Vol. 161 No. 10
I move amendment No. 93:
In page 71, line 2, to delete "substantial" and susbstitute "sufficient".
This matter has been discussed at some length and the Minister knows the issues involved. It is a question of the difference between substantial and sufficient.
I second the amendment.
This amendment seeks to amend the requirement that a person must have substantial grounds for judicial review of a decision and replace it with sufficient grounds. As Senator Norris said, this matter was the subject of a long discussion on Committee Stage. I have not changed my view. This provision was introduced in 1992 to ensure developments would not be held up on weak grounds. One must be able to show to the court from the beginning that one has a strong case and is not applying for judicial review to delay a development. Senator Norris mentioned a number of cases in Dublin between developers. It is my advice that it would not be wise to change the Bill in this way.
I accept what the Minister said. I hung myself by referring to that particular case which is mischievous.
We now proceed to amendment No. 94. Amendments Nos. 95 and 96 are alternatives while amendments Nos. 97 to 99, inclusive, are related. Amendments Nos. 94 to 99, inclusive, may be discussed together.
I move amendment No. 94:
In page 90, to delete lines 25 to 51, and in page 91, to delete lines 1 to 48, and in page 92, to delete lines 1 to 48 and in page 93, to delete lines 1 to 53 and in page 94, to delete lines 1 to 42.
The Minister knows what my views are on this section in Part V of the Bill which deals with social housing. He has made a number of proposals which are a reaction to what has happened in the building of social housing, the failure to reach any standard that would ensure people would be housed in a very short time. The proposal the Minister has brought forward will prove to be unconstitutional. I ask that the President examine the constitutionality of this aspect of the Bill because if it is proven to be unconstitutional, then it is a waste of time. If the President examined it, the issue could be resolved within 90 days as distinct from the alternative. If a builder decides to challenge it, the section will be held up for years perhaps, if it ever becomes workable.
The bottom line is that this measure may be unconstitutional, the proposals are convoluted and confusing and may drive up the price of houses rather than reduce them. Furthermore, if a builder is asked to develop a housing state of 100 houses, 20 per cent of which are allocated to social housing, there is nothing to stop that builder building a wall around the 80 houses, giving that estate a different name and thus excluding the others. Instead of integration we would have segregation. I have examined this issue. I realise the Minister is trying to address social housing need but this is not the way to do it. There are other alternatives and one of them is to finance the local authorities to allow them to purchase land and build a variety of social housing and thus ensure integration. Another point I want to highlight is the fact that there is nothing of any substance in the measure for the homeless.
I second the amendment. I echo what Senator Coogan said about the potential unconstitutionality of the provisions with regard to social housing. Those of us with even slight knowledge of the way our law operates will know that the notion of the State taking anything from anybody by way of this 20 per cent provision is bound to be controversial and is likely to end up in court. I hope the President refers this section to the Supreme Court for adjudication. I support the 20 per cent provision. It was the Labour Party which first floated the idea—
It did not.
—and it is supportive of the Minister's intentions. The problem in relation to social housing is the provision of land. Local authorities would build to their hearts' content if they had land. The Minister is to be applauded for bringing forward this provision.
Our amendment No. 96 focuses on the issue of compensation. The main controversial issue likely to be contested would be the question of any loss of property value or loss of income arising from the State taking 20 per cent of all land. That issue must be addressed and I welcome the Minister's amendment No. 95 in that regard. He has met a number of our concerns. I hope the Bill will have as expeditious a route through the Dáil as it has had through the Seanad, with agreement on all sides. It is our intention to support the Minister in that regard.
I agree with Senator Coogan that it would be a good idea if the President referred this to the Supreme Court for a ruling on its constitutionality. That would short-circuit possible problems down the line. I regard the provision of social housing as an admirable idea. The Minister is being imaginative in his proposals. I am not sure they are workable in their current state and some constitutional difficulties may arise. I understand the possibility of the builders making land available at pre-rezoning prices has been considered but ruled out for some reason. That is a pity because it would be a better idea. I would prefer local authorities to build the houses to a uniform standard.
Senator Coogan referred to the question of homeless people, which is a major problem. Yesterday was World AIDS Day. I am aware of people in this society who are rendered homeless by virtue of their AIDS status. That is lamentable. The cases I have come across are of men who, because they are single, have no hope of getting local authority housing. This can be a real disaster. I know it is not within the terms of this Bill but in view of the fact that yesterday was World AIDS Day, perhaps the Minister might mention this to some of his colleagues to see if anything can be done.
I had a case brought to my attention last year of a young man who returned from America at the invitation of his sister, who was fully aware of the fact that he had full blown AIDS, but when he got here his brother did not like the situation and kicked him out. It was virtually impossible to get him in anywhere. We eventually got him into a hostel but he could not continue with his drug regime – he was on the triple therapy. It is awful that a country like Ireland can allow somebody to be put out on the streets with a serious illness. I know this is not within the remit of the Bill and I am grateful to the Cathaoirleach for allowing me to put that matter on record.
I am somewhat confused. We have completed Second and Committee Stages of the Bill and every party and the Independent Members fully supported Part V which deals with social inclusion and empowering local authorities to acquire land or come to an agreement with developers for the acquisition and purchase of affordable houses. Senator Coogan has now outlined three reasons for opposing the section. I am surprised that Senator O'Meara was in agreement because it is my recollection that the Labour Party published a Bill—
The Senator must not have been listening to what I said.
—containing almost identical provisions. This section goes to the core of the Bill. It is the most important section and it will have wide-reaching effects. The constitutional issues have been raised. Property rights are enshrined in the Constitution but there are other provisions in the Constitution whereby the common good must be given priority. We were fortunate 60 years ago to have people with vision because our Constitution has provided for a third arm of the Oireachtas, namely, An tUachtarán and the Council of State. I am sure the Bill was not brought before us without having received favourable advice from the Attorney General. Equally, I have no doubt that the President, who is a lawyer, will certainly be well equipped to decide whether it should be referred to the Supreme Court. If there is any doubt I certainly agree that it should be referred to the Supreme Court so we can have an early decision because early implementation of the provisions in this section is essential in terms of the proper working of the Bill and in meeting its objectives. It is preferable that it be referred to the Supreme Court, assuming there is a doubt in relation to the matter. I am not a lawyer and am therefore not qualified to say if there is a doubt, but I would not like to see it being subsequently challenged by sectional interests. Earlier I said that if it is challenged by developers it could have the effect of delaying implementation. The decision may be that the Bill is constitutional, but the delay could be harmful.
Senator Coogan said the section is convoluted. It is very straightforward. If the sections are deleted as proposed in the amendment, local authorities would lose the power to acquire 20 per cent of land. Local authorities would also lose the option of acquiring certain houses by agreement for those who are in need.
The third objection raised by Senator Coogan was that the provisions would drive up the price of houses. The Bill will do nothing for house prices, but the purpose of a planning Bill should not be to address the price of houses or homelessness, both of which should be dealt with elsewhere. This section is pivotal to the Bill and I would hate to think that the removal of any of its provisions would be endorsed. If there is any legal doubt regarding the constitutionality of the provisions one hopes and confidently expects that the Council of State, under the aegis of the President, will exercise its discretion.
I think the Minister knows he has full support from this side of the House for his policy regarding social housing. However, concern is expressed, not only by us, regarding the constitutionality of the provisions. Naturally, we all hope the provisions are constitutional, but the woman in the home is also included in the Constitution and her position has been described this morning by the National Women's Council as a nightmare. We must be very sure that what we are providing for will stand up to a constitutional test. I support what was said by Senators O'Meara and Coogan, namely, that the President would refer the Bill to the Supreme Court in order to test its constitutionality.
I spoke about the social importance of this section which is very important from the point of view of social cohesiveness. The homeless are important in this context as I do not see that the Minister's provisions exclude hostels for the homeless. I am delighted to see the Minister nodding, as they are very important. It is with great regret that I see people in some housing developments objecting strongly to hostels for people who have been discharged from mental hospitals and so forth. While Senator Norris is quite right in stressing the situation regarding single men, there are very many women who are also homeless. However, women must be careful to be less obvious as they are far more vulnerable on the streets of the city. There is a very large number of them—
I do not think they are much more vulnerable than people in the terminal stages of AIDS.
I hate to get into competition about who has the greatest need. There are also a very large number of homeless children and I am delighted the Minister for Finance provided £2 million, which shows the extent of the problem that exists. I hope local authorities will see fit to include such hostels in line with the Minister's social housing plans.
I support Senator Coogan's comments on this section. The section is certainly convoluted and I do not think anybody knows how exactly it will work – I believe it is unworkable. As Senator Coogan said, there is only one way to bring down the price of houses, namely, to extend sewage, roads and other necessary services. There are no guarantees in this regard in the section which is convoluted and open to abuse. Some local authorities will require 20 per cent of all development lands in their jurisdiction while others will not. In this way some developers will be caught under the system while others may not. Therefore, the provisions could well be open to abuse.
It is people who in future buy houses who will have to pay to provide for the 20 per cent. Is this fair and equitable? Everybody should pay if we are to provide for social inclusion, cheap housing and housing for everybody in need, including those on waiting lists. The reality is that under this system the poor person who hopes to buy a house will have to pay. How is this equitable? I have a house and the provision will not affect me unless I buy another. Everybody should have to pay in terms of providing for those on housing lists, not just young married couples who are starting out and trying to buy a house.
There is ambiguity in the Bill regarding size of development and when the 20 per cent provision kicks in. What is the position if a builder decides to apply for planning permission for two houses every year? Will he have to hand over 50 per cent or just 20 per cent of one house? How will local authorities come to terms with such a situation?
I ask the Minister to delete Part V and accept the amendments.
I respect the position of Senator Coogan. He has raised the possibility of constitutional difficulties with the provision in the Bill. A number of people have done likewise, including builders, auctioneers and some academics who have said that if the provision is not properly enforced there could be constitutional difficulties. I respect people's opinions in this regard. Senator O'Meara and others, including Senators on this side of the House, are concerned to ensure that the provision is constitutional. Senator Coogan suggested that the most effective and efficient way of trying to ensure that implementation of the section is not held up for a long time through court cases taken by builders is for the President to refer it to the Supreme Court once the Bill has been passed. I will not comment on this – it is for the President to make her own decision and, knowing her, I have no doubt this will be given very serious consideration, as is rightly the case with all legislation. I do not want to influence that because it would not be right.
I am satisfied with the legal advice I have obtained on this section which states that it is constitutional provided it is done in the manner we are attempting. For that reason I cannot accept the Labour Party amendment to Part V, because it would not meet the constitutional criteria of being fair, reasonable and proportional.
Leaving that aside and the fact that there is always a possibility that there may be a constitutional challenge to this, I guarantee that, if I were to accept the amendments tabled by Senator Coogan, there would be no constitutional challenge to the Bill because it would not do anything. The Bill would be toothless and a waste of time. To accept the amendments would tear the heart out of the Bill and I am not prepared to do that. Part V is designed to provide social and affordable housing to meet the concerns of Senators about the homeless, be they children, people who cannot afford their own houses, as Senator Burke outlined, various other groups of less well-off people in society and even some reasonably well-off people – middle income earners – who cannot afford houses because of the direction house prices have taken.
I cannot accept the amendments because I cannot tear the heart out of the Bill. The exercise in which we have been constructively engaged over past weeks and the 60 hours we have spent debating the Bill would be set at naught were I to accept the amendments. We would have wasted our time.
It was suggested that the provisions are convoluted, something they are not. They state simply that a local authority will draw up a housing strategy as a result of which local authority members will decide what percentage of land they have zoned is needed to meet the needs of people requiring social and affordable housing. When they decide that, they can request a maximum of 20 per cent. They cannot require more than that; the maximum is 20 per cent. As Senator Burke said, because some local authorities have plenty of land and house prices are not as rampant as in other places, those authorities can say they do not need additional land and that they have sufficient to meet their needs. Others might say they only need 5 per cent or 10 per cent. It is a relatively simple mathematical exercise to make that decision.
I accept that, when that is decided, there is a need for the local authority to ensure builders and developers meet that percentage. There is a need for clarity and uniformity of application throughout the country. It is for that reason we have agreed to put in place guidelines and have asked builders and developers who know about these matters how they would meet the needs of the local authority. It is not a convoluted measure.
As regards the measure causing a rise in house prices, that was dealt with on the previous occasion. This measure must be seen in the context of all the measures the Government has taken, especially regarding those it has put in place to increase densities. Before the guidelines were issued, a person could build 1,000 houses on 100 acres, an average of ten houses per acre. Now, assuming 20 per cent of the land is taken from them, they will still be able to build 1,120 houses. This means they have a bonus of 120 houses and the consequent profit. There is no reason for an increase in prices, except for greed. In other words, a builder may decide to make those who bought houses in the private development pay for the perceived lost profit.
Senator Coogan suggested that builders will construct a wall around their developments so that there is social segregation, not integration. I agree with him that it is a possibility if the local authority does not do its job. However, the authority should do its job by ensuring social integration. The local authority and the builder must come to an agreement on these matters. The authority should ensure we are protected against that.
I do not want to go into great detail about what the Government is doing about housing, such as the highest ever levels of funding of £500 million, the £6 billion over the life of the national development plan, the £5 million announced yesterday for initiatives for the homeless and so forth. All those should be taken into account in the context of the Bill. The issue is wider than the Bill. While I have no difficulty acknowledging the support I have received from all sides of the House, especially that of the Labour Party, I take issue with Senator O'Meara. The Labour Party did not float this idea. I did and it quickly jumped on it. However, I was delighted for the support of its members.
Regarding amendment No. 95, I introduced a number of amendments relating to the clawback of profit on affordable houses by the local authority if a person sold their house within the given period. One of the changes I made was to require the planning authority to consider the cost of any material improvements made to the house or land by the purchaser and to make an allowance for them in the clawback. We had a discussion on that and various Senators from all sides expressed views, especially about disputes concerning the figure. It was suggested that an appeal mechanism would be a good idea and if the matter was referred to a property arbitrator for final determination if there was a dispute. It was felt we should have that appeal mechanism. It is for that reason I have tabled amendment No. 95.
I have covered most of the points made. I respect what Senator Coogan said about the constitutionality of the Bill. His amendments would remove from the Bill the measure we have inserted and, for that reason, I ask him not to press them to a vote. We have had unanimity of purpose in this. It is the best stab I can make at it, and the best legal advice available to me suggests that the measure is constitutional. While fears may be raised about it, the President will have to make a decision on it. If we could leave the House united in the spirit of Part V, it would help the Bill as it enters the other House.
It is the role of the Opposition to examine all legislation for issues of constitutionality or equity. That is our role in this House. If we do not do that, there is no purpose in our being here.
Senator Walsh referred to two constitutional provisions, one in regard to the rights of the individual to private property and the other in regard to the common good. They are only one aspect of what the President may refer to. The other issue which may be referred to is equity, and builders would be more likely to challenge this than anyone else. They may question whether there is equity in regard to a decision about the distribution of the 20 per cent of social housing. What builders will be included and what builders will be excluded? I am aware there may be guidelines in this regard but they are only guidelines. Some builders may feel they are getting a percentage of social housing while other builders down the road are not and may wonder why they are losing out.
The equity I referred to previously relates to the actual application of mortgage figures. One person may pay £150,000 for a house and his neighbour who lives in social housing may have the same house for between £80,000 and £90,000. He will not feel very happy about the equity of that situation, particularly when the houses are exactly the same. The Minister has stated that there will be no difference between houses and that the local authorities will be responsible for ensuring that the quality of work remains the same throughout. However, if the houses are sold in 20 years' time, one fellow will be laughing up his sleeve and the other will wonder why he had to cough up £150,000 over the years.
Another equity issue arises from yesterday's budget. Members of the media clearly tell us this morning that the budget will have the effect of pushing women out of their homes and into the workplace, regardless of whether they like it. However, there is a slight contradiction here. If I am the only breadwinner in a household and earn £30,000 per annum, I am entitled to a £120,000 mortgage whereas if I earn £20,000 and my spouse or partner earns £10,000, we are only entitled to £106,000.
Our role is to examine this issue in detail. If we have concerns, this is the place to express them. If we feel a provision or measure will not serve its intended purpose, we must push the issue to the extreme and then allow the President or the courts to decide on it. It is our right to have these issues examined.
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Bohan, Eddie.Callanan, Peter.Cassidy, Donie.Chambers, Frank.Costello, Joe.Dardis, John.Farrell, Willie.Fitzgerald, Liam.Fitzgerald, Tom.Gibbons, Jim.Glynn, Camillus.Henry, Mary. |
Keogh, Helen.Leonard, Ann.Moylan, Pat.Norris, David.O'Brien, Francis.O'Donovan, Denis.O'Meara, Kathleen.Ó Murchú, Labhrás.O'Toole, Joe.Ormonde, Ann.Quill, Máirín. Walsh, Jim. |
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Burke, Paddy.Caffrey, Ernie.Coghlan, Paul.Coogan, Fintan.Cosgrave, Liam T. |
Hayes, Tom.Jackman, Mary.McDonagh, Jarlath.Manning, Maurice.O'Dowd, Fergus.Quinn, Feargal. |
I move amendment No. 100:
In page 97, to delete lines 18 to 21.
This amendment is tied in with the previous ones and I thought it would have been taken with them.
Amendment No. 112 and amendment No. 101 are related and may be taken together by agreement.
I move amendment No. 101:
In page 97, to delete lines 43 and 44, and in page 98, line 1, to delete "or of an employee of the Board or of a person whose services are availed of by the Board by virtue of section 107,".
This amendment is to ensure the chairman of the board lives up to his or her duties. It is normal practice that the chairman of a board should be the person authenticating the seal of the board and I do not see why we should extend it to employees or any other person.
I second the amendment.
I think Senator Henry raised this issue when we discussed the matter on Committee Stage. I understood from what the Minister said that there was a practical difficulty in that the number of documents sealed was in the order of 5,000. Therefore, it would be impractical to place the onus on the chairman or a board member. It would not be at variance with what happens with the sealing of many other documents in companies.
As Senator Walsh has said, we discussed this matter on Committee Stage and I pointed out that we had over 5,000 appeals and referrals to the board, all of which would be signed in the manner that is described here. The seal of the board would be formally witnessed and would be authenticated by a board member. However, the amendment would impose an obligation regarding a range of other things that the board must do. The board would have to go through this procedure. The authentication of documents for court cases would be required as a result of it and this would not be practical. The intent of this amendment was to ensure that this procedure was followed when the board was dealing with appeals and referrals. The seal is authenticated by the Chair or a board member. Therefore, this amendment is unnecessary.
Is the amendment being pressed?
No, I will not push it. I am chairman of a number of boards – not that I get a great deal of remuneration for it because they are mostly charitable boards – but I would regard it as the responsibility of myself as chairman or as a member of the board to make sure that the company's seal was properly stamped on documents. I would be gravely doubtful of a situation where it is broadened to such an extent where any person can do it. This is something to worry about but I accept what the Minister said.
Amendments Nos. 103 to 105, inclusive, are related and may be taken together by agreement.
I move amendment No. 103:
In page 101, line 32, to delete "6" and substitute "9".
We have already discussed this amendment on Committee Stage. The first amendment refers to an increase in the number of members from six to nine. The reason is to ensure that the board is large enough to carry out the additional work it has got over the years. Amendment No. 104 refers to the inclusion of the Heritage Council as a nominating body. Amendment No. 105 refers to nominations by the prescribed bodies, the General Council of County Councils, Local Authorities Members Association and the Association of Municipal Authorities of Ireland. The Minister has already assured me that this is taken care of in the Bill.
I second the amendment.
As the Senator outlined, we discussed this on Committee Stage and we reached an understanding on it. Amendment No. 103 proposes to increase the number of board members from six to nine. The Bill provides for a minimum number of six on the board and that number can be increased if the work pattern so demands. There are nine board members at present. Therefore, my provision is more flexible.
Part of a panel.
I dealt with the other questions about local authority bodies on Committee Stage and all sides were in agreement. The Heritage Council is also catered for but I would not be prepared to accept that it should constitute one panel. It would not be fair to do that. However, it is part of the other panel and the Senator's concerns are met.
I thank the Minister. Some of these amendments remained because I did not have time to review and to react to the new amendments that were tabled after Committee Stage. I just tabled the same amendments for Report Stage.
Amendments No. 110, 111 and 114 are related and may be taken together by agreement.
I move amendment No. 110:
In page 106, line 2, after "function." to insert "The Board shall arrange to keep a written record of all of its decisions. This minute shall record the names of those present and a record of all votes on any decisions. A board member who disagrees with the content of any decision shall be entitled to supply a note of his or her reasons to the Chairperson of the Board and the Minister and any such note shall be available for public inspection in the relevant appeal or referral file.".
I second the amendment.
I dealt with these amendments on Committee Stage. I tabled my own amendments to deal with some of the points raised. The exercise improved the Bill but I am not prepared to accept any further amendments to it at this stage.
I move amendment No. 113:
In page 106, line 35, after "authorisation." to add "The Board member who drafts the order shall only implement the detail of the decision made at the Board meeting.".
I second the amendment.
The intent of this amendment was accepted by me on Committee Stage and is included in the Bill at section 96(6)(b). Therefore, I am not prepared to accept this amendment.
I move amendment No. 116:
In page 106, line 46, after "divisions" to insert "(which shall consist of not less than 3 Board members)".
I second the amendment.
I accepted this amendment on Committee Stage and it is now included in the Bill at section 96(2). Therefore, there is no need for this amendment.
Amendments Nos. 118 and 125 are related and may be taken together by agreement.
We discussed this amendment already. Senator Coogan raised it. Following the debate on Committee Stage regarding the need for An Bord Pleanála to ensure it can provide its services through the Irish language, including holding oral hearings in Irish, this amendment would require the board to consider the adequacy of its Irish language competency when recruiting staff.
Léiríonn an leasú an béim atá á chur ag an Rialtas ar sheirbhísí dhá-theangacha a chur ar fáil sa chóras poiblí i dtreo is gur féidir le pobal na Gaeilge a gcuid gnó a dhéanamh tré Ghaeilge leis an stát-chóras.
This amendment is based on the similar examples contained in the Court Services Act, 1998, the National Cultural Institutions Act, 1997 and the Heritage Act, 1995. Ensuring the board has sufficient staff to provide a service through Irish will deal with the points that were made and with those raised in the amendment tabled by Senators Ross and O'Meara. As I stated on Committee Stage, the proposed language Bill will deal with all of these matters in a comprehensive manner. Senator Coogan spoke at length about this matter on Committee Stage and Senator O'Meara tabled her amendment then. I have met the concerns of everyone.
I thank the Minister for taking on board so adequately the issues raised by Members.
I move amendment No. 119:
In page 111, to delete lines 21 to 36.
The idea of streamlining the system is to ensure that appeals are dealt with within an appropriate period of time. However, this section gives an out clause to the board. If it has an extra workload all it has to do is tell the reasons it cannot make a decision and the board can put it off until later on. Perhaps the Minister will tell me I am wrong about this.
One of the best aims of the Bill is to streamline the system to ensure appeals are dealt with in a particular period of time. This seems to be a safety valve which could be used by the board to say, "Sorry, we are a little busy. We will leave this until later." In other words, the board could fall back into the old trap of delaying because of its workload. We intend here that more people are taken on to ensure the time limit is met.
I second the amendment.
I support the sentiments behind this amendment, though it might be impractical to include it in the Bill. We spoke at length on Committee Stage about practices that everyone finds undesirable, such as the attempts by certain elements in society to extract financial payments from developers who are delayed by the planning process. I have always found it incongruous that while a local authority must work according to very specific deadlines on the granting of planning permission, and we have tightened the time procedures in this legislation, the same criteria do not apply to An Bord Pleanála. That body has had staffing difficulties. There has been a huge increase in planning applications and appeals. Those factors have put a strain on the whole planning system. There is an onus on the State to ensure that agencies such as this have the necessary resources. However, they often look for more staff when working more efficiently might obviate the need for increased numbers. I am not saying I am insufficiently informed about the workings of An Bord Pleanála.
Delays by that board have led to successful attempts to extract money, as developers have felt it impossible for them to delay commencement of development any further. This is a real issue. If the Minister is not going to accept the amendment the matter should be addressed outside the Bill. A way must be found to ensure these bodies work within strict time controls. That is essential, as the percentage of cases dealt with in the four month timespan has been slipping, though it may have been corrected recently as a result of the increased staffing. This is an important matter. If it is not dealt with in the Bill it should be addressed elsewhere, as it is undesirable that one arm of the planning process must work to a strict timetable while the other does not.
There is a lot of merit in what Senator Walsh says and in Senator Coogan's amendment. Deadlines concentrate the mind. If one knows one must have something done by a certain time one will have it done by that time. As Senator Walsh rightly said, local authorities are bound by a particular set of rules, though we often complain about lack of resources, particularly in the planning area. It seems only fair to objectors, applicants or anybody who is party to a matter before An Bord Pleanála that they should know within a reasonable timeframe when that matter will be dealt with, particularly as most of these matters are of considerable importance to them.
I agree with Senators that there should be as much certainty as possible in the planning system, at local or Bord Pleanála level. That is important and Senator Walsh made that case eloquently. The amendment would prevent the board in any circumstance from extending the 18 week period for making decisions. That would not be good for the system because one cannot have every appeal dealt with in that black and white fashion. Even in the local authority system, where there is a two month constraint – or eight weeks when this Bill is in force – the local authority has an out in that it can look for further information, though we do not want to encourage that.
The section is not designed solely to let An Bord Pleanála off the hook. I know Senator Coogan accepts this. Section 111(3)(a) states: "Where it appears to the Board that it would not be possible or appropriate, because of the particular circumstances of the appeal or referral . . . ". That is one case; another would be where the numbers are very high. We all concur with the sentiment behind this, but to tie the board absolutely to 18 weeks and say there will be no chance to make a decision after that would not be good. The board is to do this only where appropriate or in particular circumstances.
Senators have mentioned the board's staffing difficulties, as have I. The levels for the four month target we are debating had fallen to 42 per cent in May this year. Before the economic boom got going and appeals increased, the figure was as high as 98 per cent at one stage and was at 92 per cent for a considerable time. It fell to 42 per cent mainly due to staffing difficulties. We have put a range of measures in place – extra staff, contract employment and a limited bonus scheme – and from May to October the 42 per cent figure rose to 60 per cent. I expect it to rise considerably in coming months as these measures take effect.
I join Senators in expressing the wish that in all cases and circumstances we get back to the 18 week period as quickly as possible, as I am sure we will. I cannot accept the amendment as it would unduly tie the hands of the board. It might not be able to deal with a very complicated planning application in that period. However, the amendment has been useful in highlighting my wishes and those of the House that we return to the 18 week period.
I thank the Minister. We all share these concerns. Senator Walsh put his finger on this when saying we might have a time limit on an additional period. It is only right that people making planning applications know what is going on. They may be borrowing heavily or have commenced work during an appeal. Builders can be crippled in this way and that is why I put this amendment down. As Senator Walsh said, it should be possible to say perhaps that a decision must be made within an additional period of 18 weeks. As Senator O'Meara said, it helps to focus the mind if there is a time limit.
I move amendment No. 120:
In page 111, line 25, after "Board," to insert "unless such further submission is based on information which was not available at the time of the making of the original submission,".'
I second the amendment.
Section 111(3)(a) deals with the notification of parties to an appeal in circumstances where, for example, due to the number of appeals, the board cannot determine a case within the 18 week period set out in subsection (2). Senator Henry's amendment does not seem to fit in here.
I think so too. That was why I formally moved it. I was not quite sure. I will withdraw it.
It seems to be in the wrong place.
I think so.
I move amendment No. 121:
In page 116, line 41, after "referral." to insert "In the event that the Board decides not to hold an oral hearing on a particular appeal or referral it shall refund any oral hearing fee to anybody who requested an oral hearing.".
This amendment is in the right place, at least I hope it is. It relates to the question of fees. I hope the Minister will yield on this one. If the board decides not to hold an oral hearing, it should refund the oral hearing fee. To use a crude American expression, one expects to get a bang for one's buck. In this case one must pay the buck, but one does not get a bang. That seems grossly unfair. There should be no taxation without representation.
I second the amendment. I will not add any words to Senator's Norris's eloquent ones.
The only bang the Senator will get for £60 is the opportunity to request an oral hearing. If I accept the amendment, it would have the effect of opening the floodgates. People would have nothing to lose. They would pay a £60 fee on the off-chance that they might get an oral hearing and if it they did not get one, they would get a refund and all they would have lost would be the interest on that sum for the period involved. This fee is established. The requirement to pay a £60 fee will concentrate people's minds and ensure they do not frivolously request oral hearings.
I am tempted to call a vote, but I gave an undertaking for good behaviour and I do not feel I can break that.
I move amendment No. 122:
In page 116, between lines 41 and 42, to insert the following:
"(4) The person who requested the hearing shall have a period of one month in which to appeal against this decision to the Minister.".
I second the amendment.
I cannot accept this amendment, as it would involve the Minister being brought back into the appeals procedure.
I remember the argument the Minister made.
Given that all Ministers may not be as reasonable as I would be in these cases, Members must guard against that in the future.
As Senator Henry's vicar on earth, I withdraw the amendment.
Amendments Nos. 130 and 131 are alternatives to amendment No. 124 and they can be taken together by agreement.
The principal amendment in this group of amendments proposes the substitution of section 131 by a redrafted section. Subsections (3), (4) and (5) of the new section 131 deal with the availability of documents from An Bord Pleanála and contain provisions similar to section 37 relating to the availability of planning files at local authority level. They provide that board documents on planning appeals, on its decisions on CPOs and on local authority development requiring an EIA would be made available for public inspection and for purchase within three working days of the decision. The documents must be available for over the counter inspection for at least five years and after that period such documents can still be assessed by way of an FOI request. The amendment responds to an amendment tabled by Senators Norris and Ross and to one tabled by the Labour Party.
In making this amendment, subsections (1) and (2) of section 131 have been redrafted to remove references to the Minister in this section. The section as originally drafted allowed the Minister to appoint inspectors for the purposes of reporting on any matter under the Bill. However, as the Minister's remaining planning functions, such as deciding on special amenity area orders, have been transferred to An Bord Pleanála, there is no need to refer to the Minister in this provision.
The redrafting of section 131 has required, in turn, that section 120(1) regarding the appointment of inspectors for an oral hearing be redrafted in order to ensure consistency of language between the two sections.
I very much welcome what the Minister is doing in this amendment and his graciousness in acknowledging this amendment is in response to one tabled by this side of the House. This is a good amendment and I am grateful he has adopted the principles we were seeking to address in our amendment.
I welcome these Government amendments and I thank the Minister for tabling them.
I move amendment No. 125:
I leathanach 117, idir línte 11 agus 12, an méid seo a leanas a chur isteach:
"(3) Where an oral hearing relates to a development which is within the Gaeltacht the person conducting the hearing shall:
(a)conduct the hearing through the medium of Irish,
(b)arrange for the provision of translation facilities for the benefit of persons who do not speak or understand Irish."
Yesterday I said that I hoped a provision would be made to provide for the Gaeltacht areas and, at our request, the Minister included an amendment endorsing a positive view of the Irish language. Nobody will be excluded from an oral hearing and translation facilities will be available. I hope the Minister will go some way towards addressing the needs in the area, which would be a practical way of achieving our stated objective of cherishing the Irish language.
I presume the Minister has taken on board what the Senator said.
I have. I did something about that yesterday.
The Minister said he did something yesterday about this.
An earlier amendment requires that the board has staff who are sufficiently proficient in the Irish language to hear oral hearings, appeals and so on.
Thank you, Minister.
I move amendment No. 129:
In page 122, line 8, after "the" where it firstly occurs, to insert "formally published".
This amendment refers to the publication of the policies and objectives of the board. It proposes to insert the words "formally published" before the words "policies and objectives".
I second the amendment.
Section 128 requires the board to have regard to ministerial and Government policy. This amendment would qualify that provision by applying it to formally published policy only. As I said on Committee Stage, this would be unnecessarily restrictive and could give rise to legal arguments. There could be argument over what the word "formally" means. I ask the Senator to withdraw his amendment.
I move amendment No. 132:
In page 123, between lines 44 and 45, to insert the following:
"(2)Where the Board decides against the recommendation of the inspector, the Board will refer the decision, and all relevant information to the appropriate local authority where the elected members will decide to grant or not to grant two-thirds of the total membership, this decision to be made within four weeks.".
This matter is a bone of contention with me. I refer to a case where an inspector makes a report and the board finds against his or her recommendation in that report. The recommendation of an inspector who has visited the site and who has deep knowledge of it should carry more weight and not be open to being simply overruled. I am seeking to ensure an inspector's report could not be overlooked. I acknowledge that the detail of the report will be made public.
In a case where one member of a board disagrees with a proposal and two members are in favour or against it, and one individual is against the majority decision and the recommendation in the inspector's report, the result of that hearing is that two people could be in favour of it and two against it. In such a case, a decision is open to question because the inspector's report should carry a lot more weight than it does in the Bill.
I second the amendment. I have a good deal of sympathy for what Senator Coogan said. This position seems open to question. When people become aware of it they will wonder why this is happening and whether it should be happening.
This matter relates to a previous discussion we had on a similar matter. I outlined the position in great detail and I will recap what I said about some of the procedures that must be followed for a CPO, the building of a motorway, an EIS and public local inquiries. The inspector draws up the report and presents it to me as Minister, as happens currently – it will happen via the board. I will have to make a decision, based on the inspector's report together with the other information I have, including the objections. There is no point having anybody superior to an inspector if it is to be law that one has to accept an inspector's report in all cases.
The inspector deals with technical aspects of a particular planning application, perhaps deals with objections as well, but there are other aspects which have to be taken into account. That is why the board is involved. A decision may be allowed where an inspector's report was overruled by the board, although overruled is not the right phrase for this – every inspector's report gets a very detailed consideration by the members of the board, probably more consideration than any other documents that go before the board, and rightly so. Ultimately they must make a judgment based on that but also on other factors that may mitigate what the inspector has written.
On that basis I will not accept this amendment. I would not like to see something like this going back to the elected members of the local authority. The local authority has made its decisions at executive level, perhaps even on a section 4 motion, and once a matter goes beyond that level, it goes to a national body, where no local vested interest is involved. That is where the decision should be made.
Senator Coogan has spoken at great length on this on a number of occasions during the passage of this Bill and he feels strongly about it, but the figure for the number of times this happens is about 10 per cent, which is very small in the over all context. Turning the planning appeals system upside down for the number of cases where this happens would not be a wise course of action.
I know that the change would be dramatic and it gives the inspector equal status to a member of the board. However, this has frustrated many councillors. They have spoken to me many times about this. They feel that if a decision is to be made it should be unanimous, but if a question mark is placed over it by a technical person with so much knowledge, then the rightness of the decision is questioned and that allows frustration to creep in. I will not press the amendment but I express concern on this matter.
I move amendment No. 133:
In page 127, line 47, after "spouse" to insert "and any member of their immediate family such as brothers and sisters and brothers and sisters-in-law and their own children as well as those of their in-laws".
This is to extend the ethical provisions by casting the net a little wider with regard to the people who may have a beneficial interest to include further family members.
I second the amendment.
I explained earlier that the forthcoming local government Bill will contain extensive ethics provisions. The proposal before us requires disclosure of interest where a person or his or her spouse has a beneficial interest in a matter. The amendment would require a person to make a disclosure if any one of a wide range of relations had a beneficial interest in the matter, including nephews and nieces. The amendment is cast too widely. I have my own views on the Ethics in Public Office Act – I have 11 brothers and how can I know what they are doing and what their children are doing? I assure the Senators that the provisions contained here and in the local government Bill will go as far as possible to ensure there are no conflicts of interest, either at the board or local authority level.
I thank the Minister for his answer and I have a good deal of sympathy with what he has said.
I move amendment No. 134:
In page 132, between lines 4 and 5, to insert the following:
"(5)A person who makes a written representation to a planning authority pursuant to subsection (1) shall not be subject to legal liability solely by reason of so making the representation."
There is a case for giving protection if we are allowing people to complain about breaches of the law by others. I would like to hear the Minister's response to this. Should there be protection for people who make submissions to the board, for example, in such a case?
I second the amendment.
The same reasoning applies. The amendment seeks to give protection from legal liability to persons who have complained to a local authority about unauthorised development under section 137. The amendment is not necessary. If a person makes a genuine complaint about a suspected unauthorised development, they will have nothing to fear in a libel action. It is covered but if a person makes a mischievous or malicious complaint about somebody else, then the usual rules apply about a person's right to his good name. That is only as it should be.
I recall making a submission on behalf of some residents to An Bord Pleanála relating to a matter in the constituency that was causing them great difficulties. I received a solicitor's letter or a senior counsel's letter, threatening that, if I did not withdraw it, I would be sued and all the rest. I took advice and was told I had privilege in such a circumstance. I never heard anything further from any senior counsel. What the Senator is trying to achieve is already covered in the Bill.
I move amendment No. 136:
In page 151, line 31, to delete "Prescribed".
This amendment would have the effect of subjecting all local authority development to the full rigours of section 163, rather than just prescribed developments.
I second the amendment.
It is precisely for that reason that I do not want to accept this amendment because, as the Senator knows, the full range of works carried by a local authority, even down to making cuts in the side of the road for road drainage and so on, would fall within it. That would not be practical from a local authority point of view.
We had a discussion on the public private partnerships yesterday and I will not labour the point. If, as the Minister says, it would have such a wide application then it probably would defeat the purpose.
I move amendment No. 138:
In page 164, between lines 15 and 16, to insert the following:
"185.–Compensation shall not be payable arising from a decision of a planning authority unless the person concerned has validly submitted an appeal to the Board and has validly prosecuted the appeal to a decision on its merits."
This is self-explanatory. Compensation should not be payable arising from the decision of a planning authority unless that person has a direct interest in it. This is relevant to the discussion we had on fees, objections, who enters the process at what point, frivolity and so on. I would like to hear the Minister's response to it.
I second the amendment.
As I said on Committee Stage, the law on compensation is now firmly bedded down in the 1990 Act and very little money is now paid out in compensation. The figure for moneys paid out in compensation in 1997 was naught and in 1996 only £26,215 was paid. This indicates that the whole area is well and truly bedded down at this stage and I do not want to upset it, therefore, I will not accept the amendment.
Amendment No. 140 is an alternative to amendment No. 139 and amendment No. 141 is related and they may be discussed together by agreement.
Senator Costello and others spoke at length on this matter on Committee Stage. Amendments Nos. 140 and 141 would delete both subsections which limit the liability of the local authority in relation to the performance of its functions under this Part. This section is standard in legislation and, as I explained to the House, is intended to ensure that the State or local authorities do not become a mark for costs in personal injury cases when the real fault lies with someone else, in this case the organiser of a concert.
When Senator Costello expressed his concerns on Committee Stage I looked again at the section and agreed it was not well drafted. I have, therefore, tabled this amendment which is based on the more modern provision contained in the Litter Pollution Act, 1997. It makes three changes to the section as currently drafted. Officers and employees of local authorities and the gardaí are now covered by the limitation of liability, in addition to the Minister, the local authority and persons engaged by the local authority. The type of loss for which damage will not be payable has been extended. This section will now exclude damages for consequential loss, such as loss of earnings. The failure by a local authority to exercise a function will not lead to a claim, as opposed to failure to comply with a function.
I hope this amendment meets the concerns expressed by Senator Costello and others and that they will withdraw their amendments. Subsection (2) means that in order to take an action against a concert organiser or a local authority, a person must have suffered an injury either to themselves or to their property. They cannot sue without having suffered some type of loss. I am, therefore, not prepared to accept amendment No. 141.
Senator Costello pointed out that the original section was not well drafted and that it appeared to exclude all types of actions a person might want to take. Our desire was to prevent claims being submitted willy-nilly to local authorities because concerts were licensed. We have taken Senator Costello's views and those of other Senators on board and we now have a better section.
I thank the Minister for tabling this amendment. It shows he is prepared to meet at least some of the concerns expressed on Committee Stage.
I congratulate the Minister on redrafting this section which is important in these days of increased litigation. Senator Costello made his points well and I am glad the Minister was able to respond to them.
Amendments Nos. 142 and 143 are related and both may be discussed together by agreement.
I move amendment No. 142:
In page 217, lines 10 to 12, to delete ", other than section 6".
These are technical amendments which I tabled after I was told it is not necessary for the sections referred to to remain in force because their effect is already protected in another section in the Bill.
I second the amendment.
The appeals in the Sixth Schedule allow two provisions of the existing Planning Acts to remain on the Statute Book. The first provision is section 6 of the 1982 Act. This section gave retrospective authorisation to development granted permission by the Minister in contravention of the development plan following a court decision which declared that the Minister, the then appeals body, could not contravene the plan. The second is section 4 of the 1993 Act which gave retrospective permission to all development carried out by the State following the Mullaghmore case which decided the State had to obtain planning permission, a decision I remember well.
I explained on Committee Stage that these provisions had a once-off effect and that there was no reason to use them again or to contain them in the consolidated Bill. However, we were advised that to avoid any doubt about the validity of the developments authorised under these provisions we should leave the provisions on the Statute Book. I am not sure why the Senator has a difficulty with the non-repeal of the section, which is just a technical saver.
There are minor punctuation corrections necessary to the text of the Bill. The first is to substitute a semi-colon for a full stop at the end of the text inserted by amendments Nos. 62 and 63. The second is to delete the comma at the end of amendment No. 39. I would appreciate it if you, a Leas-Chathaoirligh, could direct the Clerk of the Seanad to make the necessary corrections to the text of the Bill in accordance with Standing Order 121.
I move a verbal amendment to amendment No. 95:
That only lines 37 to 40 in page 92 are deleted and that the substituting text of amendment No. 95 remains.
This is to rectify the inadvertent deletion of line 41 to the Bill by the original amendment No. 95 as tabled by the Government. I am moving this verbal amendment in accordance with Standing Order 118(2).
This is almost an anti-climax after spending so many days discussing the Bill. It is the third largest Bill to pass through the House since the foundation of the State. I may be wrong but it also has the record for the greatest number of amendments to a Bill since the foundation of the State.
I compliment the Minister on taking the Bill in the House. We all recognise his indepth knowledge of his portfolio. I also congratulate him on being open to accepting amendments and trying to find a better legal format when he could not accept an amendment in the form submitted. He did not try to speed up the debate and we always had the opportunity to restate points. He even answered questions before they were asked, which was helpful. I compliment him and the staff for the civility and courtesy with which the amendments were received.
I know the Minister would have liked the Bill to be all-inclusive and be passed without votes, but we had to take a stance. We did not mean anything personal by it but we believed there were better ways to do things. I am sure the Minister understands we are entitled to submit our views. I thank him for his courtesy to me and my colleagues on this side of the House and I wish him well.
I echo what Senator Coogan said. The Minister was unfailingly courteous and good humoured. It was a tough, gruelling road to hoe. Someone said the Minister was bullying in his manner. I did not find that at all. He stuck to his guns and he was in a position to justify that. He was ably served by his advisers, who also had to sit through a long, arduous and tedious session and so often they knew much more than we did. It must have been grim at times to have to listen to us exposing our ignorance.
The Senator speaks for himself.
I am speaking for myself. I thought I knew about planning before I looked at the Bill. Now, thanks to their courtesy and the Minister's goodwill, I know a good deal more.
It is important that the Bill was introduced in this House. We are supposed to refine the focus of legislation. We clearly showed, with the Minister's co-operation, that is what we do. He accepted many amendments and when he could not accept the exact wording he returned with wording which was more expertly polished and legally refined. That was a significant factor in ensuring progress was made in the debate. We did not get everything we wanted. My grouse about fees remains but the Minister took a position and stuck to it. That is all one can expect in politics. That was one of the few issues on which we called a vote and I am glad we did.
I will wait to see how the Bill will pan out. It is a very important Bill which will make the planning process much more efficient. I thank the Minister, his advisers and particularly the staff of the House, who had to work very late with amendments coming in from both sides at the last moment. They put a great effort into this and were almost unfailingly good humoured.
This is the largest and most comprehensive Bill which I have seen in my time in the House. There were more than 400 amendments and it took time to deal with them – this was the ninth day of debate on the Bill. Senator Coogan mentioned that it was the third largest Bill ever to be introduced in the Houses. Undoubtedly it is comprehensive and the Minister and his staff must be complimented on the manner in which they produced and presented it. As has already been said, the Minister is to be complimented on his grasp of his portfolio and on his knowledge of this area. It was a wonderful exercise in parliamentary democracy. The Minister was most accommodating when amendments were put forward which improved the Bill. It was an example of the contribution this House can make to the enhancement of legislation.
This was a constructive debate. There is a peculiar tradition in the House that the spokesman for the Government does not table amendments so I must compliment my colleagues for tabling some very worthwhile amendments. The Bill is better for them.
The sections of the Bill dealing with affordable housing and social housing, enabling developers to give 20 per cent of their land to the local authority or to come to an agreement with it on affordable housing, are among of the most significant measures in any Bill which has come before us. The provisions started out as controversial but the Minister can take heart from the fact that the sentiments in that section were supported by all sides of the House. It showed that the interest in the common good of the people is predominant among Members of this House, not sectional interest.
We look forward with confidence to the successful implementation of the measures in the Bill which will be of great benefit to many people.
We got off to a good start when the Minister accepted my amendment dealing with those terrible inflatable tigers and coke cans after the case was so ably argued for me by Senator Norris. I thank the Minister and his staff for the interest shown in our opinions on the Bill. It is an extraordinarily important Bill because it consolidates a great deal of legislation which has been contentious for many years. There was great support for the social housing section.
We hope now that the Bill will clear the Dáil quickly and the constitutional issue will be examined. I thank the Minister's officials and the officials of the House for all the time they gave to those of us who asked questions and tabled amendments.
I would like to be associated with the remarks of other Senators and thank the Minister, his officials and the staff of the House in particular. I also thank all the people who made submissions on the Bill. We were sent copious notes about amendments we might table, a valuable part of the democratic process. Thanks to the Minister's open minded attitude, the Bill has been improved and stands now as most significant legislation. I wish the Minister well with the Bill when it goes to the Dáil and when it leaves these Houses.
For many people the Bill is vital. An increasing number of people cannot afford to buy a house and need to be helped. They depend on us and on local authorities to provide for them. The social housing provisions in the Bill are courageous. They are also common sense. I hope developers will see them in that light. We must provide for the common good. The sole motive cannot be profit, as the Minister said.
I also look forward to the local government Bill. I commented on the operations of certain local authorities and welcome the prospect of further reform in this area.
I thank all the staff, particularly the Labour Party staff, who helped us with this Bill. One of my colleagues yesterday asked where I had been, he had not seen me for weeks. I told him that I was buried under the Planning and Development Bill. I look forward to my release from this legislative prison.
I thank the Minister for introducing the Planning and Development Bill in the Seanad and compliment him on the interest he has shown in it. He has been here for the nine days over the course of five weeks when the Bill has been discussed in this House. I also thank the staff of the House and the Minister's advisers. I wish the Minister well for the passage of the Bill through the lower House. It will be of great benefit to both urban and rural areas.
Before I call the Minister, on behalf of the Chair, I thank the staff of the Seanad Office who worked very long and hard. Briefs do not just arrive without an awful lot of work. I also thank the Minister's staff for their work. Perhaps some lessons have been learnt about dealing with a Bill of this size.
I thank the Members and the Chair for their gracious remarks upon the completion of this Bill in this House. I thank the Members who contributed on the various Stages during the last five weeks. While everyone had a view, I was shown nothing but courtesy. This was much appreciated and made the job more pleasant. I also thank the staff of the House who were put under pressure in terms of amendments from all sides and late sittings for their unfailing courtesy. While civil servants do not usually like being mentioned, I thank my staff who have worked with me on the Bill for the last two and a half years and in which they have taken not just a professional but also a personal interest to ensure we get it right. While it may not be appropriate, it is important that I acknowledge the great help that we have received from the Office of the Attorney General, two Attorneys General and the parliamentary draftsman to ensure the Bill is constitutional.
The Bill is much better for the scrutiny it has received in this House. I have been thanked for accepting amendments. I indicated at the outset of this process in August 1997 that I wanted to consult and the people to participate, that I wanted them to see this as their Bill because planning is one of the areas that affects them most. Senators have a done a good job in improving it.
I think it was Arnold Schwarzenegger who said, "I'll be back"; I will be back with this Bill as we wish to ensure the anti-avoidance measures contained within are watertight. Senators will have an opportunity to view the finished product at that stage.
I thank Members and staff for their assistance and courtesy during the passage of this important Bill. Once it is passed by both Houses of the Oireachtas it will have an enormous positive effect on the people. As I wish to give it as much consideration as possible in the other House I appeal to Members to encourage their party spokespersons to be as co-operative as they have been to have the Bill passed quickly as possible.
When is it proposed to sit again?
At 10.30 a.m. tomorrow.
The Seanad adjourned at 12.55 p.m. until 10.30 a.m. on Friday, 3 December 1999.
