Seanad debates
Monday, 15 July 2024
Planning and Development Bill 2023: Committee Stage
12:00 pm
Alan Dillon (Mayo, Fine Gael) | Oireachtas source
First, I want to thank all the Senators for raising the issues on Committee Stage of this Bill.There has been criticism of the guillotine on Wednesday but we are offering up to 25 hours to debate the Bill between now and then. It does not undermine the role and responsibility that Seanad Éireann has in the legislative process.
The Bill is one of the most important pieces of legislation in recent times. Many have criticised it but it seeks to deliver greater clarity, consistency and confidence in our planning system through transparency, as well as more efficiency with regard to the final outcome. It is very important the decision-making process is considered to be fair, inclusive and, most important, timely. The introduction of statutory timelines in all consenting processes will mark a significant step forward in planning certainty.
All developers and applicants want certainty in the planning process. Our ambition in this regard is matched by unprecedented investment in resources in An Bord Pleanála. Every tier of our planning system, from the national planning framework, which has been mentioned, to development plans and more specialised plans for local areas, will be reviewed and refined to ensure we have consistent alignment throughout the planning process. With regard to judicial review, the process and parameters are very important in their own right. We have refined and expedited the process while maintaining and improving access to justice with the introduction of the environmental legal costs financial assistance mechanism. This will be available to contribute to the cost of such cases. There is also the introduction of scale fees to regulate overall costs. This is a very important process and I acknowledge the comments of many Senators this morning.
I will now discuss Opposition amendments Nos. 1 to 4, inclusive, 6 and 9 to 16, inclusive. I thank Senators Boyhan and McDowell for tabling amendment No. 1. I am unclear what the exact intention of this amendment is. It is not apparent whether the amendment seeks to bring Part 18 of the Bill, relating to the Office of the Planning Regulator, into effect on enactment, or whether there is an alternate intention. The Senators do not go so far as to say they seek to dilute the operations of the planning regulator. It is clear from what has been said this morning that it is more about the role and responsibilities of the Planning Regulator and governance. Various contributions were made, including by Senators Martin and Casey, on the role and responsibilities of the Office of the Planning Regulator. As many have said, it was established in April 2019 on foot of recommendations made by the Mahon tribunal, which was established in the Dáil in 1997 against the backdrop of significant historical deficiencies in decision-making on local authority development plans and other functions.
I remind Senators that the three statutory functions of the Office of the Planning Regulator are to independently assess all statutory forward planning of all local authorities, including development plans and local area plans; to carry out organisational reviews of the systems and procedures used by any planning authority, including An Bord Pleanála, in the performance of any of their planning functions; and to drive national research, training, education and public information programmes. Some of the commentary on the unchecked role of the Office of the Planning Regulator in its institutional capture does not account for an accurate description of what it does.As I stated, the office does have a role in its statutory functions. While not a policymaking body, the role of the OPR is to ensure the implementation of planning policy and legislation by local authorities and An Bord Pleanála. It also supports Government policy and statutory requirements to ensure that effective programmes of research, training and public awareness in planning are in place to strengthen the planning process. It is important to emphasise that.
The Minister adjudicates on all local area development plans and in specific instances can agree or disagree with OPR directions. That is fed into the recommendations from elected members in local councils and from the chief executives in the local authorities. If the Minister disagrees, he or she has to give a sound justification and rationale for the decision and then seek to lay that before the Houses of the Oireachtas. There is a democratic function in relation to the role of the OPR in that regard. Furthermore, the OPR provides a fair and independent mechanism for the public to raise concerns.
For these reasons, I oppose the amendment. If it were accepted, it would have a negative impact on the planning system in its entirety. As I said, the OPR carries out significant functions which assist with the effective operation of the planning system as a whole.
Regarding Senator Higgins's comments about the OPR and the avoidance of lobbying, the Department of Public Expenditure, NDP Delivery and Reform is updating the list of roles covered by lobbying provisions and will include the planning regulator and his or her deputy on that list.
Senator Boyhan asked a question about the governance arrangements that should be in place for the Office of the Planning Regulator. It should be noted that the periodic, critical review, as mandated under the code of practice for the governance of State bodies, is due to be carried out for the OPR this year. This review will focus on the structure and functions of the OPR. Recommendations regarding the organisation of the office may arise from this report. Our officials are working with the Office of the Attorney General to ensure the appropriate governance structures are put in place.
Amendment No. 2, proposed by Senators Higgins, Ruane, Black and Flynn, relates to the insertion into the Bill of a table listing the EU law and international conventions that will be given effect under the enacted Bill. As I mentioned on Committee Stage in Dáil Eireann, where a provision of the Bill gives effect to an EU law, that provision includes a specific reference to the relevant EU law. For example, in relation to appropriate assessment, section 198 of the Bill states that the purpose of Chapter 2 of Part 6 is to give effect to the State’s obligations under paragraphs 3 and 4 of Article 6 of the habitats directive. Similarly, section 220 of the Bill states clearly that the purpose of Chapter 4 of Part 6 of the Bill is to give effect to the State’s obligations under the environmental impact assessment directive, EIAD. As such, not only are the required references already embedded within the Bill as drafted, but I do not consider it appropriate to insert a table in the manner proposed under this amendment, as it may be confusing as to what extent the Bill gives effect to any particular instrument specified therein. This is especially the case for those EU directives that are transposed across a range of enactments. For these reasons, unfortunately, I cannot accept the amendment.
Amendment No. 3, proposed by Senators Boyhan and McDowell, seeks to insert a new definition of "Chief Planning Officer" in the Bill.The Senators also raised this on Second Stage. This term does not feature elsewhere in the Bill as drafted and no corresponding amendments will be moved in respect of this definition. The purposes, scope and functions of roles relating to planning should be set out clearly in legislation and not in a guidance document as proposed. It appears this matter relates primarily to the recruitment of staff within a local authority. It is a local authority function and, therefore, should be progressed by way of an amendment to the Local Government Act 2001. For these reasons, I cannot accept the amendment.
Amendment No. 4, as proposed by Senators Higgins, Ruane, Black and Flynn, would remove a reference to subsection (8) of section 155 from the definition of a “State authority”. This reference is necessary for the purposes of State authority development carried out under section 155 of the Bill by reason of an accident or emergency. Such development can be permitted only where an appropriate assessment or an environmental impact assessment is not required. Notably, a Minister proposing to make a State authority development emergency order must inform a State authority where the making of the order may affect the exercise of a function carried out by that State authority. Therefore, it is sensible to ensure that the definition of a State authority should include a statutory undertaker for the purposes of section 155, and given that this reference needs to be retained, I cannot accept the amendment.
I ask the Senators to consider withdrawing amendment No. 6. I will move corresponding amendments to the definitions of unauthorised structures, works and use and these will provide for what amendment No. 6 seeks to achieve.
Amendment No. 9, as proposed by Senators Moynihan, Hoey, Sherlock and Wall, would insert a new subsection (2) in section 2. This is not considered necessary because section 15 of the Climate Action and Low Carbon Development Act 2015 provides that relevant bodies must, insofar as is practicable, carry out their functions in a manner consistent with the plans, objectives and strategies put in place under that Act. Nothing in the Bill supersedes this. On the contrary, the Climate Action and Low Carbon Development Act is referenced throughout the Bill, specifically in respect of national planning statements, regional spatial and economic strategies and development plans, and specific provision is made regarding the integration of the national climate objective with the national planning framework. For these reasons, unfortunately, I am not in a position to accept the amendment.
Amendments Nos. 10 to 15, inclusive, are in the names of Senators Higgins, Ruane, Black and Flynn. Amendment No. 10 relates to a requirement to report on the Bill’s compliance with the Aarhus Convention within three months of the Bill’s enactment. This was raised by Senators Boyhan and Higgins. I am satisfied the Bill is compliant with the Aarhus Convention and, therefore, I cannot see the need to report on this matter in the manner suggested. In respect of previous commentary on the Aarhus Convention, the reforms contained in the Bill are designed to reduce costs and improve access to justice in what is a high-cost legal landscape in Ireland. As part of its drafting, the Bill has been extensively reviewed by the Office of the Attorney General to ensure full compliance and alignment with our relative international obligations, including the Aarhus Convention. On the matter of the draft compliance report from the Aarhus Convention compliance committee and its comments on the provisions of the Bill relating to the extension of duration and public participation, to which Senator Higgins referred, we are liaising with the Attorney General. The report refers only to provisions relating to public participation in applications for alterations to, or extensions of, permissions. It did not make any reference to the rest of the Bill. The Bill was drafted to ensure compliance with the convention. Moreover, the Aarhus Convention compliance committee does not rule on legislation.Consequently, there is no reason to report further on this matter in the manner proposed by amendment No. 10 and so I am not in a position to accept this amendment.
Amendment No. 11 proposes to delete the words "or expedient" from section 4(2), which concerns regulation-making powers. The phrase "necessary or expedient" is commonplace and used in many enactments across the Statute Book. I cannot see any useful or effective reason to deviate from what I consider to be standardised wording used in legislation and therefore I am not in a position to accept this amendment.
Amendment No. 12 also relates to regulation-making powers. It proposes the creation of a predetermined list of consultees for the purposes of the preparation of draft regulations. Section 4(3) already places an obligation on the Minister to consult any State authority that carries out a function connected with any matter that will be provided for in any proposed regulations. Aside from this statutory obligation, the Minister of the day is of course permitted to consult any other body or organisation he or she considers appropriate. I should point out that consultation with various stakeholders and interest groups is an integral part of the operation of the Department. I acknowledge the rationale for the proposed amendment, but it is an overly prescriptive approach that could have adverse effects such as delaying urgently needed regulations, and we have had situations in recent times where urgent regulations were necessitated. My officials will of course continue their good engagement with interest groups and members of the public, including the bodies referenced in the proposed amendment, but for the reasons I have set out, unfortunately, I am not in a position to accept this amendment.
In a similar vein, I acknowledge the intention behind amendment No. 13 but do not consider it necessary. Sufficient provision has already been made throughout the Bill providing for public participation in matters that may have an effect on the environment. This includes provisions relating to consultation with members of the public with respect to exempted development regulations; national planning statements where a strategic environmental assessment or an appropriate assessment is required; preparation and review of development plans; consultation on Natura impact reports; and statements and consultation on environmental impact assessment reports. In addition, where regulations are screened for strategic environmental assessment and that is required, a public consultation takes place as part of that process. There will be consultation on regulations where necessary and appropriate, for example, on exempted development, but I do not consider it is appropriate that the requirement to do so is set out in the Bill. Many regulations are of a technical nature and it would not be appropriate or necessary to consult on them. Others are more substantial in nature, and when they are being drafted, it would be normal to have some consultation with relevant stakeholders on them. The Bill strikes a suitable balance between fulfilling the State’s obligations on public participation on matters concerning the environment while not overburdening administrative processes or procedures. I thank the Senators for their proposal but, unfortunately, I cannot accept this amendment for the reasons I have outlined.
Amendment No. 14 would require practically all regulations made under the enacted Bill to be laid before the Houses of the Oireachtas in draft form before being approved by resolution. As I have stated previously in Dáil Eireann, this proposed approach is highly impractical and it must be noted the regulations in question can only be introduced to give effect to the principles and policies contained in the enacted Bill. It is these principles and policies that are currently before the Houses. The proposed approach would radically slow down the making of secondary legislation and this could dramatically inhibit the Minister’s ability to provide for the matters to be prescribed under the enacted Bill. For these reasons I am not in a position to accept this amendment.
Amendment No. 15 proposes to delete a temporary enabling provision relating to the introduction of regulations to aid the operation and implementation of the enacted Bill. This enabling provision is only in effect for a three-year period following the Bill’s enactment and any regulations to be made under this provision must be laid before each House of the Oireachtas and shall not be made unless and until a resolution approving the draft regulation is passed by each House. This has been included purely as a precautionary measure and on the advice of the Office of the Attorney General. Any changes made to the enacted Bill under such regulations would subsequently be regularised through an amendment to the legislation at a later date. A similar provision was provided for under the current Act but was never used. I favour the retention of this provision and while I hope that, similar to the current Act, it will never be required, it is a sensible and worthwhile provision and, for this reason, I cannot accept this amendment
Amendment No. 16, as proposed by Senators Warfield, Boylan and Gavan, would require a report to issue to the Heritage Council within six months of the Bill’s enactment containing recommendations on the impact of the enacted Bill on built and cultural heritage and its consistency with the Historic and Archaeological Heritage and Miscellaneous Provisions Act 2023.Even if the proposed timeframe was lengthened, which it would surely have to be in order for the proposed amendment to be in any way workable, the need for a report as proposed is negligible and it would incorrectly place an obligation on the Heritage Council that falls outside of the Council’s remit, which is provided for under Part 2 of the Heritage Act 1995.
As I previously mentioned during the Bill’s passage through the Dáil, consultation has taken place with the National Monuments Service, especially with respect to the interaction of the Bill with the recently enacted Historic and Archaeological Heritage Act. Following those discussions, a range of amendments has been included, including updating section 15 of the Bill to take account of functions performed by a Minister under the Historic and Archaeological Heritage Act; amendments to section 50 of the Bill concerning development plan strategies for natural and built heritage; and amendments to section 87 of the Bill to ensure suitable planning permission conditions relating to archaeology are provided for.
I am satisfied that the enacted Bill will work in tandem with the Historic and Archaeological Heritage Act and for the reasons I have outlined, I am not in a position to accept this amendment.
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