Minister English's Seanad Second Stage Speech on the Planning and Development (Amendment) Bill 2016

Published on Wednesday, 07 Feb 2018
Aire Stáit Damien English TD

Check Against Delivery

I move: “That the Bill be now read a second time”.

A Chathaoirligh, the main background to this important Planning and Development (Amendment) Bill 2016 is the Final Report of the Tribunal of Inquiry into Certain Planning Matters and Payments (otherwise known as the Mahon Tribunal) which was published on 22 March 2012. The Bill is therefore primarily intended to give legislative effect to the planning-related recommendations of the Tribunal Report, providing for -

  • the establishment of a new independent Office of the Planning Regulator,
  • the statutory underpinning of the proposed new National Planning Framework as a successor to the 2002 National Spatial Strategy, and
  • other updates to the Planning and Development Act 2000, as amended that are necessary to deliver greater transparency, efficiency and integrity in the planning system, including giving legislative effect to all further planning-related recommendations of the Mahon Tribunal Report.

Overview

As outlined, the main overarching objective of the Bill is to provide for the establishment of a new independent Office of the Planning Regulator (the OPR), whose key functions will be to:

  • evaluate and assess –
    • local authority development plans, variations to development plans and local area plans during their preparation, including proposals on land zonings;
  • make statutory observations and recommendations on the content of such plans and strategies as appropriate to the relevant local authorities and regional assemblies, with a view to ensuring that the plans or strategies set out an overall strategy for the proper planning and development of the area concerned which is consistent with national and regional policies and objectives,
  • undertake reviews of the organisation and systems and procedures used by planning authorities and An Bord Pleanála in the performance of their functions under the Planning Acts, and
  • undertake research and conduct programmes of education and training – including for elected members and officials of planning authorities – to underpin the principles of proper planning and sustainable development.

The core key function of the OPR – evaluating and assessing local plans and regional strategies – will also enable the OPR to make recommendations to the Minister in relation to exercising the pre-existing Ministerial Direction powers under the Planning Act to ensure that a plan or strategy sets out an overall strategy for proper planning and sustainable development for the area concerned.

The establishment of this new Office to oversee the development plan process and the planning system generally will add another layer of sophistication to the institutional arrangements within the planning system with a view to ensuring that the overall integrity of the system is preserved, and where possible enhanced. In this regard, it is important that we learn from past well-reported experiences in the planning system, which gave rise to the establishment of the Mahon Tribunal, and that we endeavour to ensure that they are not repeated in the future.

A properly functioning planning system is absolutely critical to the on-going development of all parts of the country and to ensuring that development takes place in accordance with the principles of proper planning and sustainable development – that is that development takes place in the right locations, in the right way and at the right time to meet the needs of our people while also simultaneously protecting the many qualities of our natural and built environment.

That is the primary purpose of the planning system and accordingly it is important that the highest standards are applied by, and adhered to, at all times by all parties engaged in the planning system including planning authorities, public bodies, the construction and development sector, professional practitioners, private interests and the general public in the interests of the overall common good.

A well-functioning planning system which responds to the needs and demands of society will also be critical to setting the proper planning basis for many of the actions in Rebuilding Ireland – the Government’s Action Plan on Housing and Homelessness, as well as for the National Planning Framework and the associated 10 year National Capital Investment Plan, both of which are quite topical at the moment.

The planning system impacts on many aspects of our daily lives and therefore we need to ensure that it operates in the manner intended so that it can deliver quality in planning outcomes. The proposed establishment of the OPR, as recommended by Mahon, represents a fundamental reform to the planning system and that is why I regard this as an important Bill.

Moving on, the Bill contains 36 Sections and 4 Parts in total, and, together with 4 Schedules, sets out the necessary provisions to give effect to these measures and related matters.

I will now turn to the Sections and Parts of the Bill in more detail.                            

PART 1 of the Bill- Sections 1 to 3 - contains standard provisions dealing with such matters as the short title, commencement, interpretation, and provision for expenses.

PART 2, comprising Section 4, provides for an extensive amendment to the Planning and Development Act  2000, as amended, by inserting a new Part II B therein to provide for the establishment of the Office of the Planning Regulator. This is the most significant part of the Bill. This new Part, comprising the insertion of new sections 31K to 31AX into the Act of 2000 contains 4 Chapters which provide for –

  • preliminary and general OPR matters,
  • the arrangements relating to the establishment, organisation and staffing of the OPR,
  • the powers relating to the evaluation and assessment of plans and strategies by the OPR, and
  • the review of the performance of planning authorities, including An Bord Pleanala, by the OPR.

As Part 2 of the Bill relating to the establishment of the OPR is quite extensive, I will summarise what it proposes.

New Chapter I of the OPR provisions - Preliminary and General Matters -  comprises just one section, section 31K to provide for definitions of terms used in this Part.

New Chapter II – relating to the Establishment, Organisation and Staffing of the OPR - includes new Sections 31L to 31AL which provide for standard organisational and operational-type issues normally associated with statutory bodies, for example:

  • for the Chief Executive of the Office to be known as the Planning Regulator who shall be responsible for the performance of the functions and the administration and business of the Office;
  • the functions to be performed by the OPR -
    • evaluating and assessing development plans and strategies,
    • making statutory observations and recommendations on them,
    • conducting research and arranging education and training programmes on planning matters,
    • reviewing the performance of An Bord Pleanala and planning authorities,
    • making observations, as it considers appropriate, to the Minister in relation to planning legislation, planning guidelines or Ministerial directions, and
    • performing any additional functions as may be assigned to it and specified by Order.

Chapter II further outlines standard operational type requirements relating to the Office, including:

  • the independence of the OPR in carrying out its functions;
  • the OPR having to have regard to Government policies and objectives, as well as other specified matters, in the performance of its functions;
  • the review of the organisation, systems and procedures used by the OPR in performing its functions;
  • the appointment and term of office of the Planning Regulator with any such appointment to be approved by Government on the Minister’s nomination, as well as the appointment of up to 3 Directors to assist the Planning Regulator in the performance of its functions;
  • the appointment of staff, the remuneration of staff and the establishment of a superannuation scheme for staff;
  • the payment of grants by the Minister to the OPR out of moneys provided by the Oireachtas for the purpose of meeting its expenses;
  • the keeping of, and the auditing of, the accounts of the OPR;
  • the preparation of an annual report, also providing that the Planning Regulator may be called before the relevant Oireachtas Committee;
  • the provision of services, premises, equipment and other resources as necessary for the OPR to perform its functions; and
  • the adoption of a code of conduct to be followed by the OPR and its staff. 

Chapter III provides further detailed elaboration on the primary function of the OPR – the Evaluation and Assessment of development plans and regional strategies -  which is provided for in new Sections 31AM to 31AR.

Section 31AM provides for the OPR to evaluate and assess development plans and, variations to development plans at all statutory stages of the plan making process to ensure that the development plans and regional strategies, as made, address relevant legislative and policy requirements.

Section 31AN provides for consequential provisions whereby the Minister either agrees or disagrees with the notice or recommendations from the OPR, and the procedures to be followed in such instances. For instance, where the Minister does not agree with the recommendation of the Regulator, the Minister in turn will be required to –

  • explain the reasons for such disagreement,
  • lay such reasons before the Houses of the Oireachtas, and
  • publish them on the Department’s website,

all in the interests of increased transparency in the local authority development plan process generally.

Sections 31AO to 31AR provide for similar detailed procedures relating to the evaluation and assessment of Local Area Plans and Regional Spatial and Economic Strategies.

Continuing on, new Chapter IV on the Review of Planning Functions includes new Sections 31AS to 31AX.

Section 31AS provides that the OPR may, where it considers it necessary to do so, conduct a review of a planning authority or An Bord Pleanála in respect of the systems and procedures used in the performance of their functions and may, on foot of such review, recommend  that the Minister issues -

  • section 28 guidelines,
  • a section 29 policy directive, or
  • a directive under subsection 255(2)

to the authority concerned, or alternatively, it may – on foot of such review - recommend the appointment of a Commissioner under subsection 255(4) of the Planning Act to take over the functions of the planning authority concerned.

Supplementary to section 31AS, section 31AT empowers the Minister to request the OPR to undertake a review of the organisation and of the systems and procedures used by a planning authority, or An Bord Pleanala, in the performance of their functions where the Minister is of the opinion that the authority concerned –

  • may not be carrying out its functions in accordance with the Act,
  • is not operating in compliance with guidelines, directives and directions issued,
  • may be applying inappropriate standards of administrative practice or otherwise acting contrary to fair or sound administration of its functions,
  • may be applying systemic discrimination in the performance of its functions,
  • may be operating in a manner whereby there is impropriety or risks of corruption in the conduct of its functions, or
  • may be operating in a manner whereby there are serious diseconomies or inefficiencies in the conduct of its functions.

Sections 31AU to 31AX outline the procedures to be followed by the OPR in relation to the examination of complaints made by any person to the OPR in relation to a planning matter, including – where considered warranted - the referral of the matter and any related documents to one or more of:

  • the Ombudsman,
  • the Standards in Public Office Commission,
  • the Garda Síochána, or
  • such other State authority as may be prescribed.

PART 3

Miscellaneous and Consequential AMENDMENTS TO THE Planning and Development ACT 2000]

Moving on to Part 3 of the Bill, this Part provides for a number of miscellaneous amendments to the Planning and Development  Act 2000, as amended, primarily relating to the development of the National Planning Framework and addressing other Mahon Tribunal planning-related recommendations, including providing:

  • for a legislative basis for the development of a National Planning Framework (NPF) as a successor to the National Spatial Strategy;
  • that the NPF shall be adopted for a period of between 10 and 20 years and be reviewed every 6 years;
  • that national strategic development requirements shall be identified in the framework;
  • that public consultation shall be undertaken with regional assemblies, local authorities, An Bord Pleanála, prescribed bodies and the Northern Ireland Department for Regional Development in the development of the framework;
  • that the framework shall be subject to the provisions of relevant EU Environmental Directives, including public consultation; and 
  • that the Government shall submit the draft of a new or revised framework for the approval of the Oireachtas before it is published, and shall have regard to any resolution of the Oireachtas in the ultimate finalisation of the NPF.

The remaining provisions in Part 3 of the Bill largely emanate from -

  • remaining Mahon Tribunal planning-related recommendations,
  • specific actions required to be implemented under the (previous) Government’s Construction 2020 Strategy, and
  • a number of amendments already made during the earlier deliberations on the Bill in the Dáil to provide for further streamlining and enhancement of the planning legislation in general.

These include provisions for:

  • enhanced transparency in the planning process requiring the publication of submissions on local area plans and development plans, as well as the Chief Executive’s report on such submissions, on the website of the relevant planning authority;
  • the forwarding of any proposed grants of planning permission which would contravene materially a development plan or a local area plan to the relevant regional assembly for observations;
  • the removal of an overlap between development contributions for water infrastructure being paid for through -
    • planning permission conditions to local authorities, and
    • the separate collection of water infrastructure charges by Irish Water,
    • with section 15 clarifying that any reductions in respect of development contributions as provided for in the Urban Regeneration and Housing Act 2015 can only be availed of in the case of houses that have not been rented, leased, occupied or sold;
  • the provision of legislative underpinning to facilitate the introduction of eplanning, or electronic planning, in relation to the online submission of planning applications, appeals and associated fees;
  • the provision of legislative underpinning for An Bord Pleanála to set fees for appeals by property owners against the application of the vacant site levy;
  • the provision by planning authorities of data and/or information for databases or national planning systems as may be specified by the Minister (for example, for use on www.Myplan.ie, the Department’s public information website on development plans, local area plans etc.),  
  • the payment of reduced or no fees (as against the current €20 fee) by elected members when making submissions on planning applications, and the noting of such representations on the relevant planning file,
  • requiring planning authorities, when considering applications for planning permissions,  to have regard to -
    • previous developments by a developer which have not been satisfactorily completed,
    • previous convictions against the applicant in relation to planning permissions,       

while also enabling planning authorities to refuse applications for planning permission taking account of such past failures.

Other provisions contained in the Bill include -

  • that planning authorities will be enabled to refuse planning applications where persons have previously operated under a particular Company name and left estates unfinished, and where they subsequently apply for planning permission for a new development under a different company name,
  • that planning authorities will be required to process developer proposals in respect of compliance conditions relating to planning permissions within a specified timeframe,
  • that developers will be required to undertake mandatory pre-application consultations with the local planning authority in respect of specified larger developments before being allowed to submit a planning application,
  • further measures to assist in combatting land-hoarding, including giving planning authorities the possibility of applying a lesser period than the existing standard 5 year default period when granting planning permissions, and
  • the streamlining and tightening up of the procedures relating to the taking in charge of housing estates by developers.

PART 4

AMENDMENT TO THE WATER SERVICES (No.2) ACT 2013

Moving on to the final part of the Bill (Part 4), this contains just one section - section 15which amends section 33 of the Water Services (No. 2) Act 2013 to provide that Irish Water, in preparing a water services strategic plan or capital investment plan, shall have regard to proper planning and sustainable development in line with any development plans made under the Planning Act, in particular with the core strategies of such development plans. This amendment is primarily intended to ensure that water services infrastructure will be provided by Irish Water where it is needed in accordance with the provisions of local development plans and core strategies.

The remainder of the Bill comprises a number of schedules for the purpose of making a series of miscellaneous and consequential amendments to the Planning Act arising from the provisions in the preceding parts of the Bill.

Concluding remarks

A Chathaoirligh, I would like to signal to the House that I will be bringing forward a number of further amendments at Committee Stage, primarily relating to -   

  • extending the remit of the OPR to oversee aspects of transport strategies as proposed by Fianna Fail in the Dail deliberations,
  • aligning the timing for the making of development plans with regional strategic and economic strategies, and
  • further miscellaneous revisions to the Planning Act which my Department is still examining and reviewing.

In conclusion a Chathaoirligh, I have outlined in some detail the main purpose and provisions of this comprehensive and wide-ranging Bill. I think you – and indeed all sides of the House - will agree that this Bill is aimed at delivering a number of fundamental, important and necessary revisions to the Planning Act of 2000 arising from the Final Report of the Mahon Tribunal. In particular, and as I have already indicated, the establishment of the independent Office of the Planning Regulator will introduce a further institutional layer of sophistication and oversight to the planning system.

The establishment of this new Office – to take over the function of evaluating and assessing local development plans and regional strategies, to generally oversee the operation of the planning system, and also to conduct reviews of its operation where considered necessary - is aimed at ensuring that the mistakes of the past are not repeated in the future and that the planning system is operated in an open, transparent and impartial manner in the interests of the common good.

Accordingly a Chathaoirligh, I commend this important Bill to the House and look forward to constructive and fruitful engagement by Senators in the further deliberations on the Bill, as has indeed been the case with previous planning legislation.

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