Alice-Mary Higgins (Independent) | Oireachtas source

I regret that amendment No. 41 has been ruled out of order, having been voted down on Committee Stage. It is extraordinary and one of the strangest elements of this problematic Bill that section 11(2) effectively says that, if someone makes a declaration on whether a project is an exempted development, such a declaration is not admissible in court. There is a weird, almost secret planning process that no one can know about and of which not even the courts can have oversight. This seems extraordinary and I regret that the Government has not seen fit to address the issue, which affects people’s right to proper recourse to the courts and is questionable from the perspective of the balance of power. Obviously, relevant declarations should be admissible as evidence in proceedings. These declarations are the basis on which developments that affect people’s lives will be built, yet there is a declaration behind the scenes that allows developers to do whatever they like and for which they will never have to answer in court. For example, where an appropriate exemption has been granted but the developer has not stuck to the terms of that development and has instead developed something completely different, if the declaration is not admissible in court, then there is no way to prove that the developer has not stuck to the terms of the exemption.

Amendment No. 42 would expand the saver for declarations under section 5 of the 2000 Act, including a "request for a declaration, request for information, further information, notice, request for a review or a referral under that section and made before that repeal". As drafted, the saver is inadequate, so this amendment would ensure there was no lacuna.

Similarly, the Minister of State did not address the question on a gap being created in the regulations covering costs if Chapter 1 of Part 9 is commenced but Chapter 2 is not. If Chapter 1 is commenced, then sections 50, 50A and 50B will automatically be pushed out of place and the current regulations on costs will discontinue. However, Chapter 2 refers to costs, so there is potentially an unfortunate lacuna. We need to be clear that this must not happen, yet I have made the Minister of State aware of it and he is choosing not to address it.

Under certain aspects of the Bill, the 2000 Act will continue to apply, but pending the application of new regulations, the list of matters to which the current regulations will apply in respect of processes that are already under way is not complete. There are gaps, which is why I have set out this comprehensive list: “request for a declaration, request for information, further information, notice, request for a review or a referral". Any processes that are under way should still happen under section 5 of the 2000 Act, but the Bill does not make that clear.

Amendment No. 43 expands the saver for declarations under section 5 of the 2000 Act to include any matter that might be concluded in accordance with that section’s provisions. If a matter awaiting a decision is concluded, then that matter is concluded under the existing rules. This should be made clear. This has to do with the processes that are already in play and being clear about the provisions under which they will be decided.

Amendment No. 50 seeks to amend section 13(8)(b) so that, where a planning authority fails to make a decision on overground communication infrastructure or any associated physical infrastructure within the period referred to, a decision to refuse the licence shall be deemed to have been made rather than automatically granted. There are many instances where it is appropriate that communications infrastructure be in place but if the local authority does not decide, then paragraph (b) means that permission is automatically granted. One cannot automatically grant permission having skipped the process. That is not fair to the public who may have given their input or to people’s right to be a part of decision-making. I am also concerned that this clause will allow a little deniability.We know that individual members stand up and say they are against this or that but we could be left in a position where people can stand up and say they are against something but then, by virtue of inaction, the decision can be taken out of their hands and deniability brought in. There should be no deniability. Obviously, local authorities should have to make decisions in a timely manner but members should not have the option to wash their hands of the decision altogether by not making a decision at all and having it be automatically granted. That is not acceptable and that is what is proposed under the legislation. Again, if a decision is not made, the application should unfortunately be seen to have fallen. A new application can then, of course, be made but the granting of an application cannot be reversed. If in doubt, the precautionary principle suggests erring towards automatic refusal rather than automatic granting.

Amendment No. 51 seeks to insert a caveat into section 13(8) providing that:

Notwithstanding paragraph (b), where the licence involves an environmental impact assessment or an appropriate assessment, no deemed grant of permission shall arise where a planning authority fails to make the decision

I have suggested automatic refusal rather than automatic granting but we should be really clear that if an application for planning permission requires an EIA or AA, which means there is a potential impact on our special areas of conservation, there absolutely cannot be an automatic or algorithmic decision to grant without those factors having been considered and given proper weight, because those factors literally must be weighed and considered, or without any planning authority having decided on the content of the EIA or AA. It cannot be a case of "Who cares what was said in the environmental report or appropriate assessment?" because that would clearly be in breach of proper law and proper process. As I have said, that is completely out of tune with the Aarhus Convention on any basis. In that context, it cannot be said that there has been any kind of appropriate process. Permissions cannot be automatically granted when environmental factors have been signalled to such a degree. I believe that concludes this grouping.