Mick Clifford: There are times when the best course of action in processing legislation is to go slowly

Concerns from outside of politics over the Planning and Development Bill 2023 show there are plenty of reasons to scrutinise this bill with care

The Planning and Development Bill 2023 will be around long after the current minister and Government have left office. Picture: Denis Minihane

There are times when it is necessary to light a rocket under the general posterior of the body politic to hurry things along. 

There are times when one section of the body politic, usually the opposition of the day, might attempt to delay legislation or disrupt a schedule. 

And then there are times when the best course of action in processing legislation is to go slowly, take everything in, and ensure that what emerges into law is watertight and fit for purpose.

Currently, the Oireachtas housing committee is scrutinising the Planning and Development Bill 2023, a vital piece of law for the future of the State. 

The bill is over 700 pages long and there are around 1,140 proposed amendments. 

That requires a lot of scrutinising. 

For the last few weeks, the committee has been working its way through seven or eight-hour days, poring over the minutae of the bill.

On Tuesday, following a private meeting of the committee, the opposition members issued a statement expressing concern at a proposed intensification of the schedule to examine the document. 

Housing Minister Darragh O’Brien is on record as saying he wants to see it passed into law by the summer.

Housing Minister Darragh O'Brien is on record as saying he wants to see the bill passed into law by the summer. Picture: Damien Storan.

The statement from the four opposition parties said that they are “united in our desire to get planning right, to make necessary changes to the bill. 

"We need a planning system that makes for good quality planning decisions, in a timely manner, following meaningful public participation".

This, they claim, is not possible under a proposal to increase the length of sittings in the coming weeks. 

The work is painstaking and slow, concentration levels are required to remain high.

The statement was signed by Sinn Féin's Eoin Ó Broin, Cian O’Callaghan of the Social Democrats, Labour's Ivana Bacik, and Richard Boyd Barrett of People Before Profit.

Are the concerns expressed reasonable?

Government sources suggest it is all an attempt to slow passage of the bill, particularly with an election expected later this year. 

However, there is plenty of reasons to ensure that scrutiny of this bill is undertaken with a high measure of care. 

For there is no doubt that in the coming years, at various points, all manner of specialised lawyers will be closely examining every line for a weakness. 

If the politicians don’t do the job properly at this point, the lawyers will — quite correctly — make hay later.

There are a number of reasons for concern at how this bill is being handled. 

In the first instance, it is a mammoth document and central to how we will live and build in the coming decades. 

Secondly, there has been concern expressed outside politics about the bill.

Gavin Lawlor, the president of the Irish Planning Institute, wrote last month that without proper scrutiny “the bill will not achieve its objectives and will lead to many years of amendments (usually belatedly) to try to iron out the difficulties we already see will arise in practice". 

Unless planners were listened to, he added, they will be left “trying to implement unworkable legislation and all of society will be the losers”. 

Gavin Lawlor, the president of the Irish Planning Institute, said unless planners were listened to, they will be left 'trying to implement unworkable legislation and all of society will be the losers'. 

This sentiment has been echoed by individual planners in recent months.

Last October, former chief Justice Frank Clarke said that the thrust of the bill appeared to be to make quick decisions to allow proper development go ahead. 

This, he said, would end up “creating a system where there will be references to the Court of Justice of the EU and the inevitable delay before there is clarity about the law” and would “be counterproductive to the purpose it is intended".

The former judge’s point chimes with that of many others who have expressed concerns. 

“The whole tenet of the bill is aimed at diminishing third-party rights in the process,” says Gavin Daly, who lectures in planning in TU Dublin.

What is clear is that development and construction bodies have, over the years, repeatedly stated that third-party objections are one of the main reasons for delays in planning.

This is hotly-disputed by planners, the legal business, and opposition politicians, but there is much in the bill that suggests it was framed with developers' concerns, irrespective of whether they are valid, in mind.

One example of this debated at the committee in recent weeks is Section 5 of the existing Planning Act dating from 2000. 

This is a process used if somebody believes a development may not have planning permission. 

If, for instance, a neighbour or developer constructs a large structure without apparent planning permission, you may wonder whether it is legal. 

You can then ask the council to declare whether such structure is unauthorised or is exempted from development. 

If unauthorised, the section 5 declaration is a legal basis on which to enforce its removal.

There was, however, a few weaknesses in the existing law.

“The existing section 5 was criticised by the courts because the owner or developer would not be informed of the section 5 application,” Daly says.

“Instead of fixing that by allowing the owner to be informed they decided to just remove it altogether for third parties.”

During the committee debate on the matter, Eoin Ó Broin pointed out that there was a straightforward solution to the problem, that there should be a public notification of the process, rather than simply eliminating the third party from it. 

Sinn Fein housing spokesperson Eoin Ó Broin said there should be a public notification of the process, rather than simply eliminating the third party from it. 

“There is much better ways of addressing the issue the minister is raising. He is throwing the baby out with the bath water and I see no reason why he should not rethink this.”

Cian O’Callaghan noted that development, whether it is exempted or not, can affect “neighbours and the community”, yet the proposal “simply seeks to exclude third-party rights altogether”. 

This is just one area — the whole section on judicial reviews is another — in which there appears to be a concerted effort to minimise or eliminate from the process citizens who have concerns about a development.

Throughout the committee hearings — which can be viewed on the Oireachtas website — Eoin Ó Broin and Cian O’Callaghan, who appear to be the mainstay among members, are repeatedly told “we’ll get back to you on that”.

This constant refrain would be worrying in any scenario, inferring that a whole range of problems were not identified prior to coming before the committee.

In this particular scenario, the apparent shoddy or inaccurate framing of the bill should be a cause for alarm. 

The Planning and Development Bill 2023 will be around long after the current minister and Government have left office. 

It will, as the four TDs expressed in their statement on Tuesday, “impact the lives of millions of people for decades to come”. 

Under those circumstances, a failure to properly, and with due consideration, scrutinise this bill would amount to a serious dereliction of duty.