Wednesday, 3 May 2006
Seanad Eireann Debate
This amendment would bring greater clarity to the Bill. There are many bodies involved in the planning process and citizens want clarity when they go through the legislation. Perhaps the Minister will consider accepting the amendment.
Minister for the Environment, Heritage and Local Government (Mr. Roche): These amendments are grouped together because they propose to redefine what can best be described as the actors involved in the planning process, namely, the EPA and prospective applicants, thus resulting in consequential deletions. I do not propose to accept them. I am happy that the Parliamentary Counsel has been very clear in the approach adopted. Much effort was put into the drafting of the Bill and I am confident that it is drafted clearly.
The term “Environmental Protection Agency” is just as good and may be clearer than the shortened version proposed by Senator Bannon. However, I accept that he is trying to achieve clarity. If his amendment were adopted, it would be necessary to make a number of amendments to the Act of 2000 to bring the reference in that Act into line with the changed definition. That is a very important point. It seems unnecessary to do what is proposed because, ultimately, it would not add a great deal of value to the legislation.
“Prospective applicant” is defined where it applies in each case throughout the text. As it is only used regarding applicants or prospective applicants for consent for strategic infrastructure under sections 37A to 37C, its inclusion as a definition in Part 3 of the Act would add no real value in the sense that the Senator clearly intends.
Amendment No. 2 also has a fundamental flaw within it. It proposes to add a section 32 to an Act that already has a section 32. The existing section 32 contains the primary foundation statement of planning law that permission is required to carry out development. It also imposes the primary obligation to obtain planning permission on people who want to carry out development. I am certain the Senator does not want to replace that section or cause confusion in that regard but the proposition in amendment No. 2 would have that inadvertent effect. I do not believe the amendments add any real value. The Parliamentary Counsel has been particularly careful in these sections and reluctantly I do not intend to accept the amendments.
Amendment No. 2 is one of a large number of proposed by the Senator, which in essence would tweak the language of the Bill, rather than to make a substantive change. I fully accept that it is done in the interests of introducing clarity. Laypeople like the Senator and I, looking at the language used by legal draftsmen, often find it rather tortured. I have said as a Senator and a Deputy that if we could find legal language more easily read and assimilated, we would do a great service. While I appreciate that the Senator’s intentions are to try to improve the language of the Bill from a layman’s point of view, the Government must take the advice of the Office of the Chief Parliamentary Counsel as to the best way to express certain ideas and to make them legally watertight, which is why the language may at times be tortured.
While we may believe that something can be worded more clearly, we might not appreciate that a loophole is being left or that some confusion is being sowed. The challenge for the Parliamentary Counsel is to find language that most accurately expresses the intentions of the Bill. There is a particular risk of confusion when different language is used in different sections to express the same idea. Much of the language used in the Bill is based on the existing phraseology in the 2000 Act. While I understand the amendments are tabled with the best intentions, I do not propose to accept them for the reasons I have outlined.
Mr. Bannon: Amendment No. 2 would bring about a drafting improvement. The Government has always spoken about being customer friendly. It would improve the interpretation of the Bill for the layman. Including reference to the Environmental Protection Agency is important. The Minister understands that I want to bring greater clarity to the Bill. Amendment No. 11 seeks to delete lines 43 to 45 in page 6, which are unnecessary and only cause confusion.
Mr. Roche: I accept that the Senator would like to use more commonplace, easily understood language in the Bill but, for the reasons I have outlined, tortuous language is sometimes necessary. I have mentioned already the reference to the EPA, and the language in the Bill is, if anything, more in keeping with common parlance.
Amendment No. 11 proposes the deletion of lines 43 to 45, which include a reference to “prospective applicant”. Reference is also made in amendment No. 2, which proposes the insertion of a new section, to “prospective applicant” but amendment No. 11 will not arise if amendment No. 2 falls. I regret I am not in a position to accept the amendments, although I fully accept the intention is to try to improve readability. The Senator is in line with the Government in wanting to make these things customer friendly. We all want to do that but, for the reasons I have outlined, I cannot accept the amendment.
Acting Chairman: Is it agreed to deal with the amendments separately? Agreed. To recap, amendments Nos. 3 to 6, inclusive, 8, 12, 14 to 16, inclusive, 18, 19, 21, 28 to 32, inclusive, 39, 40, 42, 46, 41 to 52, inclusive, 54, 55, 61, 63, 64, 66, 67, 76 to 83, inclusive, 93, 94, 104, 128, 129 and 132 are related and may be discussed together. Is that agreed? Agreed.
This, like many other of the amendments in the group, is a simple technical amendment. Amendment No. 6, for example, simply inserts a comma after “applicant”, so I am sure that the Minister, Deputy Roche, would have no difficulty with that. Amendment No. 8 would delete “situate” and substitute “situated” in page six, line 32. There is inconsistency in the Bill, and the word “situated” would be more appropriate in that case. Amendment No. 12 is a technical amendment, too, which would help to tidy up the Bill, as would amendments Nos. 14 to 19, inclusive, with the exception of amendment No. 17, on which I shall speak later.
Amendments Nos. 21 and 28 contain different definitions and are, again, technical, as are the rest of the amendments, with the exception of amendment No. 53. They would improve the Bill by tidying it up and clarifying the section. Perhaps the Minister, Deputy Roche, has taken those amendments on board. I hope he has, because I have studied the Bill in great detail and I think there are some omissions there. The amendments are very simple and would not alter the meaning of the Bill.
Mr. Roche: Again, I commend Senator Bannon on his punctilious observations, particularly on punctuation points. Fowler could not have done better. The 45 amendments tabled by Senator Bannon are of a minor technical nature and are to do with drafting style. Many of these issues have been discussed over the years, but I do not think it would be wise to amend a Bill that is as complex as this one simply on issues of drafting style. Amendments Nos. 82 and 104 are Government amendments to make minor textual corrections that have no impact on the substance of the Bill but are necessary to correct errors detected since the Bill was published.
On the points made by Senator Bannon, I appreciate that his intentions are probably to improve the language used in the Bill. However, the Government must take the advice of the Parliamentary Counsel on the best way to express certain ideas and make them legally watertight. For example, in five or six of his amendments, Senator Bannon proposes the insertion of a comma. Quite a number of the amendments insert a comma, and there is nothing wrong with that in so far as when we use language, we often use commas and other punctuation. However, the problem with accepting those amendments would be that it would make some of the sentences legally less watertight than the Parliamentary Counsel would wish, and certainly than we would wish when enacting legislation. We may think that something is more easily understood by putting in punctuation, for example, but we may not appreciate that a loophole is left that could lead to confusion at best, and could in fact lead to legal challenge. With some of the amendments, when commas were inserted, I could understand the logic of it in terms of the spoken language but in terms of making the language legally watertight the advice is, sadly, to dispense with the commas and the other changes. I hope Senator Bannon understands that I am not being difficult but simply taking the advice I have received. I am not in a position to accept the amendments, well intentioned though they are. Obviously, we are hoping that the House will have no difficulty in accepting amendments Nos. 82 and 104, which are Government amendments.
Mr. Bannon: This just shows the changing times in which we live. I would say that this Bill, like most documents now, was drafted on a computer. With modern technology there has been a change in the use of the comma, full stop and capital letters. In many instances in which they would normally have been used they are no longer used. There were no computers when the Minister and I were in primary school. The wording of the section shows the impact of modern technology on the drafting of Bills. I had hoped the Minister would accept my amendments which I tabled to tidy up and improve the Bill.
Mr. Kitt: Having read “Eats, Shoots & Leaves: The Zero Tolerance Approach to Punctuation” by Lynne Truss, which is a classic book on punctuation, I have much sympathy for what Senator Bannon said. If the comma after the word “Eats” in the title was omitted, the title would have a very different meaning. The Minister explained his intentions in respect of the section. In respect of the various amendments, I am happy in so far as we understand what is proposed in the Bill.
Mr. Bannon: I cannot understand the reason the Minister had a difficulty in accepting this amendment, which proposes to delete the word “serves” and substitute it with the words “shall serve”. I feel the same about amendment No. 6.
Mr. Roche: The amendments I propose to this section involve textual corrections. They have no impact on the substance of the Bill but are necessary to correct some errors which have been detected since the Bill was published and circulated. I ask the House to accept this amendment which is purely technical in nature.
This amendment is related to amendment No. 2. Delays in decisions in the planning process by the relevant local authority in the past were often caused by the submission of a poorly-prepared application and environmental impact statement. Acceptance of this amendment would strengthen, tidy and bring greater clarity to this section. The wording of the definition proposed in the amendment, if accepted, would greatly benefit the Bill. Perhaps the Minister will consider accepting this amendment.
Mr. Roche: I thank Senator Bannon for tabling these amendments. I will not accept amendments for the reason to which I referred, although the Senator’s point about the submission of haphazard applications was well made. However, this is not the appropriate Bill in which to express that point because one anticipates that anything that comes under this Bill of that magnitude would not involve “back of the envelope” calculations. However, the Senator’s general point about the haphazard presentation of applications is a good one and one that perhaps should be expressed elsewhere.
I accept the Senator is making a general point to improve planning in the widest sense. My advice from the Office of the Parliamentary Counsel is that the wording of the section is a more watertight way of dealing with this matter. The language used by the draftsman in this paragraph in terms of enactment is the normal phrase used. Given the nature of this Bill and its significance, it is prudent for me to follow the Parliamentary Counsel’s advice, notwithstanding that I intuitively agree with the Senator’s point about the haphazard or careless presentation of planning applications on occasions. I do not believe that issue will arise in this case and I hope it will not because it would be a costly exercise for those involved. The advice from the Parliamentary Counsel is clear and I intend to stick with it.
Mr. Bannon: The insertion of the word “either” in this subsection would bring greater clarity to it. It is important to insert the word “either” after the word “that”, as permission can be refused on the basis of either the application or the environmental impact statement.
Mr. Roche: When the Senator suggested we should take this point aside and examine it, I was interested, but there is not a cogent argument for doing what the Senator proposes. If we were to insert the word “either” in this subsection, we would have to redraft the text elsewhere in this section and insert another word “either”, which would not add greatly to the text. If one includes the word “either” after the word “that” on line 40 of page 8, as Senator Bannon is proposing, one will subsequently have to insert the same word elsewhere in this section. It is a question of the stylistics of drafting.
The insertion or omission of the word “either” would not have a significant impact on the Bill. The proposed section 37E is clear without the inclusion of the word “either”. If one makes such a change, one will have to examine the consequential text, which would complicate matters unnecessarily. I do not think the inclusion of the word “either” would bring any additional clarity to the situation. The text, as it stands, is clear enough on the issue of when a board may refuse to deal with an application. The proposed additional word would probably add nothing to the legislation. If I accept the amendment, I will have to consider the need for further redrafting. Therefore, I am not disposed to accepting it.
Mr. Bannon: I do not agree with the Minister. I propose that section 37E should state that “the board may refuse to deal with any application made to it under this section where it considers that either the application for permission or the environmental impact statement is inadequate or incomplete, having regard in particular to the permission regulations and any regulations made under section 177 or to any consultations held under section 37B.” The inclusion of the word “either” in that way would make more sense and give greater clarity. It should be emphasised that the board can refuse to deal with an application on the basis of problems with either of the documents.
Mr. Roche: It is not necessary to insert the word “either” in this section of the Bill. If the word is omitted, any decision of the board to “refuse to deal with any application made to it under this section” will be permitted if the board “considers that the application for permission or the environmental impact statement is inadequate or incomplete”. If one includes the word “either” in that provision, one will have to introduce it in again later in this section. It would be superfluous in that it would not actually bring any additional clarity to the legislation. The Bill clearly gives the board the power to issue a refusal if any of the circumstances which are mentioned present themselves. I do not think the inclusion of the word “either” in several parts of the legislation would give it any more clarity.
Senator Bannon made a good point some time ago about computers, which were not around when parliamentary draftsmen started to hone their innate skills. In modern parlance, we tend to write things down and indent particular points under four or five headings. I am convinced that the insertion of the word “either” in this instance would not add the clarity that is demanded by Senator Bannon. It would not make any significant change to the meaning of this section. If I accept this amendment, I will be required to consider the follow-on text. I do not think there is a case for the insertion of the word “either”. I regret that I will have to be negative again as I hate being negative to the Senator, as he knows.
Acting Chairman: We will now move on to amendment No. 20. As amendment No. 68, the amendment to amendment No. 86 and amendment No. 110 are cognate, and amendment No. 124 is related, we will take the amendments together, by agreement. Is that agreed? Agreed.
I welcome the Minister, Deputy Roche, to the House. I hope his comments about not wishing to be negative, which will be tested by these amendments, are true. The amendments seek to oblige developers to make the details of environmental impact assessments available on the Internet, free of charge. Such a small measure would help to inform public opinion. It is important that information should be communicated to the discerning public free of charge.
Mr. Roche: That we are talking about websites in the context of legislation is a sign that we have come a long way. The amendments before the House seek the specific inclusion in the Bill of a provision that would require the publication in a newspaper of the name of a website on which an environmental impact assessment can be downloaded or viewed free of charge.
I agree with Senator McCarthy that it is critical that the planning system should use the Internet as much as possible. I said in another context over the past two days that we should use the Internet more frequently. Section 248 of the legislation already takes account of the possibility of publishing such information on websites.
The Bill will amend section 146 of the principal Act, which ensures that where the board is required to supply any information, it may do so by electronic means, as long as it notifies the relevant parties that the information will be made available electronically. If such information is posted on a website, it is available free of charge as a matter of course. Therefore, no added value is offered by the specific inclusion of the phrase “free of charge”, as suggested by Senator McCarthy. I do not propose to accept this amendment for that reason.
The substance of the Senator’s amendment, which is his desire that information about these matters be freely available, is dealt with in the body of the Act itself. I share the Senator’s view that we should make this information as freely available as possible. That is the effect of the other sections of the Act I have mentioned.
Mr. McCarthy: I thank the Minister for his reply. It is important that he has made a statement about the need for more use of e-technology. That websites are being mentioned in legislation is a reflection of the progress we have made in the information age in recent times, especially as not too long ago, many people did not know what they were used for.
E-technology needs to be used in the future and the principle I have outlined needs to be applied. I remember the Minister making a statement in the House approximately a year ago about the need to ensure that applications for planning permission can be lodged to local authorities on-line. I do not think there is any difficulty with that. One can tax one’s car on-line without any problems at present. The good principle of communicating information free of charge, while encompassing e-technology, needs to be affirmed in legislation.
Acting Chairman: As amendments Nos. 22 to 27, inclusive, 70 to 72, inclusive, and 74 form a composite proposal, they may be discussed together, with the agreement of the House. Is that agreed? Agreed.
This amendment is being taken with amendment No. 23, which proposes the deletion of the same words, and amendments Nos. 24 and 25, which propose the insertion of the words “the proposed development were”. These technical amendments, particularly amendment No. 25, would give greater clarity to the Bill. Perhaps the Minister will also examine amendment No. 26, which I have tabled to correct a grammatical error. Amendment No. 27 proposes the deletion of the words “in relation to a proposed development to the Board” in lines 13 and 14 of page 10 of the Bill. Is the Minister considering a report in this regard?
Again, amendment No. 28 is a technical amendment, proposing on page 10, line 16, to delete “the views of the members” and substitute “their views”. This would bring greater clarity to the Bill. It is probably just a matter of definitions and perhaps the Minister can take some or all of them on board.
Mr. Roche: Again I thank Senator Bannon. This is really a stylistic issue. He is proposing in the main here to remove the words “proposed development”. If one goes back to the spoken language the words “proposed development” would not be used time and again in different sections which are clearly related. We are not talking about the spoken language, however, but a legal text and the advice is to leave those words in.
Mr. Roche: The Senator is possibly right. It adds significantly to the word count, but if one considers, from a different viewpoint, the possibility of a legal challenge to a particular section it is clear that the section requires the type of self-containment ensured by including the whole set of words. On amendment No. 26, I am not sure that it is grammatically correct to take out “from the” and substitute “of”. The oracles might need to be consulted on that, but we cannot accept the amendment. Basically, amendments Nos. 22 to 25, inclusive, by deleting the words “the proposed development”, and in particular by doing it twice in section 37E(3) and 37E(3)(c) — although the Senator does not propose making a related deletion in paragraph (c) — would be necessary if the amendment were to be accepted. However, amendments Nos. 70 to 72, inclusive, and amendment No. 74 propose similar changes. As I said, it is more a question of style than substance, particularly in the case of the minor amendments Nos. 26 and 27, which would have no impact on the Bill. It would be better to leave the Bill as it is, although I compliment Senator Bannon on his punctilious observations on grammar.
The more serious issue is the deletion of the words “of the proposed development” and it would be unwise to do that for the reasons I have outlined. Although one would not necessarily repeat the same phrase over and over in the spoken word, in the legal text it is necessary, and so regrettably I must again be negative. My heart is with the Senator, however, on the necessity to tidy up and shorten the legal text. In this particular case, in the interests of clarity, it is important to retain the words he has suggested should be deleted. I regret I cannot accept his amendment.
Mr. Bannon: On amendment No. 27, which proposes the deletion of “in relation to a proposed development to the Board”, the phrase “under subsection (4), submit the report” could refer to any report. The Minister has not specified a report, so perhaps he might provide more clarity in that regard. Different interpretations may be taken. It just states “submit the report”.
Mr. Roche: The words “in relation to a proposed development to the Board” have a very specific purpose in that particular sentence, if one reads the entire section. To delete those words would have the exact opposite effect to that being sought. Section 37E(4) reads, “...prepare and submit to the Board a report setting out the views of the authority on the effects of the proposed development on the proper planning and sustainable development of the area of the authority, having regard in particular...”. The balance of that section would be affected adversely by adopting the Senator’s proposal. It would be unwise to do that. It is a complex section but to remove those words would not have the effect the Senator desires.
It goes on to state: “The manager of a planning authority shall, before submitting any report in relation to a proposed development to the Board under subsection (4), submit the report to members of the authority and seek the views of the members on the proposed development.” I am very anxious, as I am sure is the Senator, that this be crystal clear. In this section of the Bill we want to do something that has not been done since 1963, that is, to provide in law a very specific right to elected representatives in councils to make observations on a planning application on which a decision is in the process of being made. It is important therefore that this particular section is precise and provides the planning authority and council members with a clear view of what is expected. I am conscious that this is breaking new ground. I believe the Senator welcomed it when we discussed it on Second Stage. It is to make it clear that people cannot decide to throw in the kitchen sink and everything else. The phrase, “the manager of a planning authority shall, before submitting any report”, refers to a report on the specific case under review. It would be unwise to strike the words out because they tie down precisely what powers we are going to give the councillors. It is unique because this has not happened since the mid-1960s when the original planning regulations came in. It is very important that this is drafted with a degree of precision.
Mr. McCarthy: While I support Senator Bannon on this, the Minister is making an important point about giving powers to members of local authorities. We have seen their role undermined somewhat in recent times. The Local Government (No. 2) Bill, for example, removed the decision making ability members of local authorities had as regards setting the cost of waste collection. That gives rise to a greater issue, namely, the role of the elected member and his or her reserved functions. It is very important that management at all times is at least obliged, as the legislation intends, to be accountable to the elected member, who is the agent between the public and the executive of the council. That is an important point that has been made this afternoon. It revisits the heart of local democracy. Senator Bannon, I know, is concerned that matters be clearly outlined and understood and he deserves support, but it is very important to underline that ethos in legislative terms so that the manager of the local authority is obliged by virtue of legislation to issue reports to elected members. There is an element of accountability there and it restores some heart to local government.
Mr. Bannon: I, too, support the statement by the Minister as regards strengthening the role of elected members of local authorities. We are all elected representatives in some shape or form and have to deal with local authorities and planning and development applications in our counties. Perhaps the Minister could go even further and name local authorities and also public representatives in this particular area. That would strengthen the legislation and show the respect in which the elected local representative is held. After all, the elected member, in effect, is the voice of the people on the ground. Their views should come first. In no way will they step on the toes or fly in the face of the elected member. It is an important go-between involving the people and Government and due recognition should be extended to local councillors throughout the country. For far too long their role has been diluted and diminished in much of the legislation enacted. They have been bypassed as regards environmental protection legislation and in several other areas. Hopefully the Minister will try to re-establish many of the powers that were taken from local authority members over the years to give them a greater role in functional democracy.
Mr. Brady: The Minister is making an important point as regards the clarity of language in particular. Judging by his previous amendments it is clear Senator Bannon is concerned about the precise use of language. We have all had experience, particularly at local authority level, of instances where officials have taken advantage of a lack of clarity in a particular section, be it on planning or any other issue, in regard to elected representatives or with the general public. The more clarity and conciseness that can be brought to a section like this, the better. This is especially the case in this context where it is specified that the report has to be a specific report covered under the previous section. In light of the other amendments we are discussing, particularly about language, it is crucial we have clarity in this section.
The introduction of preplanning meetings has been very important for public representatives and the public. Local authorities must employ more planners because there is a shortage of planners due to the significant number of applications now being made to each local authority. When we abolished the dual mandate we put in place an arrangement for Oireachtas Members to meet with county managers at least once a year but in many local authorities more frequent meetings take place. In County Galway we try to meet at least twice a year and perhaps we will improve on that in the future. We can also discuss planning issues at those meetings, which is important. As well as the introduction of more clarity, positive things are happening in local authorities in regard to planning and planning applications in particular.
Mr. Roche: I will not accept this amendment and reading through it again and listening to the debate I am conscious that we are ad idem on one thing. Senator McCarthy stated that over the years there has been a haemorrhaging away of authority from elected representatives. Senator Bannon made the same point. In many ways councillors find themselves as rather impotent in a council chamber faced, as they frequently are, by the dominant powers wielded by managers. We have specified those powers which are reserved to councillors and everything which is not reserved to them is, effectively, an executive function. By definition, that means that the executive functions have grown dramatically over the years whereas the reserved functions have only grown where the law has specifically given powers to councillors.
This section has to be read in conjunction with those sections following it. For the first time I am giving powers to local councillors which they will use judiciously to record their views and to make sure that these views will be noted even where they may be separate, and sometimes on major issues will be separate, to the views of the management team which may be the proposer or closely associated with some of the infrastructure. I want councillors to have a very specific power here, namely that they may comment in this area. While I accept Senator Bannon’s general point about the excessive use of words and phrases, it is important to maintain them because if ever there was a section where this was required it is here as it makes the intention clear.
I agree with Senator Kitt in that I too find the process frustrating. Senators will be aware from their own experience that planning legislation refers to ministerial guidelines being issued. They are not diktats but they do have a power in law. The word “guidelines” is sometimes used in a way that would suggest they are desiderata rather than having any compelling element within them. That is sometimes the way it is defined by local authorities.
In this section I am breaking with all precedent in giving specific powers to councillors. I know that on all sides of both Houses there is an awareness that it is necessary that this is done. I must be very specific in what I am doing here. I do not want to provide an opportunity for people to ramble all over the place, I want precision. This is a case where, with respect, it would be wise to retain the words set out and I propose so doing. For positive reasons I am not accepting Senator Bannon’s amendment.
Mr. Bannon: We are all in agreement that more power should be given to local authority members. As I pointed out in regard to several other items of legislation, powers have been taken away from elected members. What frustrates elected members around the country is that county development plans are prepared and signed off by the elected members but the interpretation of definitions is subsequently taken by county managers when they consider planning applications. The interpretation of managers and elected members frequently differs. This can be most frustrating. The problem most likely has to do with the wording, which councillors sometimes do not fully understand.
Managers always appear to have a knack of getting around the wording in county development plans to accommodate themselves, which leads to frustration for elected members as they are conscious of cases where young people are trying to get planning permission, for example, on their own farms. This is especially a problem if they are in close proximity to a scenic area even if the area in which they want to build does not come within that designation and would not obstruct a view of the designated scenic area. Common sense does not prevail and this frustrates elected members from time to time.
I hope the Minister will bring some clarity to this matter and try to ensure that planning permission can be given for sites with views over a townsland or section of townsland because currently no development is allowed in areas that are designated as scenic. In some cases where a person farms 50, 60, 70 or 100 acres it is very frustrating if some section of the farm is not considered acceptable for a housing development for the use of the landowner or a family member.
Mr. Roche: The last part of Senator Bannon’s contribution is not something against which I would argue. He will accept I have already made guidelines on rural planning for which I have been roundly criticised by some quarters but about which I am proud, especially when I drive through the country and see the resurrection of the countryside, the very point Senator Bannon advocated. I do not think the amendment deals with this problem. If Senator Bannon would accept the point I make——
Mr. Roche: ——and getting back to the amendment, it is important that we keep the precision as it is drafted. That will be to the advantage of councillors around the country. They will know precisely and specifically on what they may draw up a report.
It is essential that this amendment should be made because it proposes the involvement of an independent health expert. It is particularly disappointing that the legislation makes no attempt to equip planning bodies with the necessary health and safety expertise, which would help to restore public confidence in the entire planning system and ensure planing decisions are made with public health as a primary interest. For example, when an incinerator comes up for planning permission, why does the issue of public health barely get a mention? It is important that an independent health expert could be called in to give a view on this issue. Why are representatives of the World Health Organisation never permitted to address planning authorities or the public? I highlighted this issue previously and it is important that the amendment should be taken on board because it would allay public fears.
The greatest issue people have with incinerators is the lack of research and denial of an opportunity to independent health experts to give their view in the legislation. This is a good amendment, which should be taken on board in the interest of the health and safety of all our citizens. If there are no health implications, there is nothing to fear and, therefore, experts should be brought in, given that people would go along with their views. Protests, anger and annoyance, which result from the failure to obtain the best advice, would be diminished among the public.
Mr. Roche: The Bill does not exclude expert advice. It provides that the board may seek the views of any person or party it feels may have information relevant to the determination of an application. That would include health experts if, in the opinion of the board, that would be appropriate. The Bill also provides for the making of regulations to prescribe bodies for the purpose of consultation on an application. The normal practice was to make reference to the health boards and the specific reference, following the enactment of the legislation, will be to their successor. Health boards have been prescribed authorities “where it appears that the development might have a significant effect on public health”. Making regulations would be more appropriate to avail of the necessary health expertise and reference would be made to the HSE.
Mr. Roche: Yes, that is why a specific reference can be made in this regard to regulations, as has happened in the past. It is not necessary to amend the legislation because the board may seek the views of any person or party it feels may have information and that would include health experts. The practice was to make regulations to prescribe bodies for the purpose of consultation which, in this case, were the health boards but the reference will be to the HSE and that is the most appropriate method of dealing with a specific issue. I accept the Senator’s comment that it is an important issue but it is more appropriate to specify bodies in regulation, which will achieve the same purpose as his amendment, and that is my intention.
Mr. Bannon: It is essential that this amendment should be inserted because reference is not made to health and safety expertise in the legislation. The Minister referred to health boards but they were abolished more than 12 months ago. Their successor, the HSE, is not mentioned. I plead with the Minister to take the amendment on board. It is not too much to ask him to accept it because it will allay the public’s fears.
The Minister and I are politicians for a long time and we have experienced the anger that can be generated by proposals for incinerators in local communities. A few years ago a delegation of local authority representatives visited a number of European countries to examine incinerators. A large delegation visited an incinerator in Germany in the context of preparing the regional waste management plans but it closed three weeks later. That caused a great deal of hassle and the regional plans were not adopted at the time. The former Minister for the Environment, Heritage and Local Government, Deputy Noel Dempsey, then abolished the waste management powers of local authorities.
However, the local authorities had genuine reasons not to adopt the plans, given that they provided for incineration. We had witnessed what happened in Germany. Health and safety issues resulted in the closure of that facility, which I visited at the time. We were told it was a state-of-the-art facility, which catered for the needs of the area but three weeks after we returned it was closed in a blaze of publicity, not only in Ireland but throughout Europe, on health and safety grounds. This amendment would instill confidence in people that an independent health expert could be called by the board. I would appreciate it if the Minister would take the amendment on board because many people will be angry if he does not.
Mr. Brady: All of us can pick an example. I visited incinerators in different parts of Europe and I agree with the Senator on the health issue. We recently visited the headquarters of the Environmental Protection Agency and its officials point out that the health implications of incinerators are included in an environmental impact assessment. The agency assesses all issues, including traffic, sewerage, electricity, health and safety and so on. It is open to the EPA to take on whatever expert advice it feels is necessary. The Minister stated the Bill does not exclude consultation with experts and, therefore, local authorities can engage an expert if they need an opinion. We can all outline examples of developments going wrong but the thrust of the Bill is in the interest of the wider good. All of us have dealt with delegations and protests about various issues, including incineration, and that will not change. The public has access to many different mechanisms in this regard.
Mr. Kitt: Section 3 deals with permission for strategic infrastructure development. We might have concentrated too much on incineration for the past 20 minutes of the debate, but I agree with what has been said about the health implications. This section refers to proper planning and development, as the Minister rightly pointed out. I hope that is the overriding view. The board can query issues about health.
Senator Bannon’s amendment refers to a reasonable request. What might be reasonable to Senator Bannon might not be reasonable to me or to someone else. Some of the amendments refer to doing things “as far as practicable”. I worry about that phrase because we need certainty. The Bill is very extensive and it deals with proper planning and development for these major projects. If the board wishes to get a view on health implications, it can do so.
Mr. Roche: I gave Senator Bannon’s point some thought during the short break between press conferences and other things. I understand his concerns, but the health issue would have to be covered in an EIS. In a project developed under this Bill, an EIS would be part and parcel of the process. The arrangements in the Bill as stated are permissive, that is they allow the local board to call on such expertise as they deem necessary. It would be more appropriate to deal with this specific issue through regulation and this has been the practice in the past, when reference was made in regulation to the former health boards.
I will give further thought to the matter before Report Stage. A recital will be made of the expertise to which a board can refer and I will determine at that stage whether additional references should be made. I accept the Senator’s point that health is important but we must also realise that in drafting this strategic infrastructure legislation, we do not want to provide for estoppel procedures because that would negate the purpose of the Bill. It is important to achieve the proper balance.
The EIS will inevitably address any health implications that arise in the course of infrastructural projects. The Bill as it stands is permissive, so a board can call on expertise where it is considered necessary and this will undoubtedly be done. A precedent has been set with regard to making reference in regulation to the bodies which must be consulted. I will consider the possibility, in the context of a recital of the various issues, of making further reference to the matter. I have a certain sympathy with the points made by the Senator but I cannot accept the amendment as it is written because it clearly provides for estoppel procedures, which would negate the purpose of the legislation. The appropriate health body will be referred to in regulation and the Bill’s permissive terms will allow the board access to value-free health expertise.
Mr. Bannon: This Bill provides for the transfer of many of the Minister’s powers to An Bord Pleanála. Senator Kitt referred to discussions on incineration and landfills but we are entitled to debate such issues because the Senator knows as well as I the controversies which arise from them. Concern exists among the public about the health implications of major waste management projects such as incinerators but these concerns have never been clearly addressed. In the past, I have called for the establishment of scientific review committees to deal with those issues and to allay people’s fears, yet the Government has not responded. I am pressing this amendment because it is important to the health and safety of our citizens and communities.
|Bannon, James.||Browne, Fergal.|
|Burke, Paddy.||Burke, Ulick.|
|Coghlan, Paul.||Coonan, Noel.|
|Cummins, Maurice.||Feighan, Frank.|
|Finucane, Michael.||Hayes, Brian.|
|Henry, Mary.||McCarthy, Michael.|
|O’Meara, Kathleen.||O’Toole, Joe.|
|Terry, Sheila.||Tuffy, Joanna.|
|Brady, Cyprian.||Brennan, Michael.|
|Callanan, Peter.||Daly, Brendan.|
|Dooley, Timmy.||Fitzgerald, Liam.|
|Glynn, Camillus.||Hanafin, John.|
|Kett, Tony.||Kitt, Michael P.|
|Leyden, Terry.||Lydon, Donal J.|
|MacSharry, Marc.||Minihan, John.|
|Mooney, Paschal C.||Moylan, Pat.|
|Ó Murchú, Labhrás.||O’Brien, Francis.|
|O’Rourke, Mary.||Ormonde, Ann.|
|Phelan, Kieran.||Quinn, Feargal.|
|Ross, Shane.||Walsh, Kate.|
|White, Mary M.||Wilson, Diarmuid.|
Mr. Roche: I tend not to disagree with the Senator on the question of absolute power. This phrase was introduced for good reason in section 16 of the 1976 Act that established An Bord Pleanála. It was introduced to prohibit interference with the board and to prevent it from being stymied in its right to make a decision on an oral hearing.
The phrase jumps off the page and causes difficulties for me as well as for the Senator. However the arguments for continuing to use it, which practice commenced in the 1976 Act and was continued in the 2000 Act, are overwhelming. The Senator proposes the removal of absolute discretion being granted to the board on a number of functions, most notably on oral hearings but also to require further information from the applicant or other person, request the revision of the application or hold meetings with the applicant or other person where the board feels that it would be helpful in determining an application. To leave the board open to vexatious challenges, as the removal of the words would do so, would damage the planning process.
On the issue of oral hearings, I strongly believe that the board must be given absolute discretion to decide when to hold an oral hearing and when not to do so. It would unnecessarily tie the board to leave it open to challenge on each and every occasion. This would run directly counter to the purpose of the Bill, which is to try to create a system that works more efficiently than the present system while also balancing the powers. It would allow the board to re-balance the situation in which increasing numbers of oral hearings are being held on relatively minor CPO cases.
Let me give an example of this. If the words were removed from the Bill, the board could be challenged time and again on whether there should be an oral hearing on a CPO case. The only people who would gain from this would be legal eagles. One point is certain, it would not serve the public good. While the phrase “absolute discretion” jars with me, as it does with the Senator, the public interest is the best argument for keeping it in the Bill. If every minor CPO could be subject to legal challenge where it is decided that the board does not want to hold an oral hearing, that would not be in the public interest. The board must have the discretion to use its judgment with regard to the holding of oral hearings. The phrase “absolute discretion” simply underlines the fact and ensures that the board cannot be challenged where it makes a call on its procedures.
The phrase is used extensively in the 2000 Act but my understanding is that it first appeared in section 16 of the 1976 Act. It is important not to risk any confusion by using different language in different sections of the Bill to express the same idea. I ask the Senator not to press the amendment. If one considers the arguments which were put forward, obnoxious though the words “absolute discretion” used in conjunction tend to be, there are cogent reasons we should keep and continue to use the phrase in this case.
Mr. McCarthy: I appreciate the Minister’s reply. There is obvious merit in what he says and the point is well made. If one wants an example of the Minister’s point, one need look no further than the incinerator in Cork and the disparity between the inspector’s report and the absolute discretion of the board in that case. I may revisit this matter on Report Stage but the fact that this term was introduced in 1976 is at least an indication that we may look at other phraseology that might better address the point the Minister makes. I accept the board needs to have no outside interference to reinforce its independence, which is an aim to which we all aspire. I will withdraw the amendment but I may revisit it on Report Stage.
Mr. Roche: I am grateful to the Senator. If one examines the 1976 Act, one will find a reference in the same section to the Minister having certain rights to overrule. That has since been dropped. The Senator is right that it is important that we protect the board’s right to make decisions. If he raises the matter on Report Stage, I will address any queries he has.
These amendments are of a technical nature and will provide a clearer interpretation of the Bill. They are self-explanatory and would greatly improve the Bill. The Minister would be wise to accept them and I hope he will consider doing so.
Mr. Roche: The Senator will not be surprised that I believe the amendments do not add value. One thing they achieved was to keep many of my officials up over the weekend. They were saying prayers for the Senator because I said I wanted each individual case dealt with.
The question is again one of language usage. The inclusion of the words “for permission” in every phrase could be regarded as somewhat pedantic in the spoken word but here we are referring to the written word in a legal text. The overwhelming advice is to retain the phrase. In fact, there is an irony in that elsewhere the Senator is seeking to add words whereas here he seeks to remove them. It is a question of legal drafting or of legal eagles having slightly different views as to the best way to express the same meaning. I cannot accept the amendments.
This is a technical amendment which would improve the Bill, although the Minister may have a different view. The Minister stated his officials were up late over the weekend. I also burned more than the midnight oil putting the amendments together.
Mr. Roche: Will the Senator stop? The amendment is a little pedantic. To add the words “where applicable” is somewhat otiose if one reads the section. The amendment could insert the phrase “where applicable” in a paragraph permitting the board “to indicate that it is considering granting permission, subject to the applicant for permission submitting revised” drawings. The amendment is unnecessary because the section itself states that the board has an absolute discretion as to when it would do this.
The provision is one of the important changes brought by the board to allow it to have greater flexibility in handling major applications. It allows the board to ensure the right development in the right place. The Senator is not in any way querying that, with which I am pleased. However, to add the words “where applicable” would not in this case bring anything additional to the drafting. It is otiose and excessive wording because the section itself is clear in that it gives these powers to the board to use where applicable.
These are technical amendments which would improve the Bill by giving greater clarity to the section. The Minister might consider accepting them. I spent considerable time reading through the Bill and feel the amendments would be a useful addition.
Mr. Roche: I am sorry the Senator had to stay up so late at night. I hope he did not lose too much beauty sleep. Unlike the previous amendments where he wanted to strike out words, these amendments add words. I understand the Senator’s point, which is to remove the phrase “or for the purposes of an activity for which” from subsection (5) and insert a similar phrase later in the Bill, which is a little odd. The phrase used throughout the Planning and Development Act 2000, the Environmental Protection Agency Act 1992 and the Waste Management Act 1996 is “comprising or for the purposes of an activity”. That is sufficiently broad to ensure the EPA is consulted where it is necessary for the board to obtain its views.
I do not propose to accept the amendment. There is a risk of confusion where different language is used in different sections to express the same idea. Much of the language used in the Bill is based on the existing phraseology of the 2000 Act. That is why I want to keep the language in the two pieces of legislation, which will be read in conjunction with each other, as close as is possible. Senator Bannon stayed up very late that night but I hope it was a pleasant one for him otherwise. I cannot accept the amendment.
Mr. Bannon: I submitted similar amendments on Committee Stage of the Waste Management Bill and the Protection of the Environment Bill. Although the Minister said on Committee Stage he would not take them on board, I noticed he tabled them as Government amendments on Report Stage. I would not be surprised to see some of these amendments on Report Stage. The Minister has probably not studied the Bill fully. Some of these amendments will be tabled as Government ones on Report Stage when I will be able to comment on them further.
Mr. Roche: All I can say is that the Senator’s charms and persuasive powers worked more easily on the less hard-hearted Minister at the time. I do not wish to crush the Senator entirely but in amendment No. 44, he proposes to delete the word “a” in the phrase “an integrated pollution control licence or a waste licence” in subsection (5). The phrase is grammatically and legally correct so I cannot accept that amendment either. If I accept some of the amendments on Report Stage, the Senator can say “I told you so”.
This is an important amendment which is why the Minister should accept it. If there is no decision from the agency, we should not delay. If consultation has taken place or if there is no need for it, we should not wait a specific period but should move on and allow the development to go ahead. It is important to involve the Environmental Protection Agency. The Oireachtas Joint Committee on the Environment and Local Government received an invitation to visit the agency during Easter week. It is important that all public representatives, particularly directors of services in local authorities dealing with the environment, visit the agency and meet the directors who are doing a good job. They are very open to discussions with elected representatives, whether Oireachtas Members or local authority members, and officials of local authorities. That should be encouraged and I mentioned it to Dr. Kelly who said she would take it on board and try to consult the members and chairpersons of environment committees in local authorities. Such consultation and negotiation is important as it would give people greater insight into the work of the agency.
Mr. Brady: I agree with Senator Bannon in regard to the EPA and Dr. Kelly. The Oireachtas Joint Committee on the Environment and Local Government visited the EPA recently and we had a very fruitful meeting with the board. It has committed itself to going into communities, particularly where there are issues in regard to major developments which would affect the environment. It is also committed to consultation with various groups, including non-government organisations and elected bodies, on such issues.
On the amendment, section 3 states that “the board may request the Environmental Protection Agency to make observations within such period (which period shall not in any case be less than 3 weeks)”. It is possible to extend the period if the agency believes an extension is required. It is essential the State agency vested with protecting our environment is comprehensively consulted when any of these major infrastructural developments takes place. The expertise the agency has to hand and which it has built up over the years will prove essential when these major developments take place. I do not believe the amendment is necessary because the section provides for what is required, particularly in regard to the EPA.
Mr. Roche: I thank Senator Bannon for his comments on the EPA because it is easy for people to knock statutory agencies which have been established and demand that the Minister of the day interfere with their independence. I will make sure Senator Bannon’s positive comments are conveyed to Dr. Kelly who, along with her colleagues, have given some considerable service to the EPA. While I do not always agree with the decisions the agency makes, it is robustly independent. It is good Senator Bannon made those points. The point he made about local authorities establishing a more fruitful relationship with the EPA can only be positive. That we demonise agencies when we do not like their decisions but refer to the same agencies in august terms when they make decisions we like is a little immature. The Senator’s point was well made and I am grateful for it.
Having said those nice things, I cannot accept Senator Bannon’s amendment. I will explain why because he deserves an explanation. If I were to accept this amendment, the strategic consent process, which we all agree needs to be put in place and which we are attempting to do in this legislation, would be out of step with the arrangements in place for non-strategic planning cases. That, in itself, would be odd. In principle, it should be noted that the board does not proceed to make decisions without having obtained the views of the EPA. Certainly in significant areas, the board and the EPA have a very fruitful relationship.
The Senator suggests we should be even more ambitious in terms of getting decisions out of the new board quickly. That is to be commended and there are arguments to be made for that. If this were to go ahead, it would stop that happening and would operate as a blocking process. The planning and the IPPC licensing systems are separate but related processes. There is an interface between the two. The EPA and the board operate well and closely. One of the key features of that interface is the ability of the developer, for example, to choose to pursue planning consent and an IPPC licence separately or contemporaneously.
I am strongly of the view that it would be better to leave this proposition out because I cannot foresee a situation where the two agencies would be so out of sync. As I said, in the non-strategic planning cases, one would not have this requirement. It could operate to frustrate the purpose of the Bill that we would move major planning decisions on as quickly as possible. There is a sufficiently cogent argument for the Senator to accept generously my points and not press the amendment.
This amendment, particularly the term “stated reason”, is very important. It is about consultation with local authorities, to which the Minister referred. It is important to include my provision at this juncture. We cannot erode democratic participation in vital decision-making that affects every citizen. Local and regional authorities and the various town councils have county development plans, regional plans, town plans and area plans in place. We cannot fly in the face of these and it is very important that their recommendations be taken on board. This is what my amendment is all about.
Public participation in the planning process is very important, including in respect of controversial projects concerning incineration, landfill sites, electricity pylons, etc. Many of the powers of elected representatives are being transferred to An Bord Pleanála under this legislation and thus Ministers will not have to take responsibility. It is important to ensure the process operates in a transparent, balanced and fair manner.
We are all citizens of the State and it is therefore important that we do not remove the input of the public into the planning process for major infrastructural projects. It is vital that citizens continue to have a say. Ireland is our land and I agree that we must pass it on intact. Individuals take decisions that affect people as a whole and politics is all about people. Sometimes people say all politicians are the same and that they, the people, have no regard for politics and no interest therein, but politics is ultimately about people. Councillors, who represent the voice of the people, have a right to be consulted. This amendment will ensure that the people are included and that their views are taken into account.
We cannot limit full public scrutiny. However, I am afraid this will be done if my amendment is not accepted and I therefore urge the Minister to take it on board. It proposes involving the public and consulting regional and local authorities. The authorities’ plans exist for a purpose and apply for a specific period. We cannot jeopardise plans that have been put in place by those who represent the voice of the people, namely, the elected representatives.
Mr. Roche: I share the Senator’s passion for maximum consultation with local communities through their elected representatives. As I have outlined, and as the House welcomed, the Bill is noteworthy in that it provides a specific requirement for such consultation to take place. It provides very specifically that the views of councillors must be submitted in a separate document and not incorporated as an appendage to the views of management. They must be outlined clearly and unequivocally.
Much of what the Senator’s amendment purports to do is already catered for in the Bill. The board is required to consult local authorities. The Senator stated he is very anxious that decisions refer to the stated basis on which they are made. The new section 37H(2) sets out what a decision given under section 37G and the notification of the decision shall state. There is a good deal of precision in this regard. I share and have foreseen the Senator’s views on this, as is evident from the Bill.
There is a specific requirement to have consultation with local authorities in the area in which a proposed development takes place. If this Bill is passed, the manager will have to consult the members before submitting the report to the board. Any recommendations of the members must be attached to the report and highlighted separately. This arrangement is unique and Senators have welcomed it.
Under the new section 37G(2)(b), the board will be required to consider, inter alia, the provisions of any relevant development plan and regional planning guidelines in force. These documents represent the outcome of very substantial consultation with the public and a wide variety of interests in terms of proper planning and sustainable development. The provisions the Senator is anxious to include are explicit in the Bill.
The Senator did not touch upon the reference in the Bill to section 37E(4). Arising from my examination of the amendment before the House, I am disposed to considering an element in this section on Report Stage. I ask the Senator not to press his amendment because, as it is worded, it does not add to the legislation. All the powers to which it refers are already included in different parts of the Bill.
I believe something further might be done regarding section 37E(4) in light of the specific reference to the planning authority report in section 37G(2)(a). This is highly technical but I might consider making a further provision in this regard. When one is talking about section 37G(2)(a) in conjunction with 37E(4), one could be forgiven for not having the exact meaning at one’s fingertips. I would be prepared to write a note to the Senator indicating my import so he could consider the matter in advance of Report Stage. It would be helpful if I did so and I am always helpful.
Mr. Bannon: The Minister said the “manager” must present the report. My amendment is all about the involvement of elected representatives who, after all, represent the voice of the people. The Minister stated he might examine section 37E. However, my amendment, if taken on board, would deal with this specifically. It is important that my proposal be included in the Bill.
The Minister is iffy about his intentions and implied that he may take my proposal on board on Report Stage. I ask him to take it on board now because my position is well thought out. I am a former secretary of the Local Authority Members Association and have consulted members of local authorities throughout the country. They feel their powers need to be strengthened in the Bill. They represent the voice of the people and are elected by the people for the people. Accepting my amendment would only strengthen democracy in this country.
Mr. Roche: Any measure that would strengthen democracy would be welcome to me but I do not want to go further on this matter than I have gone. The Bill is unique and has been recognised as such by the various local authority representatives and council groups. The Association of County and City Councils, LAMA and the AMAI have all welcomed it to some degree.
There is no great point in pushing the matter much further. The Senator suggested it would go forward from the county manager. With respect, it is appropriate that it should because the county manager can arrange to have the report typed and sent up rather than putting that onus back on the councillors. It is proper that it should be that way.
The Senator has triggered some thoughts in my mind regarding section 37E(4). I will consider the subsection between now and Report Stage to see whether anything can be done. I do not believe that the amendment as worded would improve matters significantly and I would ask him to consider not pressing it.
|Bannon, James.||Browne, Fergal.|
|Burke, Paddy.||Burke, Ulick.|
|Coghlan, Paul.||Coonan, Noel.|
|Cummins, Maurice.||Feighan, Frank.|
|Finucane, Michael.||Hayes, Brian.|
|Henry, Mary.||McCarthy, Michael.|
|Quinn, Feargal.||Ross, Shane.|
|Brady, Cyprian.||Brennan, Michael.|
|Callanan, Peter.||Daly, Brendan.|
|Dooley, Timmy.||Fitzgerald, Liam.|
|Glynn, Camillus.||Hanafin, John.|
|Kenneally, Brendan.||Kett, Tony.|
|Kitt, Michael P.||Leyden, Terry.|
|Lydon, Donal J.||MacSharry, Marc.|
|Minihan, John.||Mooney, Paschal C.|
|Moylan, Pat.||Ó Murchú, Labhrás.|
|O’Brien, Francis.||O’Rourke, Mary.|
|Ormonde, Ann.||Phelan, Kieran.|
|Scanlon, Eamon.||Walsh, Kate.|
This is a technical amendment. I want to see consistency throughout the Bill and “situated” is the word that I am used to, so I am asking the Minister to consider deleting “situate” and substitute “situated”, which would give a little more consistency to the Bill. It is a kind of semi-technical amendment.
Mr. Roche: They say that hope springs eternal and that water will finally wear through even the hardest rock. While Senators were voting, I was discussing the words “situate” and “situated”, and I discovered they are used interchangeably in other legislation. So I am prepared to accept the Senator’s amendment, because he has been so good in pressing so many textual amendments, and it would not do any injury to the Bill to use it. As a tribute to the Senator’s perseverance and to the fact that he stayed up all night looking at various thesauruses to find different words, I am prepared to accept the amendment and am pleased to do so.
We must specify the conditions in this section. The amendment would add to the Bill; it would be a stronger reference and give a clearer interpretation. I support the inclusion of this recommendation.
Mr. Roche: I thank the Senator for proposing the amendment, which refers to an important new power that has been given to the board to attach a condition to a permission providing for community gain. This condition may take the form of provision of financing in whole or in part of a facility or service for the community hosting the proposed development. I recall Senator Bannon on another occasion making a comment, with which I agreed, that communities hosting developments should be able to see some community gain at the end of the day. That is specifically provided for in the Bill.
I am hopeful the board will use this flexible new power to ensure local communities gain substantially from accepting nationally or regionally important infrastructure. This is important because if communities are to host a development which benefits the community, it is fair and reasonable that the benefit to the community should be mentioned.
The Senator’s amendment proposes the insertion of text to provide that the board must specify what that facility or service will be. It was always my intention that would happen. The Senator would like it to be expressly stated. In that respect, he made a good point because that will enable the people in the community to identify the work achieved as a result of their efforts. I am disposed to accepting this amendment. We might have to consider the wording of it. I believe the words proposed are fine. I cannot envisage there being an argument about them. I will accept this amendment because it is a good one.
I am also pleased the Senator accepts the general new principle we are bringing into the planning legislation. He simply wants the local community gain to be more openly and expressly stated. That is a good point. I accept the amendment and am pleased to do so.
A financial consideration is involved in this amendment. The Minister might consider deleting the lines 11 to 17 in the subsection, which provide “A condition attached pursuant to subsection (7)(d) shall not require such an amount of financial resources to be committed for the purposes of the condition being complied with as would substantially deprive the person in whose favour the permission operates of the benefits likely to accrue from the grant of the permission.” It involves a financial consideration.
Mr. Roche: It does. I understand the sentiment behind the Senator’s proposition to delete the proportionality clause. I gave the amendment substantial consideration but I cannot accept it. I will explain my reason because the Senator deserves an explanation.
A case arose a number of years ago where a council sought contributions which were disproportionate and the case was referred to An Bord Pleanála. The council ended up with egg all over its face and nothing to show for it.
It is important we maintain the issue of fairness in the Bill. The reference to community gain in the subsection provides for the community gain being proportionate. If we were not to insert that provision, we would find ourselves in difficulty. I had a discussion on this matter with the Parliamentary Counsel because of my experience in planning. The clause is inserted on foot of discussions with the Parliamentary Counsel to ensure the provision of any condition imposed would not be challenged as unfair. It is important that the issue of fair play is reflected in the Bill.
As with the previous amendment, I gave some thought to this amendment, but the overwhelming argument is to insert the reference to proportionality. Furthermore, it is perfectly reasonable to ensure a condition to provide community gain is not used as a way of refusing permission by the backdoor, which is another issue.
While I appreciate the sentiment the Senator wishes to incorporate in this subsection, the inclusion of the proportionality clause is prudent. It would leave the Bill open to challenge as being unfair if we were not to insert it. Overall, the arguments are strongly in favour of leaving in the clause. I ask the Senator not to press his amendment, which I gave a fair amount of consideration.
The amendment seeks a reduction in the period allowed for a decision to be made. The period allowed of 18 weeks is four and a half months, which is a long time when one is waiting for a decision. Perhaps the Minister could reduce the period allowed to 12 weeks, which is a sufficient period for a decision to be made. It makes sense to reduce the period provided because we are seeking to fast-track the process and move forward quickly. While I sought to clawback in respect of other areas, we should fast-track the process in this area.
Mr. Roche: I note the point the Senator is making but 18 weeks is probably the shortest feasible time for the board to get all its ducks in a row, all its decisions and the reports concerned. If a decision could be made in a shorter period, I would favour that. We have had some extraordinary cases of delays to work on infrastructure, which have frustrated the general public and caused public harm, and all such delays have done is to escalate prices. In practical terms, 18 weeks is a feasible time within which the board can work. We would all like the decision process to be timely and as efficient as possible — we all accept that principle. It would not be right to set an unrealistic target. The board has worked hard to meet the targets it has been set, although it is not always possible for it to do so.
An Bord Pleanála’s performance has improved dramatically in recent times. In 2005 the intake of appeals on infrastructure cases was up 13%. That marked the third successive year of a significant increase, yet the percentage of cases being decided within the 18 weeks statutory period now stands at 78%, which is good, with the average time to dispose of cases being only 15 weeks.
It would be unfair to the board to reduce the period by one third from 18 weeks to 12 weeks. If we could get major strategic infrastructure decisions through in 18 weeks, we would be doing very well, given the fact that some strategic infrastructure has been delayed for year upon year.
I commend the objective of being as efficient, timely and effective as possible, but what is feasible in this context is 18 weeks. Referring to one of the Senator’s earlier amendments, there is a need for consultation and for the various bodies to produce reports. I do not believe that could be done within the 12-week period proposed. I commend the Senator’s ambition in this instance. The upper time limit is 18 weeks and hopefully decisions will come through within that period. It would not be fair to set a target which in my heart of hearts I know would pose difficulties for the board.
Mr. Bannon: I detect from the Minister’s contribution that there will be a staff shortage in An Bord Pleanála. I have grave concerns about the burdens this legislation will place on the board. The Minister is providing an extra grant of approximately €251,000 to the board, despite the fact that last October the board stated it was finding it difficult to maintain the current position in terms of the time it takes to determine cases that have already been dealt with. When Mr. O’Connor from the board spoke to the Oireachtas joint committee he informed us that there were insufficient staff in the board. The Minister spoke of lifting the embargo and providing for the allocation of an additional ten members of staff. In view of this, I can understand the reason for the Minister’s proposal to extend the period in which a decision on a planning application is made to 18 weeks, rather than 12 weeks. If An Bord Pleanála was sufficiently staffed, however, it could ensure that decisions could be made within 12 weeks, beginning on the last day for making submissions or observations in accordance with the notice referred to in section 3. The Minister has proposed to make some minor adjustments to this section. I hope they will be major adjustments which will take my previous amendment on board. The planning reform that is needed cannot be achieved if adequate resources are not put in place. The Minister will have to give due consideration to this amendment.
Mr. Roche: I will commend Senator Bannon’s humanity to his colleague in the other House, Deputy Bruton, who continuously excoriates the Government for what he sees as its profligacy in its spending of public funding, for example by recruiting excessive numbers of public servants. The issue of personnel, which has been raised by the Senator, is not immediately germane to the section of the Bill under consideration. I have received the approval of the Department of Finance to increase the number of staff at An Bord Pleanála by 14, in the context of the board’s additional workload and reorganisational requirements, and by a further ten, in the context of the Bill before the House.
However, it is not easy to find high-quality planning staff because they are not that abundant. There is a resource constraint. I am content that an 18-week timeframe for the making of decisions is appropriate, reasonable and fair. If An Bord Pleanála is able to make decisions in less than 18 weeks, that is fair and well, but I do not think it would be a good idea to set a lower threshold. I assure the Senator that the decision to provide for an 18-week timeframe, as opposed to a 12-week timeframe, was not taken on the basis of staffing considerations. One would probably be able to justify the recruitment of additional staff on the basis of a cost-benefit analysis if one were to reduce the timeframe in the manner that has been proposed. I do not think such a reduction would be feasible, however. If we want to ensure that the planning authority is able to do its job well, we should give it a reasonable period of time in which to do it. The proposed 18-week timeframe is challenging and ambitious, but a 12-week timeframe would be impossible. I ask the Senator not to pursue the amendment.
Mr. Bannon: I welcome the decision to agree to the appointment of four staff in addition to the staff which were announced when Mr. O’Connor addressed the joint committee. The Minister said that sufficient numbers of staff are available, but Mr. O’Connor told the committee that approximately half of the staff who are employed by An Bord Pleanála on a consultancy basis come from outside the State. Have the staff in question been trained in the State? There are different laws and different forms of legislation in different jurisdictions. I would be concerned if I were to learn that the people in question had not been trained in the State. It is important that they be given the training and supervision they need in the State, so they can understand the reports and legislation which have been prepared here. They should know how to work within the laws of the State.
We sometimes hear that local authorities have recruited staff from outside the State who have different opinions and views. That can cause hardship for the citizens of our State. The local authorities, which have recruited people from overseas with the best of intentions, have encountered a great deal of bother as a result. Some cases have gone to court, only to be dismissed. The Minister probably knows of such instances.
Mr. Roche: The Senator has made a fair point, although it is not directly related to the Bill. As planning is a culturally specific activity, An Bord Pleanála and the local authorities have to take care when recruiting staff. Some of the planning staff from outside the State are excellent and very welcome. If they were not available, we would find it difficult to fill vacancies from within the skill pool available to us.
The general point being made by Senator Bannon, which is not relevant to the Bill, is a good one. It is obvious that the planning system is culturally quite specific. I have said on several occasions, for example when speaking in the third level colleges in which students are prepared for the planning process, that it is important that traditional settlement patterns are observed and that the planning system is sensitive to the cultural traditions and settlement patterns which have been observed in this country. I have often made that point to challenge the argument that there are too many one-off houses in the rural countryside. In fact, there are far fewer one-off houses than there were in years gone by. This country has a specific pattern of settlement. We need to get the balance right.
We are straying slightly from the amendment, which proposes to reduce to 12 weeks the period of time in which decisions on planning applications have to be made. I hope, for the reasons I outlined earlier, that the Senator will not pursue the amendment.
Mr. Bannon: I will explain why I raised the issue of the recruitment of planners from outside the State. I accept that such people may undertake a period of training. While I welcome them on board, it is important that they should read the development plans prepared by the institutions of the State and that they ensure they are au fait with the plans for our counties. I refer to local planning policies, for example. We should not take our eye off the ball when people from other countries come here to work as planners. While they are welcome, it is important that they should be familiar with the plans and legislation, etc., which have been drawn up in this State.
Mr. Roche: It is a fair point. The influx of skilled people into this country is welcome because it is a positive thing. If one considers the decisions which have been made at EU level in recent days — I accept that this is outside the immediate context — it is likely that countries which have been less progressive will have every reason to regret their decisions. It is not a good idea to close doors. I accept the Senator’s point about skills and the need to be sensitive. That point does not just apply to planners who were trained outside the country. Those who were trained inside this country’s planning system could be a little more sensitive on certain occasions. On the amendment, I intend to put in place an 18-week timeframe, rather than a 12-week timeframe.
This is a minor technical amendment. If one reads the relevant section of the Bill, it is clear it is necessary to bring a stronger, clearer and more precise interpretation to the Bill. I ask the Minister to consider it.
Mr. Roche: The amendment puts me in a rather peculiar position as a Minister. The Opposition is proposing that the Minister should be given more power, in effect, but I am not prepared to agree to that. The Senator is proposing to empower the Minister to give a direction to the board to prioritise a particular application. The general point I have been making is that we have put in place a planning system that keeps Ministers out of the decision-making process, as far as is practical. That is a good thing, generally speaking, although it is clear there have to be exceptions from time to time.
The text of this section as it stands allows the Minister to give directions to the board to prioritise a certain class, or classes, of infrastructure that is of particular importance to the State. We can all think of circumstances in which such a power would be useful. If a certain class of infrastructure is needed at a particular time, it is right that the Minister should be able to prioritise it. It would be inappropriate, however, for the Minister to have a specific power to fast-track a particular application. Such a provision would be fraught with difficulties and would give rise to public suspicion and concern about the autonomy and independence of the planning process.
The Bill is good, in general, in that it allows the Minister to determine at a certain time that a particular class of infrastructure should be prioritised if it is of pressing need. I am thinking of sewerage works, for example. It would be going too far to allow Senator Bannon’s amendment to become law. I suggest the Senator withdraws the amendment.
Mr. Roche: This is a textual amendment, as suggested by the Parliamentary Counsel. It is simply to delete an unnecessary cross-reference as a proposed development. It is already defined in subsection (1) and does not impact on the substance of the Bill. It is very much like the editing job Senator Bannon wanted to do in so many other areas. I am hopeful this will have the approval of the House.
Mr. Roche: The amendment to section 182A(4)(b) provides that an application for the consent and the accompanying environmental impact statement, EIS, for an electricity transmission line will have to be sent to the local authority in an area as well as to prescribed bodies. This refers back to something Senator Bannon was highlighting earlier, namely, the importance of having a cross-reference to ensure that local authorities receive the necessary documentation. It is normal practice that local authorities are sent copies of applications of this type for observation and this will follow in the other consent processes provided for in the Bill. The requirement will help to standardise practice as regards the notification procedures with regard to strategic infrastructure applications. It is appropriate that we have a standard process.
Government amendment No. 111 in section 24 makes the same change in respect of an EIS sought by the board before it considers amending a consent for a strategic infrastructure. What I am proposing in both of these amendments is to ensure that a single system applies in all cases, which is consistent, and in particular that local authorities have sight of significant reports, as Senators Bannon and McCarthy have suggested is necessary. I hope the House will support both amendments.
Mr. Roche: The amendment to section 182A(5)(a), relating to electricity transmission lines, will allow the board to ask for further information as regards the consequences of proper planning and substantial sustainable development of the area concerned. The current wording allows the board to seek further information only as regards the effects of the proposed development on the environment. This appears to have been an oversight in section 175 of the 2000 Act on which the draft of this section is based. In fact the related amendment, No. 112, proposes to make the same change in section 175.
It makes sense that the board should be able to seek further information on any aspect of the application of proposed development and this will contribute to a more robust decision making process. The amendment is also necessary to bring the section into line with the other consent procedures being provided for in the Bill, and with the language in the same section.
Given that I was once threatened by the CEO, then the chief operating officer of the ESB, to be sued and put out of my home for having the temerity as a mere councillor to oppose one of its planning processes, I believe it is a healthy development to have this type of information. I am pleased, therefore, to have tabled the amendment to correct what I believe is an oversight. Again, I ask the House to support both amendments.
Mr. Roche: I do not believe so. It is appropriate that information such as this should be available to those who want to have a debate or a discussion on it. The Senator is right in suggesting that the energy supply situation is very important. That is why transmission lines are being brought into the Bill and why I am very pleased that the House is so positive about that development. At the same time, however, it is important that there should be consistency across all infrastructure, this included, important as it is. I have had experience of an over-powerful State agency and I want to ensure there is more balance in the planning process. These requirements apply elsewhere. It is fair, reasonable and just that they also apply to the ESB or to any entity involved in the electricity supply or transmission business.
Mr. Roche: This is an important set of amendments. It is the first time that pipelines will be brought within the planning system. That is an appropriate move. Amendment No. 86 is a major amendment to the Bill which I flagged during my Second Stage speech. It inserts three new sections into the 2000 Act, sections 182C, 182D and 182E. This provides for a new consent procedure for major gas pipelines and related infrastructure and for a pre-application consultation procedure for both electricity transmission lines and for gas pipelines.
It is, therefore, an important amendment and a significant move forward in terms of having a consistent approach in planning across the entire range of infrastructure. The new consent procedure is based on one already included for electricity transmission lines in sections 182A and 182B derived from that for local authorities’ own developments requiring EIAs. It is modified to take account of the differences occasioned by the Gas Acts. In particular, it should be noted that the upstream and downstream gas pipelines currently have different consent authorities, namely, the Minister for Communications, Marine and Natural Resources for upstream and the Commissioner for Energy Regulation, CER, for downstream. The new consent procedure has to take account of this difference by ensuring that the CER, in particular, is notified in appropriate cases.
As Senators will be aware, up to now gas pipelines and associated developments have not in any way been subject to the scrutiny of the planning system. They were instead examined by either the Minister for Communications, Marine and Natural Resources in the case of upstream pipelines or the CER in the case of downstream pipelines. The Minister or the CER were responsible for examining the EIS submitted with the development and ensuring the development did not unduly affect the environment, so a contract with the ordinary planning system was a requirement to consult the local authority.
However, the Government felt it was appropriate for the board to be assigned the responsibility of examining land-based gas pipelines from an environmental and planning point of view. That ensures that the existing authorities can concentrate on economic and regulatory issues. These pipelines relate to critical natural resources which must be carefully managed to ensure our future security of energy supply.
Turning to the new procedure, like the electricity line procedure, section 182C provides that a person intending to carry out a strategic gas infrastructure development, which is defined in amendment No. 97, will have to give public notice of the application as well as notifying the local authority and the prescribed bodies. The application will have to include an EIS. The board is entitled to ask for additional information or for a proposed development to be altered with public notification if the information or change is significant.
Amendment No. 85 will delete a subparagraph in the section relating to the application procedure for electricity transmission lines. The deletion is consequential on the amendment of the pre-application procedures for electricity transmission being proposed in amendment No. 86. The new section being proposed, namely, section 182E, will specifically provide for the statutory undertaker to seek and receive such an opinion from the board making the words being deleted unnecessary.
With regard to flagging Report Stage amendments, it should be noted that my Department continues to consult with colleagues in the Department of Communications, Marine and Natural Resources which is considering two specific issues, namely, any necessary consequential amendments to the Gas Acts and whether section 182A is sufficiently broad to capture all types of major electricity lines, particularly the east-west connector. I may bring forward minor amendments in regard to these issues on Report Stage. As I already mentioned, I am most anxious that a consistent approach be adopted across the system.
Amendment No. 88 to the Seventh Schedule will delete the reference to natural gas pipelines and associated buildings from the Seventh Schedule being inserted into the principal Act. Essentially, this will mean that all development comprising, for the purposes of, or associated with, strategic gas pipelines will go through the new consent procedure being proposed under sections 182C and 182D. This has the merit of providing consistency across the various infrastructure types, which is necessary to ensure that there is total clarity between the consent procedure being applied to gas pipelines and associated developments. It will also ensure that strategic gas infrastructure developments are dealt with in an holistic way as one complete project, as opposed to a number of smaller projects. The amendment will also add clarity to, and improve the efficiency of, the planning process in regard to strategic gas infrastructure.
Mr. Bannon: I welcome this amendment which brings greater clarity to the Bill. The deletion of lines 20 to 29 and the substitution of this by three lines has tidied up this section of the legislation. There is much to be welcomed in the Bill and the list of projects to be fast-tracked is most impressive. Projects relating to transport infrastructure and the road network must be advanced. The Minister referred to electricity pylons, gas pipelines, etc. This important infrastructure is vital to towns across the midlands, especially in my local town of Longford. We were hard done by in the past when a plan was in place to bring the gas pipeline via Longford but some ministerial interference brought it in a different direction, via Clara in County Offaly. While I will not name the Minister I have done so in the past at public meetings in my own county.
The Bill allows for the streamlining of the planning process for key infrastructural projects such as those for the harnessing of wind power for energy production in wind farms. Farmers have been encouraged to diversify into this area. Provision has been made in the Bill to fast-track the installation of proposed development of more than 50 turbines, or spinners as we call them locally. I have tabled an amendment to reduce this figure because not everyone may be able to afford to develop a wind farm of the dimensions outlined.
Mr. Bannon: I am not enthusiastic about the Government amendments to the Bill which have caused some confusion. A significant number of Government amendments have been tabled since Second Stage was discussed here six weeks ago. It is important that the legislation assures our continued economic success and the development of the country in a sustainable manner. It is also important that the Bill will ensure we get the required infrastructure for the modern society in which we live. The infrastructure in some parts of the country is equivalent to that which we had in the 19th century in terms of the quality of roads, etc. It is important that the infrastructure in all areas in the country outside Dublin is brought up to an acceptable standard because far too many areas are lagging behind, especially in the BMW region from where I come.
The BMW plan provided for the spending of a significant amount of money in this area in the period of the plan but there has been a great underspend and infrastructural development lags behind the rest of the country. The Minister will have a pivotal role in ensuring it is brought up to a reasonable standard. I would like to see us being able to spend 95% of our funding in the period for which it was allocated, not the 46% that is the current rate. This is crucially important for the development of the area.
Mr. Brady: I am pleased Senator Bannon recognises that the Minister and the Department are listening. I very much welcome the amendments, which clarify a number of high profile issues that have been raised recently. I am also pleased safeguards are built into the section regarding consultation, advertising and the various conditions put on the applicants. The Opposition has been calling for a long time for improvements in competitiveness and the modernisation of our infrastructure and this is provided for in the legislation. Major infrastructural projects must be dealt with to modernise and keep up with other economies. A process must be in place whereby a fair, open and accountable hearing of what is proposed is held and conditions are imposed that protect the public. I welcome the section because it provides a great deal of clarity. For example, the Corrib gas pipeline is an issue but the use of natural gas as a resource will increase, given the increasing price of oil. We must prepare and look forward and the amendment is in keeping with that.
Mr. Roche: The national development plan will be linked to the national spatial strategy. Senator Bannon referred to the BMW area and consistency is important. I am grateful for his positive response to the amendment.
indicating the times at which, the period (which shall not be less than 3 weeks) during which and the place, or places, where a copy of the information or the environmental impact statement referred to in subparagraph (i) or (ii) may be inspected free of charge or purchased on payment of a specified fee (which fee shall not exceed the reasonable cost of making such copy) and that submissions or observations in relation to that information or statement may be made to the Board before the expiration of the indicated period, and
and to indicate to the authority that submissions or observations in relation to that further information, information or statement may be made to the Board before the expiration of a period (which shall be not less than 3 weeks) beginning on the day on which the notice is sent to the prescribed authority by the undertaker.
shall prejudice the performance by the Board of any other of its functions under this Act or regulations under this Act, or any other enactment and cannot be relied upon in the formal planning process or in legal proceedings.
Mr. Roche: This amends the reference in the Seventh Schedule to electricity transmission lines to exclude any development to be considered under the section 182A consent process. This is necessary to ensure it is clear which consent procedure will apply to specific types of development and will prevent a perception of the use of two different consent processes for such lines. I would like consistency and clarity between all systems and it is a welcome amendment. I would be grateful if the House would support it.
Mr. Bannon: The Seventh Schedule contains a list of projects related to petroleum, natural gas pipelines or crude oil refinery. However, the media reported earlier on the possibility of nuclear energy being brought to the State via a pipeline from the continent. Will the Minister give an assurance that such power is excluded under the Seventh Schedule? I hope there is no way this can be done through a back door and I am concerned about this. A Fianna Fáil Member informed me about this news report. Will the Minister update the House on the development of a nuclear energy pipeline?
Mr. Roche: I am sure everything the Senator heard from the Fianna Fáil Member must be correct. However, few Members in either House have an aversion to nuclear power that exceeds my own. I was a little late when we resumed the debate because I met the man who chaired the Chernobyl forum. I am more convinced, as each day passes, of the utter economic lunacy of nuclear power. All parties and groupings did some service to the nation when we made it illegal to generate electricity using nuclear power in 1999. I have tried, and will continue to try, to expose the fallacy of the nuclear debate. My revulsion at the notion of a nuclear power station in this State is at least as strong as the Senator’s.
This amendment relates to wind farms. The legislation provides for the streamlining of the planning process for key infrastructural projects such as wind farms and installations for the harnessing of wind power for energy production with more than 50 turbines or a total output greater than 100 MW. The threshold should be reduced. People do not like wind farms in certain areas but it is an important and clean energy resource. People flock to tourist resorts in Gran Canaria and elsewhere where wind farms are clearly visible. They are, therefore, not obtrusive. Everyone is encouraging farmers to diversify
Mr. Bannon: We should move in this direction and a provision should be made in this regard. I ask the Minister to reduce the number of turbines from 50 to ten. If the Minister does not accept the amendment, I expect he will introduce legislation within the next two years to provide for smaller installations.
Mr. Roche: I thank the Senator. The amendments propose a reduction in the thresholds for a number of categories mentioned in the Seventh Schedule, which largely reflect the EIA thresholds. They were, therefore, not selected on a whim. The thresholds were also carefully chosen to reflect what is considered to represent strategic infrastructural development and to ensure the board does not become overwhelmed with cases, which could happen if the thresholds were set too low. It is important that the new system should bed down with an appropriate threshold. For example, the Senator’s proposed change to the threshold for harbour developments in amendment No. 95 could mean that private marina developers could apply to have their applications fast-tracked. That would not be a good idea. They could not be considered to be of more than local importance. They do not contribute towards the national infrastructure and the Bill only deals with such infrastructure.
It is important to allow a period of implementation for the wide range of categories and associated thresholds in the Seventh Schedule. We can then reflect on that experience and review the thresholds if necessary. However, I am not currently disposed to accepting these amendments as it is important that this review of the strategic planning process be allowed to bed down. In the case of harbours and so on, there could be unforeseen and negative consequences. The thresholds are roughly equivalent to the current EIA thresholds and that is a good cut-off point.
Mr. Bannon: I am glad the Minister has adopted a Fine Gael policy, which is to fast-track the development of wind farms. We would like to see the figure of 50 reduced to a compromise of 30 and allow for——
Mr. Bannon: —— the fast-tracking of wind farm construction to help Ireland increase its electricity generation. The wind farm is often referred to as the oil well in the sky. It is clean, generally acceptable to the public and we should make more use of it. It is vital that we increase our output of electricity from renewable resources. Wind power is part of that and Fine Gael is committed to promoting its use.
We first flagged the issue a number or years ago, but it did not catch on until recently. It is important that electricity is generated in Ireland from renewable resources in the next 20 years. Diesel and petrol prices have risen by 20 or 30 cent per litre in the past two weeks so we should tap into new sources of energy.
Mr. Roche: The Senator seems to have made a career of tilting at windmills. There are a couple of other allusions to Don Quixote which I will leave to one side. He is right when he states that we need to look at generating electricity by wind farms. I am currently completing the planning guidelines for wind farms and I hope to publish these in the next few weeks. However, this Bill only deals with nationally or regionally important issues that need to be fast-tracked. I do not think it a good idea to fast-track every local issue. I intend to introduce guidelines to deal with wind-turbine generators that hopefully will produce more certainty. I have been a fan of windmills for a long time.
Mr. Roche: These amendments will simply clarify the development associated with natural gas storage facilities of a certain specified size. Liquified natural gas facilities will be eligible for a new consent process set out in section 37(a). The amendment is simply aimed at clarification. The Department of Communications, Marine and Natural Resources has requested the amendment in order to ensure the matter is beyond doubt.
Mr. Bannon: That is the equivalent of the size of Dún Laoghaire and my amendment tries to reduce the size to ten hectares. There is much development planned for the Shannon. We need harbours on the west coast and in other areas and ten hectares is sizeable. Provision should be made for the development of the tourism industry in the midlands and other places.
as will be situated in the functional area or areas of a planning authority or planning authorities;’”.
Amendment agreed to.
Section 6, as amended, agreed to.
Sections 7 to 10, inclusive, agreed to.
Mr. McCarthy: I move amendment No. 99:
This is merely a technical amendment that seeks to correct a mistake.
Mr. Roche: I accept the amendment and I am grateful to the Senator for drawing my attention to it.
Amendment agreed to.
Section 11, as amended, agreed to.
Government amendment No. 100:
Mr. Roche: This amendment will modify section 41 of the 2000 Act. Section 41 provides that a planning authority or the board can specify a period longer than five years during which a grant of permission will be valid. The amendment will expand that power to cover the grants of permission by the board for strategic infrastructure proposals under the new consent process set out in the Bill. The amendment to paragraph (b) is necessary to clarify the powers of the board. The current wording refers only to the planning authority at one point, whereas it should refer to the planning authority and the board. While it is necessitated by the amendment to paragraph (a), it also corrects an error in the current wording of the section. I commend the amendment to the House and hope it will be accepted.
Amendment agreed to.
Mr. Roche: Amendment No. 101 is a technical change to delete some unnecessary words and I commend it to the House.
Amendment agreed to.
An Leas-Chathaoirleach: Amendments Nos. 102 and 133 are cognate and may be discussed together by agreement.
Mr. McCarthy: I move amendment No. 102:
Section 50A(6) of the principal Act, as inserted by section 12, would allow the Supreme Court to determine a point of law but not to make an order. This amendment will make it clear that the court can make any consequential order quashing or upholding the permission.
Mr. Roche: These are interesting amendments which propose to further restrict the rulings that the Supreme Court may make in cases under judicial review. While the amendment is broadly in line with what we are trying to achieve, it is be prudent to investigate whether difficulties would arise from such a restriction. With the agreement of Senator McCarthy, I will seek the opinion of the Office of the Attorney General on the proposal and revert to him on Report Stage. I am grateful that the question has been posed but want to take further legal advice before responding to the amendment.
Mr. McCarthy: The Minister’s reply is reasonable. I withdraw the amendment.
Amendment, by leave, withdrawn.
Section 12, as amended, agreed to.
Section 13 agreed to.
Mr. McCarthy: I move amendment No. 103:
This amendment is self-explanatory: civil servants should not serve on the board. I am interested in the Minister’s view of the matter.
Mr. Roche: I am not disposed to accept the amendment. As the Senator noted, the amendment seeks to amend the provisions setting out the panels from which members are appointed to a board by removing reference to the appointment of a civil servant from the Department. Essentially, the amendment means that no civil servant appointment would be made to the board.
The new groupings of bodies from which members are to be appointed to the board are the result of careful thought and are well balanced. The removal of a civil servant would upset the balance between the public, private and community and voluntary sectors. No difficulty has ever arisen in respect of the appointment of a civil servant or the actions of any civil servant following his or her appointment. The current civil service appointee has had a distinguished career on the board and is well regarded and the same may be said for her predecessors. I am not disposed to accept the amendment because the system has worked well and there has never been a problem.
Mr. McCarthy: In light of the Minister’s comments, I am withdrawing the amendment, although I may revisit it on Report Stage.
Amendment, by leave, withdrawn.
Sections 14 to 17, inclusive, agreed to.
Amendment agreed to.
Section 18, as amended, agreed to.
Section 19 agreed to.
Mr. McCarthy: I move amendment No. 106:
It is reasonable to exempt public representatives from paying fees for making observations. I do not need to preach to the Minister about people who make representations to politicians. If a fee had to be paid every time we wrote to an organ of the State on behalf of a constituent, we would need the support of the Central Bank.
Mr. Roche: While Senator McCarthy is correct, a cogent reason exists for not accepting the amendment, tempted as I am to do so. At present, An Bord Pleanála only requires the payment of a fee where a public representative acts to make a submission or appeal in his or her own right. If the representative is simply supporting someone else’s case, a fee is not required under the current system.
This amendment would result in the majority of objections being made through public representatives. I am aware Senator McCarthy does not intend that consequence from his amendment. A number of years ago, I wrote a scathing article about the British ombudsman system, which effectively requires people to make submissions through public representatives. While that is not the intention of the Senator’s amendment, it would be the effect. The Senator’s intention is simply to ensure that public representatives do not go broke by doing their jobs but the amendment plays into a gombeen mentality which we should have left behind.
By requiring a fee only in circumstances where representatives are acting in their own right, An Bord Pleanála is more progressive than some local authorities which have used this device to prevent local councillors from making reasonable submissions and comments. Many of my fellow elected representatives would prefer not to pay the fee under any circumstances but the current system of public engagement would be distorted if it was excluded in its totality. I have given some consideration to this amendment but am not disposed to accept it.
Mr. McCarthy: There is merit in the Minister’s reply. It is not my intention that we would be used by members of the general public to avoid paying the fee. I withdraw the amendment.
Amendment, by leave, withdrawn.
Section 20 agreed to.
An Leas-Chathaoirleach: Amendments Nos. 107 and 109 are consequential to amendment No. 108. Amendments Nos. 107 to 109, inclusive, may be discussed together, by agreement. Is that agreed? Agreed.
Government amendment No. 107:
Mr. Roche: These amendments make a number of small changes to section 21 of the Bill, which amends section 135 of the principal Act. The main amendment is amendment No. 108, the purpose of which is to enable a person holding an oral hearing to require any officer of the local authority, as opposed to a planning authority, to give information to the hearing. This is necessary to ensure that the person conducting an oral hearing has the necessary powers to carry out the tasks required in all types of oral hearings that the board may hold. Senators will be aware that not all local authorities are planning authorities and, in addition, the board is now holding hearings in broad areas and will need the attendance of officials capable of dealing with a range of local authority functions.
Amendment agreed to.
Government amendment No. 108:
Amendment agreed to.
Government amendment No. 109:
Amendment agreed to.
Section 21, as amended, agreed to.
Sections 22 and 23 agreed to.
Government amendment No. 111:
Amendment agreed to.
Section 24, as amended, agreed to.
Sections 25 to 27, inclusive, agreed to.
Government amendment No. 112:
Amendment agreed to.
Section 28, as amended, agreed to.
An Leas-Chathaoirleach: It is proposed to discuss together amendments Nos. 113 to 115, inclusive, amendment No. 1 to amendment No. 115 and amendments Nos. 118 to 122, inclusive. Is that agreed? Agreed.
Government amendment No. 113:
under sections 31 and 32 of, and the Second Schedule to, the Gas Act 1976, as amended, in relation to the compulsory acquisition of in relation to the compulsory acquisition of land in respect of a strategic gas infrastructure development are transferred to, and vested in, the Board, and relevant references in that Act to the Minister for Communications, Marine and Natural Resources, any other Minister of the Government or the Commission for Energy Regulation shall be construed as references to the Board and any connected references shall be construed accordingly.
Mr. Roche: Amendment No. 116 is also related. These amendments are linked to the strategic gas infrastructure consents, which we have already discussed. The amendments will transfer the power to decide on CPOs for major gas pipelines from the current consent body to the board. This is in line with similar changes to the 2000 Act on local authority CPOs in motorways. The Government’s view is that the board is best placed to determine these matters when it is also charged with deciding whether a project is to obtain planning permission. The compulsory purchase functions are currently attached under the Gas Act to a number of people or bodies, in particular the Minister for Communications, Marine and Natural Resources for upstream and the Commission for Energy Regulation for any CPO necessary for downstream pipeline developments. These amendments provide that where the board is given the function on determining the planning consent for strategic gas infrastructure project and a related CPO is submitted, the board will take the decision on the compulsory acquisition.
The text of amendment No. 113 is based on the equivalent wording of section 215 of the 2000 Act, which deals with transferring CPO powers on major roads. It inserts a new section, section 215A, in the relevant part of the 2000 Act. All the existing powers that accrue to the Minister or the CER transfer as they are, including powers on substrata land, rights of way and deviation limits. The one exception relates to the fees payable to the Minister under Article 5 of the second Schedule to the Gas Act. As the board is given the power to recover its costs, this provision is not necessary and subsection (3) of the amendment states that it will not apply.
The other amendments are consequential to this amendment being included in the 2000 Act. They add section 215A to the relevant sections of part 14 of the 2000 Act, including those already being amended by the Bill and make other necessary changes to the wording.
The Labour Party’s amendment to the Government amendment No. 115 would delete the paragraph allowing for oral hearings to be discretionary in the case of CPOs and in respect of strategic infrastructure projects. Oral hearings are not mandatory in planning cases. The change will extend any rule to all matters coming before the board. I have already stated my view that the board should not be required to hold oral hearings in all CPOs. Many of the approximately 60 oral hearings held by the board annually are into CPOs objected to by one landowner or by a small number of people. They could more sensibly and cost-effectively for all be settled through written agreements. There is no legal reason why public hearings must be held on a CPO. They are time-consuming and expensive and the only gainers are lawyers and experts recruited by people to argue their cases. The board will be——
An Leas-Chathaoirleach: As it is after 5 p.m. I have to ask the Acting Leader to report progress.
Mr. Roche: May I finish the sentence? The board will still hold oral hearings on large, controversial cases, such as many strategic infrastructure projects where such hearings are not mandatory but clearly in the public interest. The board must have the discretion to use its judgement on the holding of oral hearings so that appropriate cases are given public hearing.
Mr. Bannon: Is the Opposition allowed to respond?
An Leas-Chathaoirleach: I ask the Acting Leader to report progress. I will allow Senator Bannon to speak on amendment No. 113 when we resume the debate.
Progress reported; Committee to sit again.
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