I welcome everybody back to the Select Committee on Housing, Local Government and Heritage, where we continue our Committee Stage consideration of the Planning and Development Bill 2023. I welcome the Minister, Deputy Darragh O'Brien, to this afternoon's meeting. We will continue where we finished last night, which was on a discussion on amendment No. 725 and the grouping of amendments associated with it. The first one we are going to discuss is amendment No. 779, in the name of Deputy Boyd Barrett and others.
Planning and Development Bill 2023: Committee Stage (Resumed)
SECTION 135
Debate resumed on amendment No. 726:
In page 266, line 9, after “permission” to insert “, provided that the development to which the permission relates has commenced”.
-(Minister of State at the Department of Housing, Local Government and Heritage, Deputy Malcolm Noonan)
I thank the Chair for accommodating me. Amendment No. 779 seeks to amend the Government's proposals in the legislation around the duration of planning permissions. Currently, in the Bill in front of us, the duration of a planning permission "shall be five years from the date of grant". I understand there is also scope for an additional five years. We are suggesting that this be reduced to two years, with the possibility of another two years. The rationale for this should be fairly obvious. We are all aware that there are people sitting on planning permissions and abusing the planning process for the purposes of speculation. I will give the Minister an example from my constituency. We were trying to highlight this case at the weekend and we have done so over a period of years. It relates to what I would describe as a strategically important site where there is a lot of potential for development. I will not go into the precise location of the site. We highlighted it a decade ago at least. In fact, it has been sitting undeveloped for nearly two decades at this stage. It has had multiple planning permissions. I am not quite sure who the owner is now but at one point we traced the ownership of it to a company that was based in a tax haven in the Caribbean. When we highlighted the case, and pressed in the council for it to be compulsorily purchased to develop social and affordable housing, lo and behold, the developers cleaned the place up a bit all of a sudden because it was looking so derelict. I think they put in a planning permission then but nothing has happened. It seems pretty clear to us - I am sure many others can cite similar examples - that there is no real intention here, and in fact that site has been flipped on about three occasions. They are getting planning permission. It ratchets up the value and allows them to sit on an asset that is appreciating in value but nothing is actually happening.
This is not an attempt to get at people who are genuinely putting forward legitimate planning or development proposals. However, where people are knowingly hoarding land for the purposes of speculation on the appreciation of land that could be used for housing, measures have to be taken to address that. There are different ways of going at this. I am in favour of coming at it from a number of different points of view. One of the ways to go at it is to limit the time that the planning permission will remain, unless they show serious signs that they are going to do something with it. Obviously, we are aware that things can legitimately get delayed, so that is why we are saying that an extra two years could be added under certain circumstances. A total period of four years is reasonable. If there is no sign of movement after four years, I think it is entirely legitimate to say that this planning permission is no longer valid. That would also allow local authorities to move in, where land is being held on that sort of land-hoarding and speculative basis, to acquire those properties to develop them for social and affordable housing, or things that would benefit the community and society. That is the rationale, and I hope the Minister will take it seriously.
I thank the Deputy. I want to say that his amendment here would affect all planning applications. It would reduce the period set at five years to two. There are certainly issues with extensions of permissions, and the Deputy will see in this grouping that I intend to bring forward amendment No. 729, which is about limitations on the extension of duration of permissions. That would mean that you could only seek an extension of duration once for that period, and it must be in line with the length of the original planning permission. It would allow it to go once more but that would be on the basis of amendment No. 726 - which is a Government amendment as well - where we are clarifying that the development must have commenced. That is very important. Where you have people seeking an extension on permissions where they have not commenced the original permission, we are only going to allow one extension. The example the Deputy has used of, let us say, multiple extensions to it would be no more on the passing of this legislation.
I understand where the Deputy is coming from because there are a number of measures we can take on this but I genuinely believe that to reduce a planning permission period to two years would be far too restrictive, particularly with regard to larger developments. I understand that in the Deputy's amendment he is allowing an option to seek an extension for a further two. We have talked and debated here, and rightly so, about the quality of design and what we need to do with regard to the planning process itself. Even the pre-planning and planning stage can take quite a substantial period of time. The Deputy will have seen that this year and last year, with the very substantial increase in commencements, that some of it is cost-related. That is why I have moved forward with the waiver of the development levies and the Uisce Éireann connection charge. We have seen a surge in commencements, which I absolutely welcome.
This amendment proposes to reduce it to two years, and there is another amendment here to reduce the duration from five to three years, but I cannot accept them. The specified planning period of five years is, I think, appropriate.
However, I agree with the Deputy about looking at the issue of the multiple extensions to existing permissions and bringing in the provision that a permission must have commenced before someone would seek an extension to that permission. I also recognise that we are looking at a longer term strategic planning view where development plans will be for ten years with a review after five years. A planning permission duration of five years is appropriate in that instance. We are bringing forward measures, as the Deputy will be aware, such as the residential zoned land tax and separately, uplift in values and zoning and land value sharing, which is also a significant change we are making. While I understand his motivation, a reduction from five to two years would lead to many more applications and many more requests for extensions to permission, even if it was for two years. My provision, which I do not see this in the Deputy's amendment, only allows one extension to the permission and only on the basis that the original permission has commenced. I will not accept the amendment.
I appreciate the Minister acknowledges there is an issue to be addressed, or at least I hope he does. However, we are in a housing emergency. The situation is absolutely dire and a part of that is rooted in the abuse of planning permissions for speculative purposes. I might cite in that regard, the Irish Government Economic and Evaluation Service, IGEES, report from a few years ago, which identified this as a serious problem. I do not know whether the Minister is aware of it. The report stated that the evidence suggests that planning permissions far exceed commencements. The Minister stated that the position has improved on commencements. I would be interested to know the proportions on that, but certainly the IGEES report identified that the planning permissions granted for residential development were significantly in excess of the number of commencements in any given year. My guess is that has not changed dramatically since that report was done. It may have changed somewhat and it would be useful to see if the Government has up-to-date figures on the balance between planning permissions granted for residential development and the number of commencements. The IGEES report is a strong piece of evidence produced by, I think, the Department of public expenditure and it pointed explicitly to speculation and land hoarding as a serious problem that the authors believe explains the disparity between the number of planning permissions granted and the number of commencements. We are all aware that speculation goes on and we can probably all point to examples.
The Minister stated that two years is too short, but I say that five years is too long and ten years - as five years allows for an extension to ten years-----
That is only if the project has commenced.
Yes, if it has commenced, but the other thing that can be done, as per the example I cited, is that another planning application can be lodged. In the example I gave, the property was flipped. It has had at least three different owners in a period of approximately 20 years and when a bit of heat was put on, including a discussion by the council about using a compulsory purchase order to buy the property, a planning application was lashed in, but nothing happened with it. Then the property was flipped and another planning application was lodged and I bet my bottom dollar that nothing will happen with that and that the owners have no intention of doing the development they say they will. Therefore, we need to put serious pressure on them. I am not for making life more difficult or having downside impacts but at the moment there is too much scope for abuse. Our amendment is trying to get at that. We need to put the squeeze on them to get a move on or to prove that they are serious about developing the site.
I am not sure where it comes in the groupings, but I will flag that we have tabled a connected amendment that talks about use-it-or-lose-it provisions, essentially if it is clearly evident that people are speculating and land hoarding, that there would be a mechanism to transfer such land that may be suitable and is urgently needed for residential development into the hands of the local authority. It is amendment No. 785. I am not sure which section it amends.
It has been ruled out of order.
Okay, it has been ruled out of order. It may be out of order but the point is important.
I will bring in Deputy O'Callaghan who wanted to speak on this. Then, Deputy Bacik's amendments No. 781 to 783, inclusive, are related so we might take them in order and the Minister can respond to all three.
These are important amendments. When the Minister was in opposition, he talked a lot about use-it-or-lose-it measures. It was one of his big catchphrases or slogans. However, we do not see strong use-it-or-lose-it measures in this Bill. We might get a response to that.
If the planning permissions that were granted were all built in a timely manner, our housing situation would be completely different. It would be transformed. It is not all down to land speculation and land hoarding, but it is one element, as was identified by the report Deputy Boyd Barrett mentioned by the Department of Public Expenditure, NDP Delivery and Reform. I can think of a number of strategically located sites in my constituency that I have seen be granted multiple planning permissions and change hands multiple times over 15 or 20 years. The value went up but we were left without much-needed housing 15 or 20 years later. I have seen it happen and it has a societal and economic cost and a cost for people who are trying to access housing. It also has a cost on the planning system in the volume of resources and time taken up and the congestion it causes for planning authorities, including An Bord Pleanála.
It was interesting to hear Deputy Boyd Barrett speak about one of these sites in his constituency and finding out it is registered to an offshore tax haven because, lo and behold, in my constituency there is a strategic site that has had planning permission for many years and it is registered to an owner based in an offshore tax haven. It is one of these patterns, especially for these speculative developments. The local community would love to see the development built and has been asking for that for years. They ask who owns it and all I can say is that planning permissions have been granted but it is registered to some unknown entity on some islands halfway around the world and we do not know what the story is with it and whether the owners intend to ever do anything. We know they have planning permission and increased the notional value of the land and so forth.
To be clear, the current situation is that planning permission is valid for five years and an extension for another five years is available. Previous measures allowed a further extension of five years, but they are gone, are they not? Currently, for any development, the maximum time planning permission can be valid is five years, plus an extension of five years, so ten years in total. Under this Bill - the Minister may correct me if I am wrong - the maximum duration proposed is ten years with a further extension, if the amendment being discussed passes, for another ten years. Rather than going from use-it-or-lose-it measures, we are going from a maximum ceiling of ten years to 20 years under the Minister's proposals. It is the opposite of use-it-or-lose-it measures. It is as though he is telling people not to use it and that they will not lose it as he is giving them an additional ten years in an extension. Will he give the rationale for that? When we are in a situation where we need more housing and we need many of these projects that have planning permission to be built, why is the extra potential ten years of delay and land speculation being facilitated under this Bill?
I thank the Cathaoirleach for the opportunity to speak to my amendments Nos. 781 to 783, inclusive within this grouping. They relate to the same point that we have been describing as use it or lose it, namely, the issue of duration of planning permissions. I raised this issue in my Second Stage speech at the end of November on this Bill. I believe all of us thought that one of the key potential improvements this new planning Bill could introduce would be a tighter regime around durations of planning, really use it or lose it, rather than use it or abuse it, which apparently may instead be the Minister's proposal. We are looking to reduce the normal duration of a planning permission from five years to three years. I have listened closely to the Minister's responses on amendment No. 779 and Deputy Boyd Barrett's points. Five years is too long. If the Minister is saying that two years is too short a time, then three years seems a reasonable period. The purpose would be to incentivise the commencement of active planning permissions to reduce the likelihood of speculation or abuse on sites that have active planning permission. Listening to the other Deputies, such as Deputy O'Callaghan, I am aware of many sites in my own constituency where we see this happening. The Poolbeg site in Dublin Bay South is renowned for having had a contentious and difficult planning history. It is good to see that construction of much-needed housing is well under way on that site at last. The point is that across Dublin city and throughout the country, there is a serious issue with uncommenced planning permissions. As of quarter 4 of 2022, there were 42,000 uncommenced planning permissions for apartments in the Dublin area alone. A year ago, many Dublin-based Deputies had a meeting with the head of housing in Dublin City Council at which he said that were the planning permissions granted for relatively small developments in the Dublin City Council area to be commenced, it would resolve housing waiting lists in Dublin. It is extraordinary to see this level of uncommenced planning permissions. There are multiple reasons for delays. When engaging with stakeholders, we hear about costs of construction and labour shortages. However, land speculation remains a key issue.
Certainly in the Dáil Chamber, I have pointed out concerns around abuse of the planning system but where we continue to perpetuate this system of lengthy periods within which developers can hoard land, then we are feeding into a culture of abuse. We are also unnecessarily clogging an already overburdened planning system. We are making it more difficult for planners to assess accurately and predict what developments can occur in an area. In Poolbeg and in other areas in my constituency, there are real concerns about lack of infrastructure provision where we see big new developments. That is because there has not been an opportunity for planners to engage in sustainable development plans around projected development.
We in the Labour Party believe that planning permission should not be used as a means to increase the value of land for sale. We have other amendments in as well looking at implementing some key aspects of the Kenny report. We believe it is essential for the health of our planning and housing systems generally that speculative planning permissions should be reduced and that land should not simply be left sitting idle where planning has been granted for housing. We hope to encourage developers to begin construction on land more swiftly. That is the impetus behind these three amendments. They are in the same spirit as the other amendments in this group.
I concur with the other Deputies in this regard. As for commencements, what is the precise definition of "commencements"? Hoarding just goes up and a hole is dug in the ground. That is one of the problems we see, where buildings are pulled down and demolished in preparation for that commencement. That needs to be the case. Also, there needs to be a conclusion in order that if planning permission is granted five years, one does not seek an extension and simply dig a hole in the ground. That extension needs to disappear or at least there needs to be some penalty if the building works are not concluded within the extended period. When granted, permissions need to have some proof of ability to get the work off the ground. There is no point in developers applying and clogging up the system if they are not going to proceed with the planning application. Part of that is to have the ability to commence, to have construction firms lined up to commence as quickly as possible, as well as the ability to pay for this. In a number of instances, as others have alleged, planning permission has been obtained only to add value. In my own area, I know of several such cases. Most of them have begun and some have concluded but many were flipped six or seven times. In some cases, the local representative and council officials met the developers in preparation for a preplanning stage, all to no avail because the next person who bought the site tweaked the planning application and put in a new application. Suddenly hours of work are repeated, looking at the plans, meeting the developer and the council officials. That clogs up the system. As Deputy Bacik said, council officials have said that if all of the planning applications currently in place were acted on, we would be in a far better position.
In regard to Deputy O'Callaghan's comments about 15 years, we need to ensure there is no chance of a planning permission for five years being extended beyond that for another five. It is reasonable in some ways to tighten it up to three or four years, I am not against that. There needs to be a reasonable limit so that the public does not suffer a derelict site for 15 years when developers get an extension and leave the hole in the ground, as has happened in many areas for many years. The Iveagh Markets building was supposed to be developed and is now back in the hands of the council. That is the classic example. It was in the developer's hands for more than 20 years. Planning permission was submitted at the start but the developer did not bother his arse doing anything afterwards. That is before the courts. Eventually the council had to step in because the original owner, the Guinness family, demanded action. The Guinness family was going to step in and take it back. That was due to a developer hoarding the site until the time was right to get maximum profit. That is not what our planning system should be for. It is not there to facilitate maximum profit. It should be to facilitate the greater good.
I will respond first to Deputy Boyd Barrett because his amendment was put forward, then to Deputy Bacik and other Deputies. In regard to multiple applications clogging up the system, Deputy Boyd Barrett's amendment does not restrict the duration. For example, if the planning permission was for two years and could be extended by another two years, it does not preclude further extensions. This means the same person could go back every two years, adding to the strain on resources within the council. We look closely at the conversion rates on permissions. In the past 12 to 14 months, we saw a surge in conversions because we have been able to bring in cost measures that have helped, as I mentioned, the waiver of the development levy charge and the Uisce Éireann connection charge as well. We have seen commencements increase year on year. Last month, commencements were up by 85% on the comparable month in the previous year. There are cost implications as well. That is actually working. I am not sure how many members agreed with the provision that I brought in on that but it is actually working. I intend to extend it for the rest of this year too, subject to Government approval. We all want to see permissions on housing. I will talk about that in a moment. We have mainly been referring to housing developments. I want to see them built out. Deputy Bacik is absolutely right, what we are talking about here is a balance regarding the length of time. If planning permission is granted, the scheme needs to be funded, whether through the State or with the State in a public private partnership or through private finance. It is very difficult to get finance on large developments if they are going to be restricted to a two- or three-year permission. That is a genuine issue on which I ask members to reflect. I am not sure whether Deputy Bacik was here when I initially responded to Deputy Boyd Barrett but I am bringing forward specific changes whereby one cannot seek an extension to a planning permission unless it is commenced.
I will deal with Deputy Ó Snodaigh's question in a minute about what the commencement looks like, and one can only seek that once.
Let us say we have a housing development. So from what I understand is being framed here, why would one want a longer duration? If one takes Intel, MetroLink, large strategic infrastructure or large residential developments that would be at scale, there will be appropriate times. These amendments do not just say for housing either and will actually restrict permissions for anything such as a large school, college, campus or greenway. I could go on but I will discuss the bigger projects. It is appropriate for certain planning permissions and it happens right now, Deputy O'Callaghan, where permissions can be granted for ten years or more. So that is not a new departure and it recognises the scale of that development and how long it will take to deliver that out or to get to that substantially complete piece. One does need to have that. All of us want permissions to be converted into developments but I will respectfully say that if one goes to three or even two years, then people will find it really difficult to fund anything. What we really need to look at is how we ensure that activation happens.
We have just come through the Covid-19 period. To compare conversion rates against permissions, we had to give extensions for a period to which all parties agreed, and rightly so. Things do happen, such as economic downturns and things like this. To fund development that all of us want, be that the State funding like we are doing in housing this year, with over €5 billion this year, and other developments such as infrastructure, education or whatever the case may be, one needs to give a permission that allows those developments to be developed. If the timeframe is seen as being far too short and too restrictive, then one will not get funding for it which will be a big problem. Then the Deputy would come back to me, and rightly so, asking why can this housing development not be built out or why has it not started.
There are other measures we are bringing forward around the residential zoned land tax, the land value sharing and the State getting the uplift on the rezoning value, which is also very important. There are also restrictions that I am going to bring in here about how an applicant can seek an extension. An applicant can only seek an extension if the original permission has been commenced and that is very strongly within here. That is there in a Government amendment in this exact section, so that is why I am referring to them.
On the very important question about what looks like a commencement, that has differed from place to place. I intend to detail that in regulations as to what constitutes a commencement. Some local authorities are very strict on this, and rightly so. I have seen what constitutes a commencement. Certainly in most, and Deputy Ó Snodaigh knows this, it is not just erecting hoardings because substantial groundworks, foundations and those types of things are what is needed. We have seen sites change ownership, unquestionably. I am not going to speak about who owns them or whatever. What we have been seeing in the past 14 months in particular is a highly significant surge in commencements and activations of permissions for a number of reasons and not just the waiver. We have spoken in here at committee and debated in the Dáil as well with, I think, most of the members who are present on the issue of activating planning permissions, particularly permissions for apartments that have not been built out in our cities. As the State is getting involved in co-funding or fully funding them for large cost-rental schemes, one is seeing those permissions actually being activated and work commencing, and work being completed on many of them, through things like the Croí Cónaithe cities scheme, the apartment activation fund and the cost rental equity loan model. We are seeing substantial apartment developments now being built for cost rental and, indeed, for sale through the Croí Cónaithe cities scheme because of Government measures. I believe we struck the right balance here. It is not a case of getting your permission and hanging on to it. People will not be able to seek an extension unless the permission has been commenced.
Most of us, if not all of us, want to see MetroLink delivered and I certainly do. If I brought in the amendment tabled by the Labour Party or by People Before Profit, and I understand the motivation behind them, then those developments would be restricted to a two or three-year planning permission. Frankly, that would not work and that is why I cannot accept these amendments.
Deputy Boyd Barrett first, then Deputy Bacik and Deputy O'Callaghan, please.
I thank the Chairman for his indulgence. This will be my last intervention because I must depart.
The Minister can quibble about two, three or even four years but if the thing commences then there is not a problem. We want to see commencements. The Minister has made the valid point that our amendment does not put a limit on the renewals. If I were to table this amendment on Report Stage then I would precisely insist on that. Insofar as the Minister has said he is going to do that so there would be no extension beyond ten years, that is welcome but to my mind, ten years is too long unless there is an extremely good reason. The Minister can legislate for that as well if there are some exceptional circumstances. Covid-19 was referenced by the Minister. All sorts of exceptional things were done during the Covid-19 period, even in the planning area, to acknowledge the exceptional circumstances involved. Ten years is too long, however. As we say, we have got all these sites, as we have, right now in the face of a housing emergency which are being sat on. They are not being activated. We need them activated. Given the severity of the housing crisis we are now facing, we cannot give developers the latitude to sit on them for ten years, in my view, unless there is an extremely good reason. I cannot think of many reasons that would justify that. Furthermore, all of us need to grapple with the question of what we should do about them lodging a planning application and then, after that expires after whatever the time period might be, them just putting in a different planning application even though they have as little intention of developing that as they did the previous one. We have to deal with this matter because it is being abused wholesale. Moreover, the Government itself, in reports it has done, has acknowledged this. It is not the only problem but it is a significant problem and we all know and have evidence that it is. I say ten years is too long and the Minister can say our amendment does not quite capture it.
It is not ten years we are setting it at but five years.
Five years plus.
There is an option or opportunity to go for another five years, should a permission have commenced. Ten years is not the standard. Five years is the standard, as is the current practice.
In our case we are saying two years. I think that sort of standard, with the possibility of an extension, gives the option for the period ending up being ten years.
This matter does not just concern residential development. Perhaps the Minister can answer my query about Cherrywood town centre. He should be aware of it and I have only just become aware of it. I have heard word from officials and local residents about the developer of Cherrywood town centre, around which there is a huge residential development that is all ready and people have moved in and it was premised on there being a town centre with community and retail facilities, etc. I have heard from both officials and locals that the developers have now decided that it is not going to be financially viable for them to build the town centre, which defeats the whole purpose. The idea behind Cherrywood was that it would be sustainable, people could walk everywhere and everything would be in the development. The idea was to have a big residential development, which is effectively a small new city, and that all of the facilities would be there. Now, the developer has signalled that they are not going to build. I suspect that they are trying to put the Government over a barrel to see what other concessions they can wangle out of a Government that has already put in a lot of money, in terms of infrastructure, parks, funding from the local infrastructure housing activation fund, LIHAF, which is not on and we need measures to deal with that as well.
While we might not have all the answers in these amendments, we are signalling that something serious must be done. The severity of the crisis is so bad that speculation must be stamped out. Blackmail, if that is what is happening in certain circumstances-----
Please, Deputy.
Okay. I will tone that down.
Yes, the Deputy might want to do so.
I will say that using the situation to leverage concessions would be equally unacceptable. This aspect must be addressed. In our view, it has not been adequately addressed and we need more robust measures, given the seriousness of the situation.
The Deputy can table a Report Stage amendment to reflect that point. I call Deputy Bacik.
I thank the Chair. I also thank the Minister for his engagement. I have three points in response. First, I welcome the commitment to specify in regulations what will constitute commencement. All of us are aware there are already issues about what constitutes effective commencement. The commitment in this regard, therefore, was very good to hear.
Second, one of the Minister's critiques of our proposed amendments is that we referred to housing specifically but that the amendments would relate to planning for all forms of development. I absolutely stand over that, however, because while I think all of us focus on housing, as that is where the biggest need is, namely, the need to see the delivery of homes, the reality is that having an overly long duration facility for planning also has a knock-on effect where that relates to non-residential sites. What we are seeing, therefore, is vacancy leading to dereliction. There are vacant and empty sites and people sitting on them. This affects communities and impacts them adversely. This occurs whether these sites are earmarked for housing or for other developments. I know the Minister accepts that point. Indeed, all of us here are aware that perhaps the most frustration for local communities arises from vacant and derelict retail sites or community amenities that have been left vacant. Reducing the duration of planning permission and the period someone can sit on land where planning permission has been granted will have a positive impact on vacancy and dereliction, whether the planning permission has been granted for residential use or not.
While I am speaking about this point, I was very disappointed this morning to hear that the publication of the revised housing targets is being delayed until the autumn, according to the Minister of State, Deputy Noonan. When we are looking for more urgency and ambition on the delivery of housing, it was unfortunate to hear that the revised targets we were promised this spring are now being knocked back to autumn. It is not positive.
My third point concerns what is perhaps the Minister's key objection to these amendments, which is on the point of funding. The Minister is saying that if we were to reduce the default planning duration from five years, as it is at present, to three years, as our proposal suggests, this would have a knock-on impact and cause difficulty for developers and anyone wishing to develop, including the State, in respect of securing funding. I must say that is at odds with what I hear from those who are actively looking to build and are telling me it is the delays in the process that put funding in jeopardy more than anything else. I think I am right in saying that for smaller-scale developments certainly, it is the case that funding has been secured in advance of or while the planning permission process is under way. What puts that funding in jeopardy are delays and uncertainty in the process. This is particularly the case where there are long delays due to appeals. As I said, I have spoken before about the issue of the abuse of appeals processes and so on. If the Minister is saying it is going to be more difficult for the State, or some larger developers, to secure funding over the shorter period, surely we can address that issue in other ways. I refer to making a distinction where the permission is for a much larger-scale scheme, for example, where there might be more difficulty in securing funding. I just do not, however, see the problem here. How is it going to jeopardise funding if applicants have three years to secure the funding as opposed to five years? Uncertainty and construction inflation is what causes funding to be at risk and projects to lose out, as is happening at present. Most people I speak to who want to build and are building generally want certainty and a more timely process. I do not, therefore, see the risk here.
I thank Deputy Bacik. I call Deputy O'Callaghan.
We moved into these amendments to facilitate Deputies Bacik and Boyd Barrett but I have a fair bit to get into concerning the other amendments in this group.
I have to go back to those.
Yes, grand. To follow on from the point made by Deputy Bacik, has any analysis been done in terms of durations of permissions in respect of a large-scale housing development, for example, of how long it normally takes to build out after getting planning permission? If we are talking about 500 units or 1,000 units, how much time is required in this regard, if we consider the time needed to get the planning permission, get all the required ducks in a row after that and then get on site? There are workforce mobilisation aspects involved. It is not like all this is possible from day one. The odd developer is able to move a workforce onto a site straightaway if things have been timed well in terms of getting an assembled workforce moved from another site. Usually, however, workforce mobilisation, and everything concerned with it, takes time, with different stages around the process. Has any analysis been done around this context that is informing the times referred to in this Bill?
The Minister was also just talking about bringing in the land value sharing measures and uplift. Initially, we were told that these measures might form part of the Bill. They do not currently do so. Will the Minister be seeking on Report Stage, or later, to bring these measures in?
There will be a separate Bill.
Okay. The Minister might just tell us the timescale and timeframe in that regard because it is related to this Bill.
In terms of commencement, I do wish to talk about this a bit more, although I might leave the discussion until we are dealing with other amendments. In respect of Deputy Bacik's amendments here, the Minister asked about large-scale projects, such as MetroLink, for example. Deputy Bacik's amendments here do not have any impact on those kinds of large-scale proposals because they seek to amend sections 164(1) and 164(2) but not section 164(3).
Yes.
I am sure the Minister will be aware that something like MetroLink would be covered under section 164(3)(b) because a project of that kind would surely be a Chapter 4 application or development. In terms of Deputy Bacik's amendments, therefore, they do not interfere with those sorts of large-scale projects.
Turning to section 164(3)(a), it does not specify. I refer to where it is possible for an applicant to seek a permission for up to ten years or for a planning authority, at its own discretion, to grant a permission for up to ten years. We must remember that an extension of permission for a further ten years can be granted as well, which allows for a full 20 years overall. Whatever type of planning application we are talking about, 20 years is a long period of time. Incidentally, for a project like MetroLink, I refer to a project like that having perhaps more than ten years, including, potentially, another extension. I totally appreciate that large-scale infrastructure takes a few years to be built out, but we do not want to see the likes of MetroLink taking more than ten years after planning permission was secured to be completed. We want to see projects like that built out in a timely fashion.
On 164(3)(a), then, are there any safeguards, regulations, conditions or definitions around this or is it just the wording we have here? Is it entirely discretionary in its application? Could this be applied in very different ways around the country by different planning authorities in different-sized projects or is there anything that informs this section? I refer to having ten years and then perhaps a further extension of ten years as well.
Finally, before we move on, I call Deputy Ó Snodaigh.
I will try to be brief. I thank the Minister for providing clarification concerning what the commencement will look like and the regulations in that regard. Hopefully, we will have this universal approach that does not now exist.
The other part of the question I asked concerned the completion date. We know that to get an extension it is necessary to have started a development. Is there, though, any completion date specified in this context? I ask this because being allowed to commence projects without such a date accounts for some of the problem. We have seen this happen. With the downturn, there was a specific problem in that regard. We had all these buildings that were sitting there half complete. Some of those buildings still have not been completed. There are even buildings constructed since the crash that are still sitting there. In some cases, that is because the county council will not sign off on them or take them in charge. I refer to the process in this regard.
These are buildings that are basically derelict because nobody is living in them. There is no function to them because the offices they were meant to be or whatever were not completed. Obviously, we have the debacle around the children's hospital and the planning in 2016. That shows, even with building, that for some developments you need longer periods of planning permissions. I am not one to say that all planning permissions should be two or three years. I think everybody accepts in large-scale developments that a longer period is needed. I am not arguing about the children's hospital, but just speaking to the fact that this shows if we were to go down the road of completion, there could be a question around the definition of completion. The builder might say buildings are completed but they are not taken in charge. Is there a series of penalties? A developer will have penalties against subcontractors for not completing their bits of work on a site but is the council - or the public basically - to wait forever for some buildings to be completed? Sin é.
To go through this, Deputy Ó Snodaigh's comments at the end helped me to answer the question I wanted to put even when Deputy Boyd Barrett was here. The completion is within the planning permission period. You have to build and operate within a planning permission period. If you start building and you have a five-year permission, the permission is for five years. It is not that you get your permission and you start building four years and 11 months in and then happily go on. If you are operating outside of the five years, you would be developing an unauthorised development then because your planning permission has ceased. This addresses the points that many of the members have been making around the timeframe. This is a real issue if you are trying to fund a project, be that the Housing Agency, a State funder or some other authority. If we want to fund a development and the permission is reduced to two or three years, who is going to fund the development if it is known it cannot be completed within the two- or three-year period? If you are still building post that date, you are going to be unauthorised as your completion date is up to the five-year period. The amendments that are here, while well-meaning, and I understand not necessarily the rationale but the points that members have made, would greatly restrict the ability to be able to finish any type of project within that period of time. Funding is a real issue, although not the only one. I would agree with Deputy Bacik on this. One of the other reasons for this is the delays. The purpose of the legislation we are bringing through is to bring forward those statutory timeframes that are in place to bring the consistency and certainty we need on timeframes and the clarity around who can interact with the planning system. Those are the three main objectives to do within this. Delays are one of the major complaints. As Deputy O'Callaghan mentioned, if we take MetroLink, we do not want to see a permission going on and on. Nobody does but it will not. I will not talk about a specific development because the oral hearing is just being heard.
The Minister mentioned it first.
I will not mention it any more.
I used it as an example of a large infrastructural project that I take it we are all agreed on the need for it to happen. That could take 15 years to build once it is granted. The permission is granted for the period of time that it needs to be built. If we speak to section 164(3)(a) on which the question was asked and which Deputy Bacik's amendment was said not to affect, something like Intel or one of those would have sought permissions directly through the local authority so the amendment would actually affect that. The build period of time is the permission period. That is it. If you get permission for five years, you have to build within five years. If we restrict it to two years, a lot of big projects will simply not be able to be done. I have explained this to Deputy Boyd Barrett regarding his amendment and in fairness he has acknowledged it would be a rolling back in for two years repeatedly. Deputy Bacik's amendment simply reduces it to three years. The standard is five years. Yes, you can go back in for up to another five years should it be needed. The granting of a ten-year permission is nothing new for larger projects. That has been there. If I am building out a large apartment development scheme, of which thankfully we are seeing a lot, that can take five years but it has to be built out within five years. It could take ten years. I understand that there is frustration among all members that when a permission is granted, we want to see it built out. Things can happen. It is not just about activating the workforce, doing the ground works and having all that done within that permission period. It is actually completing the works. These amendments would cause untold difficulties and would strangle development further, so I cannot accept them.
I mentioned the phasing plans as well. Where they exist, they can go beyond that two- or three-year period as well. That was all.
The phasing plans operate within the time period as well.
That is where you could end up with a ten-year permission-----
You could. I did not answer Deputy O'Callaghan's question about who decides the permissions. The planning authority would decide on the basis of the scale of the project if it would require a ten-year permission. The planning authorities responsible and the planning professionals in the local authorities would be the ones to decide. A ten-house development, for argument's sake, is not going to get a ten-year permission. It is around the scale of the proposal and then the appropriate permission for the scale of that proposal. However, that would have be sought. Someone would have to show why a project would take eight years and then permission could be granted for that.
To clarify, Deputy Bacik's amendments do not seek to amend section 164(3)(a) or (b).
Deputy O'Callaghan mentioned subsection (3)(a).
I mentioned subsection (3)(a) and (b). However, on the Minister's arguments about MetroLink and so forth, Deputy Bacik's amendments would not affect an application such as this because she does not seek to amend subsection (3)(a) or (b).
If the Deputy looks at large developments that go straight to the local authorities, subsection (3)(a) would be affected. The three-year permission would be-----
Metrolink would surely be a subsection (3)(b) Chapter 4 development?
If we take another example, such as Intel that went to Kildare County Council, it is covered under subsection (3)(a).
In any event, in such a development, Deputy Bacik's amendments would be covered under subsection (3)(a) but she is not seeking to amend subsection (3)(a). That is the point that was made.
Deputy Bacik can speak for Deputy Bacik-----
Absolutely.
-----and she can make those points. All I was saying, in trying to be helpful-----
I was trying to be helpful to the Minister.
If people could be helpful, we could get through the rest of these amendments.
Lean ar aghaidh.
That is what you get for trying to be helpful. On section 164(3)(a), apart from the wording there, is there anything else that specifies anything around that? I appreciate it is not a new provision. Is there anything else in the legislation or anything outside of the legislation around that at all? For example, in larger housing developments, from what the Minister knows, is that clause used at all currently? Does it happen from time to time? What sort of scale are we talking about? I have not seen it myself.
To answer the Deputy's question, it has been used. I cannot tell him the number of times it has been used. This would be for housing developments in the thousands effectively, where there is phasing. As the Cathaoirleach mentioned in his comments, the phasing has to be included within the permission period.
This would be for the likes of large SDZ or something like that.
Exactly.
It is that type of development I am talking about.
That is the type of thing. It is appropriate to leave it to the planning authority in that area to make that decision. As I said, if you are building out, you have to build out within the permission period.
Finally on this, a large application like that which a planning authority may give a ten-year permission for would obviously have a phasing plan. Within that phasing plan, it would be stipulated that 400 homes would be completed within the first two years and some infrastructure by the third year. Therefore, while it might be for a large application of ten years, effectively there are timelimits within that. It would be broken up. It would be inconceivable in housing to have a ten-year permission and there would not be phasing within that.
I agree.
I cannot see how that would arise.
There would be a phasing plan within them. I will not mention schemes the Deputy would know as well which are large schemes in the areas we represent. They would have phasing plans within them. They would have to have those to deliver X amount by 2025 and X amount by 2027. That would be detailed in the phasing plan but would all have to operate within the overall housing development plan. There have not been many that have had that ten-year type cycle. Our standard is the five years.
To reiterate, and we are looking at amendments somewhat in isolation, I am bringing in changes that will make sure developers will not go for an extension unless they have commenced the original permission. That is very important. Deputy Ó Snodaigh is right on this in that there have been different views or interpretations of what constitutes a commencement. We will deal with that in regulation.
I will very briefly follow on. If a developer has got an extension and, at the end of ten years, has not completed the development, it is an unauthorised development, as the Minister stated. Does that developer have to go back to full planning permission, even though the development is near completion? The reason I ask is that a number of such developments in the area where I live were not completed in the designated period. They got an extension because there were bricks in the ground, or there was a change of ownership in the middle of development, and they went beyond the period. In one case, neighbours objected that the development was unauthorised. In another, neighbours tried to be very helpful. They asked for the development to be finished and said they would not object or complain, but the developer had problems. The development was eventually finished but beyond the timeframe the developer had. Does it fall back on the council to use its discretion if something is a few weeks away? Is there any discretion? Is it the case that once the ten years - I am talking about ten years rather than five years and then another five years - have elapsed works have to stop?
I would rather deal with that matter when we get to section 166, but if the Minister wants to answer that now, he can.
This relates to section 166 on page 303. If a developer has planning permission, be it for ten years or five years, is building on the basis of permission for 1,000 houses for which the phasing and all that has been done, and if by the time that permission expires only 800 have been done, those 800 have been built under planning permission and are fine. However, and this is detailed under sections 166(1) and 166(2)(a) and (b), "Effect of expiration of duration of permission", what is not done is unauthorised. The developer cannot just plough ahead. He or she would have to go for a new application for what is not done. That is the way that will work.
Deputy Bacik is next. I really do want to move on after these amendments because we have covered them-----
I will be very brief. I confirm that amendments Nos. 781, 782 and 783, as Deputy O'Callaghan helpfully, and it was helpful, pointed out, do not seek to amend section 164(3). We seek to change the provision from five years to three years in sections 164(1) and 164(2), but not 164(3). There would still be that flexibility or allowance, where a request could be made for a different duration. That is the first point.
The second point relates to the phasing plans. Again, in the context of the Poolbeg development, we are very familiar with phasing. The issue with phasing always is what happens first and the sequencing of the phasing. I will ask about section 165, which includes a specific provision on phasing where a development consists of at least ten housing units. It comes back to the point about funding. If planning is granted for smaller developments, such as a smaller residential development of less than ten housing units, for example, is the provision for phasing not enabled? Is that right?
I know the Deputy was not here yesterday as she had other things on. We dealt with section 165 in detail yesterday-----
Okay. I will not reiterate. I will go back to the transcript.
For developments under ten units, it is not envisaged that there would be a phasing approach-----
That is what I-----
-----for developments of that size. We dealt with that yesterday.
Amendments Nos. 781, 782 and 783 relate to duration of planning permissions under this Part and do not relate to plannings. To clarify, we are not seeking to amend any provisions relating to duration under other Parts of the legislation.
If I understand the Deputy, the default position would be set to three years for all permissions, under her amendment.
Yes.
Someone who goes back for an extension would not be restricted, but instead of five years it would be three years. The point is that would shorten that timeframe and the timeframe for permission for any application that goes to a local authority. That could involve a large commercial facility or a large housing development, or whatever the case may be. The Deputy's amendment sets the default to three years as opposed to five years right the way through.
Absolutely.
Someone going back in for more time would not be restricted but I take it, if that person went back to request another period, the Deputy would probably want that to be three years.
Yes.
I have already made the points on why I cannot accept that and why I do not think it is a good idea.
I will not reiterate my points either, but we are absolutely conscious that vacancy and dereliction are a scourge, whether they relate to residential planning or retail.
Totally. I completely and utterly agree with the Deputy. That is why it has been one of our focuses. We will not have a political discussion here but we could talk about all our various plans for housing and what we are doing. Unquestionably, vacancy is an area we are very focused on. It is something we want to see continued progress on, but that is for another discussion. I have outlined where there would be real issues. While respecting the motivation that members have in putting these amendments forward, serious problems would be created with those type of changes. I have given my views and the rationale behind them.
We will agree to disagree agreeably.
Deputy O'Callaghan has one supplementary point to make.
I will make that point and then move on to the commencements issue rather than prolong this discussion. In respect of section 164(3)(a), the Minister and I had a good discussion on where that section might be used, and the kind of practice around that, but the issue I raised is that none of that is specified in the Bill. I appreciate it is not a new provision but the Bill would be stronger if it included some level of criteria. It is wide open in that sense.
Sorry, I thought I answered that. That will sit with the planning authority. It is right and proper that the planning authority and the planning department in a local authority will be the ones who will make that decision. The Deputy is right that it is not specified, but it is for those authorities to determine the duration of the permission under section 164(3). Section 164(4) states:
A planning authority or the Commission shall have regard to the nature and extent of the proposed development and any other material considerations, in determining the duration of a permission under subsection (3).
That is the riding orders they are given there.
My point is that in effect there are no criteria under section 164 for-----
I do not think it would not be appropriate to have critieria, to be honest.
The provision "shall have regard to the nature and extent of the proposed development" is very wide.
That is what a plan is for.
How could authorities make a decision and not have regard to the nature and extent of the proposed development? However, we are talking about time limits.
The Deputy is suggesting we include a provision in the Bill for a developer who has 1,000 houses to be given ten years, for example, or similar for a shopping centre of more than X thousand square metres. Is that what he wants to put into the Bill? I do not think it is. With the passing of the Bill, planning departments will very clearly see where they can go further than the five years. The applicant has to actually make that application for a period. Applicants will be the ones going in to say that they want to build a new rail line, for example, and it will take them ten or 12 years or whatever. I genuinely think it is very clear that the best place for those decisions is with the professionals in planning departments in our local authorities and in an coimisiún pleanála. They will be the ones who will make those decisions. The Bill is not the appropriate place to set down the criteria for different developments and what should be in or out.
It does not necessarily need to be made by the applicant because section 164(3)(a) states, "where requested by the applicant under subsection (2) or at its own discretion". It is not that the applicant has to put out before the-----
That could be read together with section 164(2)(b). You could also look at every different scenario.
If someone is coming in for a large project, be that residential, infrastructure or whatever it might be, they will know the timeframe within which it should be built. The completion of the work has to happen within the permission period. If someone thinks it is going to be ten years or four years he or she will be told the standard provision is for five years. If they think the work will take longer than that at application stage, in the main, they will specify that.
So the Minister does not envisage any situation where the planning authority would decide on its own discretion.
It could.
But the Minister is making the case that it would not happen, that it would only be because the applicant-----
No, I am not. It allows for both.
I just pointed that out to the Minister.
What is wrong with that?
The Minister told me a minute ago that it did not allow for both.
No, I did not.
The Minister did. He said it was only the applicant.
Deputy O'Callaghan should go back and check the record. I did not say that. He should go back and check it.
Okay. If I try to check the record-----
I am telling Deputy O'Callaghan what the fact is. I do not want to have an argument about it but I did not say that. We have to allow that flexibility, for example, if an applicant makes an application and says it will take ten years or if a local authority says it will take five years but the planning authority thinks it will take longer. There is no other motive in any of this. It is the normal planning process that pertains right now, except we are bringing in further clarifications on it around how one can seek an extension, which I have already mentioned, and the fact that commencements and other such things have to happen. I do not see any difficulty with it, but that is just me and I respect that people have other views.
I thank the Minister. I want to try to move back because we jumped around the group to facilitate Members. We have dealt with amendment No. 725. I think Deputy O'Callaghan had a question on amendment No. 726, which the Minister spoke to yesterday.
Yes, and Deputy Ó Snodaigh has covered this as well in his comments. What I want to ask about, because the legislation is not clear and the Minister says he will do this by regulation, is what a commencement of works would look like. I have concerns about the ambiguity around that in the legislation. The Minister says he will do it by regulation but as we cannot see the regulations here, which will come down the line, we can only discuss the legislation that is in front of us. Can permission be refused for an extension if substantial works have been completed? That is my first question.
I spent a long time discussing this yesterday. The extension of duration of permission provisions in the Act of 2000 refer to "substantial works" having being carried out before the extension is sought. This language previously caused some uncertainty, particularly in the courts, and by referring to works being commenced brings certainty to it. As I said to Deputy Ó Snodaigh, what we will be doing is bringing forward regulations. I appreciate that Deputy O'Callaghan cannot see the regulations now. It would not be normal to have the regulations running side by side when the Bill is being debated. When I bring the regulations forward, I will be really clear on what constitutes a commencement. That is important.
In the event that a holder of a development does not commence before the end of the duration of a permission, the permission will expire. I have said that already. What Deputy O'Callaghan is asking me is if an application for an extension to a permission could be refused if substantial works take place. From my reading of it, it would have to be quite a good reason for it to be refused if substantial works were carried out.
We also dealt with the scenario before whereby phases 1 to 4 were built out and completed and phase 5 had not been started at all. That would then become unauthorised and an application would need to be made for it. An applicant would need to go back in again for an application for the uncommenced or uncompleted works outside of the permission period. That is the position.
What would be a good reason for refusal in such circumstances?
It would be very unusual, frankly, but potentially it could be for environmental reasons. It could be because something was carried out on the site that should not have been carried out but that would lead to an enforcement notice. I am trying to think myself of what the reason could be for refusal if a development was substantially complete and the works had been carried out on foot of the permission that was granted. If an extension is sought the planning authority will look at it on its merits. It does have the ability to refuse it but I cannot tell the Deputy on what grounds.
What happens to the site if there are substantial works and the planning authority does refuse an extension of permission, which is allowed for under the Bill?
We are talking hypothetically here, as we do not have a specific case to talk about. I discussed section 166 earlier with Deputy Ó Snodaigh. If a person is refused for that part then no further work can take place and another application would have to be made.
So a person would have to come in with a new application to effectively complete the development or for demolition, restoration or whatever.
Yes. We discussed section 166 on page 303. It is very clear in section 166(1) and section 166(2)(a) and (b). It is at the bottom of page 303. I referred to it when Deputy Ó Snodaigh asked me a question a few moments ago.
A developer would have to cease works if they were not compliant. I do not know what happens after that. The developer would obviously have to engage with the planning authority and figure out a way forward, make an application or whatever else.
If they do not, substantial works will have taken place-----
But the permission has been refused. If a developer has completed the first four phases within the time period, and they are fine, that is covered under section 166. If the developer has not commenced or completed another piece then an application must be sought for that. If the planning authority refuses it, the developer cannot do anything with it. The developer cannot work if there is no permission.
Under the provisions, when a developer is looking for an extension of duration, as part of the planning application process is there any examination to see if the works that have been carried out to date have been compliant with the planning permission?
That is on the completion side of it. There would be examination. Again, if phases 1 to 4 have been completed, it would have to be signed off that they have been completed to the granted specification.
Yes, but let us just-----
We are not doing an investigation into it.
To make the question a bit more straightforward, let us imagine there is no phasing. A developer has planning permission and substantial works have been completed. Some of the structures are built. There is no phasing. There is no completion because-----
Does Deputy O'Callaghan want to ask me about a specific case? Does he want to just put it on the table and talk about it?
No. I am not asking about a specific case, I am asking about what happens in these scenarios under the provisions of the legislation. It is not related to any specific case.
Let us say, there is no phasing and works have been carried out. There has been no completion. At the point when the applicant looks for an extension of permission, does the planning authority look at what has been built to date and say it is in line with the granted planning permission so far except for the fact that the applicant is running out of time and the work will not be completed within the timeframe? Is that a factor in the decision-making or does the planning authority not look at what has been built in terms of compliance with the existing planning permission? I ask that to establish whether there is any obligation on the planning authority in the Bill to consider this aspect of an application for an extension of duration.
Does Deputy O'Callaghan mean work that has already been done?
Exactly, yes. Do they look at it or do they disregard it altogether?
First, in regard to that element of it, the work that is built out has to be done according to the planning permission that has been granted, and it has to be looked at. That piece has to be compliant. If other works have not been started or completed, it is a new application and the new application will be assessed by the planning authority taking into account all relevant facts.
The reason I referred Deputy O'Callaghan to section 166 is that even if you have run out of time, what you have built so far, which will have been built in accordance with the permission and be compliant, is not unauthorised. The next piece, which you have not started, will be. This is getting into hypothetical scenarios. Section 135(1)(a) contains the phrase "alter the terms of a permission, provided that any part of the development to which the permission relates that has been carried out is in compliance with the permission." You have to show you are already in compliance.
I thank the Minister. That is helpful. The determination involves an examination by the planning authority of works carried out to date.
It is not an investigation.
No, it is not an investigation.
Section 135 is pretty clear.
The applicant has to be compliant under section 135(1)(a) in order to make the request, so the planning authority may or may not take a look at what has been built so far to see-----
It more than likely would for big developments. The Deputy knows what I mean. It involves a planning permission.
Sorry, that is what I was trying to clarify. It would mean that this aspect of the Bill could not be used as a backdoor route towards retention for unauthorised works.
No. It is not for retention purposes.
It could not be misused for retention purposes.
It could not be misused for such purposes. It is about the extension of permissions.
The wording in section 135(1)(a) would prevent it.
I thank the Minister. That is what I was asking about.
We have spent an hour and 22 minutes discussing this and have given it a good airing, so I just want to tidy up. I intend to withdraw amendment No. 727 because the Minister has covered was is needed in amendment No. 729.
The Minister covered the point that one cannot extend twice.
On behalf of Deputy McAuliffe, I intend to discuss amendments Nos. 734 to 736, inclusive, and 738. Does the Minister have a response on them, for the record?
Sure. Amendments Nos. 725, 734-----
Amendments Nos. 734 to 736, inclusive, and amendment No. 738.
-----and 788. These amendments propose a number of changes to the material alteration provisions in section 137 and the expiration of permission provisions in section 166, which we have just discussed. They collectively aim to provide that a permission may be extended for no more than 24 months in cases where development has commenced and no more than five years in cases where it has not.
Amendment No. 735 proposes to amend the material alteration request provisions to allow a request to be submitted to determine whether there were there were considerations of a commercial, economic or technical nature beyond the control of the applicant that substantially militated against either the commencement of development or the carrying out of substantial works pursuant to the planning permission. The period of permission is generally five years. This relates to a discussion we have had already. It is well established that the measure generally strikes the appropriate balance between the length of the necessary construction period and the length for which a period of permission may be acted upon. There is capacity for longer timeframes.
What is the next one?
Amendments Nos. 736 and 738.
They are all on the same issue. Based on the discussion we have had, I do not propose to accept them.
I accept that. When we come to the amendments, Deputy McAuliffe can decide whether he wishes to press or withdraw them or reintroduce them on Report Stage.
I have a question on amendment No. 735. Are we finished with amendment No. 729? I have a quick question on it.
The Deputy may put the two questions.
Amendment No. 729 would allow for an extension of planning permission of another ten years. Is there any provision whereby the extensions would not be for a full ten years, such that one could have planning permission for ten years and get an extension of just two or three?
It is up to ten years; it is not a default.
I thank the Minister. On amendment No. 735, does the Minister have a view on the way non-material alterations are treated and defined in the section? How does it reflect the advice that the Aarhus Convention compliance committee provided to the Netherlands when seeking to correct its approach to public participation obligations when revisiting permissions and the response to Decision VII/8m of the Meeting of the Parties? Has the Minister any comment on the threshold for triggering public participation obligations?
If they are not material, they will not have an environmental effect. The Dutch system is very different from ours. Section 137(5) states that a deciding authority shall give notice of a decision under subsection (1) in such form and manner, and to such persons, as may be prescribed, and section 137(6) lists what a notice under subsection (5) shall state. They relate to the material alteration of permission, but non-material alterations will not have an environmental impact. If they are material, they are covered.
I will discuss amendments Nos. 784 and 788 on behalf of Deputy McAuliffe, and then we will proceed to amendments No. 789 and 791. I do not know whether amendments Nos. 784 and 788 are connected but they are grouped.
Amendment No. 784 seeks to amend section 164(3) to extend the ability to set a permission period of more than ten years for direct applications to the commission to include development by statutory undertakers under Chapter 3. Did Deputy McAuliffe move this?
He submitted it.
I do not propose to accept it because I do not believe it is appropriate. The reason a permission of more than ten years may be appropriate for direct applications to the commission is that the type of development that is submitted directly to the commission is of a scale or complexity that it may require longer permitted timeframes. I cannot accept amendment No. 784. It does not matter who it comes from; the scale of the development is the point. I do not propose to accept the amendment. I believe the Deputy tabled these amendments on the basis of utilities. Was that it?
Yes.
We discussed that a few weeks ago as well.
The Deputy is on duty in the Chamber, so I was just referring to the amendments on his behalf. When we come to them, he can decide on them.
The House is not sitting now.
Maybe the Deputy is on his way down, but I am moving on anyway.
We have engaged on statutory undertakers. I remember that this was discussed a couple of weeks ago concerning Uisce Éireann and a few other bodies. We have engaged on the role of statutory undertakers but I do not propose to accept the amendment.
Does the Minister have a response on amendment No. 788?
The amendments with which that amendment is grouped collectively aim to provide that a permission may be extended for no more than 24 months. The amendment was tabled by Deputy McAuliffe and I do not propose to accept it. Did the Deputy table amendment No. 791 also?
I was going to move on to amendments Nos. 789 and 791. There are five amendments, in the names of Deputy Ó Snodaigh and others, to amendment No. 791.
I will come in on amendment No. 788. The Minister says he is not accepting it. There is an issue with that amendment in terms of the proposed subsection (4)(a)(v). It limits the focus or scope of an environmental impact assessment or appropriate assessment.
I should have said we are dealing with it under amendment No. 791. That is the Government amendment and it incorporates much of what amendment No. 788 seeks to do. We have not got to amendment No. 791 yet.
It does not have the problematic subsection (4)(a)(v) section which limits the scope of environmental impact assessments or appropriate amendments.
We are not accepting that amendment.
The Government amendment does not reflect that part of Deputy McAuliffe's amendment, does it?
No. We have not got to that yet.
I will get to those two now. The last two are amendments No. 789 and 791. There are five proposed amendments to No. 791 and Deputy Ó Snodaigh may wish to speak on those.
Amendment No. 791 inserts a new section: "Suspension of running of duration of permission due to Part 9 judicial review proceedings". This amendment will suspend or pause a planning permission where it is subject to a judicial review, JR. Under the Planning Act 2000, there is no restriction on the holder of a permission commencing the development while the permission is subject to JR, but the reality, as most people know, is that the holder of a permission does not commence work in such situations given the uncertainty around the development as a result of the JR proceedings. This means that if a permission is for five years and is held up in JR proceedings for two years, then the developer has only three years in which to undertake development.
The period for which the permission is suspended will be from the date of the notification of the commencement of the JR proceedings until the date of the notification that the proceedings are concluded. The amendment also sets out the arrangements for such a pause in permission, including notification arrangements. By providing that a planning permission is to be suspended while subject to JR, that will ensure that if a JR is not upheld, a holder of the permission will have the full term of the permission to build the development. That is crucial. If the JR is upheld, then the permission will no longer be valid and no development will take place.
We have had a number of situations where the clock is still ticking while the JR is in the courts. If the decision is against the JR and upholds the permission, all the time has been lost. That should not pertain. This provision will apply to all planning applications that are subject to a JR. It will give certainty to the holder of a permission and any other interested parties with regard to the status of the development while the JR is under way.
Deputies Ó Broin, Gould and Ó Snodaigh tabled five amendments to my amendment No. 791. I cannot accept these amendments.
Those are only minor amendments to the Minister's amendment.
I cannot accept the amendments proposed by Deputies Ó Broin, Gould and Ó Snodaigh to my amendment No. 791. Amendment No. 1 to amendment No. 791 removes the end date for the suspension of time. It is not workable that a suspension of time would not have a clear end date. That would introduce uncertainty as to when the period ends.
Amendments Nos. 2 and 3 to amendment No. 791 change the period in which a person must notify the planning authority of a JR commencing and the period in which the planning authority must notify interested parties of certain matters from "such a period as may be prescribed" to "within one day". A one-day period is not practical or workable. It is intended that the period to be prescribed would be short but it needs to be such as to allow arrangements to be put in place. I understand why members want it to be short, but one day is unworkable.
Amendment No. 4 to amendment No. 791 provides that, as well as notifying a person interested in the maritime site of JR proceedings, the planning authority should also notify any person who made a submission on the original application. Again, this is not practical or necessary. A person who made a submission will not be impacted by the suspension of time. Their submission is still there. The planning register will be updated to include this information and it is considered that this is appropriate.
Amendment No. 5 to amendment No. 791 is not required as it is already covered by subsection (4), and the regulations under this subsection will provide further clarity and information on it.
The intention was to ensure notification was as quick as possible. It is not at odds with what the Minister presented in the list of who should be notified beyond the Maritime Area Regulatory Authority, MARA. I am not sure why amendment No. 4 to the Minister's amendment would be ruled out. It is logical that those who make submissions would be informed and notified as quickly as possible, particularly in a case relating to their submissions in the past. I will look again at amendment No. 5 to amendment No. 791.
A JR is taken on foot of the permission being granted by the planning authority. The person who makes a submission to the original application is not party to the JR. The suspension of time is not relevant to them and does not affect what they have put forward. The decision on the JR will be made one way or the other. Either the permission is upheld or the JR is upheld and the permission is overturned. I do not see how someone who made a submission to the first application is in any way affected. We have covered the maritime area.
This is a new section that has gone in. It caused a lot of difficulty. People and organisations have a right to take a JR and we have not diminished that in any way. However, if you are an applicant, it could be a JR on the extension of your house. People think of big developments and faceless developers. I will not mention any but the Deputy knows JRs currently holding up works that many people would want. Someone still has the right to take the JR but this has a real impact. When JRs are in court and planning permission has been granted, time is running out on the permission. In many instances where the JR is rejected and the permission is effectively upheld, there is no time to build it out. It speaks to the discussion we had just before this about duration. It is worthless and you are back to the drawing board. You probably have to make a new application or seek an extension.
That could be objected to as well, which is people’s right. It has a real impact. People are not just bringing these forward in respect of big faceless conglomerates on the Cayman Islands or something; they affect real people and real developments. It is only fair and proper to respect the right of someone or a group to take a JR and for the clock to stop while it is in JR proceedings. It is clear when it stops and when it starts again. That is the rationale behind this.
Amendments Nos. 2 and 3 to amendment No. 791 are related. We are prescribing that it be within one day. If it needs to be two days, then prescribe it as two days rather than leaving it open because it could be prescribed as a longer period. It needs to be as short as possible.
I absolutely agree with the Deputy. I just think one day is very short, so we need to re-envisage it to be a short period. I certainly take on board the motivation behind this.
We did not prescribe periods. It does not state “no more than three days” or “no more than five days”, for example.
We will prescribe the period so it will be clear and so it is not just left open for a short period. There will be a prescribed period. Specifically in respect of the amendments the Deputy tabled - I understanding the motivation behind them - a period of one day is seen to be very short. We will be talking in terms of days, and we will be prescribe the period. We will not be a million miles from the Deputy on that at all. It is just that one day is seen as very difficult from a practical perspective.
In the context of the amendments from the Minister, we can see where he is coming from. In respect of anyone who has applied for or obtained planning permission and who is affected by a JR and the delays relating thereto, there can be a major impact in the context of their trying to deliver the project. Regarding time delays relating to the JR, I can understand wanting to have the clock stopped on planning permissions. My only concerns around this are long-duration planning permissions and the impact there could be of stopping the clock and then adding in the time. Let us say there is a project where there has been an environmental assessment, habitats and species have been looked at, and there has been survey data. All that work is important. If this is a larger project with longer duration permission and the stopping of the clock of the JR is added to that, which could be a few more years, it could mean a scenario where by the time something is actually built, the data and the surveys that the granted permission were based on could be out of date. This can have real effects. When it comes to habitats, species and our environment, things do not always stand still. An environmental survey or data might say there is a protected species at a particular location in a particular habitat. If it is getting built out eight or ten years later, things on the ground in that habitat may have changed significantly. There could be growth in populations, or the opposite, and there could be shifts in where that particular species is living. All these things are important. There is no point having a planning permission based on environmental data that are out of date. Because these can go on for years while you are protecting a particular area, habitat or species, and because things have changed slightly, you may be protecting the wrong area or whatever it is. I have a concern around these longer permissions and how much this could add to it, how out of date developments could be and how out of date the data on which a development is based could be. I understand and appreciate what the Minister seeks to do. Is there any criteria, regulation or counter-balancing around that so we do not end up with situations of things being developed out in a well-intentioned way based on out-of-date data? It could create an expense for the developer but may not actually have the outcome sought or achieved in the permission granted.
There is no distinction between a standard permission of five or be that ten. We checked these points. We looked at it, particularly in the context of environmental assessments and so on, with the OPC and the Attorneys General, and this provision is absolutely sound. With the passing of this Bill, changes will be made. We are seeing fewer JRs now anyway, which is good. That is down to the abolition of the SHDs, frankly. We brought back planning to a two-stage process and back to our local authorities, where it should be in the main. The environmental court section will be established as well, where expert judges will look at specific cases taken, particularly on environmental grounds. For the record, I again say that I respect the right of groups and individuals to pursue JRs. We expect we will have a process and there will be much shorter JRs anyway. I do not envisage a situation in the future where something will be held up for years and the data submitted by way of the application and permission is irrelevant or different.
I would see this in a very small number of cases. I understand the point the Deputy made, namely that if something is held up for four or five years, a survey may no longer be valid. I am not making any changes to this insertion, but I will reflect on it. We do not know how long something will be in the courts. If something goes to the courts, we would like it to be shorter anyway to give clarity to everyone – those taking it to the courts and the developer or person who holds the permission. The whole purpose of the legislation is to streamline it.
Regarding the effective stopping of the clock, it is a fair provision. It gives certainty. Deputy Bacik spoke to issues around planning, funding and those type of things. We discussed big issues such as this. You just do not know how long something will be in the courts but then also it eats into the time the permission is valid for, which is a big problem. It challenges the viability of much-needed projects. That is the intent of the amendment I tabled.
I take the point but we have checked this with OPC and the Office of the Attorney General, particularly in respect of its compliance from an environmental perspective. The strong advice is that it absolutely is compliant. There is no issue with that. What Deputy O’Callaghan mentioned relates to the practicalities on the ground.
That is it exactly; I am talking about the practicalities of this. I can see how the stopping of the clock is fair to the applicant. Then comes the fact that for nature, species or habitat, there is no stopping the clock just because there is a JR going on or this is being discussed in the courts. Nothing in the natural habitat is aware of the JR going on, and whatever changes are taking place continue to evolve and change. It is a bit pointless if there are environmental provisions that require something to be built out in a certain and particular way to protect our biodiversity, nature, the environment or a habitat, and things actually changed or evolved on the ground because of the duration of time that has evolved. The end result of all of it might not be the optimum protection for our environment, biodiversity or a habitat. That is the issue here. It is not a contradiction but a conflict between legal processes, so be it, and what is happening on the ground. We just have to keep sight of the intention here. Our intention is to protect our habitats, environment, species and biodiversity; it is not simply to be compliant but of course we need to be compliant as well.
I ask the Deputy to think about it this way. If one applies, one might get a ten-year permission. The environmental assessments, etc., that are done are generally for a long period of time, such as the ten-year period in that instance, so we are not looking to add on to the end. We are stopping the clock. It might be a difference between ten years and 11 years. If one is granted permission and one is not judicially reviewed, one is operating on a permission that is being carried out based on surveys that have been done prior to the application. It could be, even in those instances, an eight- or nine-year period, or a four or five-year period generally, which would be the norm because the basic permission is for five years. I understand the point the Deputy is making and I will reflect on it. It would not be one that I would see happening regularly anyway. As for how long it would add, it does not add; it suspends. As for the time period itself, if one is six months in judicial review, it is paused for six months. If one is 12 months in it, it is paused for 12 months. I am not sure how much data will change in that period of time.
The issue is that if one is years in judicial review and if there are cases taken off to Europe or whatever and it holds stuff up, how out of date is the data that something has been based on and what damage is caused as a result? I will leave it there.
I thank Deputy O'Callaghan. Deputy Ó Snodaigh is looking for clarification on something.
As I read amendment No. 1 to amendment No. 791 again, I understand what the Minister said about the concluding part. I refer to the wording here, which refers to "notification of the proceedings" rather than "commencement of the proceedings". If one takes it that there is an error regarding the date of conclusion, we can correct that afterwards. Is there a difference between the commencement of proceedings and the notification of proceedings? The notification of proceedings could take place weeks, if not months, in advance of the commencement. I presume the commencement would happen in court. The intention was to ensure that the suspension starts from what looks like an earlier time than the specific commencement.
The difference is that the Deputy is referring to "the notification" whereas I am referring to "the commencement of the proceedings".
The Minister is referring to "the commencement".
We are referring to "the commencement of the proceedings".
I am referring to "the notification".
The Deputy is referring to "the notification".
I do not know whether there is a difference. Does the commencement happen once the notification is issued?
The notification comes after the commencement. That is the reason for that.
Okay.
I thank everyone. That was a lengthy discussion. How stands amendment No. 725?
I have withdrawn it.
Amendment agreed to.
Amendment No. 727 not moved.
Amendments Nos. 728 and 731 are related and will be discussed together by agreement.
I move amendment No. 728:
In page 267, to delete lines 10 to 12 and substitute the following:
"(8) Where the deciding authority is the Commission, it shall notify the following of the receipt of a request under subsection (1):
(a) where the permission relates primarily to land, the planning authority in whose functional area the development the subject of the permission is situated or proposed to be situated;
(b) where the permission relates primarily to a maritime site, the Maritime Area Regulatory Authority.".
These are technical amendments. Amendment No. 728 clarifies that where a request for alteration or extension of permission relates to a development primarily on land, the commission should notify the planning authority in whose area the development is situated. Where the request relates primarily to a maritime site, it should notify MARA of the request. Likewise, amendment No. 731 clarifies that in relation to non-material alteration of permission and where the deciding authority is the commission, it shall notify the planning authority of the alteration or extension of the permission where the development is primarily on land and, for the same reason, notify MARA where the development is primarily a maritime site. It does not change the intent.
Is this merely to correct an oversight in the original draft?
Yes. It is to make sure the notification happens to the relevant authorities.
It was merely an oversight in the original draft that MARA was not included.
Amendment agreed to.
Question proposed: "That section 135, as amended, stand part of the Bill."
Can I ask-----
Have we not had considerable discussion on section 135? If the Deputy could be as succinct as possible, that would really help matters.
I will be. My question relates to section 135 but also involves section 138, which sets out the "Procedural powers of planning authority in relation to material alteration request" and section 139, which similarly sets out the "Procedural powers of Commission in relation to material alteration request".
We have not got to these sections yet.
My question is about section 135. I am referencing those sections to ask about section 135, if the Minister will bear with me and let me ask my question.
Sorry.
It is about the commission. Those sections allow the commission or the planning authority to seek further information in relation to a material alteration request. Does section 135, which is about extensions of permissions, allow a planning authority to seek further information?
Section 135 is about an alteration or extension to a permission.
If it is material, they can request further information.
A material alteration that is talked about in sections 138 and 139 includes an extension of permission, as is covered in section 135.
It does. One has got to look at section 137 - "Material alteration of permission" - as well.
Yes. So an extension or permission is a material-----
-----alteration. Therefore, the planning authority or the commission can seek further information.
Yes, further information.
If it has not been provided in their application for an extension, could they seek more information about why the planning permission was not built out in time, if they want to get more information about that?
It is there, if the Deputy looks under section 138(2), which allows a planning authority to seek "further information ... where, in the opinion of the planning authority, that information is necessary to enable it to make the decision," and to seek "revised particulars, plans or drawings in relation to the development or proposed development, where the planning authority is considering making an alteration or granting the extension subject to the person submitting such revised particulars".
So it is there.
Question put and agreed to.
NEW SECTION
I move amendment No. 729:
In page 267, between lines 13 and 14, to insert the following:
"Limitations on extension of duration of permission
136. (1) The duration of a permission shall not be extended under this Chapter (whether the extension is a material alteration or not) more than once.
(2) Where the duration of a permission is extended under this Chapter, the period of the extension shall be less than or equal to the duration of the permission being extended.".
Amendment agreed to.
SECTION 136
I move amendment No. 730:
In page 267, line 15, to delete "and Part 5".
Amendment agreed to.
I move amendment No. 731:
In page 267, to delete lines 21 to 23 and substitute the following:
"(3) Where the deciding authority is the Commission, it shall notify the following of the alteration or extension:
(a) where the permission relates primarily to land, the planning authority in whose functional area the development the subject of the permission altered or extended is situated or proposed to be situated;
(b) where the permission relates primarily to a maritime site, the Maritime Area Regulatory Authority.".
Amendment agreed to.
I move amendment No. 732:
In page 267, between lines 23 and 24, to insert the following:
"(4) Where the deciding authority proposes to grant such a permission, and before that decision comes into effect, the decision will be published in a public notice and any person may make an observation in writing to the authority on their decision, which shall be considered prior to a final decision being made.".
Amendment put:
The Committee divided: Tá, 3; Níl, 5.
Tá
- Mitchell, Denise.
- O'Callaghan, Cian.
- Ó Snodaigh, Aengus.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Matthews, Steven.
- McAuliffe, Paul.
- Noonan, Malcolm.
Amendment declared lost.
Question proposed: "That section 136, as amended, stand part of the Bill."
Did Deputy O'Callaghan want to ask a very brief question on section 136?
I ask members to remain, if possible, or to be very close by because there will be more voting. We will invite the officials back in. I will let Deputy O'Callaghan ask for clarification on section 136. I welcome the Minister of State, Deputy Noonan.
Is it a question on the section?
It is a brief question on section 136.
I am happy to take it if the Deputy wants me to, as long as it is a reasonable question.
All of my questions are reasonable.
I ask for reasonable questions and reasonable answers.
A non-material extension of duration shall be granted under section 136. Why? What is the rationale for that? What kind of permissions would not be material, thereby causing an extension to the duration of the permission to be automatically granted?
First, it is extremely rare. It is whatever is not covered by the provisions relating to a material alteration of a permission, which is covered in section 137. We discussed this a little yesterday or the day before. It could be a colour scheme or something similar that is not material to the development itself. It is that type of thing. It is very rare.
I am asking about the extension of duration aspect. If you get a five-year permission for a development or a scheme and then need to make a slight non-material change, you are automatically granted permission. I can see the logic or rationale behind that but this about extending the time. If you are changing a colour scheme, why do you need another three or five years?
In this instance, a colour scheme might be a bad example. In the context of an extension, if the Deputy looks at page 264, he will see that a material alteration is one "that requires an appropriate assessment", "that requires an environmental impact assessment" or that falls under parts (c) or (d) of the definition, particularly part (d), which reads:
(d) subject to subsection (2), that the deciding authority determines under subsection (4) of section 135 constitutes an alteration of the terms or extension of the duration of the permission that is otherwise material;
I am trying to think of a real-life example. We were talking about this earlier on. It would be very rare. It would have to be exceptionally minor. In those instances, the works would effectively be complete. Any of the material works would be complete. I do not know. I am not going to give an example. I am trying to think of one that would apply. It would be very minor and very rare. It only has to do with exceptional circumstances.
That is a determination that would be made by the planning authority.
In terms of the extension of time on it, if it is so exceptional then why is it an automatic grant of the extension to the time?
One, because it is non-material and, two, because it could be an instance whereby - as we discussed earlier - the development is completed but there may be some additional small works to be done. If one is effectively working on a site where the permission period has expired any works post that date are unauthorised if the permission period has expired. This provides the option to the local authority in a regularised way to grant an extension for non-material works by which I mean something that is not material to the actual permission or the development itself. It allows it to be done in a regularised way, but it would be extremely rare.
While I can absolutely see circumstances where this would be needed and justified my question is that there is no actual option for the local authority or planning authority on this because the section just states that it will be granted.
Because it is not material to-----
The extension of the permission.
The extension of the permission is granted on the-----
If someone looks for a five-year extension to do non-material works that are minor does this mean they have to be given the five years even though these are minor works that should have been completed within the five years? Such works may reasonably require another six months or another year. If they have looked for their five year extension, as the Minister said, must they be given five years to actually finish off or is it up to the development?
We discussed that the extension period is up to that period. So you know-----
But this section states that it has to be granted. If the applicant seeks five years for something minor and non-material to finish off the development, does this mean the planning authority has to give the developer the five years to finish off the development? Could this not cause problems?
I understand the point and I understand why Deputy O'Callaghan is asking the question but I do not see that being the instance at all. If it was something that would take five years to do, it would all be material to the development itself. This extension of permission will be for very minor works. Any extension periods we talked about are up to that period.
The problem with this wording is that it does not give the planning authority the discretion or the option to tell the developer, when they are looking for a five year extension for non-material works to finish and complete the development, that the planning authority believes it is unreasonable the developer would need five years to do that, and that the planning authority could say to the developer, "You should finish and complete your development with these non-material additional works within a year". Does this wording prohibit the planning authority from doing that? Must it grant the planning application extension for the five years being sought? The planning authority does not appear to have that level of discretion.
If it is not material it has to grant it but what I am saying to the Deputy is that his question to me is-----
They would have the five years.
The authority does not have to give the five years. That is what I was trying to say.
Okay.
It will give a period of time up to that. Five years is the maximum.
Okay. So it must grant it.
They do not get a default, "Here is five years to finish the painting".
Even though that is what they looked for.
They could get whatever.
They could get six months if the planning authority saw fit, but they must get it. They must get the extension but it is up to the planning authority to decide how long.
Okay, that is what the wording is. That is what I was asking about. It does, however, state "as requested".
That is as requested by the person.
Yes, but it is "as requested".
The time period is up to the planning authority to decide. Deputy Ó Snodaigh, for example, could come to me and say-----
I could say that I wanted five years.
But I could then say, "Sorry you are getting two months".
But it does state the authority shall alter it, as requested.
Yes, the section states: "the deciding authority shall alter the permission, or extend the duration of the permission, as requested." Surely that means if I request five years I get my five years even though the planning authority might believe one year is enough.
The period is discretionary.
Where is it stated that it is discretionary?
It does not state the duration requested; it states the request for a duration.
It states, "extend the duration of the permission, as requested."
I would say it is to extend the duration of the requested permission.
If the Deputy came to the planner and said he wanted two years to paint the apartment block or to paint a bike shed within the development - we will use this as an example of a non-material alteration - he would be given the permission in relation to the extension of duration for non-material completion or non-material works. The planning authority will decide on the duration. One does not get a default five years.
Perhaps it should also state, "shall alter the permission requested, and determine the timeframe".
Yes, for clarity. That sort of comma can make all the difference.
Section 135 interacts with section 136 as well. Section 135(3) provides that: "A request under subsection (1) shall specify (a) the particulars of the alteration requested, (b) the period of the extension requested, or (c) both those particulars and that period". The duration period is a matter to be decided by the planning authority. Section 135 deals with overall "Request for alteration or extension of permission". Section 136 refers back to section 135(1) and (2). Section 135(3) also refers back to subsection (1). Reading section 135 the three requests are there that flow all the way back to section 135(1).
On reading that, section 135 states that "a person may request the deciding authority to ... extend the duration of a permission.", and then section 136(1) states that where an alteration or extension requested is not a material alteration "the deciding authority shall alter the permission, or extend the duration of the permission, as requested." There is nothing in section 135(1)(b)-----
Subsection (1) details what the request is. The request is the particulars of the alteration required, the period of the extension requested and all of those things. That assessment is done by the planning authority. I get the point the Deputy is making. If someone goes in with a request for an extension of duration based on non-material works that are required, do they get a default five year extension? No, they do not. Do they get just exactly what they look for? That is an assessment the planning authority would make.
Where is it clear that the planning authority has that flexibility and discretion on this with regard to non-material works?
Section 136(1) refers to "where an alteration or extension requested under subsection (1) of section 135 "." So this goes back to section 135, which is the main section within it. The request under section 135(1), referred to in section 136, is assessed under section 135(3). Section 136 goes back to section 135(1) and then we can see what flows out of section 135(1) with regard to what a request would entail, which is laid out in section 135(3):
A request under subsection (1) shall specify —
(a) the particulars of the alteration requested,
(b) the period of the extension requested, or
(c) both those particulars and that period,
and shall be accompanied by —
(i) sufficient information to allow the deciding authority to assess the request, and
(ii) where the deciding authority —
(I) is a planning authority ...
Where in any of that does it give the planning authority the discretion not to grant the requested extension of permission?
It is not to not grant it. It is stating that for non-material works it is defaulting to grant an extension to non-material works. In response to the point the Deputy is putting, if he came to Fingal County Council and asked for an extension of permission on a non-material basis and said that he wanted two years, the planning authority would assess that. The planning authority does not just say, "There is your two years". This is what I am saying. Section 135 guides section 136.
Amendment No. 729 to section 136(2) provides that, "Where the duration of a permission is extended under this Chapter, the period of the extension shall be less than or equal to the duration of the permission being extended.”."
That gives the discretion to the local authorities. That is also the case with amendment No. 729, which further clarifies it. I believe we have agreed amendment No. 729.
Yes.
It states very clearly, "Where the duration of a permission is extended under this Chapter, the period of the extension shall be less than or equal to the duration of the permission being extended." It is not material.
Question put:
The Committee divided: Tá, 5; Níl, 3.
Tá
- Duffy, Francis Noel.
- Flaherty, Joe.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Brien, Darragh.
Níl
- Mitchell, Denise.
- O'Callaghan, Cian.
- Ó Snodaigh, Aengus.
Question declared carried.
SECTION 137
I welcome the Minister of State Deputy Noonan.
I move amendment No. 733:
In page 267, line 25, to delete ", Part 5,".
Amendment agreed to.
I move amendment No. 734:
In page 268, between lines 14 and 15 to insert the following:
"(4) In making a decision under subsection (1) in relation to a material alteration request to extend a permission that has been commenced (within the meaning of section 166(4)(a)) or is, or has been, the subject of judicial review proceedings (within the meaning of section 166(4)(b)), the deciding authority shall, in addition to the matters set out in section 83, have regard to—
(a) any social or economic benefit that would likely accrue to the State or a part of the State by virtue of the granting of the extension requested,
(b) the development plan and any local area plan, urban area plan, priority area plan, or coordinated area plan, that apply or applied to the proposed development when such permission was granted,
(c) any relevant contractual and financial commitments entered into and that have been brought to the attention of the deciding authority by the person who made the material alteration request in relation to the development concerned,
(d) where applicable, the policies and objectives of the Government, any State authority, the Minister, the planning authority concerned or a public body whose policies have, or have had, a bearing on the proper planning and sustainable development of cities, towns or other areas (whether urban or rural), that apply or applied to the proposed development when such permission was granted.".
Amendment, by leave, withdrawn.
I move amendment No. 735:
In page 268, between lines 24 and 25, to insert the following:
"(5) On application to it in that behalf a planning authority shall, as regards a particular permission, extend the appropriate period by such additional period not exceeding 5 years as the authority considers requisite to enable the development to which the permission relates to be completed provided that the authority is satisfied that there were considerations of a commercial, economic or technical nature beyond the control of the applicant which substantially militated against either the commencement of development or the carrying out of substantial works pursuant to the planning permission.".
Amendment, by leave, withdrawn.
I move amendment No. 736:
In page 268, to delete lines 30 to 34 and substitute the following:
"(c) where the deciding authority decides to—
(i) grant an extension in accordance with subsection (4), state the main reasons and considerations for the decision having regard to the development plan that applies or applied to the land on which the development is proposed to be situated when such permission was granted, or
(ii) make an alteration or grant an extension in accordance with section 142, state the main reasons and considerations for the decision in material contravention of the development plan or National Marine Planning Framework, as the case may be,".
Amendment, by leave, withdrawn.
Amendment No. 737 not moved.
I move amendment No. 738:
In page 271, between lines 14 and 15, to insert the following:
"(13) Save to the extent provided for in section 166(6), this section shall not apply to a request for an extension to a permission made in accordance with section 166.".
Amendment, by leave, withdrawn.
Question proposed: "That section 137, as amended, stand part of the Bill".
I have a question on section 137(4)(b). It is about contractual commitments. Should a developer be entering contractual commitments that do not comply with the existing planning permission? Does this section not create an incentive for a developer or applicant to enter into contracts that do not comply with planning permission obtained? It would increase the chance of obtaining a material alteration request.
It is only for maritime development.
Yes, I am aware of that.
I understand the contractual commitments entered into by the person are under the maritime area consent and it is so long as the material alteration request is not at odds with this. The MAC is separate from the material alteration request.
Where does it say in the section 137(4)(b) that the contractual commitments are under the MAC?
It has to do with maritime development.
I know it has to do with maritime development and section 137(4) has only to do with maritime development.
Is Deputy O'Callaghan asking why the MAC is not specifically referenced in the section?
It does not refer to contractual commitments in relation to the MAC. It just refers to contractual commitments entered into by the person who made the material alteration.
It is implicit because it is maritime development. It is implicit that the MAC is the contractual commitment.
There could be other contractual commitments. People could make contractual commitments with their investors that are not to do with the MAC. Someone could say to investors they have this maritime area consent and planning permission, that they will go in for a material alteration, that they need a particular level of investment for it and that the investors would get a particular level of return. There could be contractual commitment on this. The person could then get the material alteration based on this contract made with another investor, with nothing necessarily specified on the MAC. If someone has a contractual engagement with an investor could this not potentially tie the hands of the deciding authority?
It does not specify that it is a contractual commitment specifically on a MAC. It could be any contractual commitment, surely, with investors, promises made to investors and possibly unreasonable promises made to investors. Does this not open all of this up?
The critical point in section 137(4) is in the opening paragraph, which states "In making a decision under subsection (1) in relation to a material alteration request to alter or extend a permission for maritime development, the deciding authority shall, in addition to the matters set out in section 83" have regard to subsections (a), (b) and (c).
Their hands are not completely tied by contractual commitments but they must have regard to contractual commitments. It is an unusual provision in planning law. There is nothing comparable to this in land-based development. As the Minister of State has confirmed, it is maritime only.
It is because it is maritime.
But if this were a good way to do planning why is it restricted to maritime? Why is it not being done on land?
It all has to do with the MAC.
It does not say that, it just refers to contractual commitments. This is much broader than the MAC. It is implicit that it is maritime development and that the contractual commitments are related to the MAC.
How is it implicit? Obviously they would have some relationship because the person is making the material alteration-----
Because it only applies to maritime development. Maritime area consent has to be in place. It only applies to this.
But it does not say that. The wording does not say that it only applies to it.
Only where it applies to maritime development.
They must have a maritime area consent, MAC, before getting planning permission for a maritime site.
The rationale of this is contractual commitments relating to the MAC. Why is it necessary even to have this wording? Why does the provision not just refer to the contractual arrangements relating to the MAC? Why is that not specified. Would that not be much cleaner and tidier?
The contractual commitments are the commitments under the MAC.
Why does it not say that? If that is what is meant, why not say it in the legislation?
I take on board the point the Deputy is making. We could look at the wording if that would help clear that up.
That would be great.
Is that okay?
Question put:
The Committee divided: Tá, 5; Níl, 3.
Tá
- Duffy, Francis Noel.
- Flaherty, Joe.
- Matthews, Steven.
- McAuliffe, Paul.
- Noonan, Malcolm.
Níl
- Mitchell, Denise.
- O'Callaghan, Cian.
- Ó Snodaigh, Aengus.
Question declared .
SECTION 138
I move amendment No. 739:
In page 271, line 22, to delete "ask" and substitute "request".
Amendment agreed to.
I move amendment No. 740:
In page 272, line 14, to delete "asked" and substitute "requested".
Amendment agreed to.
Question proposed: "That section 138, as amended, stand part of the Bill."
Deputy O'Callaghan has a question on section 138.
On subsection (3)(b)(i), which relates to additional material being available for inspection, given the day and age we are in, should the additional information available for inspection not be available online in order that most people can access it?
That is down to wording that is used in lots of different places. It would be online where appropriate.
Should the legislation, given we are in 2024, not reflect that it should be available to people online? If it is available for inspection and not available online, for many people that just cuts out access.
Not everything can be online, such as finishings, as the Deputy can appreciate, so that is the reason. It is standard wording. Is that okay?
Question put and agreed to.
SECTION 139
I move amendment No. 741:
In page 272, line 25, to delete “ask” and substitute “request”.
Amendment agreed to.
I move amendment No. 742:
In page 272, line 28, to delete “ask” and substitute “request”.
Amendment agreed to.
I move amendment No. 743:
In page 272, line 33, to delete “ask” and substitute “request”.
Amendment agreed to.
I move amendment No. 744:
In page 272, line 33, to delete “it may specify” and substitute “may be prescribed”.
Amendment agreed to.
I move amendment No. 745:
In page 272, line 39, after “licence” where it firstly occurs to insert “, an industrial emissions licence, an abstraction licence”.
Amendment agreed to.
I move amendment No. 746:
In page 272, line 39, to delete “ask” and substitute “request”.
Amendment agreed to.
Question proposed: "That section 139, as amended, stand part of the Bill."
Deputy O'Callaghan would like a clarification on section 139.
Subsection 139(8) states:
Where a person who made the material alteration request fails to comply with a requirement referred to in paragraph (b) of subsection (5) within such period as may be prescribed, the Commission may—
(a) extend that period, where it considers it appropriate to do so, or
(b) treat the material alteration request as having been withdrawn.
Why is subsection (8)(a) there? What is the rationale for it? Does it not encourage non-compliance with subsection (5)(b)? Why have the time limits in subsection (5)(b) if there is then the potential get-out clause here?
It is to give flexibility where the developer is engaging with the planning authority.
It is just that elsewhere in the Bill there is not that level of flexibility and timelines are much harder. It is almost an ongoing theme of the Bill to try to tighten up timelines, so why in this instance is it felt that this makes sense?
We do allow flexibility in terms of timelines and it is reflective of that, that there should be flexibility with the commission where the applicant is engaging positively in the process.
Yes, but in other areas where deadlines are not met by applicants, there are not get-out routes like this.
The thrust behind this is that it is an already permitted development and, again, it is just to give flexibility. There are other elements of flexibility in the Bill, but this is in cases where there is positive engagement around a material alteration request. It could be just material finishes on a building. It is to give that flexibility to allow applicants to try to meet the requirements of-----
Yes, but does it not then create a situation where they are more likely not to comply with the subsection-----
No, it does not.
-----because they know there is this get-out clause?
No. They will still be absolutely required to comply, but-----
But if they do not, they may be okay because of this. That is why it just seems a bit unusual in terms of the overall Bill because-----
The critical wording here is "extend that period, where it considers it appropriate to do so". It may not be appropriate in all cases. It is on a case-by-case basis, where there is positive engagement and a means by which the failure to comply is where there is genuine effort to try to address the issues that-----
So the planning authority, in deciding whether it is appropriate to do so or not, would decide that there is a level of engagement and would consider it appropriate. If there is no level of engagement-----
Exactly.
-----you would not expect a planning authority to exercise this.
Paragraph (b) would kick in then, I presume.
Yes. That is exactly it.
Question put and agreed to.
SECTION 140
I move amendment No. 747:
In page 274, line 29, after “period” to insert “, or such longer period as may be consented to under subsection (2)”.
Amendment agreed to.
I move amendment No. 748:
In page 276, line 28, to delete “section,” and substitute “section”.
Amendment agreed to.
Amendments Nos. 749 to 751, inclusive, and 756 to 758, inclusive, are related and will be discussed together.
I move amendment No. 749:
In page 276, lines 40 and 41, to delete “the planning authority makes one or more than one request under subsection (2) of section 138 and”.
A key feature of the Bill is the introduction and clarification of timelines across the Bill to ensure that the planning system operates as efficiently as possible while also maintaining sufficient time for notification and consultation where required.
Section 140 of the Bill sets out the time limits for deciding a material alteration request where the deciding authority is the planning authority. Subsection (15)(a) sets out the relevant period for deciding the material alteration request where an appropriate assessment or environmental impact assessment is required. Amendments Nos. 749 to 751, inclusive, correct a reference within this subsection that was found to apply more generally and not just to the subsection referenced. Amendments Nos. 756 to 758, inclusive, correct an identical reference that relates to section 141, which deals with the same matter, relating only to the commission as the deciding authority. The amendments are of a technical and drafting nature and seek to better clarify the provision.
Will the Minister of State explain the rationale for amendment No. 749 in detail? There seems to be an issue with it in terms of the relevant period and that being four weeks, regardless of whether or not additional information is received.
Will the Minister of State explain about the four weeks? If additional information is received, is more time not allocated then? I may be misreading it but I would be grateful if the Minister of State would explain it.
This amendment came as a recommendation from the OPC. Its intention is to bring clarity to the section where there was unnecessary text in the section.
Regarding clarity in this section, if additional information is received, is it still only four weeks?
Yes, it is.
If additional information is received, is more time not required to deal with it?
It states, "4 weeks from the date of the expiration of the prescribed period referred to". This is the section on the relevant period. Section 140(15)(a)(iii) will read: "where subsection (3) of section 138 applies, 4 weeks from the date of the expiration of the prescribed period referred to in subparagraph (iii) of paragraph (b) of subsection (3) of section 138".
I want to be helpful, but I am having difficulty understanding this because of all the different subsections and the way it is written. I know the amendment is trying to clear it up. For the benefit of everyone, will the Minister of State explain what this amendment actually means in terms of additional information? If we look at section 138(3)(b)-----
Deputy O'Callaghan, allow me to make a suggestion. With the agreement of the committee, we will go into private session for a moment to allow the officials to clarify this. I am having difficulty understanding it as well.
Sure, and we might just get a summation then on the public record.
The select committee went into private session at 4.54 p.m. and resumed in public session at 4.57 p.m.
I ask the Minister of State to clarify the previous point.
Amendment No. 749 addresses the time of four weeks to make the decision from the end of the consultation period. There is the four-week consultation period and then from the end date of that there is a further four weeks to make the decision.
I thank the Minister of State for the clarification. Section 140(15)(a)(iv) states, "where more than one of the foregoing provisions of this paragraph applies, the period specified in those provisions that expires last,". With this amendment, some of those foregoing provisions are taken out. Is it referencing the foregoing provisions in 140(15)(a)(i) and (ii)?
Yes, that is correct.
Okay. Amendment No. 750 is effectively a repeat amendment of amendment No. 749. Is that correct?
It is similar to amendment No. 749, is it?
Amendment No. 750 corrects a reference within subsection-----
Sorry, it is connected to it. Is that correct?
Yes, amendments Nos. 749, 750 and 751 are to section 140 and they replicate amendments Nos. 756, 757 and 758 to section 141. They are a repeat.
What is the purpose of amendment No. 750? It seeks to delete the words "to the request or requests concerned". After these amendments, section 140(15)(a)(iii) would read, "where subsection (3) of section 138 applies, 4 weeks from the date of the expiration ...".
Four weeks.
Four weeks applies from the date of expiration.
That is it.
That is what we were saying before. Therefore, four weeks would apply after this. Amendment No. 751 states: "In page 277, lines 20 and 21, to delete “the planning authority makes one or more than one such request under subsection (2) of section 138 and”." Does that mean that when information is received, a longer period applies or is it just four weeks?
It is four weeks, yes.
Therefore, it is not a longer period.
No. Sorry, it is eight weeks because of the EIA.
Is it eight weeks with this amendment or was it eight weeks anyway?
Amendment agreed to.
I move amendment No. 750:
In page 276, line 41, and in page 277, line 1, to delete “to the request or requests concerned”.
Amendment agreed to.
I move amendment No. 751:
In page 277, lines 20 and 21, to delete “the planning authority makes one or more than one such request under subsection (2) of section 138 and”.
Amendment agreed to.
Question proposed: "That section 140, as amended, stand part of the Bill."
I have a question on section 140(8)(b) regarding the fines for planning authorities. How were the sums for these fines arrived at?
Those sums are already there in the 2000 Act.
Therefore, it is the same as the 2000 Act.
It is, yes.
Is there any evidence that fines of this manner work and are effective?
They are successful and useful by virtue of the fact that they have rarely been invoked in planning authorities. In that sense they act as the best deterrent. That additional sum is still effective from the 2000 Act. They have not been invoked. I do not have figures here on how they have been used but the fact that they are not being used means they are an effective mechanism. That is why they remain in place.
They are not regularly utilised.
Are they necessary if they are not regularly utilised?
They are necessary. They act as a-----
My question is how effective fines on a public body, one that collects local property tax and collects rates, are. Ultimately if these fines are paid out, is it not the householders, through their local property tax or the small businesses paying rates to the council, who are effectively paying the fine imposed on the planning authority? Are they not effectively indirectly being hit by fines of this nature on the planning authority? While it comes out of the planning authority resources and budget, that is ultimately picked up by the ratepayer and the local property tax payer.
As they are there, they act as a deterrent because they do not want to pay these fines. That is why they are effective. It is only right that they are left in place because they have worked.
It is a good question. Representatives from the National Oversight and Audit Commission, NOAC, will appear before the committee in a couple of weeks. It would be a good question to put to them. Do they account for that, audit it or even ask about it?
We will have plenty of questions to ask NOAC.
That is another one we can add to the list.
Question put: "That section 140, as amended, stand part of the Bill."
The Committee divided: Tá, 5; Níl, 3.
Tá
- Duffy, Francis Noel.
- Flaherty, Joe.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Brien, Darragh.
Níl
- Mitchell, Denise.
- O'Callaghan, Cian.
- Ó Snodaigh, Aengus.
Question declared .
SECTION 141
I move amendment No. 752:
In page 278, line 4, to delete “further” and substitute “longer”.
Amendment agreed to.
I move amendment No. 753:
In page 278, line 11, after “period” to insert “, or such longer period as may be consented to under subsection (2)”.
Amendment agreed to.
I move amendment No. 754:
In page 279, line 10, to delete “ask” and substitute “request”.
Amendment agreed to.
I move amendment No. 755:
In page 280, line 7, to delete “section,” and substitute “section”.
Amendment agreed to.
I move amendment No. 756:
In page 280, lines 21 to 23, to delete all words from and including “the” in line 21 down to and including “and” in line 23.
Amendment agreed to.
I move amendment No. 757:
In page 280, lines 23 and 24, to delete “to the request or requests concerned”.
Amendment agreed to.
I move amendment No. 758:
In page 280, lines 25 and 26, to delete “in relation to the request or requests concerned”.
Amendment agreed to.
Question proposed: "That section 141, as amended, stand part of the Bill."
When we were discussing the previous section, a period of four weeks was mentioned. I thought it was suggested that the period was eight weeks but six weeks is mentioned in the section. Where we are making those amendments, the text refers to "6 weeks from the date of the expiration". What is the logic behind it being six weeks rather than four or eight weeks, which are periods that are also mentioned?
When it is the commission, different timelines are involved.
There are different timelines. I am happy enough with that.
Does it get more time?
It is to reflect the fact that it deals with more complex cases.
It gets 12 weeks then with an environmental impact assessment.
Question put and agreed to.
SECTION 142
Amendments Nos. 759 to 761, inclusive, not moved.
Section 142 agreed to.
Section 143 agreed to.
SECTION 144
Amendments No. 762 and 763 not moved.
Section 144 agreed to.
Sections 145 and 146 agreed to.
SECTION 147
Amendment No. 764 not moved.
Section 147 agreed to.
SECTION 149
I move amendment No. 765:
In page 289, line 23, to delete “development of such class” and substitute “State authority development of such class”.
Amendment agreed to.
Section 149, as amended, agreed to.
Sections 150 and 151 agreed to.
SECTION 152
I move amendment No. 766:
In page 291, line 25, to delete “section,” and substitute “section”.
Amendment agreed to.
Section 152, as amended, agreed to.
SECTION 153
Amendments Nos. 767 and 768 not moved.
I move amendment No. 769:
In page 293, between lines 11 and 12, to insert the following:
“(4) Subsections (3)(b) and (3)(c) shall not operate to prevent the provision of
Traveller-specific accommodation which has already been specified or provided for in
a given local authority’s development plan.”.
Amendment put:
The Committee divided: Tá, 3; Níl, 5.
Tá
- Mitchell, Denise.
- O'Callaghan, Cian.
- Ó Snodaigh, Aengus.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Matthews, Steven.
- McAuliffe, Paul.
- Noonan, Malcolm.
Amendment declared lost.
Section 153 agreed to.
SECTION 154
Amendment No. 770 not moved.
Section 154 agreed to.
NEW SECTION
I move amendment No. 771:
In page 295, between lines 7 and 8, to insert the following:
“Local authority housing development
155. (1) The chief executive of a local authority shall, before the carrying out of a local authority housing development by, on behalf of or jointly with that local authority—
(a) inform the members of the local authority of the intention to carry out that development, and
(b) provide those members with such documents, particulars and plans as relate to that development.
(2) The Minister may make regulations providing for any or all of the following matters in respect of local authority housing development:
(a) the giving of public notice by the local authority of the intention to carry out the development;
(b) the publication by a local authority of any specified notice in respect of the development;
(c) the making available for inspection, including by members of the public, of such documents, particulars or plans as relate to the development;
(d) notification of bodies prescribed for the purposes of this section of the intention to carry out the development;
(e) the entry of particulars of the development in the register;
(f) a requirement that local authorities provide the Minister with information of such a type as is specified in the regulations and at such intervals as is so specified.
(3) Sections 138, 139 and 140 of the Local Government Act 2001 shall not apply in respect of local authority housing development.
(4) In this section—
“housing development” means the construction or erection of one or more than one house and includes—
(a) the construction of a new road, or the widening or realignment of an existing road, to any such house,
(b) the construction or erection of pumping stations, treatment works, holding tanks or outfall facilities for waste water or storm water, to serve any such house,
(c) the laying underground of sewers, mains, pipes or other apparatus to serve any such house,
(d) the provision of open spaces, recreational and community facilities and amenities and landscaping works to serve any such house, and
(e) the provision of car parks, car parking places, surface water sewers and flood relief work, and ancillary infrastructure, to serve any such house;
“local authority housing development” means local authority development commenced on or before 31 December 2025 that—
(a) is housing development,
(b) does not materially contravene a development plan, urban area plan, priority area plan or joint area plan,
(c) is in accordance with the strategy included in the development plan for the area in accordance with subsection (1) of section 218,
(d) is situated on land—
(i) owned by a local authority or a public authority,
(ii) zoned for residential use, and
(iii) that allows for access, or connection, to public infrastructure and facilities;
“public authority’ means—
(a) a Minister of the Government,
(b) an Education and Training Board established under the Education and Training Boards Act 2013,
(c) the Courts Service,
(d) the Digital Hub Development Agency,
(e) the Dublin Institute for Advanced Studies,
(f) Enterprise Ireland,
(g) the Environmental Protection Agency,
(h) An Garda Síochána,
(i) the Health Service Executive,
(j) the Housing and Sustainable Communities Agency,
(k) the Industrial Development Agency (Ireland),
(l) an institute of technology that is a college within the meaning of the Regional Technical Colleges Act 1992,
(m) the Institute of Public Administration,
(n) the part of the Department of Justice charged with the management of prisons,
(o) the Legal Aid Board,
(p) the Marine Institute,
(q) the National Archives,
(r) Oberstown Children Detention Campus,
(s) the Commissioners of Public Works in Ireland,
(t) Ordnance Survey Ireland,
(u) Sport Ireland,
(v) the State Laboratory,
(w) Teagasc,
(x) a technological university within the meaning of the Technological Universities Act 2018, or
(y) An tSeirbhís Oideachais Leanúnaigh agus Scileanna;
“public infrastructure and facilities” includes, in relation to local authority housing development—
(a) roads,
(b) footpaths,
(c) public lighting,
(d) foul sewer drainage,
(e) surface water drainage, and
(f) water supply,
provided in connection with, or that otherwise serve, the development.”.
This amendment relates to the local authority own development approval procedures for social and affordable, including cost-rental, housing that were introduced in the Act of 2000 by way of the Planning and Development and Foreshore (Amendment) Act 2022 and that were not included in the published version of this Bill. The amendment inserts these provisions as a new section 155 of the Bill to mirror what was introduced in 2022, providing that certain housing developments being constructed by local authorities on designated State lands shall be temporarily exempted from the normal Part 8 local authority own-development approval process and shall also be classified as exempted development for planning purposes. Under these provisions, the chief executive is required to inform the elected members of a local authority of proposed housing developments which it is intended to progress under the exemption, as well as to give public notice and enable public inspection of the proposals in a prescribed manner. This enables the elected members and members of the public to input into the process of progressing the proposed development.
These arrangements are a temporary, time-limited measure to help expedite the provision of housing by local authorities in the context of the need to accelerate the delivery of much-needed housing supply. The original provisions inserted by the 2022 Act provided that development works on the housing projects availing of this exemption were required to be commenced no later than 31 December 2024. However, one change is now being made to the 2022 Act provisions to extend the requirement for relevant development works to be commenced by a year. They must now be commenced no later than 31 December 2025. Given the ongoing need to provide for accelerated delivery of social and affordable housing in the context of the current housing supply shortage, this one-year time extension is considered appropriate in light of the delays that can be encountered in public procurement and tendering for projects by local authorities, while also providing more time to ensure that the sites in question are appropriately supported by necessary infrastructure and services, including roads and water services, prior to the commencement of works.
When the original provisions were being discussed the Dáil, I clearly stated that we would be back at a later stage with this being rolled out further. The Minister at the time gave all sorts of assurances that it would not happen. We were told it was time-limited and once-off and that it would not be rolled on, yet here we are with it being rolled on. It is a surprise to absolutely no one. We were given assurances at the time that it would not happen. The question arises whether there will be another Bill in the next year that provides for a further extension. At what point does something that is meant to be time-limited stop?
Will the Minister of State give us a commitment that this is the last extension that will happen in this regard and that we are not going to get further extensions?
Second, what is the evidence of the impact this is having on provision, because a lot of work goes into the planning design procurement process for local authority housing development or social housing? What time is being saved here by taking out the public consultation and participation? That can be run at the same time as the other work is going on. In my local community, for example, there is a social housing project and the issues around the planning and design of it have been going on for years. That is not the consultation; it is just the design work. I saw this when I was on the Traveller accommodation committee in my local authority. The engagement going back and forth between the Department and the Traveller accommodation section of the council in the context of providing Traveller-specific social housing was going on for years, and aspects of design were being discussed. When the rationale put forward is of wanting to get housing in place as quickly as possible, who could disagree with that? However, when we look at a lot of these projects, we see them going on for years in terms of the design process and engagement going back and forth between the local authority and the Department of housing. Is there any evidence that these measures are speeding up delivery in any meaningful way? I have also many times seen useful things coming out of the public consultation and public engagement process, which are then lost in terms of what is being done here. That can be important. Good feedback from the local community can be taken on board and can sometimes be about the need for some additional small pieces of infrastructure. In an area, for example, where more houses are going in there may be a deficit of playgrounds. I have seen at times in the public consultation process that this has resulted in a much-needed playground being put in. While this is quite a small investment in the wider scheme of the budget of the housing going in, it is important in integrating new homes into an area and how that has worked and how the community works. You can go to these areas years later and it is just a playground but it has a transformative effect. That is what will come out of the public consultation processes. It has come out of the feedback from residents and how that has been taken on board by the councillors and so forth. Where is the evidence this is providing additional housing faster? How much housing has been provided specifically as a result of this measure? Is there any evidence that such housing would not have been provided or that it is being provided any quicker? Has analysis been done on that, and if so, will the Minister of State share that analysis?
To answer the Deputy's first question, it is not anticipated that the Minister will seek a further extension of that period. Any local authority and social and affordable housing proposals that are not commenced by the end of 2025 will revert to requiring the Part 8 approval by elected members in the normal manner. Second, we are all in agreement that anything we can do to accelerate the delivery of housing of all tenure types is essential, and that is what the Minister, Deputy Darragh O'Brien, has been doing in government with Housing for All. All of our efforts are focused on that. This is another measure to try to help accelerate that.
As for its efficacy and effectiveness, as of 30 December 2023, 30 housing developments have been progressed containing 995 residential units with accompanying site and newspaper notices already issued. The Department has requested a further update from local authorities on the use of the provisions in respect of the period up to 31 December 2023. It is expected that the use of provisions will increase during 2024, with commensurate levels of commencements and completions in due course. We can provide details of commencements and completions to the members, which are as up to date as possible, if that is useful.
There was also a point about elements of public engagement and feedback coming from communities around the provision of facilities and playgrounds. There are planning guidelines for local authorities. It is accepted that provision of facilities in all new developments of social housing should not just be about trying to deliver units. We should be trying to deliver sustainable communities throughout the country. That is a vital component of this as well.
I think the answer on the planning guidelines misses my point. I am not dismissing the use of planning guidelines but it misses the point I am making. Public consultation can be invaluable. What the public raises during a consultation can be invaluable. When it comes to any development, including housing, it is important that people get to have their say in it and get their voices heard. They can often raise issues that can be solved or addressed. In my area there was an infill development in a social housing estate. One of the big issues people brought up was that they had open green space, and getting more housing in would take up some of the open green space. They did not have high quality use of the open green space because they had no facilities like a playground for the children in the area. As the new infill housing meant there would be more children, they asked for a playground. That is what came through the process. It is not a huge playground or anything like that but in this area it makes the world of difference. It means the new households integrate better with the existing households. Was it going to be provided without the public consultation? No, it was not. Did the public consultation draw that out? It did. Was this a positive gain for the community and everyone living there? Does it make the social housing in the area more successful? Absolutely, it does. It was a win-win from the public consultation process. That was a process of people airing their views and listening to them. People worked through that in the council with public representatives to see, out of all the different views and issues people were raising, if there was something positive they could do and if it was within their means to put in a small playground. It absolutely was and that was how it arrived out. There is no evidence that public consultation process delayed the housing delivery at all. Everything I have seen around social housing delivery shows the elongated processes local authorities go through with the Department can go on for years with the four-stage approval processes. You can see it going back. I saw it when I was on the Traveller accommodation committee. You would see plans going in from the council and then six months later it would get a reply from the Department asking for an answer to certain questions, and looking for the council to get back to them on other matters. That would take several months in the local authority, and it could then be waiting between six months and nine months for the reply from the Department. This is where all of the delays were happening. It was not the short public consultation process that was taking place. The point has also been made in this committee that the public consultation process around social housing has been working well. People would struggle to think of any examples where they do not go through. From my experience and as far as I can recall in my local authority area and Dáil constituency, they have always gone through. Sometimes relevant issues are raised and they are addressed and dealt with. The Minister of State has given us figures of 30 housing developments and 995 units. There is nothing to suggest those 30 housing developments and 995 units would not have happened anyway. Will the Minister of State give us any explanation for how these would not have happened without these provisions?
Again, I give a commitment we will provide a breakdown of figures. As to whether they would have happened without this provision or not, I cannot give a reply to that here. Certainly, this provision was brought in to ensure we accelerate the pace of delivery. The point about public consultation is very well made and it is important that, whatever the project or plan is, they need to engage in a very positive way. It must be beyond tokenistic consultation and be much more meaningful. That goes across the board for all plans and projects by local authorities in particular. It makes for better outcomes for communities when it comes to facilities. Local communities are best placed to be able to point out areas in a locality where there are deficits or improvements that could be made around development. That is absolutely vital. I will come back with a more detailed breakdown of those figures and how effective this provision has been. We are seeking to extend it because it has been effective. There will be an increase in supply in 2024. We are only into April now. It is important to use every means at our disposal to accelerate the delivery of much-needed social housing across the country.
It is an interesting concept and I agree with Deputy O'Callaghan I have not seen any delivery, in an accelerated sense, in my constituency. The exact opposite seems to be happening. Looking at the Dolphin House regeneration programme, people are being told it will be 2035 or 2036 before the project will be delivered. St. Michael's Estate has gone on for however many years. I could list more, but I have not seen acceleration. There is a question there, because I was trying to figure out whether this excluded developments the council is purchasing from a developer from plans. There are a number of those. The proposed new section 155(1) states "The chief executive of a local authority shall, before the carrying out of a local authority housing development ... inform the members ...". However, is that a local authority housing development if the authority is purchasing it? It is only a query. I am not opposed to it. Quite a lot of people in the constituency are benefiting because Dublin City Council is very proactive and has purchased part of apartment blocks or ensured the completion of blocks or apartment complexes that were in abeyance.
I have another question. There is a list of public authorities. I was speaking yesterday in our committee about Gaeltacht housing. Údarás na Gaeltachta announced last year it was going to have three pilots to build in different Gaeltacht areas to see whether it can be involved in the delivery of housing. It is not listed as a public authority. I do not know whether that is an oversight or, as Deputy O'Callaghan said, a continuation of something prior to the údarás getting involved at this stage. Before the údarás Gaeltarra Éireann was involved in housing and the údarás has announced, with the backing of the Government, that it will look at using some of its lands to facilitate the provision of social and affordable housing in Gaeltacht areas. The údarás has announced three sites. It would be interesting if they were precluded from being accelerated. Maybe they are better off not being accelerated if there is no benefit.
Another point at this stage is on where the amendment says "public infrastructure and facilities". It mentions roads, footpaths, public lighting, foul sewers, surface water drainage and water supply. One of the factors in some of the council schemes is the charging network. It seems to be an afterthought in most of the public housing developments, which is a pity. It is likewise with solar panels and so on. Are they part of a public network in those schemes? Fibre optic should also be in those schemes. We have had difficulties with provision in some of the schemes that that have opened in recent years in the area.
My last point is while community facilities are mentioned earlier on, in that "housing development" includes "the provision of open spaces, recreational and community facilities", community facilities in particular should come into the list of "public infrastructure and facilities" in relation to these developments. Maybe it is duplication.
I have a couple of questions. The Minister of State has given us the assurance it is not anticipated a further extension will be sought. That is not exactly a strong commitment. All sorts of things are not anticipated and then they happen. Bad weather is not always anticipated but we get plenty of it in Ireland. We are in a situation where this could just be rolled over year after year. I invite the Minister of State to give us an absolute commitment this is the last extension and that he is committing on behalf of the Government there will be no further extensions.
Yes, I can do that. This is the last extension there will be. Then it will revert to the normal Part 8 process.
I thank the Minister of State. That is a better commitment than the first form of words.
I am still not clear what problem this is fixing. I appreciate the Minister of State is going to give us more information, but is there any evidence at all this is accelerating housing delivery? We have heard about the 30 housing developments and 95 units, but they could have happened anyway. When the Minister brought this in I specifically remember his rationale. He was saying it was going to be for quick delivery of modular construction social homes and he was saying it would be additional modular homes that would not otherwise be built. Are these 95 units all modular construction, as the Minister was telling us at the time, or are they a mix of different types of housing construction?
We will get that information back to the Deputy in the note we are going to prepare in terms of what is modular and what is not. Obviously, the term "modular" is very different now given the use of modern methods of construction. It is around accelerated delivery. The other question he asked supplementary to that was about whether these units would have happened or been accelerated if this provision was not in place. We will try to get that information back to him in a broader note. I cannot provide that information here this evening.
I thank the Minister of State. I wish to make a final point on this. I have a concern around these provisions as there is no public consultation, no appeals process for the public. The more those are shut down the higher the risk we will end up with delays to the provision of housing because if people have issues they want to articulate, their only route is the judicial review one. They will not have other mechanisms or provisions. In that sense it can be counterproductive. I was saying earlier I have not seen social housing delivery prevented by the public consultation Part 8 process, but I have seen it prevented by judicial reviews that have been brought. The more consultation there is, the better the engagement and the less likely it is the desperately-needed social homes are delayed. I will leave it there on this one.
On the last question on the environmental impact assessment, EIA, it is the case that in circumstances where an environmental impact assessment report, EIAR, or a Natura impact statement, NIS, is required in respect of a housing proposal, the development cannot avail of the Part 8 exemption. In such instances, the local authority should follow the applicable process for environmental impact assessment and appropriate assessment of the proposed development, while also being required to be submitted to the elected members of the local authority for approval, in line with the normal Part 8 approval procedures. I think that clarifies that element of the amendment for the Deputy. The criteria are quite strict and this goes back to the question posed by Deputy Ó Snodaigh as well. I listened to some of that debate yesterday on Údarás na Gaeltachta where 12 pilots would not qualify because they do not own any land with Údarás na Gaeltachta. The land has to be owned by the local authority or another specified body and the list is-----
Is Údarás na Gaeltachta included in the list of public bodies contained in the Minister’s amendment? Údarás owns some other lands. That is-----
We will check that. There is a prescribed list here.
It is on its lands that it is putting the three pilots it has announced.
We will check that out.
If it is an anomaly, it can be corrected at a later stage.
It is not an exhaustive list. We will check that out, if that is okay because there is a list under 4(d) there. This includes if the land has been sold for residential development; if the proposed development does not materially contravene the development plan or the local area plan for the area; if the proposed development is in accordance with the relevant local authority's housing strategy; if the land is serviced or will be serviced with the necessary supporting infrastructure or facilities within the timeframe of the development, as I stated earlier; if the proposed development is not required to undergo an environmental impact under the EA directive or the appropriate assessment under the habitats directive; and if the development has commenced no later than 31 December 2025.
On the other question, I take on board the point made by Deputy Ó Snodaigh on charity networks. The standard now for solar panels is building energy rating, BER A2, which is the default for energy efficiency. It is a very high standard and, certainly, many developments are being constructed with solar panels included in them.
I believe that deals with the questions but if I have not addressed any of them, Deputies may come back to me.
I do not see any further indication there now so I will put the question now. The question is that the new section be agreed to.
It is not agreed.
Amendment put:
The Committee divided: Tá, 5; Níl, 3.
Tá
- Duffy, Francis Noel.
- Flaherty, Joe.
- Matthews, Steven.
- McAuliffe, Paul.
- Noonan, Malcolm.
Níl
- Mitchell, Denise.
- O'Callaghan, Cian.
- Ó Snodaigh, Aengus.
Amendment declared carried.
SECTION 155
I move amendment No. 772:
In page 296, line 7, to delete “section,” and substitute “section”.
Amendment agreed to.
Section 155, as amended, agreed to.
Sections 156 to 158, inclusive, agreed to.
NEW SECTION
I move amendment No. 773:
In page 296, to delete lines 32 to 38 and substitute the following:
“159. (1) A person who has—
(a) made an application under Chapter 3 or 4,
(b) brought an appeal under Chapter 3, or
(c) made a request for an alteration or extension of a permission under Chapter 5,
may withdraw (in writing) the application, appeal or request at any time before that application, appeal or request is determined by the planning authority or the Commission.”.
This is a technical drafting amendment. It seeks to correct an error in the layout of section 159 of the Bill relating to the withdrawal of planning applications or appeals or requests for alteration or extension of a permission. Currently the text of paragraph (c) contains text providing that an application, appeal or request for extension can be withdrawn at any time before the matter is determined. This text should also apply to applications and appeals but, as currently laid out, it appears that it only applies to paragraph (c). This amendment revises the layout of the text to make it clear that it applies to all three paragraphs.
I just have a query on the wording of this. Paragraph (a) in the current text states, "made an application under Chapter 3 or Chapter 4". That is clear, whereas the amendment says "made an application under Chapter 3 or 4". Maybe I am being pedantic but what is the reason for taking the word "Chapter" out?
An application under Chapter 3 is to the board, whereas under Chapter 4 it is to the local authority.
I am not asking about what it is but about the way it is written.
Is the Deputy suggesting it should be plural, as in "Chapters 3 and 4"?
I am suggesting either "Chapters" or the way it was written originally, which is "Chapter 3 or Chapter 4".
It is a drafting issue.
It is just a drafting or styling query; I am not questioning the content of the amendment.
Amendment agreed to.
The next amendment is part of a grouping and, given that it is almost 6 p.m., I suggest we finish here for now. In terms of a progress update, my tallies tell me that we have spoken to 1,008 or 1,009 amendments so far. We have completed 158 sections and have had around 350 votes at this stage, so well done everybody.
Progress reported; Committee to sit again.
The select committee adjourned at 5.53 p.m. until 2.15 p.m. on Tuesday, 16 April 2024.