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Wednesday, 4 June 2006
Planning and Development (Strategic Infrastructure) Bill 2006 (Seanad)
Dail Second Stage Debate

During Dail debate on new strategic infrastructure bill, Deputy Stanton quotes substantially from a letter by CHASE chairperson Mary O'Leary. Click here to go to the relevant section of the Deputy Stanton's speech.

Mr. Stanton: I congratulate Deputy O’Donovan on his fine speech, except for where he seemed to soften on the nuclear energy issue. That could be explored another day and it would be interesting to hear what the Minister for the Environment, Heritage and Local Government will say later.

I am glad to speak on this important legislation. I will quote from the Constitution two Articles which we should all remind ourselves of on a regular basis, especially Ministers, who from time to time seem to lose touch with what is going on. Article 6 of the Constitution states:

" All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good."

Deputy O’Donovan mentioned the common good initially. Meanwhile, Article 16 of the Constitution states that “Dáil Éireann shall be composed of members who represent constituencies determined by law.” As Members of this House, we are here to represent the people and must not forget that. We do not represent big business or anyone else other than the people. We are sent by the people to represent them in this House. If we forget that, we are on a loser.

I will note an example of planning. In 1997, when I was standing for election, a major controversy arose in Cork, of which the Minister of State, Deputy Batt O’Keeffe, is well aware. The ESB wanted to build a series of pylons around Cork harbour to bring power from the Aghada station to the other side. The ESB obtained planning permission from the local authority and the permission was upheld by An Bord Pleanála. Council members then rejected the project and the issue went to the courts, which decided the council members acted ultra vires, outside their powers, and overturned the decision. There was a danger that the council members could have been personally liable for the costs involved. The courts granted permission and the project was set to go. However, the people in the area were not happy, and parallel to the legal application, a major campaign opposing the project was ongoing.

Initially, the ESB did not engage, but the Minister for Enterprise, Trade and Employment at the time, the then Deputy and now Senator O’Rourke, intervened and convinced both sides to accept a mediator, which they did. To give all sides their due, they thrashed out the issues together. The pylons have not been constructed and will not be, but a compromise was reached. It took ten years for common sense to prevail.

The point is that we must not lose sight of the fact that we represent the people. I would like to see in this Bill a provision for an early attempt at mediation where there is a dispute. I know the Minister of State can imagine the agony, heartache, worry, time, energy and expense ordinary people had to go to in order to take on the ESB at that stage, a semi-State company with almost infinite resources.

This Bill is in part meant to speed up the planning process. The example I have given shows the process could have been speeded up in a sensible way if common sense had prevailed initially regarding those pylons. Speaking to some groups in my constituency recently, I noted that when a project is proposed and people find out about it, it takes time for them to inform themselves about it and its details, and to begin to learn and become educated about what is proposed. Often, the learning takes place during the campaign process. If one speeds it up too fast, that learning process can get lost.

What is crucially important regarding this issue is that public confidence must be maintained at a high level. If it is lost, we are all sunk because people will not agree to major projects being pushed through unless they have confidence in the process and in the projects being put forward.

There is another proposal close to the heart of the Minister of State, namely, the construction of two commercial incinerators in Ringaskiddy. I received a letter from the chairperson of an action group in Cork which opposes the construction of such incinerators. The letter gives an idea what the people think about planning, what they are going through and have gone through, and the fears they have regarding this legislation. With respect, it is up to us address and allay those fears. That is our job. We are elected to this House by the people. If we do not do that, we all fail.

The chairperson of the group said:
"I am writing to you as chairperson of Cork Harbour Alliance for a Safe Environment, CHASE, a community group that represents over 30,000 people in the greater harbour area of Cork, who are opposed to the construction of two commercial incinerators in Ringaskiddy.

In addressing the incinerator proposal at Ringaskiddy, CHASE feels it has followed the democratic process for the planning and environmental control of these developments to the letter. We engaged at every level, wholeheartedly participating in both a planning oral hearing and an EPA oral hearing."

The chairperson notes that among the issues of most concern to the group is what it describes as “the threat this development poses to public health”. I have gone through this Bill and see no reference to health. When he makes his response, I hope the Minister of State will correct that. With regard to ESB pylons, of which Deputy O’Donovan spoke, incineration and other such projects, one of the issues people are concerned about is the threat to public health. We must recognise that people are afraid for their children and themselves.

The CHASE group chairperson noted that the other issues of most concern to the community are the threat to public safety, conflict with the development plan and the Cork area strategic plan, overturning democratically made local decisions to refuse planning permission, ignoring site selection criteria, and an unsuitable site.

The chairperson’s letter continues:
In his report to An Bord Pleanála, the inspector gave 14 reasons why this facility should not get planning permission, one of them being that he could not guarantee this development did not pose a threat to public safety. This is a major worry to the community and justifies our concerns to date.

The inspector, the expert agent sent by An Bord Pleanála, conducted an oral hearing and came up with 14 reasons the project should not go ahead. Nevertheless, An Bord Pleanála approved the project because of Government policy. What was the point in having an oral hearing in the first place? How can the public have confidence in the process when this occurs? I challenge the Minister of State, or any Minister, to answer these points, if they can.

The process does not make sense to me or to the 30,000 people in Cork represented by CHASE. People are concerned that it will become even more streamlined, meaning they will not have time to research applications and marshal their arguments. The letter continues:
At the recent EPA oral hearing we learned that no risk assessment on health or the environment has ever been done by Indaver Ireland, the company proposing the development. Despite [slick] presentations by this company for the last four years, it was only when searching questions were asked by the community and some cogent facts and figures were presented, that the truth finally emerged.

One of our worries is that neither Indaver Ireland or the EPA have taken the care and due diligence that befits an application of this magnitude. Without intervention by community groups like ours, the planning and other issues on which the State makes decisions on behalf of all of us, would in this case have been set aside in a headlong rush to facilitate this development. The protection of people’s health and environment are fundamental to the principles on which our Constitution is based, and therefore we feel fully justified in our challenge to this development.

As you are probably aware, there is a Government proposal to “fast track” developments such as this via a new infrastructure board. While we do not yet know the terms of reference or structure of such a board, it will almost certainly mean that public consultation and a truly democratic decision-making process would be seriously undermined. The idea of fast tracking can only lead to corners being cut and any meaningful participation by communities who are to host such facilities will be seriously eroded.

Central to the planning system in this state is the concept that planning decisions should be based on a democratic consensus between the stakeholder groups rather than the autocratic imposition of a single point of view “in the common good”. We are worried that the fast tracking of major development proposals will seriously undermine the democratic and consensual principles of our planning system. It is totally at odds with the principles of planning not to view all aspects of planning in a holistic manner.

Community groups like ours have a serious vested interest in fully evaluating applications for major facilities. It is in our interest to evaluate the safety, health and environmental implications of such developments on our lives and the quality of the lives of our children and future generations. Communities are uniquely positioned to identify problems, as they are the main stakeholders. The value of this unique perspective cannot be understated in the planning process.

It was the public consultation process that allowed the truth about our particular application to be exposed. This process must not be lost. Local planning policies such as county-city development plans and CASP in relation to Cork county, are policies that have been agreed and drafted in consultation with the people and those we elect at a local level to represent us. A national infrastructure board will simply facilitate “present Government policy” at the cost of national policy and indeed local county policy.
The pressure on our environment arising from rapid economic growth is such that we cannot afford the erosion of our democracy any further. We have seen far too often in recent times too many decisions being made in favour of the lobbyists at the expense of sound planning principles.

Hence the establishment of the tribunals. The letter continues:
While the present system has its problems in relation to objections to some proposals, we feel it would be far more helpful for the Government to look at why this is so. Further isolating communities from the decision-making process is not, in our opinion, the answer. A quote from a Government commissioned report sums up the issue well:
Public trust, whether it is placed in the regulators, in compliance with the regulations of in the information provided, will be fundamental in achieving even a modicum of consensus for any future developments in waste policy in Ireland. (Health Research Bureau summary, 2003).

This infrastructure board comes at too high a price for the development of a healthy and balanced society and is a price that many people may not be willing to pay.

These are the views and concerns of the CHASE group on the Bill’s proposals, based on its past experience.

Section 3 provides for an amendment to the principal Act to provide for any relevant policies of the Government, the Minister or any other Minister of the Government to be taken into account by the board. No indication is given as to how these will be weighted. The other provisions in the amending section relate to “the provisions of a development plan or plans for an area, the provisions of any special amenity area order relating to the area, the national interest, the national spatial strategy” and so forth. No indication is given as to how the board should weigh up these factors. Does one take precedence over the other? Does the relevant Government policy take precedence over all other matters? The board must be guided in this respect.

The amending section also provides for the construction or the financing, in whole or in part, of the construction of a facility, or the provision or the financing, in whole or in part, in the area. If a facility is to be constructed in a particular area, the developer must compensate the people affected. Planning permission, however, may be required if it is a building.

The amending section states:
(8) 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 does not, however, specify how such a bond will be ascertained.

During the consideration of an application, the expenses incurred by the board must be paid by the person making the application or objection. Does that apply if the permission is refused? If the permission is refused, could difficulties arise? Can the board make a decision to help an individual or group pay costs in such a scenario? The ESB pylon and CHASE groups in Cork incurred considerable costs to their own expense. It is a David and Goliath situation - the local community versus a major developer. The State must set up a mechanism to balance this and make independent finance available to a responsible objector to enable him or her to carry out research to put his or her case. It can be an extraordinarily expensive process. Many groups have had to raise enormous sums of money to secure expert witnesses, some from overseas, for oral hearings.

The enforcement of regulations concerning planning breaches is weak, a concern held by many groups. If a planning application gets the go-ahead who will independently enforce test emissions, for example? The resources must be made available to enforce regulations. For example, if a building is put up near an individual’s house and he or she objects, he or she then must give his or her name and address. This is available to the developer. If the developer is not particularly pleasant, he or she can make life difficult for the objector. This often prevents people from complaining about unauthorised developments. I accept there is the danger of frivolous objections but a balance is required. People are afraid to make complaints for fear a brick will be thrown through their windows at night.

A provision preventing the construction of nuclear power facilities must be included in the Bill. There is a chance such projects may be fast-tracked, which is not what the people want.

Mr. B. O’Keeffe: That issue is dealt with in another Bill.

Mr. Stanton: Delays are not always caused by objectors but are also caused by administrative, legal and judicial factors. I welcome the provisions that will prevent these delays. I also welcome the provision in section 9 by which a local authority can refuse planning permission to a developer based on past record. If a cowboy built an estate, made a mess of it and walked away, leaving a nuisance and all manner of problems, the local authority can refuse him or her if he or she seeks planning permission at a later stage. That is an important element of the Bill.

The Bill could incorporate the taking in charge of estates by local authorities as this appears to take forever. This matter should be examined. Auctioneers’ signs sometimes appear to stay in place for long periods following the sale of a property and are a blight on the landscape. Will the Minister endeavour to ensure auctioneers take down signs once a property is sold?

Legislation does not appear to cover the requirement to seek permission for mobile hen houses. This is an unusual matter. If a person wishes to produce organic eggs or chickens, a hen house on wheels can be used and moved around a field. These can be reasonably large structures. Will the Minister examine the matter with a view to having it included in the legislation? A person approached me in this regard but I could not find any reference to the matter in the Bill.

Mr. B. O’Keeffe: The Planning and Development (Strategic Infrastructure) Bill is hardly the appropriate place to address that issue.

Mr. Stanton: I accept that but at the same time it is a critical issue for the person who is trying to produce organic eggs and chickens.


Cork Harbour Alliance for a Safe Environment
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