This Bill proposes to amend and extend the Local Government (Planning and Development) Act, 1963, and, according to its long title, is intended to make provision, in the interests of the common good, for the better preservation and protection of trees and woodlands of special recreational or amenity value, or of outstanding natural beauty. I am sure that all of us in this House would wish, if it were possible to do so, to support a Bill which would achieve these broad objectives. However, the House must consider the individual provisions of the Bill, and their effects, before deciding whether it can adopt the approach proposed, I propose, therefore, before setting out the Government's attitude to the Bill, to spell out my understanding of the specific provisions it contains.
Section 2 of the Bill would amend section 45 of the Local Government (Planning and Development) Act, 1963, by adding a new paragraph to subsection (2). While it appears to me that some words have been omitted from the proposed new paragraph, the intention is quite clear, that is, that no compensation will be payable where a consent to fell woodland trees is refused, or granted subject to conditions, under a tree preservation order which declares that the trees are of special amenity or recreational value, of special interest, of outstanding natural beauty, or are part of or comprise any view or prospect of special amenity value or special interest. In other words, section 2 would, in many cases, abolish the right to compensation which exists under present law when a person can show that he has suffered damage in consequence of a refusal of consent, or a conditional consent, to fell trees which are comprised in woodlands.
Section 3 of the Bill is a fairly straightforward provision. It proposes to insert a new section in the 1963 Act so as to require planning authorities to publish, in a daily newspaper and in a local newspaper, notice of every decision made by them on an application for consent to the felling of trees to which a tree preservation order relates.
The main objective of section 4 is to provide for an appeal to An Bord Pleanála by any interested person against a decision by a planning authority on an application for consent to the felling of trees to which a tree preservation order relates. The section goes on to specify criteria which must be taken into account by the board in dealing with such an appeal and it spells out the procedural provisions which would apply. In addition, the section would expressly authorise the board to attach any conditions they think proper to their decision and, in particular, to attach to their decision all or any of the conditions listed in section 4 (7). These include conditions for regulating the development or use of adjoining or adjacent land which is under the control of the applicant for the consent, conditions for requiring the planting of trees or the carrying out of landscaping, conditions for requiring the provision of open spaces or the carrying out of works such as the provision of roads, car parks, sewers, drains or the like, and so on. Under the section, the power to attach conditions of this kind would apply only to An Bord Pleanála. The planning authority which would, of course, continue to be required to deal with all applications in the first instance, would have no corresponding powers.
Section 5 of the Bill deals with the compensation provisions which would apply where decisions are made by An Bord Pleanála on appeals to it under section 4. It provides, in subsection (1) that if a felling consent is refused by the board or granted subject to conditions, any person whose interest in the land is reduced will be entitled to be paid by the planning authority, by way of compensation the amount of the reduction in value together with compensation for any damage suffered by him in a trade or business carried out on the relevant lands. This formula for assessing compensation appears to be based on section 55 of the 1963 Act, which deals with cases where permission for development is refused or granted subject to conditions, rather than on the formula provided for in section 45 (2) of the 1963 Act which at present applies in relation to tree felling consents. However, subsection (2) of section 5 goes on to provide that no compensation will be payable in respect of a decision made by the board where the reasons for the decision fall within one or more of the six following paragraphs. The effect would be that no compensation would be payable where An Bord Pleanála decided that all or any of the following situations applied:—
(1) that the trees concerned, whether or not comprised in woodlands, are of special amenity value or special interest,
(2) that the trees or woodlands are of outstanding natural beauty or importance, which it is in the interests of the common good to conserve,
(3) that the trees or woodlands are part of, or comprise, any view or prospect of special amenity value or special interest,
(4) that the application for consent to fell trees or woodlands is premature, having regard to the age and state of maturity of the trees or any surrounding, adjoining or adjacent trees or woodlands,
(5) that having regard to the type, nature and age of the trees or woodlands, and the extent, state or condition of such trees or woodlands throughout the State, the trees or woodlands to which the application relates constitute a unique and special feature of the natural environment which, in the national interest, ought to be conserved for the common good, or
(6) that having regard to the extent to which trees or woodlands in the vicinity have already been cut down, it is in the best interests of the proper management, protection and preservation of the environment of the area that the trees or woodlands to which the application relates should not be felled.
In all or any of the circumstances which I have just described, no compensation would be payable under section 5 where the decision to refuse felling consent, or to attach conditions to such a consent, was made by An Bord Pleanála. Planning authorities themselves would, however, still be open to claims for compensation where the decision was made at local level and not appealed.
These, then, are the essential provisions of the Bill as I see them. I fully appreciate the reasons why a Bill of this kind should be contemplated and moved at the present time. Ireland possesses a unique inheritance of scenic, ecological and environmental resources. It is vital that this heritage should be preserved for the benefit of this and succeeding generations. Moreover, our natural heritage is one of the main foundations on which our tourist industry is based and it must be protected for this reason.
Much has been said and written in recent times about the decline of our broadleaved woodlands which today cover only a very small proportion of the land area of our country. In addition to their commercial significance, these woodlands make an enormous contribution to the landscape quality of our countryside. They are an essential element in many of our areas of outstanding natural beauty, they provide valuable shelter in the countryside and play an important part in nature conservation. There is growing awareness that many of our remaining broadleaved woodlands are vulnerable and tree preservation orders have been made by local authorities to protect them, in a number of cases. The House is aware, however, of the difficulties which exist in achieving preservation objectives of this kind. This is unfortunate, in view of the importance of preserving the amenity of our countryside and the significance of trees and woodlands for amenity and recreation generally. The fact that there has been very little private planting of broadleaved trees in recent years adds to the importance of preserving, as far as possible, existing trees and woodlands of this kind. For these reasons, I find myself very much in sympathy with the general objectives of the present Bill. However, as I said at the outset, we must examine the effects of the individual provisions of the Bill before deciding whether it can have the support of this House.
Any proposals to amend the law in relation to the compensation provisions of the Planning Acts must inevitably, be considered against the background of the provisions in the Constitution relating to property rights. The provisions in question are to be found in Article 40, paragraph (3) and in Article 43 of the constitution. These Articles have given rise to a significant body of case law in recent years and their interpretation and application in particular kinds of situations is a matter of great complexity.
I have sought the advice of the Attorney General on the question of whether the provisions of the Bill are consistent with the relevant Articles of the Constitution. I have to tell the House that the Attorney General has advised that the Bill would not withstand a challenge on constitutional grounds. In his view, legislation which would amend the Planning Acts so as to abolish compensation in the event of a refusal of consent to fell woodland trees would be found unconstitutional. In view of this advice, I have no option but to oppose the present Bill because, as the House is aware, Article 15, paragraph 4 of the Constitution, provides that the Oireachtas shall not enact any law which is, in any respect, repugnant to the Constitution or any provision of it.
The difficulty which has arisen for planning authorities because of the compensation provisions which at present apply in relation to consents for tree felling are paralleled by other problems which arise where permission for development is refused, or granted subject to conditions. As the House is aware, large compensation claims can be made against planning authorities, from time to time and while the total amount paid out by way of compensation is still relatively small, there is no doubt but that the freedom of action of the planning authorities is constrained by reason of the compensation liabilities which can be incurred. For these reasons, the Government accept that there is a need for a general review of the compensation provisions of the Planning Acts and we intend that this review will be carried out as quickly as possible. Some proposals in this regard have already been included in the Programme for National Recovery and these, together with other possible approaches, are being studied by my Department, in consultation with the Office of the Attorney General. The objective will be to bring forward as soon as possible a package of proposals which will strengthen, as much as possible, the position of planning authorities in dealing with planning applications generally. I can assure the House that the desirability of reinforcing the position of planning authorities in dealing with applications for tree felling consents will be given special attention in the course of the review and that all possible approaches to the problem which exists at present will be fully explored.
I accept, also, that there is a need for a review of other aspects of the law in relation to the preservation of trees and woodlands. However, it is important that the provisions of the Planning Acts and those of the Forestry Acts should be considered together with a view to devising the best possible combination of legislative and administrative measures for dealing with the matter.
Accordingly, I intend to establish a special working group, with representation from the Departments and offices concerned, to make recommendations on the legislative, administrative and organisational issues which arise in relation to the better protection of trees and woodlands. The group will need to consider how best responsibility for the protection and preservation of woodlands can be allocated as between the local planning authorities and the State and to consider what changes may need to be made to take account of the fact that the Government propose to assign responsibility for forestry development to a separate semi-State body.
I turn now to the provisions in sections 3 and 4 of the Bill which deal with the procedures relating to the treatment of applications for tree felling consent at local level and on appeal. I should perhaps first explain that in the normal way the felling of a tree does not constitute development within the meaning of the Planning Acts and does not, therefore, require planning permission. However, section 45 of the 1963 Act authorises planning authorities to make a tree preservation order if it appears to them to be expedient, in the interests of amenity, to make provision for tree preservation. The making of a tree preservation order has the effect of bringing tree felling within the controls exercisable under the Planning Acts. In effect, a tree covered by such an order may not be felled without the consent of the planning authority.
Each individual tree preservation order is required to apply, in relation to any consent under the order and any application for such consent, provisions of Part IV of the 1963 Act which relate to applications for permission to develop land. In the past, it was left very much to the individual planning authorities to decide for themselves which provisions of Part IV they should apply in making tree preservation orders. However, the situation is now very different in that my Department, in January 1986, issued to all planning authorities a document containing detailed advice and guidelines in relation to the making of tree preservation orders, together with a new model tree preservation order.
This new order provides for the application of all of the relevant provisions which apply in relation to planning applications generally, including the provision for the making of submissions by interested parties to the local planning authority, the notification to such persons of the planning authority decision and the making of appeals to An Bord Pleanála by any person, whether the applicant for the consent or a third party. The guidelines themselves reminded local authorities that a right of appeal is fundamental to the whole planning control system and they recommended that this should be provided for in every future tree preservation order.
It was recommended also that the provision for appeals should cover third parties as well as the applicant for consent, since the basic principles underpinning the planning control system require that the position of such parties should be fully protected. In line with this, the model tree preservation order now makes provision for applicants for consent to publish notice of their intention to do so, and provides also for the notification of consent decisions to any third party who has made representations at local level.
Having regard to the guidelines which now exist in relation to the making of tree preservation orders, and taking account of the new form of model order, I believe that sections 3 and 4 of the proposed Bill are quite unnecessary. The objective of these sections, with which I have no quarrel, can be achieved more effectively by the making of tree preservation orders which are consistent with the new model which is now being widely used for the past 18 months.
I realise that there may be a problem in relation to earlier tree preservation orders which lack provision for third party involvement and for appeals to An Bord Pleanála. However, it is open to local planning authorities to revoke or vary a tree preservation order by a subsequent order and so take care of any such defects. I intend to bring this matter to the attention of the planning authorities and I will request them to consider the need, in particular cases, for the replacement of existing orders by new orders drafted in accordance with the up-to-date model.
The House will appreciate that it would be inappropriate for me to become engaged in discussion of the details of particular cases in which the felling of trees is at issue. Decisions have still to be made by public authorities in relation to a number of these cases and I do not wish that any remarks of mine in this House should prejudice the outcome. I think it is appropriate, however, that I should set out for the record the position concerning the woodlands at Coolattin about which so much public concern has been in evidence in recent weeks.
Towards the end of March, five applications for consent to fell trees in the area known as Tomnafinnogue Wood were submitted to Wicklow County Council. The council decided on 19 May to refuse consent to four of the five applications and, in granting consent in the fifth case, they decided to attach a range of conditions aimed at preserving visual amenity and securing a satisfactory replanting programme. In particular, the council decided that felling should be carried out over a period of not less than ten years, with felling and extraction of trees in any year being confined to sectors of the wood not exceeding seven hectares in area. Other conditions required the owners of the woodland to retain all existing immature trees, to preserve special belts of trees 15 metres wide, and to replant the entire area with oak trees, with each sector being replanted before felling on the next sector commences. In addition, the council required that a bond should be lodged with them to ensure compliance with the tree felling and tree planting and maintenance conditions.
By a unanimous decision of Wicklow County Council, a special amenity order has been made in relation to the Tomnafinnogue Wood because of its outstanding natural beauty and by reason of the need for nature conservation. Notice of the making of this order is being placed in the local papers and a period of not less than one month will be allowed for objections to be made to the order before it is submitted to me for confirmation. If objections are duly made and are not withdrawn, a public local inquiry will be held and the objections will be considered before a decision on confirmation of the order is made. I can assure the House that when the special amenity area order is submitted to me by the county council, I will ensure that it is processed expeditiously.
I should explain that the Wicklow County Council decision does not, in itself, entitle the owners of the woodlands at Coolattin to fell the trees. A felling licence is still required from the Minister for Energy and it would, of course, be premature at this stage to speculate on what the outcome of such an application might be.
As I said at the outset, I would be very pleased if it were possible for me to support this Bill. However, for the reasons I have indicated and arising mainly from the unconstitutionality of some of the provisions in the Bill, I am obliged to oppose the motion for a Second Reading. I would ask the House to recognise the determination of the Government to press on with their own consideration of the options for dealing with tree preservation and to bring forward proposals for legislative and other changes designed to improve the situation. I appreciate there is genuine concern in the House in relation to this issue and I can assure Deputies there will be no avoidable delay in dealing with it.
There is no doubt that damage has taken place in Coolattin. I have been down there and what has taken place is a crying shame. Coolattin Woods has been decimated over the past number of years. It is regrettable that the mover of the legislation this evening did not get his courage up a little earlier to deal with this matter. It is a pity the Deputy who is so vocal now was not so vocal over the last few years. What we heard from him this evening was a monologue of self-justification. Saying he did what he could is hardly factual. What was preventing him or the Government he was representing introducing the legislation which he finds so accommodating now? The unfortunate thing is that the Deputy moving the legislation this evening made no defence of it because he knows it will not stand up. That makes me suspicious of his motives in producing this flawed legislation at this time. I can only conclude that his intention in introducing it tonight is less than politically honourable.
