6 December 2022
The Government has moved to bypass the remaining stages of pre-legislative scrutiny for major legislation in a push to get the Planning and Development and Foreshore (Amendment) Bill 2022 passed before the Christmas Recess next week. The bill as proposed will compromise the independence of An Bord Pleanála and undermine the public’s role in key appointments. It also makes fundamental changes to the definition of the foreshore with potentially significant implications for the enjoyment of rights and interests of marine users, such as fishers, and/or introduces wholly avoidable complications in the legislative process.
Previous Legislation in 1976 and 1983 specifically removed An Bord Pleanála from the control of a Minister, the Government and the Department with responsibility for Planning. After nearly five decades of policy to make and preserve the independence of the Board, this bill reverses course. The legislation also strips away Oireachtas oversight of certain elements of the Minister’s An Bord Pleanála appointment process.
“The existing system for appointments could and should be reformed to maintain the independence of the Board appointments, particularly at this time when it is critical to provide for public confidence in the body at the apex of our planning system” said Attracta Uí Bhroin, Environmental Law Officer at the Irish Environmental Network. “To ensure transparency, accountability and public confidence, Oireachtas oversight of key decisions of the Minister on these matters must be preserved, and this effective coup on the independence of the Board and Oireachtas oversight must be rejected,” she continued.
The proposed bill also includes changes to the foreshore legislation. The Department has indicated these are to close off a gap in the law and to ensure regulatory oversight of surveys in the foreshore area of the marine, which extends up to the 12 nautical mile limit of Ireland’s territorial waters. Uí Bhroin commented that: “Despite the Department being aware of the issues for over a year these poorly nuanced amendments risk compromising the interests of the public and other marine users.”
The Government has signalled that further major amendments to the bill are proposed in respect of social and affordable housing, but no detail on these could be provided at a briefing to Oireachtas members on Monday morning. Consequently the changes may only come to light after the bill completes in the Seanad and moves to the Dáil, leaving both houses of the Oireachtas effectively no time to scrutinise amendments. This is of core concern given the essential role legislation plays in Ireland’s planning process, and to the protection of natural resources held in the public trust. Previous legislative attempts to fast-track housing under the Strategic Housing Development Provisions fell foul of a range of legal requirements and triggered delays due to unlawful decisions, rather than expediting delivery of homes.
To date the Planning and Development and Foreshore (Amendment) Bill has not been subject to public consultation, nor has pre-legislative scrutiny been completed by the Joint Oireachtas Committee for Housing, Local Government and Heritage.
“We all recognise the need for a well-functioning planning system, but it is essential that changes of such profound effect on the appointment of the Chair and Board members and configuration of An Bord Pleanála are subject to proper scrutiny, which simply cannot happen in the timeframes proposed.” said Dr. Elaine McGoff of An Taisce, member of the Environmental Pillar’s Steering Committee. She added, “the Minister has failed to fill the multiple vacancies on the Board at the moment using powers which he already has under the current system. His failure has now fuelled the current crisis which this Government is looking to exploit with this Bill. This is an unacceptable reason for rushing major changes through in this manner.”
The legislation is scheduled to go before the Seanad this week on the 6th and 8th of December, and is set to reach the Dáil and conclude next week.