Amendment No. 2 in the names of Deputies Gilmore and Dukes has been ruled out of order as it involves a potential charge on the Revenue.
Local Government (Planning and Development) Bill, 1998 [ Seanad ] : Report and Final Stages.
Amendment No. 1 not moved.
Acting Chairman
Has the Minister had the opportunity to think any further about this matter? It seemed to us on Committee Stage that the ruling out of order of this amendment was a technical and bureaucratic approach to the provisions of the Bill and seemed to limit the ability of the House to make improvements to it. Has the Minister had the opportunity to get any further advice and to reflect on this matter since Committee Stage?
I wish to intervene on two points. There was discussion on Committee Stage that the decision to rule this amendment out of order was excessive. The case was made that acceptance of this amendment, far from incurring an additional cost on the State, might reduce expenditure. The Minister has tabled virtually the same amendment because in the course of the discussion he saw the sense of what we proposed in relation to the addition of a structure to a list. The original provision in the Bill was that the addition would be where it was necessary. We argued that there should be an alternative, that is where it was considered desirable as well as necessary or as an alternative to being necessary. I think the Minister has accepted the argument made on Committee Stage and amendment No. 3 is similar and addresses the same point.
I understand the ruling out of order of the amendment has to do with public expenditure and this would not apply to me. What has been sought is being granted.
Amendment No. 2 not moved.
Acting Chairman
Amendment No. 3 arises out of Committee Stage proceedings. Amendment No. 12 is cognate. I suggest amendments Nos. 3 and 12 be discussed together. Is that agreed? Agreed.
Bill recommitted in respect of amendment No. 3.
I move amendment No. 3:
In page 6, line 19, after "necessary" to insert "or desirable".
In the interests of ensuring that the House passes a Bill which is effective and flexible enough to cope with the need to protect our architectural heritage, I agreed on Committee Stage to advance these amendments which insert the words "or desirable" in two sections of the Bill. The amendment in the names of Deputy Gilmore and Deputy Dukes has the same effect. The first amendment to section 5 will enable the planning authority to include a structure in the record of protected structures where the authority considers it is desirable in order to ensure its protection. Under the current wording of the Bill the inclusion of a structure is possible only where the authority considers it necessary to do so for its protection. It will now be possible to do so in both circumstances – when it is necessary and when it is desirable. I believe that covers the point made by the Deputies.
The second amendment to section 22 will permit the planning authority to acquire a protected structure by agreement or compulsorily when it is desirable to make the acquisition for the protection of a structure. The current wording of the Bill would permit the authority to acquire a protected structure only when it is necessary for its protection. Therefore, acquisition will be possible in both circumstances when it is necessary or when it is desirable. These amendments will strengthen the powers of the planning authorities to protect the architectural heritage.
I commend the Minister for bringing these two amendments before the House. It shows that Deputy Gilmore and I did not labour in vain on Committee Stage. The two changes that have been made are worthwhile and in keeping with the spirit and the objective of the Bill.
Amendment agreed to.
Amendment reported.
I move amendment No. 4:
In page 7, between lines 39 and 40, to insert the following:
"(6) Any structure that is proposed for addition to a record of protected structures shall have the same protection as a protected structure.".
The reason I tabled this amendment was to give me an opportunity to ask the Minister of State whether he has been able to reflect on the intent of what is proposed. On Committee Stage he said this amendment was not necessary because what it seeks is already provided for in the Bill. If he can assure me that that is the case, on further reflection, I will withdraw the amendment.
Deputy Dukes' amendment is already covered by the Bill, namely that structures proposed for inclusion in the record of protected structures are protected while their status is considered. For example in section 8, works to a proposed protected structure which affect its character are not exempted development in the same way as for protected structures. Section 9 makes it a criminal offence to damage both protected structures and proposed protected structures. The owner or occupier of a proposed protected structure is under the same duty of care as a person who owns or occupies a protected structure. The same rules and compensation apply to both structures, that is, a refusal of planning permission for works which affect a proposed protected structure is not compensatable. As such the amendment is unnecessary. This protection has been included where it is most necessary to prevent damage to structures which are proposed for protection, most importantly in section 8 where works to proposed protected structures which affect their character will not be exempt.
Amendment, by leave, withdrawn.
I move amendment No. 5:
In page 7, line 42, to delete "may" and substitute "shall".
This is a matter which was discussed at some length on Committee Stage. The proposal here is to make a modification in section 7 which deals with registration under the Registration of Title Act. The Bill as it stands proposes that where a structure is included in the record of protected structures, a structure, a specified part or a specified feature within the attendant grounds, its inclusion may be registered under the Registration of Title Act. On Committee Stage the Minister of State said that would be an onerous procedure and that he was not sure we could, in practical terms, require such registration. Given the difficulty we frequently encounter with buildings of the kind envisaged here it seemed to me we should always err on the side of protection. There can be difficulties if the relevant references are not made in the registration of title. There might be difficulties at subsequent stages with establishing that a specified feature in the grounds or a specified part of a structure benefited from the protection being provided by the legislation.
The Minister of State's argument was on the grounds of practicality. He felt it would not be practical to require this although he agreed with the spirit of what we were seeking. I would like to know if he has made any further inquiries about the practicality of this matter because it seems to me we should err on the side of protection rather than leave arrangements rather loose and open to become the subject of argument at a later stage or to give rise to uncertainty. As we know to our cost, wherever there is uncertainty in relation to protected buildings or structures that uncertainty often becomes an excuse for damaging them or doing away with them or acting in a way that is contrary to their protection. I hope the Minister of State will advise that the extra duty that would be imposed following acceptance of the amendment could be taken into consideration and that there would be certainty rather than doubt.
Section 7 enables the planning authority to register the fact that a building is protected as a burden on that property in accordance with the Registration of Title Act, 1964. The provision is optional rather than mandatory and the language is based on a similar provision in the National Monuments Acts, 1930 to 1997, which has worked effectively.
As discussed on Committee Stage, requiring the planning authority to register the status of all registered protected structures would be a laborious process and would impose a huge administrative burden, both on the planning authorities and on the land registry. Ideally, if the land registration system was reformed and updated, the provision for the mandatory registration of a building's protected status should be included in the Bill. However, in the absence of a wider reform of the system it would not be feasible to accept this amendment.
My Department has, however, discussed with the Law Society how best to bring to the attention of the buyers and sellers of property that a building is protected. This will include measures such as ensuring that the record is available to the public and the Law Society issuing practice guidance to specifically deal with the issue. This would cover all protected structures, including most urban property, which has never been registered.
Question, "That the word proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 6:
In page 8, line 44, after "requirements" to insert "in so far as is practicable without compromising the integrity of the protected feature or structure".
There was a lengthy discussion on Committe Stage regarding the provisions in respect of buildings that are used as places of worship. Has the Minister of State been able to reflect on this? This is a difficult area and the Minister of State is, properly, reluctant to deal with an area – how people dispose of the interior of buildings that are used for worship – where the State has no competence.
On Committee Stage there was a temptation to have a long and arcane debate on the various stages in modes of worship that have taken place. That was avoided and I will not deal with it now. Nevertheless, there have been controversies, some of them heated, about some changes to the interiors of buildings. The question is how far we should push our concern with protecting specific features of the interior of buildings without interfering with their use.
The amendment is concerned with practicability and allows for changes to liturgies and modes of worship while taking account of the integrity of the features themselves. Unfortunately, in all of the cases that have been controversial there has been interference with what may be termed the visual integrity of features, for example changes that have been made to altars. In some of the controversial cases the original structure was retained and another was put in front of it. In other cases changes were made to the original structure, which has caused difficulties. Has the Minister of State any proposals regarding the balance between practicability and protection?
The amendment would qualify the condition that planning authorities should respect liturgical requirements when considering the issue of a notice under the section as to what type of works would or would not require planning permission. The Bill contains special provisions regarding places of worship in recognition of the unique nature of these buildings.
Churches form perhaps the most striking part of our architectural heritage in many towns and villages throughout the country and should be subject to the same protection as other worthy buildings. However, we must also recognise that such buildings are sacred to the congregations who worship in them and the State must be slow to interfere in matters which affect the liturgical requirements of churches.
The wording chosen in the Bill was designed to reflect the sensitive divide between the need for the State to protect the built heritage and respecting churches and other places of worship. I am, therefore, reluctant to accept the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 7:
In page 10, before line 1, to insert the following:
"(a) the subject of prior notice in writing to the relevant planning authority,".
Amendment, by leave, withdrawn.
Acting Chairman
Amendment No. 8 arises out of Committee Proceedings. Amendment No. 9 is related and both may be taken together. Is that agreed? Agreed.
I move amendment No. 8:
In page 10, line 41, after "element" to insert "and the removal or alteration of any advertisement structure".
This amendment will clarify that a section 11 restoration notice can be served to require the removal of a sign or hoarding from a protected structure. The provision as originally drafted already allowed for the possibility for a planning authority to require the removal of signs and advertisement from a protected structure. However, in response to Deputy Dukes's concerns, I agreed to look at the wording again to make it clearer and have, therefore, proposed this amendment.
Advertisement structure is comprehensively defined in the 1963 Act, which is construed with this Bill. It means any structure which is a hoarding, scaffold, framework, pole, standard, device or sign, whether illuminated or not, and which is used or intended for use in exhibiting advertisements. It therefore comprehensively covers all types of structures which are used to carry advertisements.
I emphasise that section 11 notices may be used for all types of works which are detrimental to the character of a protected structure or an area of special character. It can be used to require the removal of advertisements that have received planning permission or are exempt, as well as those which were done without planning permission. The only distinction made between authorised and unauthorised works is that when unauthorised works are less than five years old and are, therefore, liable to have enforcement action taken against them, the planning authority will not pay to have them removed. In other cases the authority must pay for the works. References to the works being authorised or unauthorised, as suggested in Deputy Dukes's amendment, are, therefore, unnecessary.
Regarding structures added to or superimposed upon the structure, this is unnecessary as the definition of structure in section 1 defines structure as including all fixtures or features which form part of the exterior of a structure. This is in addition to the definitions of land and structure in the 1963 Act, which mean that anything made or erected on any structure is in itself a structure. I therefore consider this element of Deputy Dukes's amendment to be superfluous.
I commend the Minister of State for proposing his amendment. It deals well with the situation. I thank him for his painstaking exegesis of the difficulties with my amendment.
Amendment agreed to.
Amendment No. 9 not moved.
Acting Chairman
Amendments Nos. 10 and 11 are out of order as they involve a potential charge on the Revenue.
Amendments Nos. 10 and 11 not moved.
Bill recommitted in respect of amendment No. 12.
I move amendment No. 12:
In page 14, line 31, after "necessary" to insert "or desirable".
Amendment agreed to.
Amendment reported.
Amendment No. 13 not moved.
I move amendment No. 14:
In page 19, between lines 14 and 15, to insert the following:
"(5) Where a lawful development to a protected structure would for the first time require compliance with a requirement of building regulations or fire regulations, full compliance with which would endanger the character of the structure or any element of it, the planning or fire authority may apply those regulations with such reasonable modifications as take into account the protected status of the structure.".
This amendment was discussed on Committee Stage. I seek to have common sense applied to the interface between fire and building regulations and the provisions of this legislation in relation to the protection of buildings. I am concerned that, in the litigious times in which we live, there is growing concern among professionals, such as architects or people who, for example, must certify that buildings comply with building regulations or fire officers who have particular statutory functions to carry out, which is leading them to take a very cautionary and rigid approach in regard to the application of the law and the regulations. When they must certify a building or approve fire regulations, one of the questions that goes through their minds is, "what if this goes wrong"? That is leading to a rigid application of the regulations.
When dealing with listed buildings and those of architectural merit I am concerned that there may be a clash between the application of the letter of the law in terms of building and fire regulations and the protected status of the buildings. I am, therefore, seeking to legislate for the exercise of good judgment on the part of all concerned. I do not for a moment suggest that fire or building regulations should in any way be diminished or compromised in their application, but the Bill should make it clear that we are legislating for the exercise of good judgment on the part of professionals who oversee the interface between fire and building regulations and the protected status of buildings.
When this amendment was discussed on Committee Stage I promised to consider the issue of protected structures and the building and fire regulations further before Report Stage. Having discussed the issue I am not inclined to accept the Deputy's amendment, although I understand his reasoning for putting it forward. I have taken this view primarily on the basis that my Department is currently addressing the application of the fire and building regulations to protected structures within the framework of those regulations.
I intend to adopt an additional technical guidance document under the building code aimed specifically at protected structures and other heritage buildings rather than allowing a planning authority to apply those regulations with reasonable modifications as suggested by the Deputy. This document will be adopted before the Bill comes into operation. It will be based on the work of the Royal Institute of Architects of Ireland, the Heritage Council, An Taisce and my Department, which are co-operating in producing worked examples based on a dozen or so heritage buildings which have already been successfully conserved and converted to modern uses within the building control system.
The building regulations apply to the designers and builders of buildings and not the local authority. Therefore, the question of the planning authority applying those regulations in a certain way as suggested in the amendment does not arise. Many of the fears that the building regulations code would inhibit the proper conservation of existing buildings have largely been unfounded. In addition, changes introduced in the 1997 regulations made new provisions for existing buildings which have further assisted their conservation and adaptation.
The technical guidance documents adopted under the building control system are the best way in which to address the issue raised by the Deputy rather than an amendment providing that planning authorities may apply the building or fire regulations on an ad hoc basis. While these regulations have a certain amount of flexibility to accommodate the differing requirements of protected structures, their prime purpose is to ensure the safety of people in the building. This amendment might create a big hole in that important principle and, therefore, I do not accept it.
I very much welcome the Minister of State's statement. It addresses the intent of my amendment and, therefore, I am happy to withdraw it.
Amendment, by leave, withdrawn.
Carlow-Kilkenny): Amendment No. 16 is related to amendment No. 15 and both may be discussed together.
I move amendment No. 15:
In page 24, between lines 23 and 24, to insert the following:
"42. – In determining any planning appeal related to a protected structure, An Bord Pleanála shall take into account that status under this Act and such consideration shall include any guidelines or reports issued by the Minister under this Act. The Board shall not permit the demolition of or material alteration to a protected structure unless two-thirds of its members shall vote for such a permission and a record of the voting of the Board members on such appeals shall be appended to the Inspector's report and made available for public inspection. Before determining such appeals the Board shall seek a report on such structures from the Minister for Arts, Heritage, Gaeltacht and the Islands, and the Board shall give specific consideration to any recommendation by the Historic Buildings Advisory Council.".
These amendments arise from a particular concern with some decisions made by An Bord Pleanála and the method of making them. The Minister of State pointed out on Committee Stage that this, perhaps, was not the best medium through which to make provisions of this kind for An Bord Pleanála and I am inclined to agree with him.
I am disappointed the Government wishes to put a proposed regulation to increase the membership of An Bord Pleanála to the House without debate. That is not a proper way of dealing with this because there are issues relating to An Bord Pleanála which need to be examined. On reflection, this Bill is not the medium to bring about the change in the procedures of An Bord Pleanála that I believe are necessary and, therefore, I withdraw the amendments.
Amendment, by leave, withdrawn.
Amendments Nos. 16 and 17 not moved.
Acting Chairman
Amendment No. 19 is related to amendment No. 18 and both may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 18:
In page 24, to delete lines 26 to 33, and substitute the following:
"(2) The Local Government (Planning and Development) Acts, 1963 to 1998, and this Act may be cited together as the Local Government (Planning and Development) Acts, 1963 to 1999, and shall be construed together as one.
(3) This Act shall come into operation on the first day of January, 2000.".
This amendment makes two changes to the final section. On Committee Stage Deputy Gilmore raised the possibility that the construction section had not been drafted entirely correctly. I raised the problem with the parliamentary draftsman and it was agreed that some changes were necessary to the subsection. I have, therefore, tabled this amendment which clarifies the matter raised by the Deputy. I appreciate that his amendment and mine are virtually identical. I, therefore, ask the Deputy to withdraw his amendment and thank him for bringing the wording to our attention.
The second element of my amendment relates to the commencement of the Bill. Deputy Dukes requested on Committee Stage that the Bill should commence within six months of enactment. I promised to respond to this and my amendment proposes a commencement date for the Bill of 1 January 2000, an appropriate way to mark the start of a new millennium.
Clearly I cannot speak for Deputy Gilmore but I am sure he will be happy to find that the advice given to him was sufficiently persuasive to induce the Minister of State to table this amendment. I indicated on Committee Stage that if the Minister of State were minded to bring forward a provision, such as that in the second part of the amendment, I would be happy to accept it. I find it a little odd – this is in no way a criticism of the Chair – that two minutes ago I was handed a letter from the Ceann Comhairle informing me that my amendments Nos. 2, 10 and 11 must be adjudged out of order. The Chair already had the courtesy to inform me of that before I received the letter. Something ought to be done about the parcel post in the House.
Acting Chairman
The speed of Bills going through the House this afternoon has caught people unawares.
Amendment agreed to.
Amendment No. 19 not moved.
Bill reported, with amendment, received for final consideration and passed.