Cianan Brennan: What unsavoury secrets lie within the new 738-page long Planning Bill? 

News the bill will remove citizens' right to appeal the installation of certain mobile phone masts begs the question: what other nasty surprises could be hidden away inside the enormous bill?

Citizens seeking to appeal the granting of a licence for a mobile phone mast in their locality would have that right denied to them should the bill be approved in full in its current guise.

News that the new Planning Bill before the Oireachtas — if approved — would remove citizens' right to appeal the installation of certain mobile phone masts begs the question: what other nasty surprises could be hidden away inside the enormous bill?

At present, the legislation is 738 pages long. Monday’s story in the Irish Examiner concerned just nine lines of that text. If such a tiny segment of this massive whole is so controversial, it does not bode well for the other 737-and-a-half pages.

Specifically, Monday’s revelations concerned the fact that citizens seeking to appeal the granting of a licence for a mobile phone mast in their locality, a licence which at present can be granted without the need for a planning application, would have that right denied to them should the bill be approved in full in its current guise.

I have dealt personally with a number of people who have been affected by these so-called Section 254 applications. The name refers to the relevant section of the 2000 Planning Act under which such licences are handed out. 

They are ordinarily used for the erection of street furniture by businesses etc — their use for the construction of mobile masts is a relatively recent phenomenon. Those people have gone the legal route in order to reverse the decision to grant a licence.

Not everyone is in a position to take such a challenge, the main reason usually being a financial one.

The new bill has been before the Oireachtas since January and has been going through an extended session of pre-legislative scrutiny — the process by which politicians attempt to tease out the kinks in the text of legislation.

'Cat’s cradle of obstacles'

It was already controversial enough given the “cat’s cradle of obstacles” — to use the words of the Irish Environmental Network’s environmental law officer Attracta Ui Bhroin — it places in the way of citizens seeking to take judicial reviews of planning decisions.

More controversial again was the Government’s unusual decision to present such an enormous bill in draft format, rather than as a general scheme, that is one without explanatory notation as to what it is trying to achieve.

There are 467 sections to the bill. Our story concerned just one of the 13 subsections of just one of those segments.

It details that in future applications for such mobile masts can be appealed but only in three circumstances and only by people who have submitted observations regarding the application — where the application has been refused, where it has been granted with conditions (in which case it is the conditions which may be appealed), and where it has been revoked.

No mention is made of cases where the mast has been approved.

For me it is something of a head-scratcher why someone who has submitted an observation regarding such an application would want to appeal its refusal, given that is almost certainly what they would have been calling for in their submission in the first place.

Where this particular clause gets even more intriguing is in the fact it is (or was — the Department of Housing has since deleted it) accompanied by a footnote presenting the conversational query: “Is there a reason why they should not be allowed to appeal the grant or continuation of a licence?”

Now that is a good question.

Problematic

It is not the only problematic piece of that particular section of the bill — another deems that if An Bord Pleanála fails to make a decision regarding such a licence within eight weeks then it is automatically deemed to have been approved, which sounds almost preposterously undemocratic — but it is the only one where the bill appears to be questioning its own right to do the horrible things it is trying to do.

When we pointed the footnote out to the department, it said it “refers to an earlier iteration of the section in question, that should not have been included in the published draft bill”.

It is hard to give that explanation credence given the question asked by the footnote is utterly applicable to what the bill is doing. But it seems it was the best they could come up with at short notice.

They then proceeded to delete both this footnote and another four and resaved the draft bill PDF on the Gov.ie website, leaving the ‘Last Updated’ section unchanged at January 26, 2023.

To the casual observer, that would indicate the bill has not been changed in two months, something we know to be untrue. If that is not de facto misinformation, I’m not sure what is. The department deserves to be scrutinised for it.

But to hark back to my initial point — what else could be hidden in this most important of bills? Because this one has been subject to major scrutiny by swathes of politicians and environmental interests for nearly three months, and yet this appeals clause and its accompanying sentient footnote were missed. If they were missed, what else has been?

It may be a crude and deeply cynical strategy to write the longest bill imaginable in the hope that the horrors that lie within will be missed. It may yet prove to be an effective one unfortunately.