Select Committee on Housing, Local Government and Heritage díospóireacht -
Tuesday, 16 Apr 2024

Planning and Development Bill 2023: Committee Stage (Resumed)

SECTION 159

An Cathaoirleach

I welcome everybody to the meeting. We are here to continue our Committee Stage deliberations on the Planning and Development Bill 2023. I take the opportunity to welcome the Minister of State, Deputy Dillon, and to congratulate him on his appointment. I wish him the very best of luck with that.

Before we finished last week, I gave a rough estimate of how many amendments we have discussed and the progress we have been making. The rate of progress has been quite good. I hope we can continue in that vein. We have a good deal of voting coming up. I urge members to attend and be present for votes. If they are not present, it takes a long time to get through votes, notwithstanding the right of any member to call a vote. I do not want to stymie the latter in any way. We have been working quite collegiately and well. Many of the points that have been raised have been taken on board and we have seen some really good progress and improvements as we have gone along.

Last week, we finished with a grouping of amendments starting with amendment No. 774. Amendment No. 774 is in my name. I cannot move that from the Chair. Amendments Nos. 1043 and 1144 are Deputy Ó Broin's name. Perhaps the Deputy will start with those ones if that is okay. I am sorry to disrupt the flow that the Deputy was intending but if he discusses his amendments, I can leave the Chair and speak to mine. If amendments Nos. 1043 and 1044 are individual or if they are related in some way, I will leave it up to the Deputy as to how he wants to proceed with them. Is that agreed? Agreed.

Deputy Eoin Ó Broin

I welcome the Minister of State to the select committee's eighth week of deliberations on the Planning and Development Bill.

My two amendments are related. They relate to section 348, which deals with the issue of fees for an coimisiún pleanála. What I am trying to do in the amendments is have some set of considerations included in order that the Minister, when approving fees or exemptions under this section, will take into account issues such as, for example: the need for public consultation; the importance of the value of public participation; matters relating to the right of access to justice - a legally binding obligation on the State, as the Minister of State will be aware, under Aarhus Convention; requirements to ensure that participation is not prohibitively expensive; and the obligations relating to wide access to justice. We must also have regard to the cumulative cost implications for a person or group, environmental organisations seeking to engage in environmental decision-making, the importance of ensuring that any fees or exemptions set do not operate as a barrier to participation or access to justice and related matters regarding the convention on access to information, public participation, decision-making, etc. I am trying to find some way of ensuring that not only will fees be set in such a way as to ensure that the planning authority, in this case, the commission, will have adequate resources to allow it to make decisions but also that the level of the fees will not in any way undermine people's right, not only in principle but under domestic and international and European law, to be able to fully participate in the process. I am very interested to hear the Minister of State's response on this.

Minister of State at the Department of Housing, Local Government and Heritage (Deputy Alan Dillon)

I thank the Deputy. First, I acknowledge the work of the select committee over the past eight weeks and the progress that has been made. I look forward to working constructively with everyone as part of this process.

Amendment No. 1043 seeks to amend the process for the setting of fees by the Commission and to introduce a public consultation process in respect of same. The provisions in section 348 are modelled on those included in the 2000 Act, which, in my view, does not require any major amendment. The process for changing fees by the commission is an understood and well-worked process. As a result, I am opposed to amendment No. 1043.

Deputy Eoin Ó Broin

I am not surprised by the answer. Are the Minister of State and his officials absolutely satisfied that by simply replicating the existing regime in terms of the fee-setting mechanism, no individuals or groups who should, by right and by law, have an opportunity to participate in the planning process will be excluded from doing so? Has that been considered in order to ensure that we have a process that is both transparent and accessible to all, particularly people who, for example, might be on lower incomes and organisations that do not have public funding or private sector funding and, therefore, might otherwise be disadvantaged by the fee-setting structure?

Deputy Alan Dillon

We are confident that we have a process in place that is both transparent and accountable. As a result, we are opposed to the amendment.

Deputy Eoin Ó Broin

I have a final question. Obviously, the mechanism is being transposed. At this stage, is the expectation that the fees will continue to remain broadly as they are set out? Are there any plans in the short to medium term to have those reviewed or amended?

Deputy Alan Dillon

For the commission, they will be broadly the same. The Deputy might be aware that in May of last year the Department engaged with officials in the Office of the Planning Regulator and the local authority sector via a steering group that was established to review fees payable to planning authorities in respect of planning applications and miscellaneous plans. There is a process in place. The final report of the group was submitted to the Minister in January. The report and the recommendations it contains are being reviewed in the context of any changes to the fees payable to the planning authorities.

Deputy Francis Noel Duffy took the Chair.

Deputy Eoin Ó Broin

If and when a decision is made on that, I presume it will not require any change to the legislation before us and that it will be done by regulation or ministerial order rather than legislative change.

Deputy Alan Dillon

That is correct. Any changes will require regulations and will be independent of the Bill.

Deputy Eoin Ó Broin

That is something for the Chair, Deputy Matthews, to note. Given that the issue of the local authority fees was such a live topic during the pre-legislative scrutiny phase, it would be appropriate for us to suggest to the Minister that in advance of those regulations being finalised, some engagement with the committee would be more than welcome. We have a keen interest in this issue because, unlike the board, local authorities are disadvantaged by the level of fees currently charged to applicants. If we had an opportunity to make an input into those prior to their engagement, that would be most welcome.

Deputy Steven Matthews

I move amendment No. 774:

In page 297, line 34, after "application" to insert "with a deduction for planning services administrative fee, as prescribed".

I will speak to my amendments here. I am somewhat in agreement with Deputy Ó Broin. I have often felt that the fees for planning applications do not reflect the significant amount of work that goes in at local authority level, the complexity and the time that is taken up by local authorities in trying to assess complex and long applications. There are many aspects of development that involve a much higher cost. In respect of those involved in planning, we should apply a similar value to the time that local authorities invest in assessing these applications. That is along the lines of what I am doing with some of my amendments.

Amendment No. 774 relates to section 159, which, in turn, relates to circumstances where a planning application is declared invalid. Applications are often declared invalid because the paperwork or what should be submitted with the planning application is not present. As a result, the application is invalidated. That give rise to work on the part of a local authority for which it does not get any payment. I am suggesting that there would be a deduction of some fees and that rather than refunding all the fees where an application is invalid, we value the time that was taken by the local authority to assess the application. I suggest that an amount equal to the administrative cost to declare an application invalid be deducted.

Does it make sense for me to speak to all of these amendments first and for the Minister of State to respond?

An Cathaoirleach Gníomhach (Deputy Francis Noel Duffy)

Yes.

Deputy Steven Matthews

Amendment No. 1145 relates to section 503.

If only we were on page 649. Section 503 is on the fees payable to planning authorities. On a similar point to that raised by Deputy Ó Broin, I really feel we need to increase planning fees to value the complex work that is done. That is the subject of my amendment No. 1145. I am not entirely sure of the process that is to be followed in order to increase planning fees. Perhaps the Minister of State can enlighten us about that. I have moved No. 774 and will be moving No. 1145, having spoken to it. The amendment states that "prescribed fees shall be commensurate with the complexity of administration and professional planning services provided by the planning authority". It is a fairly simple amendment and I would appreciate a response as to how we can look at this.

Amendment No. 1146 is also part of this grouping. It relates to section 504 on page 652, which states that, "A planning authority may, in addition to the terms of a scheme, require the payment of a special contribution in respect of a particular development". The amendment relates to section 504(10)(b) and proposes to include the contribution of or costs incurred by a State agency. For example, where a Luas line is to be put in, a section 49 contribution used to be made. Are section 49 contributions for the delivery of services and infrastructure that may not be provided by the local authority but by another State agency in some way covered in these special contributions? Amendments Nos. 1146 and 1147 are exactly the same. They both seek to insert "or state agency" into the section.

Amendment No. 1148 is also to section 504, specifically to the part of the section on page 653. It again relates to contribution fees. Where development contribution fees are spent is often a mystery to people. Going by the regulations, the contribution fees are supposed to be spent in a way that benefits the development. Local authorities often develop countywide development contribution schemes. The section reads:

A report of a local authority under section 50 of the Local Government Act 1991 shall—

(i) contain details of moneys paid or owing to it under this section, and

(ii) indicate how such moneys paid to it have been expended by any local authority.

However, that comes under the Local Government Act. I suggest that there should be a separate report published on the local authority's website under this planning Bill. Such a report would detail the payments received, development contributions fees that have not yet been collected and any agreements made for developers to provide a service rather than pay the moneys. It would be very helpful for the planning system if people knew in more detail where development contribution fees were being spent.

I have two more amendments in this grouping, amendments Nos. 1151 and 1152. No. 1151 is on section 505 and covers the same issue as the last amendment, providing that:

A report of a local authority, containing details of moneys paid or owing to it under this section, and details on where such moneys paid to it have been expended or transferred to another public body shall be published annually on the local authority website.

Again, it is just about providing a bit of transparency and information for the general public as opposed to just having that report under section 50 of the Local Government Act.

Amendment No. 1152 refers to section 505(12) on page 657, which states "Where payment of a contribution is required in accordance with this section, the following provisions shall apply:" before setting out certain conditions under subparagraphs (i), (ii) and (iii). The provision under 505(12)(a) applies if "the planned public infrastructure project concerned is not commenced within 5 years of the date of the payment of the contribution", "the planned public infrastructure project concerned is commenced, but has not been completed within 7 years of the date of payment of the contribution" or "the public body decides not to proceed with the planned public infrastructure project concerned". With regard to those timelines of five years and seven years, would it be beneficial to provide that the clock be stopped in the case of a judicial review? Obviously, the development would be delayed and, therefore, the development contribution may also be stalled. That completes my amendments to that section.

Deputy Alan Dillon

I thank Deputy Matthews. I will now address amendments Nos. 774, 1145 to 1148, inclusive, 1151 and 1152.

Amendment No. 774 seeks to amend section 159(4) which provides that, where the planning authority declares an application invalid for reasons such as not having all the correct documentation or not being a standard development, that is, a development that is decided, in the first instance, by a planning authority, instead of returning the application fee as is currently provided for, the fee with a deduction for a planning service administrative fee as prescribed would be returned. I cannot accept this amendment as the purpose of validating an application is to avoid unnecessary administrative and technical resources being deployed. As this process is carried out at a very initial stage and the application is returned, I consider that such a deduction would require the expenditure of administrative resources unnecessarily and would be punitive in nature.

Deputy Steven Matthews

To clarify, the administrative burden of returning partial fees would outweigh the administrative burden of just invalidating them and sending it on.

Deputy Alan Dillon

That is correct.

Deputy Steven Matthews

I accept that.

Deputy Alan Dillon

I will now move to amendment No. 1145, which seeks to provide that all planning fees, including the fee for making a submission, should be commensurate with the complexity of administration and professional planning services provided by the planning authority staff. I cannot accept this amendment as there are a number of factors that would be contrary to this proposal. Currently, there are fee waivers in place to provide that the fee for making a submission or observation to a planning authority in respect of a planning application shall not be payable by a member of a local authority acting in his or her capacity as a member. This would conflict with this provision. Furthermore, public participation is an important element of all substantive decision-making processes under the Bill and is also a requirement under the UN Aarhus Convention. The fees payable by members of the public to participate in the planning decision-making process are usually set at a level that contributes towards the cost of processing applications and appeals while not creating a barrier to public participation. As such, I oppose amendment No. 1145.

Deputy Steven Matthews

May I respond on that one? I am in no way suggesting that the fee associated with observations be included because that is a really important part of the planning process. The fee for a submission to the local authority sits at €20 while the fee for an observation to the board sits at €50. This amendment is not designed to increase those fees in any way.

We have had discussion about whether that fee causes difficulty for some. There is no doubt it does. I am not entirely sure that if we removed that fee we would get inundated with observations and planning submissions, but obviously that requires further consideration. This is to do with the planning fees an applicant has to pay when they put in a development for consent. I think it is €34 for a housing application. That fee does not represent in any way the amount of work that goes into it. If we go up to much larger applications that require an EIA, etc., there are a lot of people in the local authority who are involved and who have to input into that and consider very complex matters. The fees charged for planning applications at this point do not represent the amount of work put in at the local authority. We need to look at all the fees associated with professional building and development. They are at a much higher level. While I accept it may not be put in here, I ask that the Minister of State take this back and consider planning fees in the round. The planning industry has come in for a lot of unwarranted criticism. This has been of planners at local authority level and throughout the system. We should reflect the work they do in the fees that are charged.

Deputy Alan Dillon

I thank the Deputy. I accept the point he has raised and have addressed it previously with Deputy Ó Broin. In May 2023, the Department engaged with the Office of the Planning Regulator and the local authority sector through a steering group established to review the fees payable to planning authorities in respect of planning applications. The steering group met on several occasions throughout 2023, with the OPR co-ordinating research on behalf of the group. It is recognised that the current level of planning fees does not cover the operating costs of planning functions within local authorities as the fees have not been increased since 2001, so we are nearly 23 years without any adjustment. The final report of the group was submitted to the Minster in January. We hope the recommendations, which are under review, will be considered and that any decisions made will be implemented under regulations outside the current Bill.

Deputy Cian O'Callaghan

I agree with the previous comments about the fees and public participation. I can see clearly in my constituency that when it comes to public participation, the fees are not a barrier for a significant cohort and then, in other areas where there are people are on low incomes, they are a barrier and obstacle and basically prevent the latter group from participating and giving their views on the planning process. If they were lifted or reduced, we would not see a large volume coming in. We would see a small volume from areas which do not participate in the planning process, because due to the need to make ends meet people do not have a spare €20 or €50 to enable them to put in their submissions. It is deeply unfair. There are other people who participate in the planning process who are able to pay that fee and it does not necessarily cause any kind of hardship or bother to them. This is a real issue that needs to be looked at. Did the review of fees the Minister is considering look at the public participation element of the fees? If it did not, are there any plans for that to be looked at or reviewed?

I concur with the comments made. Through our entire discussion on this Bill and the pre-legislative process, everything has been about the importance of staffing and resourcing the planning system properly. There has been absolute consensus on that from a range of different parties. As part of that, it is really important the planning fees system reflects that in order that, in years to come, it is properly resourced and does not fall down the line of priorities. We also know this is not just about dealing with planning applications. Resourcing for forward planning is hugely important as well and that area has been massively under-resourced. If we get that right, we get a lot of things right in the planning system. Planning fees that reflected somewhat the economic cost of dealing with planning applications would act as a block to the speculative applications that have been clogging up the system and drawing down resources. It is deeply unfair on the planning system to be dealing with speculative applications by someone with the intention of increasing the value of their land with a planning permission but who does not have an intention to build out. They are not bearing the full cost of that in planning fees and that is an issue. Has public participation been looked at in the review and, if not, will it be? The report has been with the Minister since January and might inform regulations. Is there any timeline on that or any kind of commitment on it, given this planning Bill is being dealt with now?

Deputy Alan Dillon

I thank the Deputy. On the question about public participation, the expert steering group focused its attention on the levels of fees associated with applications and submissions. That was certainly the focus of the revised exercise that was put in place. Submissions, I am sure, will be considered to be at an appropriate level in terms of public participation. The final report has been published. It is with the Minister. This exercise will come before this committee for further consideration and we will be able to debate any of the recommendations that come before us. This exercise has already been completed as of January, so at this stage we await the recommendations. The important thing is the enactment of this Bill and then further work will need to be done on the regulations.

Deputy Steven Matthews

I am happy with that. Amendment No. 1146 is next. It and amendment No. 1147 are very similar.

Deputy Alan Dillon

Yes. Amendments Nos. 1146 to 1148, inclusive, and 1151 propose to amend sections 504 and 505, which relate to development contribution schemes and supplementary development contribution schemes applied by a planning authority in respect of its functional area. Section 504(10)(a) provides that an authority may require the payment of a special contribution where specific exceptional costs not covered by a scheme are incurred by a local authority in respect of public infrastructure and facilities which benefit the proposed development. It would not be considered appropriate or necessary to expand this to exceptional costs incurred by other State agencies. The basis for the determination of a development contribution and the expenditure of income from development contributions is set out in the development contribution schemes adopted by the elected members of a local authority as a reserved function, and planning authorities may make one or more schemes in respect of different parts of their functional areas. They are required to state the basis for determining the contributions to be paid and shall indicate the contribution to be paid in respect of the different classes of public infrastructure and facilities which are provided. Schemes outline the level of contribution, the types of development to which they will apply and the expenditure of the contributions received within the confines of the scheme conditions. Income from development contributions accruing to a local authority in a given financial year is accounted for separately in the capital account in appendix 5 of the local authority annual financial statements. Once audited, the annual financial statements are available on the local authority website. I therefore oppose amendments Nos. 1146 to 1148, inclusive, and amendment No. 1151.

Deputy Eoin Ó Broin

At a basic level, we understand why we charge fees for the applicant as the applicant puts in a lengthy submission and it takes a lot of time to be considered. However, given that fees for third party observations do not really contribute much to the cost recovery at €20 or €50 what is the purpose of those fees?

Deputy Alan Dillon

The fees reflect the administrative burden in dealing with these submissions and the cost associated with that.

Deputy Eoin Ó Broin

I am not convinced that is a credible answer, although I appreciate it is the one the Minister of State has been given. Let us think about it for a second. A large-scale planning application goes in and there are significant fees on behalf of the applicant which, if the application is to the board is reflective of the cost but if it is to the local authority, it is not. That is why we have the report and the Minister is considering that. If, however, a third party makes a single-page or a two-page submission, there is virtually no increase in the administrative impact in the overall decision-making process. Very often there might be groups of people who put in similar submissions. In fact, the €20 or the €50 is not really related to any extra administrative costs.

I presume somebody somewhere decided that if we do not have some kind of charge, we could get all sorts of submissions just thrown in and that this could be a terrible waste of time. In fact, for those people who have reasonable or above reasonable means, it is not really a big cost for them to do it, but for those people with very limited means, as Deputy O'Callaghan has said, then it is €20. We must keep in mind that if a person wants to go to An Bord Pleanála afterwards, then he or she must also have made a submission at the first stage, so it is €70 overall. Is it really the case that if we lift those fees, there will be a dramatic increase in third party observations? It is almost as if we are saying that the person's ability to participate as a third party - and he or she may have some very reasonable contributions to make to the process - is really income related?

There will be a group of people for whom any fee, but particularly a combined fee of €70 between the two stages, is prohibitive. The more I think about it, the less I understand why we have the fees there other than somebody just thought we would get lots of vexatious third parties observations. Arguably, if we go by the "RTÉ Investigates" programme, it is people with very significant means who are the ones using the planning process. For them, €20 or €50 does not cause any difficulty whatsoever. Groups such as the northside Community Law and Mediation network and other organisations will often make the point in correspondence with the committee that fees of any kind act as a barrier to low-income groups participating. These are groups of people who already have very limited opportunity to engage in the process.

I do not believe that even the Minister of State, Deputy Dillon, will be convinced that €20 is really a contribution to the administrative costs. Was any consideration given, or analysis done, during the decision not to change some of this to a no-fee structure, for example, or on the introduction of a waiver for people of certain incomes, without complicating it?

Deputy Alan Dillon

We must consider that for any submission that is part of the review or consideration process for an application seeking permission, there is a cost associated with it.

Deputy Eoin Ó Broin

Absolutely.

Deputy Alan Dillon

There was no deliberating in relation to waiving any fees in this regard. It is a process-----

Deputy Eoin Ó Broin

To be clear, my question is not about the fees of the applicant. They have to be paid. It is the fees of the third party. I see that a vote has been called.

Deputy Alan Dillon

We must understand that applications have to be processed. They do move around between technical teams and they have administrative duties. There is a cost associated with that. The fees are associated with that for any of applicants and for those who submit any submissions. That is the assessment process in place.

Deputy Steven Matthews

I will come back on those-----

Deputy Cian O'Callaghan

I wish to come in as well but can we go to vote?

Deputy Steven Matthews

We probably have a couple of minutes before we need to go up.

Deputy Eoin Ó Broin

It would be terrible to miss the Taoiseach's first vote.

Deputy Cian O'Callaghan

I will come back in after Deputy Matthews.

Deputy Steven Matthews

Okay, I will finish up on my question. I see where my submission is going under section 503, which does cover observations and submissions from the public. It was never my intention there to say those fees should be increased. I just want to clarify that. I do believe the fees to reflect the amount of work that goes into a planning application should be for the applicant.

On the special development contribution, I accept that as well. I understand that local authority members set out their development contribution scheme based on how much development there will be, what the community gain will be, and the issues around roads and surface water the authority will have to deal with. I believe it would be really helpful for all the residents and the local authority to know - for example, in the case of the 300 houses that go in up the road - that the development contributions fees for that were X amount and this is how it is to be spent.

I understand that it is not easy to directly relate the development contributions of one development to one piece of infrastructure on the ground but we could make it a little less opaque than it is the moment. As with property tax, most of the people I speak to about it say, "You know what, I do not mind the property tax as long as I know where it is being spent". The development contribution fee is helpful for communities experiencing development and housing growth, which is a good thing, and it would be good for them to know of the community gain that accrues to the community from those developments. We could make that process a little bit clearer for people to understand.

Amendment No. 1152 refers to stopping the clock on a judicial review. I did not get a response on that. I do not know if the Minister of State came back on that.

An Cathaoirleach Gníomhach (Deputy Francis Noel Duffy)

We should go to the vote at this point.

Deputy Steven Matthews

Okay, we can look at those questions when we come back after the vote.

Deputy Alan Dillon

Yes.

Sitting suspended at 2.57 p.m. and resumed at 3.36 p.m.

Deputy Steven Matthews resumed the Chair.

An Cathaoirleach

Welcome back everybody. Thank you, Deputy Duffy, for taking the Chair for me. To conclude on that grouping, the report mentioned, which is with the Minister, will be of interest to the committee in order to assess it or have some input into it at some stage, as appropriate. I do not think there was a response on the JR stopping the clock. If the note on that could be read out, we can then move on with the vote.

Deputy Alan Dillon

We will look at that and respond to the committee on it.

Deputy Cian O'Callaghan

I want to address the Minister of State's reply that the fees from public participation are to cover the costs. It is strange then that the fee for making a submission or observation to the council is €20 and €50 to An Bord Pleanála. Are we implying that the cost to An Bord Pleanála to process a submission is more than double that of a local authority? Is the board paying higher electricity or Internet bills? What is the rationale of the charge being more than double? If it is really the case that it is cost recovery, is everyone in An Bord Pleanála being paid double the local authority rate or something?

To reiterate, I have people in my constituency who, in terms of their income, are making decisions and choices every week about how they can heat the house and how they can pay their food bills. It just becomes impossible. They can be just as interested in what is going on in their local community. This is not always necessarily about housing development. It can be about other planning issues they have interest in and they want to make contributions and have their say. However, they literally do not have €20 to spare at the end of the week to cover a planning submission cost, let alone the €50. The absence of any kind of waiver or reduction for people on lower incomes is an absolute barrier to participation. The one thing the fees do is ensure is that people on low incomes cannot participate. That is the one thing about the fees that can be said with certainty. We cannot really talk with any certainty about any other effect they have but they definitely exclude a section of the population who are struggling to put food on the table and pay heating bills and just do not have €20 or €50 to spare to participate.

Deputy Alan Dillon

Regarding the fees to the board, it is not cost recovery. Any of the submissions that go to the board are appeals. They are a lot more complex. They involve oral hearings, submissions and a lot of technical analysis.

That is the reason fees are set higher than at local authority level. That is really the nature of that.

Deputy Cian O'Callaghan

That might make sense for the €200 fee in regard to An Bord Pleanála. That could be more complex. A €50 fee just to make an observation and for someone to effectively have his or her say in that process, when there is already an appeal going on and the complexities are already being looked at, is where it stands out to the €200 fee. Obviously, there is a higher fee for oral hearings. Of course, most of these appeals or oral hearings are not granted. I will leave it there. If the Minister of State wishes to respond, that is fine.

An Cathaoirleach

I think the committee would be really interested in discussing fees and observation costs.

Deputy Cian O'Callaghan

Yes.

An Cathaoirleach

We will probably do that when that publication is made-----

Deputy Cian O'Callaghan

Yes, I would like to do that.

An Cathaoirleach

We will set aside a meeting time for that. I thank Deputy O'Callaghan for those points.

Based on the Minister of State's response, I am withdrawing amendment No. 774.

Amendment, by leave, withdrawn.

Question proposed: "That section 159 stand part of the Bill."

Deputy Eoin Ó Broin

I have two questions. First, on page 297, section 159(2)(a), I refer to the word "abandoned". It states: "Without prejudice to subsection (1), where the planning authority or the Commission is of the opinion that an application, appeal or request made to it has been abandoned...". What does abandoned mean and who gets to decide? That is my first question. It is clear when something is withdrawn, and the other things there are clear, but I have never come across an abandoned application.

Deputy Alan Dillon

This is where additional information has been requested on an application and no information has been provided. Therefore-----

Deputy Eoin Ó Broin

The assumption is that they are just not going to. Is it a six-month period that people have for the finished information?

Deputy Alan Dillon

Yes, six months.

Deputy Eoin Ó Broin

Is that the only case in which it would be assumed abandoned?

Deputy Alan Dillon

Not necessarily. There could be additional requests for information.

Deputy Eoin Ó Broin

Separate to FOI, which is during the actual initial decision-making period.

Deputy Alan Dillon

Yes, that is correct.

Deputy Eoin Ó Broin

Okay.

My second question is on section 159(4). It is a very quick question in relation to the grounds where something would be deemed invalid. Are these new or existing provisions?

Deputy Alan Dillon

These are existing provisions.

Deputy Eoin Ó Broin

Nothing has changed from what is currently in the 2000 Act, as revised, or the Planning and Development (Large Scale Residential Developments) Act 2001.

Deputy Alan Dillon

Effectively, no.

Deputy Eoin Ó Broin

Effectively no or no?

Deputy Alan Dillon

There is the provision of non-standard development, which is, under the current 2000 Act, strategic infrastructure developments.

Deputy Eoin Ó Broin

So it is not that that category of development is not captured under the current Act; it is just the language used to describe it that is different.

Deputy Alan Dillon

Yes.

Deputy Eoin Ó Broin

Okay, that is fine. I thank the Minister of State.

Question put and agreed to.

SECTION 160

Deputy Cian O'Callaghan

I move amendment No. 775:

In page 298, to delete lines 23 to 39, and in page 299, to delete lines 1 to 25 substitute the following:

“the authority or the Commission shall refuse to grant the permission concerned and notify the applicant accordingly.”

This section of the Bill is about refusal of planning permission for past failures to comply. Can the Minister of State tell us if this provision has been used at all and can he give us details in this regard? Certainly, in my experience, I have not seen it used. I refer to when it has been found by a planning authority or the commission that there have been past failures to comply with planning permissions and to having all these range of different things the planning authority or the commission may do in terms of forming opinions around this, because this has been an ineffective provision and it has not been used. The Minister of State might confirm that the language in this section is similar language in the existing legislation.

We are putting back into the Bill a section of legislation that has not worked, has not been used and has led to planning permissions being granted to people who failed to comply with previous planning permissions. Rather than going through the rigmarole of whether a planning authority or commission may or not do this and so forth, it should read that the authority or commission shall refuse to grant the permission concerned and notify the applicant accordingly. If we do not write our planning legislation with some serious intent in it, then there is no incentive for people necessarily to comply with planning permission in the future.

I have previously talked about and put in amendments regarding the whole issue of the completion of public amenities and facilities in public areas to the standard of the planning permission and how that actually often does not happen. We see very slow taking in charge processes that can take 20, 30 or more years in a number of instances. There are housing estates built in the 1970s where the public areas are not taken in charge. You get these ongoing battles between the local authority, the residents living there and possibly management companies that have been left to pick up the pieces when the developer is gone in regard to the public areas not being completed to the satisfactory standard for them to be taken in charge, that is, that the planning permission was not completed. We need to get out of this kind of nonsensical situation where someone does not complete his or her planning permission in accordance with the law but then can keep on getting more planning permissions and there is no proper penalty. It is the people who invest the biggest savings of their lives into buying themselves a home, who work so hard to pay off that mortgage and who go through all of that risk and stress, who are left paying the price of incomplete planning permissions. There should be no excuse on this. If the planning permission is not completed, the person should not be able to get more planning permissions.

Our legislation, as drafted, should not be full of get-out clauses. It should be insistent on this. That is what my amendment is seeking to do, particularly for residents in larger estates and the public areas, amenities and facilities that were in the planning permissions that are not provided or are not up to scratch. It would be particularly helpful in that regard, but it goes as a general principle. If I applied to the local authority to build a house and I do not do it as per the planning permission, why should I then be able to apply for additional planning permissions to build other houses or whatever if I do not comply with the law? That is what this is seeking to do, that is, to ensure that planning permissions are actually complied with.

Deputy Eoin Ó Broin

I support the amendment. Let us give the Minister of State some real-life cases. There is an infamous residential developer in the city and county of Dublin.

An Cathaoirleach

A real-life case or a real live case?

Deputy Eoin Ó Broin

Real life cases. There are both life and live cases, which are serious. There is a well-known residential developer in the Dublin region, who, in 2017 acquired a former Ben Dunne gym on the Coldcut Road in north Clondalkin. Despite having planning permission to retrofit it into approximately 30 apartments, the developer proceeded to retrofit into 48 apartments, without any planning permission. Not a single certificate for the building control amendment regulations system was submitted and no commencement, disability, fire or completion certificate was submitted. The building is fully occupied and he is appealing a planning refusal to the board. Approximately half of the residents have come from homeless services while the other half are a mixture of tenants on the HAP scheme and tenants paying full rent, which is very hefty. The board refused him his permission and he has been engaged in a protracted and strategic process with the council. The net effect is that we are here now in 2024 and that building is fully occupied. It is in breach of the building control amendment regulations on multiple counts and it still does not have planning permission.

Thankfully it is not a firetrap. South Dublin County Council rightly checked that. However, it is probably the most egregious breach not just of planning but of the 2014 Building Control (Amendment) Regulations. A couple of years later, the same company sought planning permission for a larger new-build apartment development in Dublin city. That building was completed a year ago and is lying empty because Dublin City Council's building control section and DCC are involved in protracted legal action against the developer for breaches of planning and building control.

In Clondalkin, the village where I live, the same developer acquired planning permission and is building out an apartment block which has been left vacant and undeveloped for a year, just the core concrete structure and windows going up. The question everybody asks is how it is possible that somebody who engaged in such a flagrant breach both of planning and the Building Control (Amendment) Regulations in Larkfield House in Clondalkin is able to continue to proceed in this manner. The reason is partly because the law itself is far too weak and the burden of proof on the local authority is far too onerous. Also, our local authority building control sections, with maybe the one exception of Dublin city, simply do not have the resources to inspect, enforce and impose some of the sanctions, albeit limited, that do exist.

That is only one developer. I could take you to another development in my constituency where very expensive new homes bought by hard-working families were acquired in an estate where the developer did not complete all of the externals. In fairness to the architect involved, they were in full compliance with the Building Control (Amendment) Regulations 2014 but the areas not covered by BCAR, such as the roads, streetlights, access roads and so on were never complete. It is now outside the planning permission. I understand the builder-developer is being pursued in the courts by Uisce Éireann and possibly the council for problems arising from road opening, water connections and so on. My understanding is that the person is still involved in the construction of other developments, or certainly was until some time ago.

This section of the Bill is enormously important. It is not instead of or to replace planning enforcement or building control enforcement but it is an important tool. While I do want to come back on some other aspects of the section after we deal with this amendment, I just think we have to start getting tough with people. I appreciate there might be a case involving some very minor breaches where one might not necessarily want a complete blanket rule, but right now, decades after Celtic tiger planning and building control irregularities, we still have a system that is not fit for purpose. Today, despite the changes that were made in 2014, we have, for example, in Dublin city and Dublin county, a very large number of residential units being built in clear breach of planning rules and the developer can just go and get another planning permission and repeat the same thing again. For me it just beggars belief so I am very interested to hear the Minister of State's response to this amendment. When we dispense with the amendment, I want to raise some other questions with respect to this section.

An Cathaoirleach

We will deal with those questions when we get to move the question on section 160, but we will just deal with the amendment now.

Deputy Eoin Ó Broin

Exactly. I want to deal with them separately.

Deputy Alan Dillon

Amendment No. 775 seeks to delete paragraphs (i) and (ii) of subsection (1) of section 160, as well as subsections (2) to (5) of section 110, and replace them. This would have the effect of changing the provisions from providing that where the planning authority is dealing with an application from a person who is not in compliance with a previous permission, has carried out substantial unauthorised development or has committed an offence under the Bill or the Act of 2000, it would form an opinion as to whether there is a real or substantial risk the development would not be carried out in accordance with the permission and should not be granted, based on the procedures set out, to only allowing the permission to be refused. This section, as worded, strikes a careful balance in allowing a local authority or the commission to take the step of refusing to grant planning permission, not on the basis of the merits of the development as proposed but on the basis of previous actions of the applicant which may or may not relate to the application on hand. This is a serious step which requires, in the interest of fair procedure, that the applicant be afforded an opportunity to defend themselves and, if necessary, to allow the High Court to consider the merits of such a step being taken. While I do not countenance non-compliance with the planning system, there is a requirement for decision-makers to act in a fair and reasonable manner. As such, I cannot accept amendment No. 775.

Deputy Cian O'Callaghan

I thank the Minister of State for the reply. In it, he talks about striking a careful balance and fair procedure. Will he tell us how many times this provision has been used under the existing legislation? What is the balance here?

Deputy Alan Dillon

It has been used very rarely.

Deputy Cian O'Callaghan

It has been used, has it?

Deputy Alan Dillon

We think so.

Deputy Cian O'Callaghan

You think so.

Deputy Alan Dillon

We will have to clarify that. We can come back to the Deputy.

Deputy Cian O'Callaghan

The Minister of State thinks it has been used. I am not so sure it has ever been used.

Deputy Alan Dillon

It has been used but very rarely. I do not have exact figures on hand.

Deputy Cian O'Callaghan

We are talking probably two or three times, something along those lines.

Deputy Alan Dillon

If even.

Deputy Cian O'Callaghan

If even; so it might have been used once. If this has almost never been used and might have been used once - I am not aware of that occasion when it was used - that is not striking a careful balance. It is quite extraordinary. These are circumstances where someone has carried out substantial unauthorised development, has been convicted of an offence under planning law or is not in compliance with planning permission granted. I agree we should be talking about substantial, material non-compliance here, not minor issues. That is a different story. There are numerous examples of substantial non-compliance. It is the public, homeowners, people who work so hard to buy a home and invest so much in trying to build a life for themselves and their family and in trying to build community who are the ones who pay for this non-compliance from unfinished planning permissions. This is not without cost. It places families and communities under significant stress. I would dispute that there is any careful balance here at all. Given that this provision may have been used only once, if even, it seems there is no balance being struck here at all. The practice is heavily weighted towards developers who are non-compliant getting more and more planning permissions and making a farce out of some of the provisions of planning law. We know they are often not pursued effectively through enforcement action. It is also completely unfair to builders and developers who are compliant for bad faith actors to be facilitated through weak legislative provisions. Everyone who is doing everything the right way - residents, communities, homeowners, or compliant builders and developers - are put at a disadvantage by it. Although my amendment is not being accepted by the Government, I strongly urge the Minister of State to ensure this area is looked at and strengthened.

Deputy Eoin Ó Broin

My understanding is that this section is broadly the same as the existing provisions. Was any assessment done when a decision was being made to simply replicate the existing provisions? Was there any assessment of whether the existing provisions were a useful tool in addressing the issue of developers securing future planning permissions where they have not complied with previous ones? This is a once-in-a-generation reform of the planning system, as the Minister of State likes to tell us, and issues like Larkfield House are matters of public record and have been widely debated, including in this committee.

In fact, I have written to previous Ministers about them. One would have thought some assessment was done on whether this area was one needed amending. We see elsewhere in the Bill that when the Government wants to centralise powers and remove flexibility, autonomy or democratic accountability for local authorities, there is no problem. However, when it comes to getting tough on non-compliance, either with failure to comply with planning permissions or building control, there is nothing in this Bill, as we found with previous sections, that gives any additional strength to our local authorities. The worry is that as we are starting to see new development increase, albeit too slowly, the temptation for people to cut corners and break rules grows. If they see people being able to get away with non-compliance both with planning and building control, as I mentioned, specifically with regard to the three developments in Dublin city and county, that will incentivise others to do the same. Therefore, this is quite an important issue. I am interested to know whether any assessment or analysis was done, prior to the decision to simply transpose the existing provisions into this Bill, of how effective those provisions have been.

Deputy Cian O'Callaghan

I wish to raise a short point that is not directly related to this. The Minister of State’s predecessor, Deputy O’Donnell, gave a commitment to us during Committee Stage that the terms of reference of the ESRI study would be shared with this committee. He gave that commitment twice but it has not been shared with the committee yet. I ask the Minister of State to please follow up on that and share the terms of reference of the ESRI study with us. It would be appreciated.

An Cathaoirleach

Can the Deputy remind me what the ESRI study is about?

Deputy Cian O'Callaghan

It is on the housing needs assessment. It is just that we were given that commitment twice, so if the Minister of State can follow up on that, it would be appreciated.

Deputy Alan Dillon

I thank both Deputies for the points they raised. It is important that the planning authority is not a judge, jury and executioner in this regard. We do not support bad actors. That is important. What is set out here is similar to the language used in the 2000 Act. It allows the local authority and the commission to take the necessary steps while ensuring that we continue to resource the enforcement element of it. It is important for property rights, which are enshrined in our Constitution. It is a high bar to ensure that those rights are protected. In this instance, we are saying there is a serious step which requires the interest of fair play and that the applicant be afforded the opportunity to defend himself or herself and, if necessary, to allow the High Court to consider the merits of any proposed development. It is important that such a step can be taken.

Deputy Eoin Ó Broin

It is fine for the Minister of State to say that he does not support bad actors, and of course he does not. However, if the Government does not give the local authorities the tools to adequately enforce and weed out the bad actors, it amounts to the same thing. I have given the Minister of State a current example of a developer who has a building, fully occupied since 2018, with no planning permission and no building control compliance – zero. The local authority is using the existing powers under planning enforcement and the Building Control (Amendment) Regulations 2014. This is all a matter of public record. The developer, because he is a pretty canny individual, has managed to circumvent those, and today there is a building fully occupied with tenants paying the top-end of market rent from their own pockets, through the housing assistance payments or homeless HAP. He does not have planning permission and he is not compliant with BCAR. That very same individual has subsequently got planning permissions and is building out other developments, one of which in Dublin city is also facing planning enforcement. This is not about property rights. This is about the current rules not being fit for purpose. My question was whether any assessment was done as to the efficacy of those provisions under this section when a decision was being taken by the Department and the senior Minister to simply copy and paste existing - in my view, inadequate - rules into this Bill. Did anybody ask whether this is one of the areas of this legislation that needs to be changed or amended, how many occasions this provision has been used and whether there was an assessment or study? The reason we get so engaged in this, and I suspect the Minister of State is aware of this in his own constituency, is that we all represent people who live in defective buildings, buildings without adequate planning and buildings that are still being built in breach of these rules, albeit on a lower scale, thankfully, than we had during the Celtic tiger. One of the big weaknesses is planning enforcement and building control enforcement. That is why this section absolutely deserves strengthening. This is not about saying to throw the Constitution out. Somewhere between dispensing of property rights and what is going on in the developments I mentioned there has to be a better form of enforcement. Somebody who has a clear track record of breaching planning permissions and building control regulations should not be allowed to get planning permissions and he currently is.

An Cathaoirleach

Does Deputy O'Callaghan wish to come back in on one small point? After that, I will go back to the Minister of State.

Deputy Cian O'Callaghan

Not on a small point.

An Cathaoirleach

Well, on a point.

Deputy Cian O'Callaghan

It is my amendment. I do not see why other Deputies would come in at length on my amendment and I would have to be confined to a small point.

An Cathaoirleach

I will not curtail the Deputy in any way. Fire away.

Deputy Cian O'Callaghan

Perfect, thank you. I will be concise. People in communities where this is an issue, far from judge, jury and executioner being applied, would love to see even just one of those when it comes to these issues. My amendment does not seek to ensure that the planning authority or commission would be judge, jury and execution because I specifically leave in section 160(6), which is the provision. Whether or not it should be left in is questionable, but it leaves it in. Section 160(6) is the whole point about the applicant being able to go to the High Court and challenge the decision. To say that my amendment is trying to remove the provision of the applicant going the High Court just is not correct; it is left in.

With respect to property rights, what about the rights of the family or individual who buys a home subject to a planning permission and has every proper expectation that the planning law would be followed and their home and community would be built out as per the planning permission granted under planning law? Their property rights are currently being disregarded. They invest their life work into paying off the mortgage for that home. They buy it sometimes off plans and often off promises from developers, even if the home is built, but on the works that would be completed in that planning permission. When the developer reneges on that, they do not get the community facilities, amenities or public spaces that were promised in the planning permission and promised to them under planning law. What about their property rights? Why are their property rights being disregarded? Why are the property rights of the developer trumping those of hardworking individuals and families who put their life’s work into buying a home? I do not understand why the Minister of State thinks the property rights of the developer are more important that the individual family’s.

Regarding enforcement, the one thing we all know is that enforcement is poorly resourced. To say enforcement is the answer, not this section of the Bill, when enforcement has always been poorly resourced, just does not stand up and is not credible.

Deputy Alan Dillon

First, I wish to outline that all sections of the Act were reviewed by the Attorney General and the legal advisers as part of the review of the planning legislation and the preparation of this Bill, and certainly this section was as well. To Deputy O’Callaghan’s point, each of the applicants should be afforded due process. We are not trumping one over the other - either the applicant or the developer. This is a matter for enforcement and building controls, and they need to be adequately resourced in that regard.

Deputy Ó Broin raised some examples.

I am not in the position to comment on particular applications. This has been reviewed and legally tested. Its inclusion is very important to protect the rights of those who want to make planning applications. It also strikes a balance between local authority and An Bord Pleanála.

Deputy Eoin Ó Broin

I want to clarify that my question was not about whether it was reviewed by the Attorney General. Of course, it was. My question was a more specific one. When deciding on a policy rather than a legal point of view to simply transpose the existing provisions into the new Act, was any review done of how these provisions operated? Did anybody ask the CCMA, the LGMA or the Irish Planning Institute how often this has been used and whether there are issues, problems or challenges? Was there a written assessment done of that? To what extent was this area interrogated before a policy decision, not a legal decision, was made to leave things as they are?

Deputy Alan Dillon

Yes there was engagement with the CCMA and a review was undertaken.

Deputy Eoin Ó Broin

Is there a record of that for those of us who like using FOI?

Deputy Alan Dillon

There is not a particular reference to it. It was done in the broad aspect of this legislation.

Amendment put:

The Committee divided: Tá, 2; Níl, 5.

Tá

• O'Callaghan, Cian.
• Ó Broin, Eoin.

Níl

• Dillon, Alan.
• Duffy, Francis Noel.
• Flaherty, Joe.
• Matthews, Steven.
• McAuliffe, Paul.

Amendment declared lost.

Amendment agreed to.

Deputy Alan Dillon

I move amendment No. 777:

In page 300, line 1, to delete “permission for retention” and substitute “retention permission”.

Amendment agreed to.

Deputy Alan Dillon

I move amendment No. 778:

In page 300, line 7, to delete “section,” and substitute “section”.

Amendment agreed to.

Question proposed: "That section 160, as amended, stand part of the Bill".

Deputy Eoin Ó Broin

One of the big weaknesses with this entire section is that when we look at the start of section 160, it talks about: "When considering any application for permission under this Part, where the planning authority or the Commission is satisfied that a person to whom this section applies" but of course "a person" is not a person in the ordinary sense of the term but rather as set out in section 160(10). "A person" of course is a "legal" person.

One of the problems here is that one of the practices that is used by a certain cohort of developers is that they constitute designated activity companies, DACs, and the DAC applies for planning permission. If things then go wrong the DAC is dissolved and they are free to move on and create new DACs and therefore they have different legal personalities. What I am trying to understand in terms of section 160(10) is if there is anything in the interaction, in particular between paragraphs (a), (d) and (e) of section 160(10), that would allow a local authority, notwithstanding that somebody has used the DAC mechanism, to pursue a company under the Companies Acts, where a director might have been a director of a separate legal entity but where there is clear consistency in terms of breaches of planning from one application to another. As far back as the 1970s the Law Reform Commission argued that there should actually be a legal mechanism to go after directors. I am not of the view that it is currently provided for but I could be wrong. Could the Minister of State clarify that issue? That is the first question that I have.

Deputy Cian O'Callaghan

On that, in my experience, I have seen a number of developers operating that way, whereby at any one time they have between 40 and 50 different companies on the go and they use a different one for each planning application, which means accountability is a real issue if something goes wrong. I would be very interested to hear the answer to that question.

I have one short question on this section. During the previous discussion the Minister said the provision in the existing legislation has probably been used on one occasion. Has that been where the building of public areas of the development have not been up to scratch? Has the provision in the existing legislation ever been used with respect to the non-completion of public areas to the standards required in the planning permission? That is a huge issue right across the country in a number of developments that have been built in recent decades. Has this provision ever been used in that context?

Deputy Alan Dillon

On Deputy Ó Broin's point on section 160, section 160(10)(c) refers to "a registered society under the Industrial and Provident Societies Acts" and section 160(10)(d) specifically refers to "a company ... within the meaning of the Companies Act 2014". It also says in section 160(10)(d)(i) and (ii) "is related (for the purposes of subsection (10) of section 2 of the Companies Act 2014) to the applicant for the proposed development, or (ii) has control (within the meaning of subsection (5) of section 220", so it does reference companies in this regard. A person can be related to the control.

An Cathaoirleach

What about Deputy O'Callaghan's question?

Deputy Alan Dillon

I do not have the information Deputy O'Callaghan sought. There is difficulty in providing the information today.

Deputy Cian O'Callaghan

Could we get a short note on this section of the Bill and whether it has been used? It is important to know whether the provision has ever been used in terms of understanding this legislation.

Deputy Alan Dillon

I understand the request. We will look to see if we can get a note.

Deputy Cian O'Callaghan

I thank the Minister of State.

An Cathaoirleach

Does Deputy Ó Broin wish to come back in on the DAC question?

Deputy Eoin Ó Broin

With respect, I do not think the point the Minister of State made about section 160(10)(d) addresses my question. As I read it, the reference there is almost like a parent company and the individuals involved in it set up subsidiary companies, again using designated activity companies. Therefore, clearly, that is the case if a parent company can be shown either to be related to the individual DAC or has control of it, but the circumstance I am talking about is very different and much more common. It is where there is not a parent company but what you get is a group of individuals who form a designated activity company and they engage in breaches of planning and building control. When that development is finished or even in cases where it is not finished, they just dissolve the DAC and some or all of those individuals form a new DAC. My question is about the directors, not a parent company, a controlling company or a company with a relationship. Is it possible under this provision, for example, if Eoin Ó Broin has a designated activity company called "Ó Broin Limited" but previously had a company called "Eoin Limited" and it was in breach of this section in the planning application, as "Ó Broin DAC", as it is now called, could I then be prevented from being granted planning permission under this procedure? If so, could the Minister of State point out to me where that provision is in this section?

Deputy Alan Dillon

The Deputy's question is legal in nature. Section 160(10)(e) specifically refers to "a company ... that carried out development pursuant to a previous permission, carried out a substantial unauthorised development or has been convicted of an offence under this Act ... the company is under the control ... of the applicant for the proposed development, or ... the applicant for the proposed development is a shadow director (within the meaning of the Companies Act 2014) of the company."

Deputy Eoin Ó Broin

With the greatest respect, again, that is not the circumstance I am outlining.

I am talking instances where directors dissolve companies and create new ones, not where they are shadow directors of existing companies. This is not a novel issue; it is a persistent problem within our building system. Is the Minister of State categorically stating-----

Deputy Alan Dillon

Well-----

Deputy Eoin Ó Broin

Is he categorically stating-----

Deputy Alan Dillon

That is a function under the Companies Act, not the Planning Bill.

Deputy Eoin Ó Broin

With the greatest respect, this section is meant to ensure that if individuals or companies that have received planning permission breach the terms of the latter, a local authority will have the power to try to prevent them from getting planning permission in future. What I am trying to get is a very clear answer to the question as to whether this covers directors who will use a DAC, dissolve it and then create a new one. Is the Minister of State explicitly stating that paragraph c(i) and (ii) cover that. It is my understanding that they do not cover it under the existing rules. I stand corrected if I am wrong.

Deputy Alan Dillon

No, it does not, as per the Deputy's point.

Deputy Eoin Ó Broin

It does not cover it. The only reason I raise that is because it is the most common way for a certain category of rogue developer to operate. Thankfully, such developers are small in number. However, there was a time when there was a much larger number of them. This is one of the most commonly used procedures for getting around these difficulties. I would have thought if there had been a review of this by any planning professional from a local authority, those involved would have said stated that one of the things required is some method of tracking developers through DACs. The Law Reform Commission recommend this as long ago as 1977. It is not as if it is a new issue.

My other questions relate to section 160(6), (7) and (8). This is a query rather than a challenge. There is no provision in this section for appeal to the commission with respect to a local authority's usage of section 160. The matter goes straight to the High Court. I presume that is to expedite the procedure and not waste time by going to An Bord Pleanála and then to the courts. Is that the only reason that is there?

Deputy Alan Dillon

Yes, that is correct.

Deputy Eoin Ó Broin

This seems to be the most glaring omission from the reworking of section 160. All I ask is that the matter be reconsidered by the officials. There has to be a way of tracking the individuals from company to company and ensuring that local authorities are able to apply the provisions of section 160 to individuals when they move through companies as opposed to within a company or through a parent company. It would not require a major change to the Bill. I intend to bring forward an amendment back on Report Stage, but it would be much better if the folk sitting on either side of the Minister of State worked up good amendments in this regard because this is a live issue. It is happening now and needs to be addressed.

An Cathaoirleach

The Minister of State has taken on board those comments.

Deputy Alan Dillon

Yes.

An Cathaoirleach

Is the question agreed to?

Deputy Alan Dillon

Yes.

Deputy Eoin Ó Broin

Yes, it is agreed but with grave reservations.

Question put and agreed to.

SECTION 161

Question proposed: "That section 161 stand part of the Bill."

Deputy Eoin Ó Broin

In some senses, I understand the logic of the section, which is that when somebody puts in an application to a planning authority or submits an appeal and it is subject to an application for judicial review, we do not want to slow the process down so a decision on the planning application and-or the appeal can be made. Obviously, the planning application cannot be activated until the judicial review proceedings have been concluded. I am not disputing the logic of that,. I am concerned, however, as to whether there a risk - was this considered by the officials - whereby, if the judicial review is successful, the planning authority or the board will have spent a good deal of time making a decision that ultimately cannot be acted upon. This is about getting a balance and making sure we do not waste time or resources. We would much prefer if there were as few judicial reviews as possible and the quality of the planning applications was as high as possible. There is a trade-off here. I am interested in the Minister of State convincing me that this trade-off does not involve an undue risk of wasting precious resources in our planning authorities under the guise of saving time in respect of an outcome which might not necessarily come to pass.

Deputy Alan Dillon

Section 161 is all about the maritime area. Subsection (4) states:

A permission granted under this Part for development in circumstances to which this section applies shall not come into effect unless and until-

(a) final judgment is given ...

Deputy Eoin Ó Broin

That is very clear. I said that to the Minister of State and did not need it explained back to me. The issue is very specific. For instance, I got a maritime area consent. I put in my planning application. There is a judicial review of the consent. These will be large, complex and difficult applications. We are allowing the planning authority to proceed to make a decision. I understand fully that the permission is not granted, but the planning authority will potentially get all the way to a decision while the judicial review is in train. If the latter is successful, the planning authority has spent a hell of a lot of time making a decision that can never actioned. Likewise, with an appeal.

I am not arguing against this. I am not saying that I have a problem with it. It is a very new provision and one I would like to understand. Under certain circumstances, are we not at risk of allowing or requiring our planning authorities or An Bord Pleanála to expend a significant volume of resources for a decision that if a judicial review stands, they will not be able to grant permission anyway? I am asking how we avoid that, because we are avoiding a delay in one area but could be creating a very significant delay in another. Right now, our planning authorities - neither the board nor the local authorities - have sufficient resources. That is matter of public record and we have discussed it here at great length. That means if saying to them to plan ahead and get that particular application up to the point of grant - it cannot be granted until a final decision is made in the court - that is staffing resources that could be utilised somewhere else to clear a backlog or allow other decisions that are not subject to a judicial.

Deputy Alan Dillon

Could we be afforded the opportunity to go into private session to address this technical question?

An Cathaoirleach

Absolutely.

The select committee went into private session at 4.37 p.m. and resumed in public session at 4.43 p.m.

An Cathaoirleach

I thank the Minister of State for the clarifications on section 161 that were provided in private session..

Deputy Eoin Ó Broin

I want to put on the record that I am not opposing this section. However, I want to express some reservations about the risk calculus involved. It may be something I come back to on Report Stage.

Question put and agreed to.

Section 162 agreed to.

SECTION 163

Question proposed: "That section 163 stand part of the Bill."

Deputy Eoin Ó Broin

I have a very quick question.

An Cathaoirleach

I was informed that during our meetings I must give everyone a break for five minutes every two hours in order to allow them to do whatever they need to do. I propose, therefore, to take a five-minute break now. We will resume with the Deputy's questions on section 163. Is that agreed? Agreed.

Sitting suspended at 4.44 p.m. and resumed at 4.52 p.m.

Chairman

Does Deputy O'Callaghan have a question on section 163?

Deputy Cian O'Callaghan

No, I do not have a question on section 163.

Deputy Aengus Ó Snodaigh

Deputy Ó Broin had a question on it.

Question put and agreed to.

SECTION 164

Amendment No. 779 not moved.

Deputy Alan Dillon

I move amendment No. 780:

In page 302, line 22, to delete “The duration” and substitute “Subject to section 167, the duration”.

Amendment agreed to.

Deputy Ivana Bacik

I move amendment No. 781:

In page 302, line 22, to delete “5 years” and substitute “3 years”.

This is the amendment about the "use it or lose it" clause.

Amendment put and declared lost.

Deputy Ivana Bacik

I move amendment No. 782:

In page 302, line 26, to delete “5 years” and substitute “3 years”.

Again, it has been previously discussed and it has the same purpose, to reduce the normal duration of a planning permission.

Amendment put and declared lost.

Deputy Ivana Bacik

I move amendment No. 783:

In page 302, line 27, to delete “5 years” and substitute “3 years”.

Amendment put and declared lost.

Deputy Paul McAuliffe

I move amendment No. 784:

In page 302, line 35, after “development” to insert “, or development by statutory undertakers in relation to Chapter 3,".

I will withdraw the amendment based on the response of the Minister.

Amendment, by leave, withdrawn.

Section 164, as amended, agreed to.

SECTION 165

An Cathaoirleach

Amendment No. 785 has been ruled out of order.

Amendment No. 785 not moved.

Amendment No. 786 not moved.

Deputy Alan Dillon

I move amendment No. 787:

In page 303, line 24, to delete “section,” and substitute “section”.

Amendment agreed to.

Question proposed: "That section 165, as amended, stand part of the Bill."

Deputy Cian O'Callaghan

A key provision of this section is that there will be a phasing plan for developments consisting of ten housing units or more. Will the Minister of State give some indication of what a phasing plan for a relatively small development of, say, 15 or 20 houses might look like?

Deputy Aengus Ó Snodaigh

How widespread does the Minister of State think this type of phasing will be, based on applications in the system at the moment? Will it be widespread?

Deputy Alan Dillon

The phasing plan references the proposed sequencing, specifically, and the schedule of works for the development. There was a question on typical size.

Deputy Cian O'Callaghan

Will I clarify the question?

Deputy Alan Dillon

Yes.

Deputy Cian O'Callaghan

Sorry, I should clarify the question a bit. If there are 400 apartments built over five blocks, it is quite clear what the phasing plan might be. It might be that block 1 is in phase 1 or it might be in phase 2 and some parkland and open space in phase 1. Phase 2 could be blocks 3 and 4 and some more amenities. Block 5 might be the next phase and so on. It is clear what a phasing plan for a large development looks like, be it of apartments, duplexes or houses, but I am asking about small developments because the section refers to "not fewer than 10 housing units". Phasing plans are a good idea and should be used more. This provision in the Bill could be very good. If a developer builds 12 homes in one go, what does a phasing plan look like? They are required under this to do a phasing plan. Does it just tell you house No. 1 will be completed first and house No. 6 will follow? Is that the level of detail? For something small, what does it mean?

Deputy Alan Dillon

Smaller developments are by their nature less complex than larger developments. The sequencing would be established and the schedule of works for the proposed development would be outlined. The base figure included here is ten housing units. That is defined as scheme housing.

Deputy Cian O'Callaghan

The schedule of works for scheme housing, even if it is only ten or 15 houses, is important in terms of when public areas, roads, footpaths, open spaces and so on will be completed. The scheduling of works is an important component that comes out from the phasing plan. I thank the Minister of State for that answer.

Second, does section 165 allow a planning authority to insist on the delivery of certain amenities, infrastructure or public space components up front or as part of the first phase, for example? Before the Minister of State tells me section 165(3) allows for this in terms of conditions, I do not think it is explicitly clear the conditions would allow that to be done.

Deputy Aengus Ó Snodaigh

They are all flawed because this is a positive proposal. The idea that it is ten housing units seems a low bar. Any apartment complex in Dublin that will have ten units will not require phasing. There is a schedule of works but there is no phase. Can there be a single phase in a development? That would be the logical thing in smaller developments.

Often there is a phase at the conclusion of work on a site. There is a snag list and after that is completed, the council has to take in charge any public spaces. Is that a separate phase? There are developments in this city that were completed 15 years ago but they still have not been taken in charge in terms of their public areas and public utilities because the snag list was never done or the building company failed. If one were to go by the phases as per the legislation, such a development would never be completed because the last phase is in abeyance, either because the company folded or the council refused to take it in charge until works were completed and yet, people might be living in it.

Deputy Alan Dillon

I thank the Deputies for their questions. Deputy O'Callaghan asked about the phasing plan. It is included in the Bill that a description will be provided of the intended sequencing and scheduling of the construction and commissioning activities of the development. Under section 3, where the application is required to be accompanied by a phasing plan, the planning authority may attach that as a condition to any grant of permission. That would be described and agreed up front in respect of any additional requirements, be they amenities, childcare facilities and so on.

In response to Deputy Ó Snodaigh, one can have a single phase. That is acceptable. On the snag list, that would be a separate phase at the end of the development but it is not included in this Bill.

Deputy Aengus Ó Snodaigh

It is included because it refers-----

Deputy Alan Dillon

Sorry, it is not included in this section.

Deputy Aengus Ó Snodaigh

Yes, but it is a phase. If one indicates that the final phase is to address the stag list and to allow the council to take in charge the public paths or whatever, but that last part does not happen, does that mean the development is still in its last phase? Is it the case that it cannot be concluded until the council has taken in charge the pathways, drains or whatever is required?

Deputy Alan Dillon

The taking in charge is a separate section in the Act and is not included in this Bill.

Deputy Aengus Ó Snodaigh

Is it part of the final phase?

Deputy Alan Dillon

To clarify, taking in charge is a separate matter. What this section talks about is the phasing plan, in terms of the sequencing of the whole application. There is a different section covering local authorities' responsibilities around taking estates in charge.

Deputy Cian O'Callaghan

I would like to further explain my question. What can happen with phasing in larger schemes - unfortunately we have all seen examples of this - is that phase one could involve 200 apartments, phase two could involve another 200 apartments and phase three could include another 100 apartments as well as a community facility that is promised to serve the entire development and some open space and parkland. However, what can happen is that the developer delivers phases one and two and sells those apartments but things then go badly and phase three is not delivered. If the developer goes bust or there is an economic downturn and the development is being built out over time, then, lo and behold, the final phase with the much-needed promised amenities that were part of the overall scheme are not delivered. It can be desirable for a planning authority to be able to ensure that some of the amenities or facilities that are needed as part of the overall scheme do not come in the final phase but, rather, in the middle or, indeed, up front in the first phase. That can be a good planning outcome. It depends on the particular situation. My reading of section 165(3) is that it is not explicitly clear that the planning authority can do that. It is the applicant that submits the phasing plan and section 165(3) simply states, "Where an application is required to be accompanied by a phasing plan, [that is, for ten or more units] the planning authority or the Commission may attach as a condition to any grant of permission a requirement that the development comply with any specified provision of the phasing plan." If I submit a phasing plan and my community facilities, amenities and open space are in phase three, then surely all that means is that a condition would say that in order for the planning permission to be complied with, the phasing plan must be adhered to, including the provision of community facilities in phase three. That does not necessarily allow a planning authority or commission to say that the community facilities and amenities that are in phase three of the phasing plan must be delivered in phase one. If my interpretation of the subsection is wrong and it does allow a planning authority or commission to do that and, in effect, to rejig the phasing plan through conditions, that would be great. It would be great to hear that is the case and that I have read this wrong but my reading of the subsection is that it does not give the planning authority or the commission the flexibility to rejig the phasing plan. All they would be able to do is attach conditions to emphasise what is in the phasing plan, reject the permission or request further information. There is no provision here to change around or rejig the phasing plan. That is my reading of it but if I am wrong, it would be great to hear that.

Deputy Alan Dillon

It does set out that the planning authority can request further information on the detail and arrangements surrounding the phasing plan.

Deputy Cian O'Callaghan

Sorry, where is that?

Deputy Alan Dillon

It is standard with regard to further information-----

Deputy Cian O'Callaghan

It is not specific to phasing plans but it applies to phasing plans, so that is where they could do this or how they could do it.

Deputy Alan Dillon

Yes, and subsection (5)(c) refers to "such other information as may be prescribed". There may be reference to this section in regulations that will follow the enactment of this Bill.

Deputy Cian O'Callaghan

I thank the Minister of State for that reply, which is helpful. Would it not be better to make this a bit more explicit in the phasing plan section in order that it is clear that the planning authority or commission can reorder the phasing if that is desirable? A key weakness of phasing currently is that we get all of the really good community stuff in the last phase, but sometimes that is never delivered. In some cases that is for genuine reasons, including changed economic circumstances, but in other case it is for less genuine reasons.

Deputy Alan Dillon

I thank the Deputy for the point he has raised. The Bill specifically states that the development shall comply with the specified provisions, so it does allow for arrangements to arise from the applicant in that regard within the phasing plan. The Deputy's point is that the conditions that will be applied during the initial assessment by the planning authority are important.

Deputy Cian O'Callaghan

Yes, but it is really about the fact that the phasing plan comes entirely from the applicant. I totally understand that a draft phasing plan would come from the applicant but my concern is about explicitly giving the planning authority or commission the ability to intervene and put a better order on the phasing. This is a really useful mechanism. I have given an example already, although it would not apply to all applicants.

However, you do see examples where it is all housing in the first and second phases and the much-needed facilities to support that housing are all backloaded. This is not good phasing or planning. At a minimum, the facilities should be spread across the development, if not front-loaded. Some should be front-loaded with the first significant amount of housing. That is the way communities are built. Some larger developments are built out over such a long period, such that there are children who are not even born when the first phase is being built, that it results in the delivery of amenities being late and their provision sometimes getting timed out. Therefore, it makes sense to get phasing right. It is all about the ability to intervene and reorder in the interest of good, sustainable planning. This ability is not strong enough in the section. I appreciate that there is a route through further information, but should there not have been a phasing plan section? Should a stated goal not be to deliver what is needed for good, sustainable development in a balanced way as early as possible? Could this be considered for Report Stage?

Deputy Alan Dillon

There are conditions in the Bill that allow for the determination and sequencing of works and the period in which works shall be carried out. This is also in section 84(3)(h). It is important to re-emphasise that.

Deputy Cian O'Callaghan

That is on the conditions that may be attached to planning permission. Can the sequencing of works tie in with phasing?

Deputy Alan Dillon

That is correct.

Deputy Aengus Ó Snodaigh

Would it not be appropriate to refer to that in section 165(3)?

Deputy Alan Dillon

I do not think there is a need. It is already in the Bill.

Deputy Cian O'Callaghan

For the record, I believe it would be better to include it.

An Cathaoirleach

We have discussed the matter. There is an option to reintroduce amendments on Report Stage.

Question put and agreed to.

SECTION 166

Amendment No. 788 not moved.

Deputy Alan Dillon

I move amendment No. 789:

In page 303, line 31, to delete "Development," and substitute "Subject to section 167, development,".

Amendment agreed to.

Deputy Alan Dillon

I move amendment No. 790:

In page 304, to delete lines 5 and 6 and substitute the following:

"(i) in relation to retention permission for any unauthorised structure,".

Amendment agreed to.

Section 166, as amended, agreed to.

NEW SECTION

Deputy Alan Dillon

I move amendment No. 791:

In page 304, between lines 24 and 25, to insert the following:

"Suspension of running of duration of permission due to Part 9 judicial review proceedings

167. (1) Where Part 9 judicial review proceedings are commenced in respect of a permission (other than a permission that is an extension of duration of a permission under Chapter 5)—

(a) the running of the duration of the permission shall be suspended from the date of the notification of the commencement of the proceedings under subsection (3) until the date of the notification under subsection (3) that the proceedings are finally concluded (in this section referred to as the "relevant period"),

(b) during the relevant period the permission shall not have effect for the purposes of this Act,

(c) the duration of the permission shall continue to run from the day following the date of the notification under subsection (3) that the proceedings are finally concluded, in so far as the permission continues to have effect in accordance with the decision of the court that finally concluded the proceedings, and

(d) in reckoning the duration of the permission for the purposes of this Act, the relevant period shall be disregarded.

(2) Where Part 9 judicial review proceedings are commenced in respect of a permission (other than a permission that is an extension of duration of a permission under Chapter 5), the respondent in the proceedings (where the respondent is not the planning authority or the Maritime Area Regulatory Authority) shall, by notice in writing in such form and manner and within such period as may be prescribed, notify the following of the matters referred to in subsection (4):

(a) where the permission relates primarily to land, the planning authority in whose functional area the land is situated;

(b) where the permission relates primarily to a maritime site, the Maritime Area Regulatory Authority.

(3) The planning authority or the Maritime Area Regulatory Authority, as the case may be, shall notify in writing, in such form and manner and within such period as may be prescribed, each person interested in the land or maritime site to the benefit of which the permission enures of the matters referred to in subsection (4) and of this section.

(4) The matters referred to in subsections (2) and (3) are—

(a) the commencement of the proceedings and the date of the commencement of the proceedings (within the meaning of subsection (5) of section 252),

(b) the fact that the proceedings are finally concluded and the date the proceedings are finally concluded,

(c) the decision of the court that finally concluded the proceedings, and

(d) such other matters as the Minister may prescribe.

(5) The planning authority and the Maritime Area Regulatory Authority shall enter the following information in the register:

(a) the date of commencement of the proceedings;

(b) the date the proceedings are finally concluded;

(c) particulars of the decision of the court that finally concluded the proceedings;

(d) particulars of a notice given under subsection (2) or a notification given under subsection (3);

(e) the date the duration of the permission expires in accordance with this section;

(f) such other information as the Minister may prescribe.

(6) For the purposes of this section, Part 9 judicial review proceedings are finally concluded on the date of the determination of the proceedings by a decision of a court against which no further appeal lies, or against which an appeal lies within a period which has expired without an appeal being taken.

(7) In this section—

"Part 9 judicial review proceedings" has the meaning it has in section 250;

"permission" includes a permission granted under the Act of 2000, or under section 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016, but does not include outline permission within the meaning of section 93.".

Deputy Aengus Ó Snodaigh

I move amendment No. 1 to amendment No. 791:

In subsection (1), to delete paragraph (a) and substitute the following:

"(a) the running of duration of the permission shall be suspended from the date of the notification of the proceedings under section 252(2) of Part 9,".

Amendment put:

The Committee divided: Tá, 2; Níl, 5.

Tá

• O'Callaghan, Cian.
• Ó Snodaigh, Aengus.

Níl

• Dillon, Alan.
• Duffy, Francis Noel.
• Flaherty, Joe.
• Matthews, Steven.
• McAuliffe, Paul.

Amendment declared lost.

Deputy Aengus Ó Snodaigh

I move amendment No. 2 to amendment No. 791:

In subsection (2), in the fifth line, to delete "such period as may be prescribed" and substitute "within one day".

Amendment put:

The Committee divided: Tá, 2; Níl, 5.

Tá

• O'Callaghan, Cian.
• Ó Snodaigh, Aengus.

Níl

• Dillon, Alan.
• Duffy, Francis Noel.
• Flaherty, Joe.
• Matthews, Steven.
• McAuliffe, Paul.

Amendment declared lost.

Deputy Aengus Ó Snodaigh

I move amendment No. 3 to amendment No. 791:

In subsection (3), in the third and fourth line, to delete “such period as may be prescribed” and substitute “within one day”.

Amendment put:

The Committee divided: Tá, 2; Níl, 5.

Tá

• O'Callaghan, Cian.
• Ó Snodaigh, Aengus.

Níl

• Dillon, Alan.
• Duffy, Francis Noel.
• Flaherty, Joe.
• Matthews, Steven.
• McAuliffe, Paul.

Amendment declared .

Deputy Aengus Ó Snodaigh

I move amendment No. 4 to amendment No. 791:

In subsection (3), in the fourth line, after “section” to insert the following:

“, and shall notify any person who made a submission to the planning authority or the Maritime Area Regulatory Authority as the case may be on the development the subject of the consent subject to the judicial review proceedings under Part 9”.

Amendment put:

The Committee divided: Tá, 2; Níl, 5.

Tá

• O'Callaghan, Cian.
• Ó Snodaigh, Aengus.

Níl

• Dillon, Alan.
• Duffy, Francis Noel.
• Flaherty, Joe.
• Matthews, Steven.
• McAuliffe, Paul.

Amendment declared lost.

Deputy Aengus Ó Snodaigh

I move amendment No. 5 to amendment No. 791:

After subsection (4), to insert the following:

“(5) The notifications referred to in subsection (4) shall be issued in respect of a suspension of a consent, and again following the decision of the court that finally concluded the proceedings, so as to ensure timely notifications are issued.”.

Amendment put:

The Committee divided: Tá, 2; Níl, 5.

Tá

• O'Callaghan, Cian.
• Ó Snodaigh, Aengus.

Níl

• Dillon, Alan.
• Duffy, Francis Noel.
• Flaherty, Joe.
• Matthews, Steven.
• McAuliffe, Paul.

Amendment declared lost.

Amendment agreed to.

SECTION 167

Deputy Alan Dillon

I move amendment No. 792:

In page 304, lines 26 and 27, to delete “Where permission for development of land or a maritime site or permission for retention is granted under this Part” and substitute “Where permission for development or retention permission is granted under this Part”.

Amendment agreed to.

Section 167, as amended, agreed to.

Progress reported; Committee to sit again.

The select committee adjourned at 6.04 p.m. until 2 p.m. on Wednesday, 17 April 2024.