, that "we feel" that what is in this will make things worse. None of us have said we feel that way. We have listened to expert testimony from the people who are going to work the system, including on the section I am trying to replace with this amendment. They tell us that, based on their professional expertise as planners, lawyers and barristers, this will make it worse. This is not about a soft feeling among the Opposition; it is the considered view of the overwhelming majority of people working in the field who give testimony on this matter.

Of course there will always be differing opinions. Expert planners advise the Department and they may well take different views. There will never be unanimity. However, there is very strong consensus that what is in the sections of the Bill that my amendment is trying to alter will make things much worse. On this basis, the amendment as outlined is trying to remove the damaging sections, so far unjustified and unexplained on any evidence base by the Government, and at least allow us to continue with the system which, especially with respect to residential developments, is now working well. This is not my view or feeling; it is what residential developers tell us. They are asking us to leave well alone, let large-scale residential development bed down and let them get on with the process of applying for planning permission and delivering the homes that people need.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I will now address amendments Nos. 954 to 956, inclusive, which have been jointly tabled by Deputies Cian O'Callaghan, Ó Broin, Gould, Ó Snodaigh, Boyd Barrett, Bríd Smith and Gino Kenny. These amendments seek to remove sections 250 to 274, inclusive, covering all the proposed process, parameter and cost reforms relating to planning judicial review and proposing instead to revert to the arrangements that are contained in the Act of 2000.

It is worth reminding ourselves at this juncture that the Bill before the House is the culmination of not only the 15-month review led by the Office of the Attorney General but also an extensive process of stakeholder engagement through the planning advisory forum and bilaterally with relevant Departments. It also has been subject to a comprehensive pre-legislative scrutiny process, of which many of the recommendations were incorporated into Part 9 of the Bill before us, which the proposed amendment wishes to dismiss summarily and in its entirety, without nuance or regard to many of the varied benefits and improvements contained within.

The reforms contained in Part 9, as published, can be categorised as improvements to processes, which either have the potential to speed up or cut costs on planning judicial review; clarification of language and parameters regarding standing, which remove ambiguity and improve transparency in the system while protecting rights defined in European law; and reduction of costs, both to the State and applicants, through the introduction of a scale of fees and the availability of an environmental legal costs financial assistance mechanism, which protects applicants from prohibitively expensive costs.

This is a complex area of the Bill that requires careful balance.

Ireland has legal obligations regarding access to justice under the Aarhus Convention and a proud record of public participation that must be maintained and respected, while also recognising that the status quois not sustainable, either in financial cost or in terms of the cost exacted on delivery of key infrastructure.

The changes regarding judicial review should be seen in the context of the Bill as a whole and the key aim of moving to a plan-led system and ensuring a greater consistency of approach to national planning policy, including providing for limited grounds for material contravention in planning decisions by An Coimisiún Pleanála.

Among the positive reforms contained in Part 9 which amendments Nos. 954 to 956, inclusive, seek to remove are as follows: applicants will no longer need to apply to the High Court for leave to take a judicial review case. This change will save time and cuts expense while improving access to justice; and applicants will still need to demonstrate that they have sufficient interest and standing to take the case. Timelines previously set out within the draft Bill for the various stages of the process have been removed as these matters will be dealt with by the rules of the High Court. This change from the draft Bill of December 2022 was on foot of advice from the Courts Service and recommendations of the PLS.

Another important change is the inclusion of a provision for unincorporated organisations, such as residents’ associations, to take judicial review, subject to certain criteria, including having sufficient interest, taking a vote of members and providing information to the court to state who is taking the case. This change was also on foot of recommendations from committee members. The governance requirements contained can only be seen as a necessary improvement in transparency and there has never been a more important time to bolster that aspect of the planning system. To that end, further amendments have been tabled, amendments Nos. 969 and 979, with regard to persons taking judicial reviews for the sole purpose of delaying a development or for securing the payment of moneys.

Further amendments will be tabled on Report Stage to deal with those making spurious submissions on applications or taking spurious appeals and address the matters raised in the media recently, which are of concern to all of us present.

Environmental NGOs will still enjoy special status within this Bill and aligned to Ireland’s commitments under the Aarhus Convention, subject to certain criteria.

Chapter 2 contains the provisions pertaining to the new environmental legal cost financial assistance mechanism. The mechanism will facilitate the making of a contribution to the costs of all planning judicial review cases that are deemed to be Aarhus proceedings under the Bill. It will cover a full range of approved normal costs for legal cases in accordance with the financial assistance mechanism save for those that are deemed to be frivolous or vexatious. This improves access to justice by removing a significant cost barrier in a high-cost legal environment.

The financial assistance will be administered and regulated by the Minister for the Environment, Climate and Communications, who will by way of regulation, set a scale of fees payable within the scheme. The agreement of the Ministers for Housing, Local Government and Heritage and Justice, and the consent of the Minister for Public Expenditure and National Development Plan Delivery and Reform, is required. Details regarding the rates to be paid under the mechanism will be set out in regulations. The introduction of these cost measures - the scale of fees and cost mechanism - will introduce a level of certainty and predictability to the State’s exposure to judicial review costs while not limiting or diminishing the important role that judicial review plays within the Irish system.

The Department of Environment, Climate and Communications intends to bring forward further legislation with judicial review matters for all other consenting systems and to fully implement the Aarhus Convention for all consenting systems.

Environmental assessment provisions have been reviewed to ensure full compliance and alignment with EU directives.

In place of these reforms, the amendments prefer challenges presented by the status quo, including: delays to the delivery of key infrastructure due to the current lengthy and complex system, including at the early application to leave stages; a cost system based on a High Court ruling, which could change again based on future court direction, meaning no level of predictability for the State and no management of costs of judicial review in the State, which are among the highest in Europe in this area; the continuation of the "no foal, no fee" system whereby applicants are reliant on finding legal representation based on this approach as otherwise the costs of taking the case may be prohibitively expensive, a situation that has been criticised heavily by Europe and may not remain fully compliant with the country’s commitments under the Aarhus Convention. This model also means that in many cases only those cases chosen by legal representatives have a chance to progress.

The ongoing increase in frequency of judicial review as well as the costs associated have been widely acknowledging as adding a cost to infrastructure delivery, both in terms of delays to delivery and final cost of delivery, as well as having a potential effect on inward investment.

The proposed amendments seek to ignore the flaws identified in the current system and the benefits proposed within the Bill, which will future-proof our planning system while balancing key pillars of Irish planning such as public participation and access to justice, environmental considerations and delivery of key infrastructure such as public transport and renewable energy.

The Bill can be a cornerstone to our sustainable and balanced development as a country but only by having the courage and ambition to pursue the necessary reforms and not the caution and lack of imagination displayed by the amendments proposed. For these reasons, I oppose amendments Nos. 954 to 956, inclusive.

Should I speak to amendments No.979?

Steven Matthews (Wicklow, Green Party)
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We can deal with the first three and then go back to amendment No.979.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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While I have been accused of many things in the Chamber and in the committee, it has never been lack of imagination, but there is always a first time. Imagination is not what we are looking for; we are looking for reforms that will work and will improve our planning system. That is the issue at hand here.

The Minister of State has said that the status quo is not sustainable. That means that if this legislation had been in place last year, fewer judicial reviews would have been taken and the JRs that were taken would have been processed more speedily. I do not believe there is any evidence to support that. I believe four unmanned wind energy licences were issued in the past 12 months, all of which were subject to JR. I spoke to some of the industry people involved and I do not believe anything in this Bill would have altered that fact if this legislation had been in place. That is my understanding. We have spoken about large-scale residential developments. The volume of judicial reviews in residential developments has declined significantly because we have a two-stage large-scale residential development process and greater consistency between development plans and Government policy.

On the one hand, with onshore wind there is nothing in this Bill that would make a significant impact on the status quo, which the Minister of State said is unacceptable. We have seen a resolution of the spike in JRs in residential developments as a result of bad planning legislation. I ask him to convince us. If this had been in place in the past 12 months, what would be different from what is currently the case?

The two changes the Minister of State referenced arising from pre-legislative scrutiny are not objectionable but they are really minor. He spoke about the removal of the leave stage, which is often the shortest and least contentious part of the process. The legal experts we have spoken to have said that of course it is not objectionable but will not make a significant difference to the overall time. Likewise with the unincorporated bodies, the big concern from residents' associations is that the chill factor is still there notwithstanding the modest change that has been made.

We have spoken to legal representatives who often represent residents' associations and also crucially legal representatives who represent residential developers. They are telling us two things about that section of this Part. First, they believe it will not work; people will find a workaround to it very quickly meaning that the Government's efforts will have been in vain. Second, they believe it will be challenged in the courts which will delay all sorts of other decisions. I do not accept for a second that those two minor and modest changes amount to significantly addressing the serious concerns that were raised during PLS by professionals in the field.

With respect to the fees, the problem is that we do not know what the fee structure is. We do not know what the legal aid system will be. We know that we have a legal aid system that does not work. The people who most need protection under that scheme can rarely avail of it. While I am not arguing that Heather Hill is perfect, we are being asked to dispense with something that at least provides legal clarity for something that is completely unknown. If the Minister of State could outline to us exactly how the fee structure system will work and the legal aid system, that would be great. His counterparts in the other Department do not have clarity on all that.

Therefore, I am not hearing anything that is convincing me. I am open to being convinced, but every time we ask for evidence that supports the claims being made, all we are given is rhetoric about needing to speed things up and improve them. Everyone agrees with that, but we are looking for evidence to substantiate the claim that what is in the Bill will do that and we will not be back here in two or three years like we were with SHDs, SPPRs and building height and design standards when the fears raised with us by professionals in the field, and that we in turn raised here, came to pass and we were proven right.

What in this Bill would have made a difference over the past year? Using real-life examples, how would it have improved the status quo? What will the fee structure and legal aid regime look like? If the Minister of State wants to convince us to replace one system with something else, he needs to tell us what that something else is.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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If I miss some of the questions, the Deputies might remind me of them.

Regarding Deputy Ó Broin’s question about fewer judicial reviews, that is not anticipated, nor does the Bill try to have fewer judicial reviews. There would be quicker processing of reviews and certainty about costs. It is not the intention to try to stop people from taking JRs. This is about speeding up the process.

The interdepartmental group on environmental legal costs was chaired by the Department of the Environment, Climate and Communications and was established to examine the implementation of the proposed changes. As approved by the Government, the group’s remit is to progress the drafting of the necessary regulations on the scale of fees review to mitigate any potential risks arising from the establishment of a financial assistance mechanism. The Government has approved in principle the establishment of a cost assistance mechanism, and the Bill will set out the provisions for that. The role of such an evaluation would be to identify any potential risks arising from the establishment of the mechanism and how they are to be mitigated. To date, the group has met four times, examined the legal necessity for the mechanism, decided on the approach to consultation with stakeholders with a professional interest in environmental legal costs, and progressed work on identifying and assessing risks associated with the establishment of a financial assistance mechanism. The Minister for the Environment, Climate and Communications will report to the Government on this matter within three months of the Bill’s passing.

Deputy O’Callaghan asked about amendment No. 954. We are satisfied that the notification procedures are appropriate and align with the Aarhus Convention. This is based on advice from the Attorney General.

The Planning and Development Act 2000 required an application for leave to apply for a judicial review of proceedings. The original intention was for it to act as a form of screening for valid cases, but due in part to the widening in scope of the environmental parameters related to planning JRs, almost all cases now proceed past leave stage in practice. Removing the leave stage removes a time cost and unnecessary legal costs for all parties. In every case, all applicants must provide evidence of sufficient grounds and interest to proceed. A further provision on an application to strike out a Part 9 judicial review maintains the ability of a party to apply to the court to strike out the proceedings on a stated criterion, such as lack of standing, being out of time, a failure to exhaust appeals and administrative procedures, and a failure to disclose an arguable case. Additionally, the court may deem applications to be frivolous or vexatious.

Deputy O’Callaghan stated that the planning and advisory reform did not receive good engagement in terms of-----

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I cannot respond on that matter, as I was not aware of it. These recommendations came from PLS and engagement with this committee.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I have two follow-up questions. This is the first time a Minister or Minister of State has publicly stated that there will not be fewer judicial reviews. Indeed, one of the Minister of State’s predecessors, the now Minister for Enterprise, Trade and Employment, Deputy Peter Burke, spoke publicly about a judicial review industry in a high-profile interview that made it onto the front page of a newspaper. The clear implication - certainly by Fine Gael Government members - was that one of the primary intentions of these sections was to reduce the number of judicial reviews. At least we now have the Government accepting-----

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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The point I am making is that this will speed up-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I will get to that. That was the second point the Minister of State made. It is interesting that the Government now says it does not anticipate any reduction in the number of judicial reviews. In some sense, that tallies with the legal opinions received by this committee that the Bill is likely to increase the number.

The Minister of State spoke about quicker processing times. I will ask a simple question. What was the average processing time of a planning-related judicial review in the past year or two? On average, how much time will the measures the Minister of State has set out and tried to justify in the Bill knock off that? How much time will we save by, for example, deleting the leave stage? The public and the committee have a right to know whether there is analysis that shows it has taken X amount of time in the past 12 to 24 months and that these changes will reduce that time on average. That is what we were told about SHDs, but it did not work out that way.

Is that analysis there? Is it a kind of guess that if we get rid of the leave stage, between the jigs and the reels, the processing time may be shorter? Is there something hard and concrete to tell us, as the Minister of State said, that the status quois not sustainable and is taking this amount of time on average but, under the new and improved, whiter than whiter regime, it will save this amount of time? That is the kind of analysis we are looking for.

The Minister of State referred to costs. He indicated that we will have no idea what those might look like for another three months. Will he tell us, as explicitly as possible, what the cost regime and the legal aid system will be like? There is currently no clarity or certainty for anybody with respect to that. The Minister of State is asking us to take a punt in faith to dispense with the clarity provided by the Heather Hill case and, again, I am not saying that is perfect and could not be reformed, for a regime that has yet to be actually decided, defined or costed.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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We understand that the Attorney General's office has looked at this. We will get clarification on that specific-----

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Okay. Will I come back in on the other points?

Steven Matthews (Wicklow, Green Party)
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Yes.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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The concern is not about less judicial reviews. As Deputy Ó Broin said, residential development JRs have gone down since the SHD issue was resolved, but this is around better alignment of plans and decision-making and the removal of the leave stage, which will save time. In fact, it will save weeks. Again, I do not have specific data-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Did the Minister of State say "weeks"?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Yes. The removal of the leave stage-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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It will save a few weeks.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Yes. To go back to the point about the advisory forum, it is our understanding there has been substantial engagement with that forum on the review. That might be disputed, but it is our understanding that there has been engagement. Are there any other points I missed?

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Yes. I asked two questions. How much time will this save overall? The Minister of State said the removal of the leave stage will save weeks. JRs can take a year or 18 months to two years. They are very slow, although it is to be hoped they will speed up. Is the Minister of State saying there is no assessment of how much time on average these proposed changes are likely to save? I thought that would have been one of the objectives here. Is the Department hoping to get JRs down to a year, or six or nine months? My second question sought more detail on the cost regime.

Steven Matthews (Wicklow, Green Party)
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Could we leave the cost regime until we get to that-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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To the section. Sure.

Steven Matthews (Wicklow, Green Party)
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-----chapter.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I am happy to do that.

Steven Matthews (Wicklow, Green Party)
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We will just deal with the timelines. A JR is a two-way process. It is not always in the control of one person to determine how long it will take because someone can look for a stay. It is probably a difficult question to answer definitively. I will give the Minister of State an opportunity to do so.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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To respond to the Chair, if the Government's defence of this legislation is that it will speed up the process and save time, one would imagine the Government or officials have some kind of analysis of how much time might be saved or how much it will speed it up by-----

Steven Matthews (Wicklow, Green Party)
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I will allow the Minister of State to answer.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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-----even within a range.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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The point is we cannot dictate what the courts will do in terms of timelines. Certainly, the planning court will speed up the process. The entire Bill is about better alignment and it is ensuring that. I cannot put a figure on it in respect of the number of weeks, but it is about better alignment in our planning system and speeding up those processes in the planning court.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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In the context of the discussion Deputy O'Callaghan and I were trying to have with the Minister of State, Deputy Dillon, on whether an analysis was underpinning this, the Minister of State is essentially confirming that there is no analysis of the actual amount of time it is likely to save. There is a hope that this will do something, but no actual assessment.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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It will.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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How do you know that if there is no analysis stating what it potentially could save time-wise?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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As I said, what the Bill is setting out to achieve throughout-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Will the Minister of State stick to these reforms in these sections?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I will just get a-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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We have no idea how much time it will save.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I could not put a specific time-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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We do not know. It might not save any time, other than maybe a few weeks.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I argue that it will.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Other than a few weeks. That is the only certainty the Minister of State has.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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On the planning court and speeding up JRs, the leave stage has become an unnecessary step. Removing it will lead to a quicker process. There is a time saving there.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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That is not the question. The planning court is separate. That is a resource issue, which we support in that we would like to see more resources. We agree on that. The Minister of State has set out that getting rid of the leave stage will save some weeks. In terms of the rest of the change, however, some weeks will not cut it for people who are stuck in a JR. The Minister of State is saying to us that the Government has absolutely no idea what, if any, time will be saved as a result of the much more profound changes elsewhere in the sections of the Bill these amendments are trying to change.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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As I said, I cannot put a figure on it.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Okay. Will the Minister of State give any further clarity on the cost regime, other than there is a group working on it, and the Minister is to report back in three months?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Are we dealing with the costs-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Apologies. We will deal with that when we get to the section. I am happy to do that.

Steven Matthews (Wicklow, Green Party)
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Deputy O'Callaghan has something on the time question. I will then go to amendment No. 979.

Steven Matthews (Wicklow, Green Party)
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Sorry, I thought you had spoken to those.

Steven Matthews (Wicklow, Green Party)
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The Deputy has a question relating to amendment No 954. We will then go to amendment No. 955. I propose we take a five-minute break at 12 noon, which we need to do.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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At present, a JR applicant may bring amended grounds beyond those originally filed in his or her application. This is one of the time savings that can accrue from this change. Amended grounds can cause significant delays to the court and the defendant, as they consider the merits of each new amended ground. The Bill reforms this by requiring that an application for a judicial review may only be made on the grounds of the challenge raised by the applicant in the statement of grounds filed with the application. Limited criteria are set out in the Bill by which the court may allow subsequent amendments to the statement of grounds. That, in itself, is a means by which the Bill will allow time to be saved in the process.

Steven Matthews (Wicklow, Green Party)
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We will move to amendment No. 955.

Does Deputy Ó Broin wish to introduce and speak to amendment No. 955?

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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The three amendments are really interrelated

Steven Matthews (Wicklow, Green Party)
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They are kind of insertions.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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For the record, what this does is substitute the equivalent of section 50A of the existing Planning and Development Act after the insertion of the equivalent of section 50. It does not carry forward some of the concerning requirements with respect to undertakings. Again, that is something we dealt with dealt with in a previous amendment, which should not be controversial as the Bill deals with that. Along with the amendment afterwards, this is really just removing the bulk of what the Government is proposing and reinserting a slightly improved version of the existing sections of the Act. I would be interested to hear the Minister of State's formal response.

Steven Matthews (Wicklow, Green Party)
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I believe this is also Deputy O'Callaghan's amendment.

Steven Matthews (Wicklow, Green Party)
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I thank Deputy O'Callaghan. The Minister of State to respond, please.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I have spoken-----

Steven Matthews (Wicklow, Green Party)
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He has actually responded to those three amendments.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I have responded, but I will just read this out.

Steven Matthews (Wicklow, Green Party)
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That is fine.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Among the positive reforms contained in Part 9, which amendments No. 954, 955 and 956 seek to remove, applicants will no longer need to apply to the High Court for leave to take a judicial review case. This change will save time and cut expense while improving access to justice. Applicants will still need to demonstrate that they have sufficient interest and standing to take the case. Timelines previously set out within the draft Bill for the various stages of the process have been removed as these matters will be dealt with by the rules of the High Court. This change from the draft Bill of December 2022 was on foot of advice from the Courts Service and recommendations arising from pre-legislative scrutiny.

Another important change is the inclusion of a provision for unincorporated organisations, such as residents’ associations, to take judicial review, subject to certain criteria, including having sufficient interest, taking a vote of members and providing information to the Court to state who is taking the case. This change was also on foot of recommendations from the Oireachtas committee members. The governance requirements contained can only be seen as a necessary improvement in transparency and there has never been a more important time to bolster that aspect of the planning system.

To that end, further amendments have been tabled, namely, amendments Nos. 969 and 979, with regard to persons taking judicial reviews for the sole purpose of delaying a development or for securing the payment of moneys. Further amendments will be tabled on Report Stage to deal with those making spurious submissions on applications or taking spurious appeals. These will address the matters raised in the media recently that are of concern to all of us here today.

Environmental NGOs will still enjoy special status within this Bill and aligned to Ireland’s commitments under the Aarhus Convention. Chapter 2 contains the provisions pertaining to the new environmental legal cost financial assistance mechanism, which we discussed. This mechanism will facilitate the making of a contribution to the costs of all planning judicial review cases that are deemed to be Aarhus proceedings under the Bill.

Steven Matthews (Wicklow, Green Party)
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I thank the Minister of State. Deputy Ó Broin, please.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I am good.

Steven Matthews (Wicklow, Green Party)
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That is grand. Does Deputy O'Callaghan wish to come back in?

Steven Matthews (Wicklow, Green Party)
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We can move to amendment No. 956.

Steven Matthews (Wicklow, Green Party)
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We will discuss costs when we think we will get to the relevant section.

Steven Matthews (Wicklow, Green Party)
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If it is referenced in the Deputy's amendment, he can obviously refer to it, but we will probably discuss the cost regime in more detail when we get to Chapter 2.

Steven Matthews (Wicklow, Green Party)
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If the Bills Office has placed it in this grouping and deemed it to be relevant to this section, we can go on to amendment No. 956.

Steven Matthews (Wicklow, Green Party)
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If it is helpful, this amendment is grouped here because the Deputy's amendment suggests to insert into section 250 the interpretation "costs and environmental matters". That is why it has been grouped with it.

Steven Matthews (Wicklow, Green Party)
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Obviously, when we get to Chapter 2 and separate sections on costs, we can discuss those aspects as well. That is just to be helpful.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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This is bringing back memories for me because I was one of a number of plaintiffs, shortly after when the Aarhus Convention was enacted here, who were seeking a not prohibitively expensive order from the High Court to take a case. That was very early days in terms of Ireland's compliance with Aarhus.

It is really important that we get this right. It is a very important provision that the State is meeting its requirements in this regard. There has been a review of the administration of civil justice. The report on that identified that there was a high level of legal costs in Ireland comparable with other jurisdictions. I will state that this will be developed in the regulations. As I said, the Department of the Environment, Climate and Communications is leading on that and will engage in a very extensive public consultation to determine the scale of fees and how that operates. That is going to happen within three months. That public consultation process will report back to Government within three months of that process concluding. There is a process to go in terms of determining the scale of fees and how that is to be operated. As I said, however, that process is being led by the Department of the Environment, Climate and Communications, which will draft the regulations in that regard.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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When the new scale of fees comes into effect? Is that the question the Deputy is asking?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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This can only be a positive in terms of groups and NGOs, in particular, and their ability to take JRs in confidence that the legal costs are not going to be burdensome. That is what the spirit of Aarhus is about in terms of access to environmental justice. It is absolutely a positive. As I said, the regulations still have to be drafted on foot of the public consultation process, so I cannot anticipate how that process will be in terms of the engagement, what recommendations will come through from the public consultation and what goes to Government on that.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Then we are in the same position. The Minister of State is saying this can only be positive but he has no idea what it is. How can he come to the committee and say this can only be positive from the point of view of environmental and non-governmental organisations when he does not actually know what is being proposed? That is the fundamental problem. It is important that we disentangle two things because there is the free legal aid scheme and the cost-setting mechanism for the legal professionals, which we will deal with when we get to them. However, the more basic point is that the Minister of State is coming to us, a bit like the last discussion, saying this is going to speed things up but we should not ask by how long because he does not know as there is no analysis. Here we are again, saying this is going to be much better, with greater levels of cost protection, but just do not ask the Minister of State to explain why because he has no idea because it has not been decided. That is the fact of it, is it not?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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This is the enabling legislation and it is in the regulations that the detail-----

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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There will also be separate legislation from another Government Department that the Minister of State has no sight of because it has not been written.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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We are on the working group for that.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Will the Minister of State tell the committee what the cost regime and legal aid are going to look like? How will he convince us that this is not going to be as appallingly inefficient and unfair as the existing legal aid scheme is for other matters?

Steven Matthews (Wicklow, Green Party)
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I understand Deputy O Callaghan wishes to come in.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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The aim is to have this scheme as efficient as possible and not to deter people from taking JRs.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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We know all of that. That is not the issue. What we want to know is the detail. For example, the current legal aid scheme has all sorts of restrictions with regard to reducing costs and cutting costs that deny people access to legal representation on their day in court and a whole range of other matters. The Minister of State wants us to dispense with the current regime that is in place. This amendment seeks to leave that current cost regime in place. The Minister of State should convince us, not tell us what he hopes or aspires might happen at some point when somebody else produces some regulation.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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No, that is what will happen.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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The Minister of State does not know it is going to happen. He might not even be in government when those regulations come out, and they could be very different from what he has been promised.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I will just give the elements that the departmental group is considering: the appropriate rates for different types of legal work under the scale of fees appropriate to the superior courts; the financial assessment criteria for all applicants, including NGOs and unincorporated bodies, and the practicality of their application; the funding arrangements for the financial assistance mechanism; the contribution rates and financial assessment criteria for the financial assistance mechanism; and the operational model for the establishment and management of the mechanism. Those are the issues that are going to be considered in developing this.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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That is the problem. The Minister of State has told us what the group is going to consider. What he has not told us is what the outcome of that consideration has been. Of course, he cannot tell us that because it has not been decided.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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As I said, that process is under way and this will emerge from the public consultation as well.

Steven Matthews (Wicklow, Green Party)
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There are a number of sections on cost in regard to Chapter 2 and we will probably flesh out the discussions a little bit more at that stage.

Steven Matthews (Wicklow, Green Party)
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I would let you go ahead but I need to take a break shortly.

Steven Matthews (Wicklow, Green Party)
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With regard to the current section 50B, that is intended to continue until the new cost protection mechanism scheme is in place.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Yes.

Steven Matthews (Wicklow, Green Party)
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I have never taken a judicial review but I know people who have. While that mechanism has proven to work, there is always a massive concern and worry that you have to come up with a fee upfront in order to retain somebody. There is an element of risk in that regard. I know it is well protected in section 50B but there is still an element of risk. It is my understanding that what is being proposed here would remove that requirement to try to cobble together €30,000, €40,000 or whatever it might be to retain somebody in order to proceed. Maybe neither system is perfect.

Steven Matthews (Wicklow, Green Party)
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We will go to amendment No. 979 in Deputy O'Callaghan's name.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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No.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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It has to follow the principles of Aarhus. It does not matter what government is in place. It must obviously follow the Bill when it is enacted as well. There will not be an inconsistency regardless of what government is in place. It has to follow the principles of Aarhus and that is what this Bill sets out to achieve and what the regulations will achieve once they go through their process.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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We do not have to use that specific language to give effect to what the State is required to do under Aarhus. We have to do give effect to it but we do not have to use the specific language in the Bill.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Every state will draft its own legislation to give effect to Aarhus. Obviously, it can be tested if the legislation is not Aarhus compliant. Therefore, the Government is confident that it is and that the text, as drafted, will give effect to the State’s requirements under Aarhus.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I want to support that. Section 266 deals with the regulation of cost payable in respect of prescribed matters. In section 266(3) on page 451 states:

Before making regulations under subsection (2), the Minister for the Environment, Climate and Communications shall have regard to—

(a) the need to ensure that proceedings to which this Chapter applies can be taken by applicants in a manner that is not prohibitively expensive

The wording is actually there.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Is that okay?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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We do have the language. I do apologise.

Steven Matthews (Wicklow, Green Party)
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On section 279-----

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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No, it should not. We have had that imbalance in the planning system for many years in terms of communities against a big project but certainly this is not the case here. The critical thing here is to create a level playing field to ensure that an NGO can participate in the system, be it a case against the State, and that it can do that in a way that is equitable. That is what this is about.

What the State is giving is a contribution to the cost. It is open to the applicant to pay in excess of that. That is under section 265(4), which states:

The costs that a party is ordered to pay to an applicant under subsection (2)shall not exceed the monetary amount prescribed in respect of those costs under section 266unless the court awarding such costs is satisfied that, due to the exceptional circumstances presented by a particular case— (a) there is a reason of exceptional public importance for awarding costs exceeding that amount ...

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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If you lose under a no-foal, no-fee arrangement, you must pay the costs under the current Act. The Bill before us has a cost mechanism. In many cases, lawyers are going after winnable cases. The Bill will assist in the taking of cases that may be marginal. This could help to improve our environmental system, which is the important part.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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No, what I am saying is that-----

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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But it provides an opportunity for-----

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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-----in terms of being confident of being supported. This is what the Aarhus Convention is directing the State to do.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Really, this is about putting a structure in place that is fair and equitable for everyone. It proposes a much fairer system than one that would operate on a no-foal, no-fee basis. It would provide a level playing field for the taking of cases with merit on environmental grounds and in terms of the State's requirements under the Aarhus Convention.

Steven Matthews (Wicklow, Green Party)
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We are going to discuss the sections on costs later. Section 266(3) is probably relevant here. That would probably be the opportunity to discuss equity and the regulations.

Steven Matthews (Wicklow, Green Party)
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I am glad because Deputy Ó Broin has indicated a desire to contribute.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I will respond on that point before Deputy Ó Broin contributes. I have read out section 265(3)(a). Section 266(3)(b) refers to "the need for equitable and orderly access to the courts for all persons to be ensured in accordance with law" before the Minister makes the regulations. Section 266(3)(c) refers to "the need to ensure that court and judicial resources are utilised for the common good and in the interests of justice". The level needs to be set appropriately in a way that ensures applicants can get representation. That is in compliance with the Aarhus Convention, which is about access to justice in environmental matters that is not prohibitively expensive.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I will deal with the matter I wished to raise when we get to the relevant section, just to be helpful.

Steven Matthews (Wicklow, Green Party)
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We will move on to amendment No. 979 and try to deal with it before lunch, if possible.

Steven Matthews (Wicklow, Green Party)
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I ask the Minister of State to respond.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I will read the note. First, amendment No. 979 is consequential on amendments Nos. 954 to 956, inclusive. It attempts to retrofit some provisions regarding costs and timeframes without the necessary legal framework or consideration that underpins the Government’s own position, as reflected in Part 9, as initiated. I will therefore be opposing that. The cost provisions will deal with that issue of cost exposure that Deputy O'Callaghan mentioned in terms of the European Court of Justice ruling.

Steven Matthews (Wicklow, Green Party)
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For clarity, under the Bill is there is an opportunity for somebody prior to going forward with the judicial review to seek clarification on their eligibility for costs?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Yes.

Steven Matthews (Wicklow, Green Party)
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That is in it. That is okay. I just wanted to check that.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 955:

In page 441, between lines 4 and 5, to insert the following: “Supplemental provisions

250. (1) In this section—

“Court”, where used without qualification, means the High Court (but this definition shall not be construed as meaning that subsections (2) to (6) and (9) do not extend to and govern the exercise by the Supreme Court of jurisdiction on any appeal that may be made);

“Order” shall be construed in accordance with section 50;

“section 250* leave” means leave to apply for judicial review under the Order in respect of a decision or other act to which section 250(2)* applies.

(2) (a) An application for section 250* leave shall be made by motion ex parte and shall be grounded in the manner specified in the Order in respect of an ex parte motion for leave.

(b) The Court hearing the ex parte application for leave may decide, having regard to the issues arising, the likely impact of the proceedings on the respondent or another party, or for other good and sufficient reason, that the application for leave should be conducted on an inter partes basis and may adjourn the application on such terms as it may direct in order that a notice may be served on that person.

(c) If the Court directs that the leave hearing is to be conducted on an inter partes basis it shall be by motion on notice (grounded in the manner specified in the Order in respect of an ex parte motion for leave)—

(i) if the application relates to a decision made or other act done by a planning authority or local authority in the performance or purported performance of a function under this Act, to the authority concerned and, in the case of a decision made or other act done by a planning authority on an application for permission, to the applicant for the permission where he or she is not the applicant for leave,

(ii) if the application relates to a decision made or other act done by the Commission on an appeal or referral, to the Commission and each party or each other party, as the case may be, to the appeal or referral,

(iii) if the application relates to a decision made or other act done by the Commission on an application for permission or approval, to the Commission and to the applicant for the permission or approval where he or she is not the applicant for leave,

(iv) if the application relates to a decision made or other act done by the Board or a local authority in the performance or purported performance of a function referred to in section 50(2)(b) or (c), to the Board or the local authority concerned, and

(v) to any other person specified for that purpose by order of the High Court.

(d) The Court may—

(i) on the consent of all of the parties, or

(ii) where there is good and sufficient reason for so doing and it is just and equitable in all the circumstances,

treat the application for leave as if it were the hearing of the application for judicial review and may for that purpose adjourn the hearing on such terms as it may direct.

(3) The Court shall not grant section 250* 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,

(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, for the time being in force, as being development which may have significant effects on the environment, the applicant—

(I) 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,

(II) has, during the period of 12 months preceding the date of the application, pursued those aims or objectives,

and

(c) the applicant has exhausted any available appeal procedures or any other administrative remedy available to him or her in respect of the decision or act concerned.

(4) A sufficient interest for the purposes of subsection (3)(b)(i) is not limited to an interest in land or other financial interest.

(5) If the court grants section 250* leave, no grounds shall be relied upon in the application for judicial review under the Order other than those determined by the Court to be substantial under subsection (3)(a).

(6) The determination of the Court of an application for section 250* leave or of an application for judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the Court to the Supreme Court in either case save with leave of the Court which leave shall only be granted where the Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

(7) Subsection (6) shall not apply to a determination of the Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution.

(8) If an application is made for judicial review under the Order in respect of part only of a decision or other act to which section 250(2)* applies, the Court may, if it thinks fit, declare to be invalid or quash the part concerned or any provision thereof without declaring invalid or quashing the remainder of the decision or other act or part of the decision or other act, and if the Court does so, it may make any consequential amendments to the remainder of the decision or other act or the part thereof that it considers appropriate.

(9) If, on an application for judicial review under the Order, the Court decides to quash a decision or other act to which section 250(2)* applies, made or done on an application for permission or approval, the Court shall, if requested by the applicant for permission or approval, remit the matter to the planning authority, the local authority or the Commission, as may be appropriate, for reconsideration, subject to such directions as the Court considers appropriate, unless the Court considers, having regard to the circumstances of the case, that it would not be lawful to do so.

(10) The Court shall, in determining an application for section 250* leave, an application for judicial review on foot of such leave or an application for leave under subsection (6), act as expeditiously as possible consistent with the administration of justice.

(11) On an appeal from a determination of the Court in respect of an application referred to in subsection (10), the Supreme Court shall—

(a) have jurisdiction to determine only the point of law certified by the Court under subsection (6) (and to make only such order in the proceedings as follows from such determination), and

(b) in determining the appeal, act as expeditiously as possible consistent with the administration of justice.

(12) Rules of court may make provision for the expeditious hearing of applications for section 250* leave and applications for judicial review on foot of such leave.

(13) For the avoidance of doubt, where—

(a) the Court has granted leave to appeal its decision in accordance with subsection (6), or

(b) an appeal has been brought to the Court of Appeal in accordance with subsection (7),

any party to the appeal may, at any time thereafter prior to the determination of such appeal, without any prior application to the Court of Appeal, apply to the Supreme Court under Article 34.5.4° of the Constitution to determine the appeal.

(14) Where the Supreme Court grants an application referred to in subsection (12), the Court of Appeal shall, in respect of the proceedings before it in relation to the appeal, provide by order for the discontinuance of those proceedings, which order of discontinuance shall be confined to the grounds upon which the Supreme Court granted leave to appeal, whether or not any application in relation to the appeal has been made to the Court of Appeal.

(15) The Supreme Court shall act as expeditiously as possible consistent with the administration of justice in determining any application referred to in subsection (12) and, where the Supreme Court grants the application, any appeal.”.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I move amendment No. 956:

In page 441, between lines 4 and 5, to insert the following: “Costs in environmental matters

250. (1) This section applies to proceedings of the following kinds:

(a) proceedings in the High Court by way of judicial review, or of seeking leave to apply for judicial review, of—

(i) any decision or purported decision made or purportedly made,

(ii) any action taken or purportedly taken, or

(iii) any failure to take any action,

pursuant to a statutory provision that gives effect to—

(I) a provision of Council Directive 85/337/EEC of 27 June 1985 to which Article 10a (inserted by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to Justice Council Directive 85/337/EEC and 96/61/EC) of that Council Directive applies,

(II) Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment,

(III) a provision of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control to which Article 16 of that Directive applies, or

(IV) paragraph 3 or 4 of Article 6 of the Habitats Directive;

(b) an appeal (including an appeal by way of case stated) to the Supreme Court from a decision of the High Court in a proceeding referred to in paragraph (a);

(c) proceedings in the High Court or the Supreme Court for interim or interlocutory relief in relation to a proceeding referred to in paragraph (a) or (b).

(2) Notwithstanding anything contained in Order 99 of the Rules of the Superior Courts (S.I. No. 15 of 1986) and subject to subsections (3), (4) and (5), in proceedings to which this section applies, each party to the proceedings (including any notice party) shall bear its own costs.

(3) The costs of proceedings, or a portion of such costs, as are appropriate, may be awarded to the applicant to the extent that the applicant succeeds in obtaining relief and any of those costs shall be borne by the respondent or notice party, or both of them, to the extent that the actions or omissions of the respondent or notice party, or both of them, contributed to the applicant obtaining relief.

(4) The Court may award costs against a party in proceedings to which this section applies if the Court considers it appropriate to do so—

(a) because the Court considers that a claim or counterclaim by the party is frivolous or vexatious,

(b) because of the manner in which the party has conducted the proceedings, or

(c) where the party is in contempt of the Court.

(5) Notwithstanding subsection (4), the Court shall not award any costs against a party which would be prohibitively expensive for that party.

(6) Subsection (2) does not affect the Court’s entitlement to award costs in favour of a party in a matter of exceptional public importance and where in the special circumstances of the case it is in the interests of justice to do so.

(7) In this section, a reference to “the Court” shall be construed as, in relation to particular proceedings to which this section applies, a reference to the High Court or the Supreme Court, as may be appropriate.

(8) In this section, “statutory provision” means a provision of an enactment or instrument under an enactment.”.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I move amendment No. 957:

In page 441, between lines 9 and 10, to insert the following: “ “Part 9 judicial review” shall be construed in accordance with section 251;”.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I move amendment No. 958:

In page 441, line 11, to delete “(within the meaning of section 251)”.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Before we move on, can I confirm that we are going to go through the other sections in this bit afterwards?

Steven Matthews (Wicklow, Green Party)
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I ask members to remain. We will ask the officials to come back in and then Deputy Ó Broin may put his question.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Section 251(2) at the top of page 442 states:

A person shall not— (a) question the validity of any decision made or act done in the performance, or purported performance, of any function under this Act by a relevant body, or

(b) question the alleged failure of a relevant body to perform a function referred to in paragraph (a)

From memory, I thought we had removed or amended such language in other sections,l yet it seems to remain here. Will the Minister of State confirm whether that is the case and explain the impact or effect of section 251(2)?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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It is reflective of the current Act. This section provides that the procedures in this Chapter are the exclusive means by which the validity of decisions made, acts done or failures to perform functions under the Act may be challenged.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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That does not answer the question. What I am trying to understand is what this prohibits because it clearly prohibits something. Does it prohibit other kinds of legal actions?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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It means you can only deal with it through judicial review.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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That is as opposed to civil or criminal proceedings.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Exactly.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Am I correct that such a formulation elsewhere in the text of the Bill has been amended? That formula of words is repeated elsewhere and I had thought there had been amendments altering it.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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We will check that and revert to the Deputy.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Okay.

Steven Matthews (Wicklow, Green Party)
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Amendments Nos. 959 to 963, inclusive, 965 to 967, inclusive, and 969 to 971, inclusive, are related and may be discussed together by agreement. Perhaps be could begin with discussion of amendment No. 960. We can then go back to Deputy Bacik's amendment when she returns from the Chamber. We are only going to have about five minutes so perhaps the Minister of State can introduce the amendments and we can then come back to the section. There will be no more votes before the break if people have other duties to attend to.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I will be moving amendments Nos. 960 to 963, inclusive, 967 and 969 to 971, inclusive,. One of the most important areas of reform in this Bill is Part 9, which updates the processes and parameters of planning judicial review and introduces a scale of legal fees relating to the judicial review and an environmental legal costs financial assistance mechanism to ensure that the costs associated with proceeding with a judicial review are not prohibitively expensive, maintaining compliance with Ireland’s commitments under the Aarhus Convention. These reforms have been underpinned by the detailed review and advice of the Office of the Attorney General and by extensive engagement with stakeholders and other relevant Departments, in particular the Department of the Environment, Climate and Communications, which is leading on the establishment of the scale of fees and the environmental legal costs financial assistance mechanism.

Amendments Nos. 960 to 963, inclusive are of a technical and drafting nature. Amendments Nos. 960, 961 and 962 propose to add the words “or would relate to” in section 253, which deals with the time limits applicable to Part 9 judicial review. This section provides for the eight-week window from the date of decision in which an applicant must initiate a judicial review. The addition of "would relate" provides that, should the eight-week timeline elapse, the language would refer to a matter that judicial review may have related to rather than to an active case that is in being.

Amendments Nos. 963 and 967 expand the sections 256 and 260 to clarify which relevant body and which amendment is referred to in each section, respectively, by way of insertion of reference to the identifying subsection. Amendment No. 970 deletes the words “of this section” from section 268(1) as it is not required.

Amendments Nos. 969 and 971 enable the court to dismiss a judicial review if it “considers that the proceedings are brought for the sole purpose of delaying a development, or proposed development or securing the payment of money, gifts, consideration or other inducement, by any person to any other person”.

These amendments seek to strengthen the judicial review process under the Bill by providing that the court may make an order as to costs where it considers that the judicial review proceedings have been brought for the purposes of either delaying the development or securing the payment of money, gifts, consideration or other inducement. Where such an order is made by the court, the applicant will not be entitled to receive a contribution to his or her own costs from the environmental legal cost financial assistance mechanism.

The judicial review provisions currently provide that each party shall bear its own costs unless the court makes an order that a party shall pay costs to another party. Courts will now be able to make such an order where they are of the view that the proceedings were taken to delay the development or to secure the payment of money or other inducements. The court may already make such orders where it considers that the proceedings are frivolous or vexations.

I am also giving consideration to bringing further amendments on Report Stage to deal with spurious planning submissions and appeals. Among the issues being examined is the requirement for a person or an organisation making a submission on a planning application, to submit a standardised statutory declaration with the original submission confirming his or her or its bona fides and that the submission is made in good faith. Penalties would also be introduced for anyone making a false declaration.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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This is essentially to exclude somebody from the legal aid scheme, as I keep calling it, where he or she has been found by a court to be instigating the proceedings purely on the grounds of delaying the development or securing the payment of money. That would be the court considering the judicial review, or would it be a separate court action being taken?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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It is part of the judicial review process.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I am not opposed to it, by the way. It is just for clarity.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Section 265(3) states:

A court may order such costs as it considers reasonable to be paid by a party in proceedings to which this Chapter applies to another party in such proceedings where the court considers it appropriate to do so— (a) because the court considers that a claim or counterclaim ...

This amendment then is going in.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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It is going in there.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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It is going in there, yes.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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This is the court that is hearing the judicial review.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Yes. It will make the decision while hearing it.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Under the subsection as it currently stands, where, for example, the court believes that the JR being taken is frivolous or vexatious, obviously, it does not proceed, but in that case they could still order costs against the person who is taking the vexatious JR. In the same way with this amendment, if, at any stage, during the core process the judge takes the view that here is what is going on, evidence might be presented or whatever, he or she can award costs against the litigant for everything up to that point to pay the other side's costs. Is that essentially what it does?

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Yes. And they will not get access. That is the point.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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They would automatically be excluded from the legal aid scheme.

Steven Matthews (Wicklow, Green Party)
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Unless there are further questions on the ministerial amendments, I suggest that we suspend now and reconvene at 2 p.m. in this room.

With that, I thank the Minister of State, Deputy Noonan, for his attendance this morning.

Steven Matthews (Wicklow, Green Party)
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Good afternoon. I welcome back everybody to the Select Committee on Housing, Local Government and Heritage where we continue our Committee Stage deliberations on the Planning and Development Bill 2023. I welcome the Minister of State, Deputy Byrne, to the committee this afternoon.

We are dealing with the block of amendments that starts with amendment No. 959. We have spoken to and addressed the ministerial amendments. Now I suggest we deal with amendments Nos. 965 and 966 together in the name of Deputy Cian O'Callaghan. I call on Deputy O'Callaghan to speak to amendments Nos. 965 and 966, if he wishes.

Thomas Byrne (Meath East, Fianna Fail)
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Deputy Cian O’Callaghan's amendment proposes to delete the requirement in section 258(2)(c) that environmental NGOs, who enjoy privileged status and rights of appeal within the Irish system, must have at least ten members. This criteria and others in section 258, such as the requirement to have existed for at least one year prior to the taking of judicial review, guard the system from misuse by those that could establish an organisation solely for the purpose of taking judicial review applications and enjoying the status and privileges rightfully belonging to legitimate environmental NGOs, who play a very important role within the planning system and whose rights are enshrined and protected within this Bill. That is the reason I oppose amendment No. 965.

Thomas Byrne (Meath East, Fianna Fail)
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I will have to leave it at what has been said already in that regard.

Thomas Byrne (Meath East, Fianna Fail)
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The threshold was set at ten, which we believe is an appropriate level. In fact, the Aarhus Convention allows a country to set a threshold and we are doing that. There are thresholds in other EU countries and at EU level that are higher. There is precedent for this. We are allowed to do it and we think it is a reasonable number and at an appropriate level.

Thomas Byrne (Meath East, Fianna Fail)
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Yes.

Thomas Byrne (Meath East, Fianna Fail)
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I do not have all of that information, but they definitely can do it. It is provided for and is allowed under the Aarhus Convention.

Thomas Byrne (Meath East, Fianna Fail)
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I cannot commit to doing that, but the Deputy can ask the Minister the question. However, there certainly has been a study done on this and we are satisfied this is a reasonable figure set at an appropriate level.

Steven Matthews (Wicklow, Green Party)
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The section states, where "proceedings relate to a development that is likely to have significant effects". Is that the question?

Steven Matthews (Wicklow, Green Party)
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The Deputy wants to know what "significant effects" are.

Thomas Byrne (Meath East, Fianna Fail)
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That is determined in the environmental impact assessment that is part of the planning process.

Thomas Byrne (Meath East, Fianna Fail)
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It is not just a company; it is a company or an undertaking incorporated under the laws of a member state that has limited liability and a constitution. Those are the criteria. It is of course similar to a company but it does not necessarily have to be a company incorporated under Irish law. It is to ensure we know they are properly established. The majority of non-governmental organisations in this space will be registered as companies limited by guarantee. This is not a burdensome requirement. This is standard governance for organisations at that level, and they do it anyway. There is a legal requirement here that I suggest is not going to impose a burden on anyone. It is almost protection for themselves that they would do this without this legislation. The legislation is merely formalising it to ensure transparency is there and they have proper governance.

Thomas Byrne (Meath East, Fianna Fail)
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The amendment seeks to delete section 258(4)(d)(iv)(II), which requires members of an unincorporated body, such as a residents’ association, that votes to proceed with a judicial review case to provide their names and addresses to the court as part of the affidavit supplied to the court with the judicial review application. Transparency is a fundamental pillar of the planning system. As we have learned over the decades, sunlight is the best disinfectant for many matters. For these reasons, it has been a well-established practice that all parties submitting observations on planning applications must supply their names and contact details and similarly, all parties making observations on development plans must supply their names and contact details. It follows that if a group of individuals with a genuine case for judicial review wishes to proceed to court, all parties, including defendants and the court itself, should know who is taking the case in the interests of transparency. There is little benefit from enabling an anonymised route to take judicial review cases or in any aspect of participation in the planning system. The court furthermore requires that it knows which individuals are taking a case and therefore it is a normal requirement to supply the courts with such information. For that reason I have to oppose amendment No. 966.

Thomas Byrne (Meath East, Fianna Fail)
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We are actually not. This is about unincorporated residents' associations or unincorporated bodies. In the case of the incorporated bodies the Deputy has mentioned, the names and contact details of members of their boards are publicly available information. The shareholders of those companies would be listed in the share register of the company, which again is publicly available. I suggest the example given by the Deputy is not relevant in this case. This relates to unincorporated bodies where that information is not available publicly.

Thomas Byrne (Meath East, Fianna Fail)
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The names of every board member are publicly available. Anyone taking a judicial review in these cases is able to apply for a contribution to costs under the financial assistance mechanism.

It is reasonable to express the need to ensure there are appropriate governance arrangements, especially where money is involved.

Steven Matthews (Wicklow, Green Party)
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With Deputy O'Callaghan's indulgence, could I bring in Deputy Bacik on her amendment? She is due in the Chamber.

Thomas Byrne (Meath East, Fianna Fail)
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It is the case a board of directors has to approve a resolution in accordance with the constitution authorising the bringing of the act.

Thomas Byrne (Meath East, Fianna Fail)
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The names and addresses are publicly available of board members and indeed the share register is publicly available.

Steven Matthews (Wicklow, Green Party)
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We can return to this, absolutely. Does the Minister of State want to answer that? Then I will bring in Deputy Bacik.

Thomas Byrne (Meath East, Fianna Fail)
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The point is the financial assistance mechanism is there. That is available and it is reasonable for the State to ensure there are appropriate governance arrangements where money is involved. That is one of the key reasons for transparency in these particular cases.

Thomas Byrne (Meath East, Fianna Fail)
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Because they are not companies, essentially, and there are specific rules under company law for companies in this space.

Thomas Byrne (Meath East, Fianna Fail)
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We are not saying that at all. Then again, some of them are, but we are not saying they are required to do that at all.

Thomas Byrne (Meath East, Fianna Fail)
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I am sorry, but the onus in terms of registering as a company is far greater than what is required here.

Steven Matthews (Wicklow, Green Party)
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I thank the Deputy for that. We can return to those two amendments.

Ivana Bacik (Dublin Bay South, Labour)
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I thank the Chair and colleagues for facilitating me as I have to speak in the Dáil Chamber. I have been listening and many residents' associations will also be listening with interest to the discussion of the legal embodiment they may seek to favour.

My amendment No. 959 is very much a stand-alone one. It seeks to insert a new section 252 into the legislation. I spoke in the Dáil about this before Christmas and also spoke on Second Stage of the Bill about this. The Minister responded quite positively, at least in principle, to what we are seeking to do here. The purpose of the amendment is to introduce a new offence relating to abuse of the planning objection process for financial gain. It would create an offence for a person directly or indirectly, whether for themselves or for any other person, to request, accept or agree to accept money from another person, or offers, etc., to give money to another person in consideration of the person to whom money is given or sought to be given to refrain from making an application for Part 9 judicial review or withdrawing such an application if it has been made. The offence would not apply to cases where compensation is claimed for an injury to a right or interest already known to the law or to agreements regarding costs.

The background to this is in recent times we have become increasingly aware of concerns around abuses of the planning system. Particular aspects were exposed on "RTÉ Investigates" before Christmas. There have also been reports about a number of incidents where individuals have sought to abuse the planning system for financial gain and I identified an instance of this before Christmas in the Dáil. The amendment makes exceptions in the sense local residents affected by a planning decision that might adversely affect them would not be criminalised by our amendment. We are seeking to tackle this harmful practice that undermines confidence in the planning system and which can also help to create delays in the process. It is to tackle bad faith working of the planning system and we seek to help restore confidence in the planning process to prevent corruption at the source. I am interested to hear the Minister of State's view on it. As I said, the Minster seemed quite receptive to the principle of this.

Thomas Byrne (Meath East, Fianna Fail)
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The Deputy is right. Her amendment has lots of merit. The Minister feels the issue the amendment deals with is already covered by amendments brought forward by Government, as well as what the Minister has said about giving consideration to bringing other amendments forward on Report Stage to deal with what he described as spurious planning submissions and appeals. Among the issues being looked at for that Stage is having the person or organisation making a submission submitting a standardised statutory declaration with the original submission confirming bona fides the submission is made in good faith and providing penalties for anyone making a false declaration. We feel that between the amendments that have already been made and what will be coming on Report Stage, the issue the Deputy has raised, with good reason, is really already covered. Essentially, we agree with her, but we will come forward with our own amendment on Report Stage.

Ivana Bacik (Dublin Bay South, Labour)
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I thank the Minister of State for that response, which is very positive. I certainly will not be pushing this amendment at this Stage given he has said there will be amendments coming forward on Report Stage. We will reserve our position until we see what those are.

Steven Matthews (Wicklow, Green Party)
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Can I take it the Deputy is withdrawing while reserving the right to reintroduce it on Report Stage?

Ivana Bacik (Dublin Bay South, Labour)
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Precisely. I thank the Chair.

Steven Matthews (Wicklow, Green Party)
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I thank Deputy Bacik. We will go back now. Had Deputy O'Callaghan finished with his question?

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I thank the Minister of State for his time. The use of the word "disinfectant", though not intended to have impact it could have had, was an unwise choice. The Minister of State talked about sunlight being the best disinfectant for - what was the phrase?

Thomas Byrne (Meath East, Fianna Fail)
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We are looking for transparency.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I know, but he used the phrase that "sunlight is the best disinfectant for ...".

Thomas Byrne (Meath East, Fianna Fail)
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"... for many matters".

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Okay. I am not so sure in this discussion it is the best choice of language, but how and ever. On the substantive point, with all these sections one of the things we are trying to understand is what problem the legislation is trying to fix. When significant changes to legislation are introduced, generally they are trying to resolve, fix or address a problem. It used to be pretty unheard of for a residents' association to apply for a judicial review.

Thomas Byrne (Meath East, Fianna Fail)
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I am listening, but I want to give a good answer also.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Sure, but there is plenty of time between listening to the question and answering it. The Minister of State should go ahead. I do not want to interrupt.

Thomas Byrne (Meath East, Fianna Fail)
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I am in the hands of the Chair.

Steven Matthews (Wicklow, Green Party)
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If Deputy Ó Broin wishes to put the question, the Minister of State can listen and take note as well. That is the way we have been working throughout.

Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Now that I have the Minister of State's attention, it used to be pretty unheard of-----

Thomas Byrne (Meath East, Fianna Fail)
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I am in the hands of the Chair.

Steven Matthews (Wicklow, Green Party)
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