The 1999 Planning Bill which we are discussing today introduces a number of substantial changes. It is also intended to accelerate the processing of planning applications. Another major feature is the restrictions on the rights of objectors.
SUPPORT IN THE SENATE
Thursday 14 October, 1999
Mr. Coogan (FG, Galway): Please excuse me if I sound like James Dillon today. It is merely that I have a hoarse voice rather than trying to be a parliamentarian of the old style.
Let me welcome the Minister here again. He is introducing a Bill of a substantial nature which took some reading. When he introduced it I am glad he said, "We recognise the conciliatory nature of the Bill and the attempted integration of a number of previous planning Acts." He also pointed out in his introduction that there will be particular aspects of the Bill on which people may hold a different opinion. He requested that we be positive about it and I intend to try to be positive.
The 1999 Planning Bill which we are discussing today introduces a number of substantial changes. It is also intended to accelerate the processing of planning applications. Another major feature is the restrictions on the rights of objectors. With regard to these new restrictions on objectors An Bord Pleanála will not entertain any third party appeals unless the people making them have first made their objections known to local authorities and paid a fee of £20. I understand the Minister's intention in this regard, both from the point of view of financing all the additional paperwork and cutting out frivolous complaints. However, I wonder about the constitutionality of the removal of appeals by third parties. For example, someone who is affected by a proposed development could be away, perhaps on holidays or in hospital, for a number of weeks, fails to see the applications in the newspaper or on the site and returns too late. If they have not made their appeal by that stage they cannot appeal to An Bord Pleanála because of factors that are outside their control. This is not just unfortunate but it could be the removal of a constitutional right.
The General Council of County Councils has written to the Minister regarding aspects of sections 34 and 222 of this Bill. They pointed out that they would have difficulty with the prospect of a fee for making observations on or objections to planning applications. At first they see the problem being at the level of a principle, it is the applicant and not the objector who is the one who initiated the application. It is the applicant who is changing the status quo. For example, a householder quite happily lives in his or her house when an applicant applies to build an intensive dairy unit across the road. Naturally the householder will be concerned and want to make an observation to the planning authority about it. Why should the householder be forced into an expense, no matter how nominal, as a result of a third party unsolicited proposal? I know the Minister will say it is merely £20 but things start out at £20 and in a few years accelerates to substantial sums. A constituent of mine gave me an excellent example. They observed that this is like a citizen seeing a crime taking place, decides to ring the police and is charged not just for the telephone call but given a fee because they rang and carried out their civic duty. An objector may be carrying out their civic duty so why should they have to pay for it?
A further example would be someone who has an interest in the planning application. After they have examined the plans they find that nothing impinges upon them or their rights, that it will not affect their residence or business and allows the matter to rest. Subsequently, the local authority in deciding about the planning application decides in favour of it but may add conditions. These conditions might then adversely affect a person who has an interest but now it is too late for that person to make an appeal. An example of this could be someone who applies to set up a nursing home and the person living beside the proposed home says there is nothing wrong with it. They have looked at the plans and have no problem with it. The local authority then adds a stipulation that they want additional car parking and they want to turn a green area into a car park which might then affect the person living next door but they now have no right to appeal. I am sure the Minister will respond to this issue when he returns. He should re-examine this aspect. In cases like this where an individual is affected by a decision we should be able to make changes and allow that person to make an appeal on that basis.
Another consideration raised at the General Council of County Councils executive meeting was with regard to local authority members who wish to make representations on behalf of local residents or organisations. I am sure the Minister is aware that local authority members and Oireachtas Members are called upon to make representations on planning applications, sometimes supportive and sometimes objective. This activity has become a major facet of the councillors workload. It could be argued that the theory of the planning system allows councillors to have their say at the development stage, nevertheless, the fact remains that individual residents associations expect councillors to make representations on their behalf. That being so, because it is a large facet of their workload, councillors should be exempt from this fee and granted the right to appeal to An Bord Pleanála after the decision. The General Council of County Councils is aware that the fee is to assist in the administrative costs of local authorities when dealing with planning policy. However, they go on to point out - and rightly so - that to impose a charge on a person's right as distinct from a charge for services is neither fair nor logical. It would be remiss of me not to point out to the Minister that the general county council executive body comprises members of all political parties. I am reflecting here on the conclusions reached. Members of the Minister's party, my own and other parties had difficulty with these points. They felt councillors have a genuine concern that they should have the right to continue making representations.
On the provision curtailing the right of third parties to seek a judicial review of any decision by An Bord Pleanála, and where these third parties must show they have a substantial interest in the matter, I understand this to be a property interest. Will the Minister indicate if the provision is constitutional?
Mr. D. Kiely (FF, Co. Kerry): I welcome the inclusion in the Bill of statutory powers for objectors. People have been critical of the introduction of a fee in this regard. However, it is only right and proper to charge a fee because this will stop bogus objectors putting a halt to legitimate developments. Senator Coogan stated that the fee should be £20 but in my opinion we should charge £200 because those who are serious about making objections will be willing to pay. If there is a real need for an objection and people are obliged to pay a large fee, perhaps a clawback system could be introduced so that they could be reimbursed if their objection was successful. Charging a fee will ensure that "cowboys" do not make bogus objections.
Miss Quill (PD, Cork): I accept that in the past there have been unnecessary and vexatious objections to planning applications and that this is a factor, though not the sole factor, in delaying decisions. Decisions are often delayed at an earlier stage for administrative reasons, as I have said. This Bill proposes a charge for anyone who wishes to object to a development and that is wrong. It will have to be looked at again. If a charge is introduced it should be for certain types of development only. If I am living on a pension, as I will be in 20 years, if not sooner, and my neighbour wants to put up a garage that takes from my light and detracts from my comfort, it is not fair to expect a pensioner to pay in order to lodge an objection. A small planning matter like that can distort someone's life and home and may adversely affect the value of a person's home. It is not right that an ordinary person dealing with a planning application such as I have described would have to pay to make an objection. It is undemocratic. I know we must deal with objections that are purely vexatious or that may have a hidden agenda, but this is not the way to deal with them. We are using a steamroller to break an egg. We must find ways of dealing with vexatious objections, but we must do so without removing the democratic rights of citizens to object to a development without charge. The Minister should apply his skills to this issue to see how we can amend the Bill to achieve a certain set of objectives without doing damage.
Mrs. Jackman (FG, Limerick): I am concerned about the position of non-governmental organisations who worry about their lack of opportunity to appeal if they do not lodge objections during the initial period. We are expecting the public to be the watchdogs of the planning process.
Miss Ormonde (FF, Dublin): Another important aspect of this Bill is the streamlining of the system of planning applications, third party objections and the introduction of a fee for that service. That is to be welcomed. I welcome the idea of extending payment of that fee to all of us - making representations on behalf of our constituents will cost us money but we can still support them by supporting their objections. We can overcome that problem. I have no difficulty with the extension of that fee to local representatives. There is one problem with third party objections and I think it was mentioned by other Senators. If one views a planning application and is happy with it and raises no objections, but in the process of assessment that application is amended by the planning officer etc., it may be too late for the introduction of a third party objection at that stage and, as such, the person cannot appeal to An Bord Pleanála. I ask that the Minister review this so that interested parties are informed if a change is made to the plan. I do not know how that could be worked out. It is not fair that a person is prohibited from making a third party objection if an amendment has been made to a plan after his initial sighting of it. I would like the Minister to look at that again.
Mr. Qunn (Ind. Dublin): The problem is that we can only improve matters by reducing the present level of freedom to object to a planning proposal. We must approach this issue carefully. We are coming back to balance and keeping both balls in the air. We must see if we can be fair and democratic and seek what is best for the environment at the same time.
Mr. Costello (Lab., Dublin): There are undesirable restrictions on individuals who have an interest in planning applications. A charge is imposed and there is a requirement that any submission or objection in regard to an application must first be sent to the local authority before reaching An Bord Pleanála. I do not see any reason for that. The number of maverick builders who have made planning applications is greater than the number of people who have questioned the merits of those projects. One should not unduly restrict a citizen's right, and, in particular, that of a public representative, to appeal against any proposed development in their community.
THE SENATE DEBATE RESUMES AT 2:30 ON TUESDAY 19 OCTOBER. PARLIAMENTARY DEBATES ARE PUBLISHED WITHIN THREE WORKING DAYS ON THE INTERNET AND WILL BE MONITORED HERE.
A parliamentary question about the proposed planning fee.
PLANING BILL: PARLIAMENTARY QUESTIONS
To ask the Minister for the Environment and Local Government whether his attention has been drawn to the extreem concern being expressed by many community councils and residents groups concerning the implications from the Planning and Development Bill 1999 that they will have to pay to make a submission to county councils in future;if he is reconsidering this proposal; and if he will make a statement on the matter.
Nora Owen, TD (FG Dublin North)
Wednesday, 29 September, 1999 [17994/99]
The Planning and Development Bill, 1999 contains a provision enabling the Minister to make regulations to require the payment to the planning authorities of perscribed fees in relation to the making of submissions or observations in respect of applications for permission. I have already clearly indicated that it is my intention that the amount of the fee, which will be set out in the regulations, will be relatively small and not such as to unduly discourage persons who have genuine concerns from making submissions to the planning authority. In determining the amount of the fee, I will have regard to the various views expressed. I would also like to point out that the Bill, for the first time in Irish planning law, gives statuatory regulation to submissions or observations made to a planning authority on a planning application.
Infringement of Environmental Impact Assessment Directive 85/337 resulting from proposals contained in the Irish 1999 Planning Bill - the €20 fee and the barriers to justice. October 4, 1999
Infringement of Environmental Impact Assessment Directive 85/337 resulting from proposals contained in the Irish 1999 Planning Bill
Dear Mr. Kremlis;
Friends of the Irish Environment (FIE), an environmental network specialising in monitoring the implementation of European environmental law in Ireland, would like to draw the attention of the Commission to a serious situation brought about by recent proposed amendments to the law governing environmental decision making in this country.
The Irish government has published a consolidated 1999 Planning Bill, including such vital legal areas as development control, environmental impact assessment, and judicial review of environmental/planning decisions. While the bill is very long and complex, and while it contains some positive aspirational provisions, FIE is gravely concerned that certain other provisions in this bill will undermine the right of the public to participate in environmental decisions, and consequently will undermine the effective implementation of Community environmental law in Ireland.
In particular, we ask the Commission to take notice of the following matters:
(1) For the first time in Ireland, it is proposed that persons making comments on applications for development pay a fee, the amount to be prescribed "later" by the Minister via regulations. (Please see Section 33 of Part III of the bill.) This is said to be for the purpose of "streamlining" the planning process; however, we feel that it is unlawful for the government to seek to streamline the planning process by eliminating persons from the pool of objectors to a given project. While the government is saying that the fee proposed will not be large, we point out with urgency that even a small fee could have the effect of destroying the NGO sector in Ireland. Nearly all NGOs here operate with no budget and on an entirely volunteer basis. NGOs in Ireland are often met with resistance and obstruction by the authorities.
It is also frequently the case that local citizens groups, too timid to object to a proposed development, rely on NGOs large and small to object for them, and on the basis of greater expertise and information. Even a small fee of five or ten pounds would eliminate the possibility for environmental associations to comment on proposed developments, since this amount multiplied by many times would mean that they could not continue to pay. Such fees can be multiplied many times in even one projects as in complex modern developments there may be many applications, even without situations in which it appears a developer may be engaging in project splitting to avoid thresholds under the Environmental Impact Assessment Directive . Under the new Irish law, even citizens who see the Environmental Impact Assessment Directive being clearly infringed will have to pass a financial barrier before being permitted to draw the attention of their national authorities to the alleged infringements.
We fear that the Irish authorities might try and exempt from the fee only "acceptable" NGOs-those of the more established or conservative variety.
We submit that under Council Directive 85/337/EEC, as amended by Council Directive 97/11/EC, the right of the public to participate in environmental decision-making, particularly the right of the NGO sector, could be wiped away, thus subverting the intention behind the directive. We urge the Commission to take this matter up with the Irish authorities as a priority.
(2) The bill would also create a rule that no person could appeal a development decision to An Bord Pleanala (the Irish Planning Appeals Board) unless they had made comments at the level of the local planning authority. (See Section 36 of Part III.) This rule will also have a dramatic and negative effect on concerned citizens and the NGO sector in Ireland. Citizens and NGOs already have to pay £120 to make an appeal to the planning appeals board and £36 to provide additional information on a planning appeal lodged by any other person, even if this information relates to infringements of European Directives. Often, NGOs do not hear about a development until it has received permission from the planning authority; it is frequently at that stage that local residents seek help from NGOs, since they will need more sophisticated approaches before the Appeals Board. It is almost unthinkable that NGOs should be excluded on the grounds that they did not lodge an objection at the local authority level.
If the project is one likely to have significant effects on the environment, we believe that this new rule is also a clear violation of the EIA Directive. It is equally contrary to the spirit of all the European environmental directives. The government says that it wants the principal planning body to be the local authority, with only those who have "shown their interest" to have the right to appeal to the Appeals Board.
As you may know, Irish planning law is very vague, and we are currently inundated with environmentally destructive developments of many kinds. The NGO sector can barely keep up, yet it plays a valuable role in assisting local community groups trying to fight against developers, who bring in expensive legal counsel and environmental consultants to the Appeals Board. Our ability to assist community groups would be severely curtailed by this restriction of the right to appeal.
(3) The new planing bill also further raises the requirement for persons seeking judicial review of planing and environmental decisions to show a "substantial interest," rather than the more traditional "sufficient interest." (See section 48 of Part III.) We point out to the Commission that in 1992, when the Irish legislature sought to tighten up on the requirements for public interest applicants seeking review of these decisions in the Irish courts, the courts took this as a signal to be harder on these applicants for judicial review than ever before. As you may be aware, public interest litigants in Ireland suffer from the threat of having costs awarded against them; our courts are also notoriously unwilling to apply Community environmental law or to refer questions to the European Court of Justice. We feel that this addition to the planning law will further restrict our access to the Irish courts and diminish our ability to rely on the provisions of Community environmental law.
We believe that these amendments are contrary to the Aarhus Convention and we have the support of 65 Irish community groups to date in requesting members of our legislature to remove these bars to public involvement. We attach a copy of our letter to these members of the national legislature and the signatures to date.
These legislative proposals are also further evidence of the fact that, while Ireland has a good deal of aspirational environmental law on paper, the national authorities are continuing to attempt to prevent citizens from enforcing that law and making it effective. Ireland has very little in the way of clear land use principles or other environmental rules. If individuals or NGOs should be barred from making comment, from appealing, and/or from seeking judicial review in the environmental context, Ireland will quickly be overrun by the sort of negative development that we try our best to forestall.
The Steering Committee of Friends of the Irish Environment
Perhaps you know that FIE is co-ordinating a - Campaigns against three proposed reductions in public participation in the 1999 Planning Bill. We attach our letter to members of the Dail and Senate and the list of community groups and NGOs who are supporting us in this work. Friends of the Irish Environment
David Hogan, Hon. Secretary,
The Irish Uplands Forum,
11 October, 1999
Dear Members of the Irish Uplands Forum;
Perhaps you know that FIE is co-ordinating a - Campaigns against three proposed reductions in public participation in the 1999 Planning Bill. We attach our letter to members of the Dail and Senate and the list of community groups and NGOs who are supporting us in this work.
The first of these reductions of public participation is the proposed fee to comment on planning applications at the local authority level.
At the recent meeting of Comhar, the Nationals Sustainable Development Partnership, unanimity was obtained in support of the removal of this fee. This support included representatives of local authorities, who expressed the view that submissions from the public are of assistance to them in supplying local knowledge.
However, your nominee prevented Comhar from taking this position publicly on the grounds that the Bill required greater study before a full position was taken by Comhar and that no such public position should be taken until a report was made to the next plenary session of Comhar.
It is extremely important to get this matter of principal established at an early stage. The 2nd stage of the Bill commences in the Senate on this Thursday, 14 October and the next meeting of Comhar is not until December.
The support of Comhar on this single issue at this stage would have been of great assistance to the - Campaigns and we are deeply disturbed that your representative should have taken this position.
We would be grateful if you would address this issue with your members and determine if support for an im- Mediate statement on this one issue of the planning fee from Comhar would not, in fact, be in the best interest of those you represent and the sustainable development of our country.
The Steering Committee of the Friends of the Irish Environment