Amendment No. 372 is being discussed together with amendments No. 373 and 374.
Planning and Development Bill, 1999 [Seanad]: Committee Stage (Resumed).
SECTION 48.
Debate resumed on amendment No. 372:
In page 72, subsection (4)(b), lines 3 and 4, to delete “and that the applicant has a substantial interest in the matter”.
-(Deputy Gilmore).
Acting Chairman
Since our deliberations yesterday, I have been trying to put together my thoughts on this. Funnily, in some ways they are reflected by people in proximity to the House this afternoon who are expressing the community's disappointment and concern at specific development proposals. I want to focus specifically on the difference between "sufficient" and "substantial". Subsection (4)(b)(iv), which is the critical focus of amendment No. 372, contains what I would regard as a double whammy regarding the reference to “substantial grounds” and “substantial interest”. It states: “leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed, and that the applicant has a substantial interest in the matter”. Heretofore, “sufficient” has applied in the latter case in terms of interest. What we are seeing here is a significant raising of the hurdle, the threshold, and a consequential disempowerment of a significant swath of people who may not be able to establish to the satisfaction of the court that they have in the first instance a substantial interest.
It is accepted that every citizen has a vested interest in ensuring that public bodies perform their duties in accordance with the laws from which they derive their existence. I am referring to the specific which the Minister's contribution yesterday prompted in my thoughts. It is important to take on board how the word "substantial" has been interpreted in different cases heretofore, and I will refer to Lancefort v. An Bord Pleanála , which the Minister presented as one of the basis on which he argued for the inclusion of “substantial interest”.
I want to refer to McNamara v. An Bord Pleanála to show how Miss Justice Carroll interpreted “unsubstantial grounds”. Miss Justice Carroll stated:
What I have to consider is whether any of the grounds advanced by the appellant are substantial grounds for contending that the Board's decision was invalid. In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty.
She went on to state that she was not concerned in trying to ascertain what the eventual result would be. That is an insight into the possible determination of "substantial" in relation to "interest" as against "sufficient", which has applied heretofore and which Deputy Dukes is arguing for replacing in amendment No. 373.
To give the Minister an idea of how difficult it can be for people to establish their access based on that assessment, I wish to look at the case of the planning expert, Mr. James Macken. He observed on a number of cases, the Arcon case, which lasted for three days in the High Court and two days in the Supreme Court and the Lugalla case, Byrne v. Wicklow County Council, in which Mr. Justice Keane also refused leave to appeal for judicial review, which lasted for three days in the High Court. Therefore, it is clear that a case may require substantial argument and yet not disclose substantial grounds.
At present, any applicant requires a sufficient interest under Order 84 of the Rules of the Superior Courts. I want to quote Lancefort v. An Bord Pleanála because I am particularly interested in the Minister’s reference to it - I had some notes on this case. In Lancefort v. An Bord Pleanála, Mrs. Justice Denham, on the area specific to amendment No. 372, that is, sufficient interest or substantial interest, referred to SPUC v. Coogan, Crotty v. An Taoiseach, McGimpsey v. Ireland and other cases. She stated that in environmental actions, including Chambers v. An Bord Pleanála, the track laid by those cases was firm and the cases provide appropriate precedents. I want to quote Mrs. Justice Denham because the next sentence is particularly important in determining this amendment:
This approach is just, aids the administration of justice, would not permit the crank, meddlesome or vexatious litigant thrive, and yet enables the bona fide litigant for the public interest establish the necessary locus standi in the particular area of environmental law where the issues [are] often community rather than individual related. The administration of justice should not exclude such parties from the courts. Whether or not they succeed in their action is quite another matter, but they should not be excluded from the courts to litigate the issue.
In that case, Lancefort v. An Bord Pleanála, the applicant company interestingly included Mr. Michael Smith, the integrity of whom would not be in question as he is the person who probably acted as catalyst in the establishment of the Flood tribunal into irregularities in the planning process. Despite the fact that Mr. Smith and his co-applicants in the applicant company were senior members of An Taisce with a distinguished record both in areas of the environment and concern for the architectural heritage, it was decided in that case that they did not have locus standi because the question of an EIS had not been raised at An Bord Pleanála appeal stage. If Mr. Smith and his associates did not have sufficient interest, as the judgment stated, how will inexperienced community groups manage to establish substantial interest, which is a significantly higher hurdle to cross?
I could quote other cases. I will give another instance. I will not doggedly continue with this, but I am concerned and strong in my view that this amendment should be accepted. If one examines the case brought by the organisation, Responsible Industry for Cork Harbour, the applicants, a husband and wife, in the Chambers case were not personally objectors to a proposed development but were members of RICH. Mr. Justice Egan commented in the Chambers case, subsequently brought by the husband and wife, that the plaintiffs stated that they had left it to RICH - we can just translate the set of circumstances into any other county in this jurisdiction with any community group - to deal with the appeal and their attitude in this regard can be readily understood, particularly as there are no fewer than 19 appellants in all.
Situations can arise, and have arisen, where a number of objectors to a development at the planning stage acting on behalf of a local community might withdraw their objection, perhaps on the basis of a compromise negotiated with a developer whose development they felt in some way to be a party to and yet at the end of the day felt that the community might not buy. We all have experiences of that in our respective political parties in taking on policy positions that we might not be able to sell to our own. It is no less the case in the community. In this situation that couple would not have been able to address the area of substantial interest and they would not be catered for by the Minister's amendment. This is the reason I introduced my amendment because they are not covered by section 48(i)(c)(I to (V) of the Minister's amendment.
The difficulties that this Bill will create are increased by the fact that the leave stage for planning judicial review is contested leave stage and that is unlike the other judicial review leave applications which are made ex parte. While in theory the leave stage is simply meant to be a filtering device to prevent frivolous or vexatious appeals against public bodies, because the court must decide whether there are substantial grounds and now whether there is a “substantial interest”, the leave application through that process will be as lengthy and as expensive as a full hearing, yet one must repeat it again even if leave is granted. One must go through it all again. If the applicant loses at the leave stage he or she will have incurred substantial costs in order to be told that he or she may not challenge the decision. The leave stage should be restored to its initial function to ward off baseless or vexatious claims, not to prevent those with substantial grounds for contesting a decision as invalid from challenging that decision in the courts.
My last comment relates to the contribution of barrister, Garret Simons, in the Lancefort case concerning the meaning of "sufficient interest". Amendment No. 372 should be accepted but a compromise would be to hold the current position as argued in Deputy Dukes's amendment. Barrister Simons stated in the Lancefort case:
Taken to its logical conclusion the law of standing dictates that an applicant with an otherwise unanswerable case will be denied relief if he or she is unable to demonstrate sufficient interest in the matter. This clearly has implications for upholding the rule of law. It may also be open to the further objection that the effective enforcement of EC law may be impaired by domestic rules of procedure.
I have no doubt that there is a serious matter at the heart of this language. I believe that it is reflected outside the gates of Leinster House today in terms of public opinion in my constituency. It is mirrored and reflected all over the country. I acknowledge and do not infer that the Minister's use of the phrase "men or women of straw" yesterday was what he suggested but we need to ensure that those without means at all times have the assurance and the strength that clarity in legislation offers that their rights before the courts are as good and as substantial as any others. I appeal to the Minister to accept amendment No. 372.
What Deputy Ó Caoláin outlined is a flavour of the type of argument the courts are likely to be exercised with if the Bill is not amended. I want legislation under which the public can exercise its rights in regard to planning matters in a fair and democratic way. The number of occasions on which a planning issue will end up in the courts is limited. It would be interesting for the committee to know how many court cases, for example, last year involved planning applications. I know we were given figures relating to the proportion of cases that were appealed to An Bord Pleanála. It would be interesting to know what percentage of planning applications end up in court.
The Bill, as drafted, provides for limited circumstances in which there can be access to the courts. It is limited to judicial review under Order 84 of the Rules of Superior Courts and by reference to time. The appeal must take place within eight weeks of the planning decision and that can only be extended by the High Court if it considers that there are good and sufficient reasons for doing so. It is then limited in turn by reference to the way in which it is to be undertaken and also by who is entitled to do so. Yesterday, I pointed out to the Minister that having conceded the point that any planning applicant or person who participated in the process up to the final decision by An Bord Pleanála can appeal in the court, we are left with a limited number of circumstances where a person, other than those who had participated in the process, might seek a judicial review of a planning decision. In those circumstances the Minister would be better to accept amendment No. 372 which proposes to excise the reference to the person having to have a "substantial interest" in the matter altogether.
If he does not, we will end up with arguments in court very often not about the planning issue. The first argument will be whether the person making the application has a "substantial interest" because by definition in the Minister's amendment the "substantial interest" argument will only arise in the case of people other than the applicant and those who have participated in the process. In every such case, therefore, the issue will arise.
Deputy Ó Caoláin has given us a taste of the type of argument which will exercise the court in each of those cases. While a precedent will be set as cases proceed, two issues will arise in each case which comes up for judicial review where the applicant is not the planning applicant or someone who participated in the process. One is substantial grounds, which is not in dispute at this committee, and the other is whether the person has substantial interest in the case. There will be long, unnecessary and expensive legal proceedings, arguing whether there is substantial interest in a specific case.
Perhaps the Minister will tell us the experience of planning applications going to the High Court. It is better that the measure be removed from the legislation. It is the right of a citizen who is sufficiently exercised about a specific planning decision to seek a judicial review, and they should be enabled to do so. They are unlikely to do so in a frivolous way because of the cost involved. The first test in court will be whether there are sufficient grounds for seeking a judicial review. The Minister took the opportunity to reflect on this overnight and it would be useful if, following that reflection, he conceded this point. Perhaps he would indicate the experience of cases going to court.
After the statements by Deputies Ó Caoláin and Gilmore, I will not repeat what I said yesterday except to say that the case which has just been made is very persuasive. In addition, if amendment No. 372 were to be adopted, as Deputy Gilmore said, the first thing a court would have to do in the event that the application was made by a person who had not participated in the process would be to decide whether there were substantial grounds for contending that that decision should be quashed. If the court were to find that there were no substantial grounds for so deciding, the case would be thrown out and that would be the end of it. As Deputy Gilmore pointed out, given that, for a number of reasons, none of which is objected to, the number of people in the type of position to which we refer would be very small, we would not be placing an especially inconvenient or onerous burden on the courts by passing this amendment.
I have thought about this over the past 12 hours to see if it could be made any clearer. I have listened carefully to what has been said by the various Deputies. I wish to refer to a number of things which have been said and, without delaying the committee too long, to reiterate the considerations which have gone into the framing of this section. Regarding the latter point made by Deputy Dukes and raised by Deputy Gilmore about the number of appeals or court actions which might be taken, the best information I have is that about 21 cases were instituted against decisions of An Bord Pleanála in 1998, which is the last year for which I have figures. I have no figures for challenges to local authority decisions nor have I the details about the number of challenges taken against infrastructural projects, both of which are also covered by this section. I can think of a number which are high profile, such as the south-eastern motorway, the northern motorway and the Glen of the Downs motorway. I am not sure if the Kildare bypass went to court but it was challenged at EU level.
It is not a question of quantity but one of imperative that every Member of the House and every public representative has agreed to delivering the infrastructure necessary for the continued healthy growth of the economy, with all due regard to the rights of citizens and to the environmental impact which we must have under our obligations in Europe. Huge, major infrastructural projects must be undertaken. If only two or three of those are challenged by people who do not have a substantial interest and might only have a minority interest in them, that can have huge and widespread repercussions against the national good and interest. I would not like this to become an argument about the figures or the number of court cases taken. We must consider the impact that unreasonable challenges in the courts might have.
Regarding some of the points about Lancefort, I said at the committee meeting yesterday that the word "substantial" was a reflection of the court judgment in the Lancefort case. I have had time to reflect on that and check it out. It was incorrect, so I wish to correct the record on that. The word "substantial" was not used in the judgment on the Lancefort case and I will return to that. Regarding some of the points raised in that case, while we could all produce law books and quote different cases or specific portions of statements made by one or other of the judges in the case, it is the final judgment we must examine. Deputy Ó Caoláin quoted Ms Justice Denham. She happened to be the only judge who dissented from the other Supreme Court judges in that case. She was the dissenting voice and none of her colleagues agreed with her on the case.
A company was established specifically to challenge and contest the Lancefort case. The people who set it up participated in the appeal and did not at any stage during the course of that appeal raise the question of an environmental impact assessment. They had an opportunity to raise it and did not. They sought to raise it in theSupreme Court and Mr. Justice Keane and the majority of his colleagues held that, in the circumstances of not having raised it when they had the opportunity during the course of the appeal hearing, they did not have a locus standi. That is why that decision was made. If the circumstances had been different, the Supreme Court may have reached a different decision in the case. When we quote different cases and the results of different cases or parts of judgments in different cases, it is important to remember that each case is unique in many respects. There are broad and general views and rules that the courts apply, but each case is taken on its merits.
To put this in a broader context, in the 1992 planning Act, where this arose first, requirements were brought in for people seeking to challenge a planning decision in the courts. In addition to the normal requirement for a judicial challenge, that a person has to show sufficient interest to take the case, they were also required to show they had substantial grounds - one needed sufficient interest and substantial grounds. They were also required, as Deputies have said, to take the case within two months of the decision being made. That requirement was to ensure that while the rights of persons to challenge planning decisions were preserved, at the same time the rights of developers - I am including the State, the NRA, State bodies and so on - to put infrastructure in place. The rights of the objector were preserved, as were the rights of the developer. The right of the developer in this case is to have certainty in planning decisions and that that certainty can be vindicated.
There is a public interest in ensuring there is timely delivery of development. Once this has passed through the necessary approval procedures there should be certainty involved and within a certain time they should know for definite that their project can go ahead. That is very important for public infrastructure and it is the reason the Cabinet sub-committee made this recommendation. On that basis and having regard to the recent court decisions relating to the issue of what is sufficient interest to take a case, it was decided to include this requirement in the Bill - that a person should show a substantial interest in order to take a case as well as showing that the case was founded on substantial grounds.
Deputy Ó Caoláin is correct. He quoted a court judgment in the McNamara case in relation to substantial grounds and that definition is closely in line with the ones to be found in dictionaries. Substantial grounds are defined as meaning reasonable - we clearly cannot allow people to take court cases that are unreasonable - and arguable - again, we have no decision with that. They must be weighty and have some importance to them. It is a serious step and can cause the State or the developer huge delays. To be negative, the grounds should not be trivial or tenuous. By saying someone must have a substantial interest to take a judicial challenge to a planningdecision we are saying they must have a reasonable, important and weighty reason for doing so. The reason for seeking the judicial review cannot be trivial or tenuous.
The other question that arose yesterday and which I am still happy is covered adequately is that the interest required is not solely a property or economic interest. Deputy Ó Caoláin quoted a court judgment in relation to environmental considerations being taken on board and I am quite content that substantial interest does not solely mean a property or economic interest. That is clear from paragraph (c) in amendment No. 374. In a planning context it could not be merely a property interest as planning decisions are made not just on the basis of property but on environmental and community considerations as well as others - that was the point Deputy Ó Caoláin validly made. I do not want to stray into discussing particular court cases, but I am happy that a community group, concerned by a particular planning decision which may affect its community, would have no difficulty showing a court it had a substantial interest, one that is reasonable, important and weighty, and would be able to take a judicial review. I am quite satisfied on that.
Again, it is not my role as Minister to stop people with a real interest from taking a judicial review case and I have no interest in doing so. However, I have a duty to the planning system and to those who are going to use it that after a proposal has gone through a fairly rigorous examination at local authority and An Bord Pleanála levels, it should only be capable of being challenged by someone with a reasonable, important and weighty case. That is why I put forward the wording of substantial interest as I have done, in the interests of clarity. In order to seek a judicial review a person will now have to show such substantial interest and it will not be granted unless a person has participated in the decison-making process of the local authority or An Bord Pleanála.
Having listened to Deputies I know they have a number of queries or caveats, but I am satisfied those are met by our proposals here. On foot of what has been said, however, particularly in relation to the substantial interest, I will discuss with the Attorney General's office the possibility of including a clarifying statement in section 48 along the lines of the famous phrase, for the avoidance of doubt - a substantial interest includes but is not limited to an interest in property, just to clarify that major point Members made. I am satisfied as a lay person who has taken a great interest in the Bill that we have this covered, but in view of Members' opinions, I will take it to the Attorney General to see if this can be included. I will come back to Members on this matter on Report Stage. That is as far as I can go to clarify the matter and I ask the committee to accept it.
I would be concerned by any dilution of the legislation's proposals in view of some disturbing past cases involving industrial complexes being set up and rival companies using residents or the planing process. If they did not need to show a substantial interest they could take the matter to court and £100,000 would not be a huge amount of money to a large company to delay a project for a year. I would be concerned that any dilution of the Bill in this way could allow that kind of behaviour to succeed. It would be very serious if people were using the planning process for that purpose rather than on planning merits.
My concern, which I recognise in the Minister's contribution, relates to the bona fide community objection and to people with a reasonable basis for making a case. This is not something on which they would lightly embark. The question relating to the numbers of cases is merely to underscore that this happens irregularly and that action is only taken in particular or extreme circumstances. The critical point to be determined is not that of substantial interest but of substantial grounds. If there are substantial grounds - determining whether that is the case is a protracted process, as shown in terms of the days involved in the cases I cited - that is the basis on which any subsequent appeal would be heard.
Substantial interest is like a double whammy which significantly raises the hurdle. I was prepared to accept amendment No. 373 as a compromise because it reflects the current practice. However, I welcome the Minister's comments and his willingness to take on board the thrust of the arguments presented by Deputies Dukes, Gilmore and me. It would be of some comfort if these views were accommodated in the Bill.
However, even with the Minister's comments on whether the Attorney General will give his approval, by retaining substantial interest we are entering into a protracted process on two levels which, ultimately, will be as costly and as time consuming as a complete hearing in any of the determinations likely to occur. Amendment No. 372 is the correct position to adopt and the one which sends the most definite message as language of comfort. The only comfort we can signal is to accept the amendment or the compromise amendment No. 373.
We are spending much time on this issue, the benefit of which may be to reduce the time the courts have to spend on it. The issue of substantial interest refers to the applicant rather than the case. To take up Deputy Kelleher's point, the likelihood is that, under this formulation, the competing commercial, industrial or economic interest of someone who opposes a development because he or she is a competitor would probably be found by the courts to be as substantial as a person who has substantial interest and that, consequently, such a person has the right to obtain leave to seek a judicial review.
On the other hand, someone such as Mr. Micheál Ó Nualláin, a constituent of mine from Monkstown who took the case against the spike in O'Connell St., might well be found by the courts not to have substantial interest because he lives in Monkstown, the spike is in O'Connell St. and so on. That is the difficulty and the kind of choice which the legislation proposes to transfer to the High Court for decision. I am encouraged by the Minister's commitment to go back to the Attorney General on this issue and to come back on Report Stage. I will resubmit the amendment on Report Stage and we can then decide whether the Minister's response meets the requirement.
The Minister is right to say that none of us wishes to see important infrastructural or economic developments held up by prolonged litigation in the courts. However, the solution is not to limit the right of citizens to go to court but to have a procedure which provides for the speedy processing of such cases when they go to court. There was a proposal, which I support, to establish a special division of the High Court to deal with development issues. The Minister or the Taoiseach referred to this idea some time ago but I do not know what has happened to it since or whether any progress has been made. However, it would be a preferable way of dealing with the problem than limiting the rights of citizens in the first instance. I will withdraw the amendment, resubmit it on Report Stage and await the Minister's comments on his discussions with the Attorney General.
Deputy Gilmore has stated the nub of the issue in the context of his constituent from Monkstown who objected to the spike. That is why I tabled amendment No. 373. I am not arguing against the previous amendment but it is clear that the gentleman who objected to the spike could not show that his interests would be economically damaged by this lunatic proposal to put this gazebo in O'Connell St. However, any citizen could show that he or she had sufficient interest in something which would substantially change the landscape of the principal street in the capital city. It would be easy to conclude that this would constitute sufficient interest.
I doubt that one could ever conclude that it was a substantial interest even though it may be aesthetically so. This would be particularly the case if a substantial interest was held to be an economic concept rather than anything else. It is precisely for that kind of reason that we should maintain the idea of sufficient interest. However, I do not wish to discourage the Minister from going as far as he can to meet amendment No. 372. I will not be the first to applaud him if he does so as Deputy Gilmore will get there before me.
Acting Chairman
How stands the amendment?
This is a dilemma. I submitted the amendment independently, not from Deputy Gilmore's text. The two were married in the subsequent presentation. I am particularly concerned about this issue and the cases which have been cited. Even with the Minister's proposed visit to the Attorney General and the possibility that an addendum will be entered to offer words of comfort, that will not eliminate a very difficult test. Such a development would not meet the amendment's objective. I do not know what the position is in terms of procedure. Deputy Gilmore has indicated he is willing to withdraw the amendment and to go at it again. I presume I retain the option to press the amendment?
Acting Chairman
Yes.
That is without compromising its resubmission.
It will come up again anyway.
There is nothing to prevent that happening. To underscore the seriousness with which I view the issue - that is not to suggest that other members take it less seriously - I will press the amendment.
Amendment put and declared lost.
Amendment No. 373 not moved.
I move amendment No. 374:
In page 72, subsection (4), between lines 5 and 6, to insert the following:
"(c) Without prejudice to the generality of paragraph (b), leave shall not be granted to an applicant unless the applicant shows to the satisfaction of the High Court that-
(i) the applicant-
(I) in the case of a decision of a planning authority on an application for permission under this Part, was an applicant for permission or is a prescribed body or other person who made submissions or observations in relation to the proposed development,
(II) in the case of a decision of a planning authority under section 163, is a prescribed body or other person who made submissions or observations in relation to the proposed development,
(III) in the case of a decision of the Board on any appeal or referral, was a party to the appeal or referral or is a prescribed body or other person who made submissions or observations in relation to that appeal or referral,
(IV) in the case of a decision of the Board under section 159, is the planning authority which applied for approval, or is a prescribed authority or other person who made submissions or observations under subsection (4) or (5) of that section, or
(V) in the case of a decision of the Board under Part XIV, is a local authority that proposes to acquire land or is a person who made objections, submissions or observations in relation to the proposal to acquire the land,
or
(ii) in the case of a person (other than a person to whom clause (I), (II), (III), (IV) or (V) applies), there were good and sufficient reasons for his or her not making objections, submissions or observations, as the case may be.
(d) A Member State of the European Communities or a state which is a party to the Transboundary Convention shall not be required, when applying for leave to apply for judicial review of a decision referred to in paragraph (c), to comply with the requirements of that paragraph.”.
Amendment agreed to.
I move amendment No. 375:
In page 72, subsection (4)(d)(ii), line 25, to delete “a decision of”.
Amendment agreed to.
I move amendment No. 376:
In page 72, between lines 37 and 38, to insert the following subsection:
"(5) (a) Where an application is made for leave to apply for judicial review, or an application is made for judicial review, in respect of-
(i) a decision by a planning authority under section 34 of a class in relation to which the Minister has given a direction under section 111(5),
(ii) a decision of the Board on an appeal of a decision of a class in relation to which the Minister has given a direction under section 111(5), a decision of a planning authority referred to in subsection (2)(a)(ii),or
(iv) a decision of the Board referred to in subsection (2)(b)(ii) or (iii),
the High Court shall, in determining the application, act as expeditiously as possible consistent with the administration of justice.
(b) The Supreme Court shall act as expeditiously as possible consistent with the administration of justice in determining any appeal made in respect of a determination by the High Court of an application referred to in paragraph (a).
(c) Rules of court may make provision for the expeditious hearing of an application referred to in paragraph (a).”.
Deputy Gilmore said that the restriction of people's rights to object would not solve the problems we are having in regard to these types of developments, rather that we should put in place streamlined procedures to allow the courts to deal with such cases. This is precisely what this amendment seeks to do.
I explained that a number of amendments are being made to the Bill arising from recommendations made. This amendment and the previous one are examples of that. These amendments are intended to underpin the speedy delivery of infrastructure projects under the national development plan.
Amendment No. 376 is intended to ensure that where certain developments are of critical strategic, economic or social importance, they would be considered speedily by the courts. This amendment provides that where direction has been given by the Minister to the board in regard to a certain class of planning appeals or referrals under a new provision which it is proposed to insert in section 111 by amendment No. 461 and a judicial challenge is mounted to a decision by the planning authority or the board in relation to any decision and a development in that class, or where an application for judicial review is made in relation to a decision by a planning authority in relation to its own development, or a decision by the board on local authority development which is subject to EIA, or on the compulsory purchase of land by local authorities, the High Court must deal with these cases as quickly as is consistent with the administration of justice. Likewise, the Supreme Court must handle appeals quickly. The amendment also provides that the courts may draw up new rules of court to ensure that this occurs.
The requirement on the court to handle cases speedily has been limited to certain types of cases because, in general, there may not be a need for judicial reviews of planning appeals to be dealt with by the courts more quickly than any other important cases which come before them. The Government believes that it may be important to ensure that the courts accelerate the consideration of particular cases in the interest of the national economy and this is what the amendment aims to do. Members will understand that we are essentially talking about issues such as major road schemes or largescale housing developments which would come under the social category.
Are cultural developments included in the amendment?
No, the developments in question must be of economic or social importance. I commend amendment No. 376 to the committee.
It is always impertinent and futile to ask to see the Attorney General's advice. This is not the special division of the High Court about which the Taoiseach and the Minister spoke and to which Deputy Gilmore referred earlier. I would like to know whether further consideration has been given to that idea because, on the face of it, there seems to be a good deal to be said for it. I would like to know whether this amendment and amendment No. 461 have been discussed with the President of the High Court and the Chief Justice. It seems it would be important to obtain their views on this matter.
Amendment No. 461 outlines special classes of infrastructural development which can be defined as being of particular importance and in regard to which appeals should be dealt with very expeditiously. Amendment No. 376 does not seem to add much to what already exists. It seems, for example, the courts might say that they deal with matters as expeditiously as possible when they are referred to them, consistent with the administration of justice. I cannot imagine the President of the High Court accepting for a moment that the courts do not deal expeditiously with cases which come before them without the recommendation implied by amendment No. 461. I cannot believe he would accept that the court would deal with such cases any more slowly than would be required for the administration of justice.
Amendment No. 376 states that the High Court shall, in determining the application, act as expeditiously as possible, consistent with the administration of justice. What does that mean? The amendment does not state that the court shall act more expeditiously than it would in regard to other cases which it should if it is intended to mean what the Minister said it means. Neither does it state that the Supreme Court shall do anything different from what it does in other cases. It states that the Supreme Court shall act as expeditiously as possible consistent with the administration of justice. Without attributing any particular views to either the President of the High Court or the Chief Justice, I could imagine that the Minister would receive a fairly dusty answer from them if he were to make this request of them, given their well known concern with the separation of powers.
In any case, I note that under subsection (c) of the amendment, the Minister, being a mannerly Minister and a member of a mannerly Government, states that rules of court “may” make provision for the expeditious hearing of an application. The amendment does not state that the rules of court “shall” make provision, for two possible reasons. One reason arises from the usual explanation we always receive in regard to the interminable and predictable arguments about the difference between “shall” and “may”. The parliamentary draftsman does not like langu-age which seems to oblige people to do certain things if it is not 100% necessary to do them. The second reason is that the Minister is well aware that he would receive a very dusty answer from the courts if he were to state that legislation would direct them to do something about their rules. I am sure they would tell the Minister, in a mannerly fashion, to go away, mind his own business and leave the organisation of the rules of court to the courts. I do not see that this amendment actually adds anything to the current situation.
Perhaps there is a point to amendment No. 461 in that the courts might be impressed if a case were to come before them having received a special introduction to the effect that the Government regarded it as a matter of strategic, economic or social importance and would, therefore, be grateful for the special consideration of the court. It would be interesting to hear whether the possibility of having a special division of the High Court to deal with these issues has been developed. I imagine that only a proportion of the cases which go before the High Court end up going to the Supreme Court as most of them are probably resolved at High Court level. The question of timing and the time it takes to hear a case in the Supreme Court would seem to be a direct function of the court's caseload at any given time. I do not see that putting a special label on a case will necessarily make any difference to how expeditiously it is heard. I do not see any great point to these amendments.
I do not wish to repeat what Deputy Dukes said although I would like to know what happened to the idea of establishing a special division of the High Court to deal with these cases. I understood that would require legislation. Clearly the amendment does not do that, therefore, the Minister should say if it is still Government policy to establish a special division of the High Court to deal with development issues.
Second, like Deputy Dukes, I would have thought, looking at the text of the amendment, that the High Court and indeed the Supreme Court were already obliged to act as expeditiously as possible consistent with the administration of justice. I would have thought that whatever the general public perception about the speed with which matters progress through the courts, the courts would take the view that they should act as expeditiously as possible, consistent with the administration of justice. Does the amendment mean it is necessary to state positively in legislation that the courts should act as expeditiously as possible in order for them to do so? Does this create two categories of cases with which the courts will concern themselves, that is, those with which they are required by some reference in legislation such as this to deal with as expeditiously as possible and those cases which are not referred to in legislation withwhich, by implication, the courts may deal with in a way which is not expeditious? I do not think this amendment will do anything in this regard and I remain to be convinced by the Minister as to its purpose in practice.
I can see what amendment No. 461 will do. That clearly enables the Minister to give a direction to An Bord Pleanála to prioritise certain appeals and certain classes of appeal, but the amendment relating to the courts serves no purpose. It seems the original idea of establishing a special division of the High Court has been killed off somewhere along the line and that this rather innocuous amendment was tabled arising from a process of dilution and consideration given to it by the Government
The interdepartmental team made recommendations to the Cabinet Committee on Infrastructure, which were accepted by the Government. The team concluded that new avenues of approach by the High Court to infrastructure and planning cases were warranted and that action needs to be taken. They made recommendations as follows: (1) listing significant planning and infrastructure cases for judicial review separate from other cases so that such cases would not compete with other cases for court time; (2) the putting in place of an arrangement under which the President of the High Court may from time to time assign a judge to the hearing of such cases so that the judge would specialise in those cases - it was proposed that that proposal be put in place immediately at the end of May; and (3) the establishment of a separate division of the High Court in light of the experience over the next 12 months. The decision on this matter was that we would try this means of expediting cases and, in light of our experience, the question of a separate division of the High Court wouldbe considered and finalised if still deemed necessary.
Deputies will be aware that the Executive should not and would not, regardless of its political views, interfere with the separation of powers. The bottom line is that the Executive does not interfere with the separation of powers. Deputy Gilmore posed the question, are we effectively saying there will be two streams of court cases, one which would be dealt with expeditiously and one with which the court would be more or less instructed to deal less expeditiously? Obviously this is not what is involved because I do not believe anyone in the courts service is instructed to deal with any case less expeditiously than is the case at present. However, we are talking about priority cases. There are very high demands on the courts' time and this amendment is designed to give a very clear indication to the courts that these types of matters must be treated urgently. It also gives a strong basis for the business of the courts to be arranged to allow these cases to be handled very speedily, for example, as in this case. Perhaps they may be speedily dealt with in other ways by treating them separately.
In response to Deputy Dukes's questions, discussions are taking place between the Minister for Justice, Equality and Law Reform and the Courts Service to which I am not privy. Obviously all the matters raised by the Deputy will be discussed. I have no doubt the President of the High Court has his own views on how this matter might be carried out expeditiously and so on. There have been consultations and members can be assured, without being privy to the actual discussions, that the courts will try to facilitate the wishes of the Oireachtas as best they can within the constraints placed on them. I do not think this section will cause any great difficulties between the Oireachtas and the Judiciary. There is a precedent for this type of instruction to the courts which was put in place once before and that was in relation to child abduction cases. This is not seen as an interference with the courts but as the Oireachtas giving a clear signal to the courts on the level of priority it wants placed on particular cases at particular times.
Notwithstanding Deputy Gilmore's reservations about this matter, this will have the effect of prioritising cases such as this and ensuring they are heard as expeditiously as possible. The language in the section is careful because it must be and it will have the desired effect. If it does not have the desired effect or if other steps need to be taken, the Government will do so in 12 months' time to see if the original suggestion put forward for a separate division of the High Court is the way to go. However, some people are of the view that this will be sufficient and will have the desired effect.
The Oireachtas has a perfect right to legislate for the form and establishment of the courts. According to the Constitution and the law, it may not interfere with courts once they have been set up. The Oireachtas is perfectly entitled to pass a law stating that there will be a new division of the High Court to deal with these cases. The Minister cannot yet say if the Government has decided to do that. Unless, however, the High Court has stated that there will be separate listing of these cases, and unless the President of the High Court has said that one or more members of the court will specialise in these cases, there is no point in passing this Bill. If the court has said it will act in that way, there is no need for this legislation, all we need is amendment No. 461.
It would be nonsensical for me to oppose the Minister's amendment. I would, however, remind him that it is unwise to pass into law text which will have no effect. I hope the discussions between the Minister for Justice, Equality and Law Reform produce the result the Minister wants. That result will have nothing to do with the provisions of this Bill. The Minister said that the courts will always wish to facilitate the wishes of the Oireachtas as best they can with the resources they have. If I had a pound for every time I have used, read or written language like that, I would be a rich man. That is what the courts are obliged to do. It means nothing to say it.
I will not oppose the amendment. If the Minister for Justice, Equality and Law Reform succeeds in his discussions with the President of the High Court, the job is oxo and we do not need the amendment. If the Minister does not succeed, there is no point in having the amendment. It is totally redundant.
The Minister's reply indicated that a special division of the High Court is still being considered in the context of a 12 month examination of these cases in the courts. When does the Minister expect the Government to make a final decision on the matter? When will legislation be presented to give effect to such a division?
I wonder about the constitutionality of the amendment. The Minister mentioned the separation of powers. There is a difference between the Legislature making laws which it then expects the courts to operate and sending a signal to the courts that it wants them to deal with cases in a particular order of priority. The Minister gave the example of the child abduction issue, where a signal from the Oireachtas was sent to the courts that child abduction cases should be prioritised. In fairness, the courts did not need such a signal to understand the need to prioritise such cases.
This, however, is different territory. Those of us who are members of the Oireachtas Committee on Environment and Local Government, and the Minister, are concerned with the physical and infrastructural development of the State and may see that the expeditious handling of development cases in the courts is important, but who are we to say that they should be given priority over any of the other cases which may be presented to the courts? Are we saying that the Oireachtas can, at any point, send such a signal to the courts? How do we expect the courts to interpret it? If one signal has been sent in relation to child abduction cases, we pass this Bill and it sends a signal that we want planning cases to be given some priority, then someone else introduces legislation in some area where it is considered that the courts should deal expeditiously with cases and another signal is sent to the courts, what does that mean for the courts? To which signal is the court required to respond most expeditiously, the latest legislation enacted by the Oireachtas or the earliest? In listing cases, how is the President of the High Court to interpret these signals from the Oireachtas?
Is it appropriate constitutionally for the Oireachtas to send signals to the courts about how cases should be prioritised? If the Government is considering the establishment of a special division of the High Court, I would invite the Minister to bring forward that proposal through separate legislation or to bring it forward while we are still on Committee Stage of this Bill. If we are so mindful of it, let us enact it and then the courts can act on it. We should not, however, state the obvious to the courts. It is a legislative nod and wink. I am unsure of the constitutionality of this proposal, this concept of signals from the Legislature to the courts.
I have heard the words spoken but I do not believe the Deputies' hearts lie in their opposition to this amendment. We are not sending signals or nodding and winking. This section of the Bill is clear, it is an instruction to the High Court that we want these cases treated expeditiously. Any Government could send signal after signal to the High Court. We will soon be told by the High Court to stop sending signals. This measure is very specific. It is not a signal or an interference in the role of the courts in deciding cases. It is a statement by the Oireachtas of the priority attached to cases which go to the High Court.
The decision in relation to the special High Court division will not be made for at least 12 months. This could become a permanent measure but it is being inserted in the interim to see how it works and if it can achieve what we want to achieve. It will be reviewed at the end of a 12 month period. If no case is referred to the High Court during the 12 month period we will not know how it works and it will probably be necessary to leave the measure in place for a further 12 months. Assuming a number of cases are brought, the Government will consider arguments on both sides and a decision will be taken on the question of a special division of the High Court.
I have often criticised the Judiciary although as a member of the Executive, I must be careful about doing so. However, having listened to the discussion on this section, I appear to have more faith in the Judiciary and in the President of the High Court than other Deputies.
That is not fair.
The Deputy can read the Official Report for himself.
The Minister has more faith in words on paper than other Deputies.
Amendment agreed to.
Section 48, as amended, agreed to.
SECTION 49.
Chairman
Amendments Nos. 376a, 393a to 393l, inclusive, 543a, 544a and 551a are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 376a:
In page 72, between lines 38 and 39, to insert "Chapter I".
These amendments introduce a new chapter in Part IV which has two purposes. These are to strengthen the provisions on architectural conservation areas and to introduce a new designation of areas of special planning control, in which planning authorities will be able to exercise very close planning control on works to, and the uses of, buildings in the interest of the conservation of an area. Other amendments make consequential changes to the compensation provisions which arise from that.
These powers will ensure that local authorities can take a proactive approach to the protection of towns and cities and ensure they are better places for people to work, live and shop. We must ensure that they do not suffer from the urban blight which is common in other countries and which became a feature of many of our major towns over the past few decades. I am fully aware that we discussed architectural heritage and conservation areas last year in relation to the 1999 Act. This is a significant addition to the powers agreed at that time.
I am also aware that this is a large group of amendments to introduce at one time. However, this arises from the experience of local authorities in implementing the 1999 Act and from the experience of preparing the guidelines to assist local authorities in selecting architectural conservation areas. From consultations which took place after the publication of the Bill, in particular with Dublin Corporation in relation to O'Connell Street and other streets, and having considered the points of view of various local authorities, I feel it necessary to make these amendments at this stage. Deputies will have received an explanatory note setting out what each of the amendments is intended to achieve. If Deputies have specific questions on the amendments I will answer them directly, if that is acceptable, Sir.
I make a formal criticism of the fact that the Minister is making a major change in introducing these amendments on Committee Stage. I say this because my party has been extremely critical of one of the Minister's colleagues who made major changes to a Bill on Committee Stage. In general, that is not desirable. However, because the Minister is adding germane matter to this part of the Bill I am not too energetic in my criticism. These are worthwhile measures which add something to a part of this Bill, which is legislation that was enacted last year. I am glad these amendments result from further consultation. If the Minister looks back he may find foretastes of what he proposes in some of the amendments he did not accept in last year's Bill. However, I do not propose to spend time entertaining ourselves on such matters.
Since these proposed amendments are new, I hope I will be allowed a couple of minutes for a Second Stage type of speech. I am glad the Minister and his Department have been having consultations with local authorities about some of their experiences in implementing the legislation. When we passed the Local Government (Planning and Development) Act, 1999, the Minister was very conscious, in dealing with the Bill and in rejecting proposed amendments, that we were entering uncharted territory. That has proved to be the case. Some other areas need clarification, not in terms of the content of the legislation but in how local authorities interpret it. For example, I have come across two cases, neither of which involved expenditure of public money, where a very rigid interpretation of the provisions of the Act, particularly the conservation provisions, is in danger of producing a very perverse result. They have to do with repairing the roofs of Georgian period houses. In one case the roof needed reslating. I understand from the proprietor that they were probably the original slates.
Although slates are durable, they erode from time to time. A great many of the slates had eroded at the edges. This meant that they did not fit as well and, because of movement over a period of 200 years, the nail or pegholes had become bigger. In the other case it seems the slates were more durable. I do not know the reason but several fell from a height of about two and a half storeys and landed in the yard without breaking. Slates were made solid at the end of the 18th century. The problem was that, because of movement and flapping over a period of 200 years, the holes for the attaching mechanisms had enlarged and nobody made the particular peg of the necessary size required.
In the first case new slates were used and there was the father and mother of an argument with the relevant officials of the local authority. The person replacing the slates on the roof was told that he had to use the original slates which were letting in water. That seems to be the pluperfection of bureaucratic nonsense. It is obvious, therefore, that there is a need to look at how one interprets "conservation" in such a case. We should not be as perfectionist as some are inclined to be in this matter because in the nature of things some changes will take place over time.
A little more than a week ago I had the pleasure of attending a celebration in a 14th century castle located just outside the Minister's constituency but just inside mine. In the 17th century a house was built against the wall of the castle. Unfortunately, it was burned down in an accident. In the 18th century a hunting lodge was built abutting on the bottom of the wall of the castle. We marvel at it and say how quaint and wonderful it is and how important it is to keep it, but if one was to decide in the 21st century to build its equivalent at the butt end of a 200 year old building one would not have a snowball's chance in hell of obtaining planning permission. Yet, here is a building built against all our rules of planning and conservation and we marvel at it because it is old. If it lasts long enough it will become a historic monument, no matter now incongruous it may appear to the contemporary eye.
There is a need for realism in how ones look at conservation. It is not always possible - sometimes it may not be desirable - to make things look exactly as they were when originally built. If we were to say that restored and preserved buildings should be the same in every respect as when first built we would frequently find ourselves in conflict with building and fire regulations in terms of access and ease of egress. This is something which has to be borne in mind. I detect such concerns in the way the amendments are drafted. On the first amendment, the Minister will have no trouble because I am sure we will have no difficulty in allowing him the chapter heading.
Amendment agreed to.
Amendment No. 377 not moved.
I move amendment No. 378:
In page 72, subsection (1), lines 40 and 41, to delete "or parts of structures," and substitute "or parts of structures, which form part of the architectural heritage and".
Following the enactment of the 1999 planning Act there was confusion regarding the interface between that Act and the National Monuments Act, which has as its purpose the protection of the archaeological heritage, including monuments. The 1999 Act has as its purpose the protection of the architectural heritage. There is no strict dividing line between the two. In some cases the provisions of both codes can and should apply. For example, the GPO is a national monument and a protected structure. There are, however, parts of the archaeological heritage which do not need protection under the planning Act, for example, underground remains. Such structures can be adequately protected by the National Monuments Act. The amendment, therefore, proposes that all the structures to be protected under the planning Act should form part of the architectural heritage. This is in line with the title of the Part and the Long Title of the 1999 Act.
Amendment agreed to.
Section 49, as amended, agreed to.
Sections 50 and 51 agreed to.
SECTION 52.
Chairman
We now proceed to amendment No. 379. Amendment No. 380 is related, therefore, they may be discussed together.
I move amendment No. 379:
In page 74, subsection (1)(b), lines 14 and 15, to delete “in accordance with a review of” and substitute “when making”.
These amendments make corrections to the text of the Bill. The reference in the section should be to making rather than reviewing development plans.
Amendment agreed to.
Section 52, as amended, agreed to.
SECTION 53.
I move amendment No. 380:
In page 74, subsection (1), line 20, to delete "reviewing" and substitute "making".
Amendment agreed to.
I move amendment No. 381:
In page 74, subsection (2)(b), line 38, to delete “2 weeks from the end” and substitute “6 weeks from the start”.
This should not be a contentious matter. As I understand it, the procedure for the making of submissions on the addition or deletion of a structure is that the proposal must be placed on display for a period of four weeks and that interested parties may make submissions in the following two weeks. The amendment would cover the same six week period except that interested parties would be allowed to make submissions at any time during the six week period. It should be possible to make submissions from the time the proposal is placed on display. The amendment would not prolong the period of time, it would simply allow submissions to be made at any time during the six week period.
We have a dilemma. The Deputy's amendment would have the opposite effect to the one he intends. It is more restrictive than what is in the Bill. However, we concede that our wording is not as clear as it might be.
We have reached the point where, as many people have long suspected, we are all wrong.
We will have a look at that for Report Stage.
Amendment, by leave, withdrawn.
Section 53, as amended, agreed to.
SECTION 54.
I move amendment No. 382:
In page 75, line 22, to delete "may" and substitute "shall".
This is a classic amendment replacing the word "may" with the word "shall" in order to make it obligatory that the inclusion of the structure be registered.
This is one case where I do not propose to accede to the request for change. This would have the effect of making it mandatory for local authorities to register protected structures with the Land Registry. We had a long discussion about this in the committee last year, and I do not intend to change my mind on it. This is as strong as we can be in this case.
Acting Chairman
Is the Deputy pressing his amendment?
No. This was given a long airing last year. I submitted it again to test whether there has been a change in Government policy. Clearly there has not.
Amendment, by leave, withdrawn.
Section 54 agreed to.
SECTION 55.
Acting Chairman
We now come to amendment No. 383 in the name of the Minister. Amendment No. 384 is related. I propose to take amendments Nos. 383 and 384 together.
I move amendment No. 383.
In page 76, subsection (10), lines 35 to 39, to delete paragraph (a) and substitute the following:
"(a) For the avoidance of doubt, it is hereby declared that a planning authority or the Board on appeal-
(i) in considering any application for permission in relation to a protected structure, shall have regard to the protected status of the structure, or
(ii) in considering any application for permission in relation to a proposed protected structure, shall have regard to the fact that it is proposed to add the structure to a record of protected structures.".
When we discussed the 1999 Act, we inserted an amendment which provided for the avoidance of doubt that the status of a protected structure must be considered when considering a planning application or appeal. Furthermore, we provided that permission to demolish a protected structure should be granted only in exceptional circumstances. However, some doubts were raised about the status of the proposed structures and whether their status had to be considered in determining planning applications or whether permission could be granted in the ordinary way to demolish them. These amendments are designed to remove any doubt about that for all parties. The full protection in the Act will apply to proposed protected structures.
Amendment No. 383, therefore, says that where a structure is proposed for inclusion in the record, this must be a consideration of the planning authority and the board in considering a planning application. Amendment No. 384 says that a permission to demolish a proposed structure should be granted only in exceptional circumstances. This strengthens what we had before and removes the doubts that arose.
Amendment agreed to.
I move amendment No. 384:
In page 76, subsection (10)(b), lines 41 and 42, after "protected structure" to insert "or proposed protected structure".
Amendment agreed to.
Section 55, as amended, agreed to.
Sections 56 and 57 agreed to.
SECTION 58.
I move amendment No. 384a:
In page 78, subsection (2), lines 26 to 32, to delete paragraph (b), and substitute the following:
"(b) the structure is in an architectural conservation area and, in the opinion of the planning authority, it is necessary, in order to preserve the character of the area, that the structure be restored.".
This amendment to section 58 provides that a structure restoration notice may be served under that section where it is in an architectural conservation area and it is necessary to preserve the character of that area. As currently drafted, the section provides that it may be served, where desirable, in an area of special architectural interest but does not require that it be in a designated architectural conservation area and that it is necessary that the structure is restored. These additional elements to the section are more precise. This is appropriate, given that this is a notice which places obligations on the owners of buildings to carry out those particular works.
I want to query this. We are dealing here with notices requiring the restoration of the character of protected structures and other places. As I understand it, what is happening here is that under the existing legislation the planning authority may serve notice in a fairly wide range of circumstances under the existing paragraph (b) where the structure forms part of a place, an area, a group of structures or a townscape which is of special architectural, historical, archaeological, artistic, cultural, scientific, social or technical interest and, in the opinion of the planning authority, it is desirable to restore the character of that place, area, group of structures or townscape, as the case may be. The Minister is proposing to replace that with a provision whereby the structure would have to be in an architectural conservation area and, in the opinion of the planning authority, it is necessary in order to preserve the character of the area that the structure be restored. I would have thought that the original paragraph allowed for the serving of notice in a wider range of circumstances than what is now proposed. I am a bit concerned that the effect of this amendment would be to restrict the serving of such notices purely to architectural conservation areas. The Act as it stands does not confine this to conservation areas.
It was the original intention that it would. An architectural conservation area is defined now as a place, an area, a group of structures or a townscape which is of special architectural, historical, archaeological, artistic, cultural, scientific, social or technical interest.
That has to be formally made.
It has to be formally made.
In its original form, as I interpret it, it would have allowed a planning authority to serve a notice where it felt that a building was of special interest and it does not have to be an architectural conservation area. There is a fairly wide range of interests here and if a particular structure needed to be restored the planning authority could serve a notice to that effect, but there would not necessarily be an obligation on the planning authority to have declared the area an architectural conservation area in order for that to happen. That is my problem. For example, if it were decided that the essential character of the old gate into the Hogan Stand in Croke Park should be retained, it should not be necessary to have first declared the area to be an architectural conservation area. Under the existing legislation, one could say it is not great architecture but it is of interest. Therefore, to maintain its character, Dublin Corporation can say it wants to retain the old entrance to the Hogan Stand or whatever as a place of interest given that it has a significance and so on. Under existing legislation it could serve a notice on the GAA to do this. Under the section proposed here it would be necessary for Dublin Corporation to declare Croke Park and its surroundings as an architectural conservation area. It could do so only in those circumstances.
Under section 33 of the 1999 Act, it is a mandatory objective to preserve areas of special architectural interest, historic, scientific, etc. Where the local authority decides that an area was of such an interest, it would have to designate it as such. What is being done here actually diminishes——
It weakens it. I have a recollection of this being debated at the time. One of the examples used was, suppose there was a row of old artisan dwellings, Dublin Corporation might say they did not reach the standard needed to make a formal architectural conservation area but they are of interest. Therefore, to protect a row of eight artisan dwellings and to preserve their integrity, Dublin Corporation could intervene to maintain the one in the middle which has become dilapidated and serve notice and so on. It would allow the planning authority to intervene where there was no formal conservation area. I have a recollection of some considerable discussion on that matter at the time and that the formula the Minister is proposing to amend was arrived at to allow planning authorities have that degree of flexibility.
The intention is to strengthen the legislation. I recall the debate on the artisan dwellings. Given that we are trying to strengthen the legislation there may be a slight conflict between good intent and what might happen on the ground. The compulsion is on the local authorities to designate such areas. I take the Deputy's point in regard to a streetscape of special architecture or the row of artisan dwellings, one of which is in a dilapidated state and that the local authority should move in respect of that one.
Would it be a solution to put the two in?
I will withdraw the amendment and have another look at it with a view to making it clearer. The intention is to strengthen rather than weaken the Bill. The Deputy has hit on a case that might cause a weakening of the legislation.
Amendment, by leave, withdrawn.
I move amendment No. 385:
In page 79, subsection (3), lines 10 to 15, to delete paragraph (e) and substitute the following:
"(e) state that the planning authority shall pay any expenses that are reasonably incurred by that person in carrying out the works in accordance with the notice, other than works that relate to an unauthorised structure which has been constructed, erected or made 7 years or less prior to the service of the notice.”.
This is just a rewording amendment and it makes no substantive change to the section. The section provides that the planning authority must pay reasonable costs to anybody who is required by a notice to restore the protected structure if the works related to an authorised structure or a structure erected more than seven years before the notice which, therefore, cannot be the subject of an enforcement action. This provision seeks to prevent the planning authority having to pay for the removal of unauthorised works which can still be the subject of an enforcement action. However, the section, as worded, refers to authorised structures which are not defined anywhere in the Bill. It was, therefore decided to reword the section basing it on the new definition of unauthorised structures which we have already discussed.
Amendment agreed to.
Section 58, as amended, agreed to.
SECTION 59.
I move amendment No. 386:
In page 80, subsection (1) (c)(iii), lines 3 and 4, to delete “referred to in paragraph (c) of that section” and substitute “referred to in paragraph (b) of that subsection”.
Amendment agreed to.
Section 59, as amended, agreed to.
Sections 60 to 69, inclusive, agreed to.
SECTION 70.
Acting Chairman
Amendment No. 387. Amendments Nos. 388 and 389 are cognate and amendment No. 390 is related. It is proposed to take amendments Nos. 387 to 390, inclusive, together.
I move amendment No. 387:
In page 82, subsection (1), line 31, to delete "Act" and substitute "Part".
These amendments are corrections to the text to replace the reference to an "Act" with a reference to a "Part" or a "section". The reference to an "Act" was correct in the context of the 1999 Act which dealt solely with architectural heritage but as this now forms part of the Bill, the section needs to be modified to avoid confusion.
Amendment agreed to.
I move amendment No. 388:
In page 82, subsection (1) (a)(i), line 35, to delete “Act” and substitute “Part”.
Amendment agreed to.
Section 70, as amended, agreed to.
Sections 71 and 72 agreed to.
SECTION 73.
I move amendment No. 389:
In page 84, subsection (1), line 37, to delete "Act" and substitute "Part".
Amendment agreed to.
I move amendment No. 390:
In page 84, subsection (2), line 43, to delete "Act" and substitute "section".
Amendment agreed to.
Section 73, as amended, agreed to.
Sections 74 and 75 agreed to.
SECTION 76.
Acting Chairman
Amendment No. 391. Amendments Nos. 392 and 393 are related. It is proposed to take amendments Nos. 391 to 393, inclusive, together.
I move amendment No. 391:
In page 86, paragraph (a), line 16, after “any” where it secondly occurs to insert “appropriate”.
The purpose of these amendments is to ensure that where a planning authority uses a protected structure that the use to which the planning authority puts the structure is an appropriate use and that any functions which relate to the use of the building are compatible with the preservation of the special qualities of the protected structure. The existing Act provides that a planning authority can acquire a protected structure and can use it for any purpose. This amendment is to make doubly sure that the planning authority does not use the building or structure for any purpose which would not be in keeping with its status as a protected structure. In fairness, if a planning authority is acquiring a building under this Act, because it is a protected structure I suppose it is unlikely to make an inappropriate use of it but the amendment is just a belt and braces job to make sure that it does not.
I ask the Deputy to take my word that the intent of his amendment, which is a belt and braces job, is fully comprehended by the section as it stands. The local authority is bound by the objectives of its development plan to protect the structure and therefore the conditions under which it could be sold, let or whatever would include its protected status. In addition to that, any person who buys, leases it or anything else will be bound by this legislation and by contract and so on to observe its protected status.
The negative that might occur in relation to the amendments the Deputy put down is that a planning authority might be in a position to sell a property and thereby secure its protection. If they can do that, we should allow them to do so and the Deputy's amendment might have a negative effect on that. As matters stand, the protection the Deputy wants is actually in the section. I am not sure if it is belt and braces but it is certainly a strong pair of braces or a strong belt. His intent is covered in the section.
I have no difficulty with the Minister's word but, with respect, I am not sure what I am seeking is in the legislation. If a small gate house, a capman's hut or something of that kind is acquired by a planning authority in order to be protected, the roads, housing maintenance or cleansing department of the council will subsequently use the structure as a small depot or whatever. Sometimes the wishes of the planning and architectural heritage wing of the council may not always be complied with by the division of the council which has use of the property. This amendment is to make doubly sure that we do not get into a situation where the roads department of a particular council which is using the building takes the view that the protection of the building is the business of the planning department.
Notwithstanding the efforts the Minister is making to reform local authority administration, I am sure he is very familiar with the degree of departmental blindness one can sometimes come up against in local authorities. I am inclined to think it is necessary to make it explicit that if the local authority gets the use of the property, there is an obligation on the authority to use it in a way appropriate to its protected status and that we do not get into a situation where the protection issue is a matter for a different department of the council. There is a case for examining this aspect.
As I mentioned earlier, the local authority is bound by its own development plan. There are two sections in particular, section 162 which deals with developments by the local authority, but in the case the Deputy is talking about there might not be any development involved; it might be just a structure that they have acquired. Section 15 is the other section which imposed the general duty of a planning authority to take such steps within its powers as may be necessary for the securing of the objectives of the development plan. In the context in which we are talking, the objective in relation to the structure the Deputy is talking about would be the preservation of the structure and the local authority is therefore bound by its own development plan to do that. Perhaps the Deputy would look at amendments Nos. 392 and 393. The particular difficulty that I would have with amendment No. 392 is the term "provided such use is compatible with the preservation of the special qualities of this protected structure". What might be the special qualities?
What is the Minister suggesting? Is he accepting amendment No. 391?
No. I am suggesting that we look at them on Report Stage but I am also suggesting, in relation to amendments Nos. 392 and 393, that if the Deputy resubmits them he might just consider the use of "protected structure" because we do not use that kind of language anywhere else.
In that case I will withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 392 and 393 not moved.
Section 76 agreed to.
Acting Chairman
I would point out at this stage that Deputy Dukes has a matter on the Adjournment at 4.45 p.m. and I am not sure a substitute is available. Would it be in order to conclude our business at 4.50 p.m.? If we make up the 20 minutes elsewhere, we can agree that. Agreed.
Sections 77 and 78 agreed to.
NEW SECTIONS.
I move amendment No. 393a:
In page 87, before section 79, but in Part IV, to insert the following new section:
"Chapter II
Architectural Conservation Areas and
Areas of
Special Planning Control
79.-(1) A development plan shall include an objective to preserve the character of a place, area, group of structures or townscape, taking account of building lines and heights, that-
(a) is of special architectural, historical, archaeological, artistic, cultural, scientific, social or technical interest or value, or
(b) contributes to the appreciation of protected structures,
if the planning authority is of the opinion that its inclusion is necessary for the preservation of the character of the place, area, group of structures or townscape concerned and any such place, area, group of structures or townscape shall be known as and is in this Act referred to as an architectural conservation area.
(2) Where a development plan includes an objective referred to in subsection (1), any development plan that replaces the first-mentioned development plan shall, subject to any variation thereof under section 13, also include that objective.”
Amendment agreed to.
I move amendment No. 393b:
In page 87, before section 79, but in Part IV, to insert the following new section:
"80.-(1) Notwithstanding section 4(1)(h), the carrying out of works to the exterior of a structure located in an architectural conservation area shall be exempted development only if those works would not materially affect the character of the area.
(2) In considering an application for permission for development in relation to land situated in an architectural conservation area, a planning authority, or the Board on appeal, shall take into account the material effect (if any) that the proposed development would be likely to have on the character of the architectural conservation area."
Amendment agreed to.
I move amendment No. 393c:
In page 87, before section 79, but in Part IV, to insert the following new section:
81.-(1) A planning authority may acquire, by agreement or compulsorily, any land situated within an architectural conservation area if the planning authority is of the opinion-
(a) that it is necessary to so do in order to preserve the character of the architectural conservation area, and
(b) (i) the condition of the land, or the use to which the land or any structure on the land is being put, detracts, or is likely to detract, to a material degree from the character or appearance of the architectural conservation area, or
(ii) the acquisition of the land is necessary for the development or renewal of the architectural conservation area or for the provision of amenities in the area.
(2) A planning authority shall not compulsorily acquire any land under subsection (1) that is lawfully occupied as a dwelling house by any person other than a person employed therein as a caretaker.
(3) Sections 69(2) to 76 of this Act shall, subject to any necessary modifications, apply to acquisitions under subsection (1) and references in those provisions to a protected structure shall, for the purposes of this section, be construed as references to a structure or other land situated within an architectural conservation area.”.
Amendment agreed to.
I move amendment No. 393d:
In page 87, before section 79, but in Part IV, to insert the following new section:
82.-(1) A planning authority may, if it considers that all or part of an architectural conservation area is of special importance to, or as respects, the civic life or the architectural, historical, cultural or social character of a city or town in which it is situated, prepare a scheme setting out development objectives for the preservation and enhancement of that area, or part of that area, and providing for matters connected therewith.
(2) Without prejudice to the generality of subsection (1), a scheme prepared under that subsection may include objectives (and provisions for the furtherance or attainment of those objectives) for-
(a) the promotion of a high standard of civic amenity and civic design;
(b) the preservation and protection of the environment, including the architectural, archaeological and natural heritage;
(c) the renewal, preservation, conservation, restoration, development or redevelopment of the streetscape, layout and building pattern, including the co-ordination and upgrading of shop frontages;
(d) the control of the layout of areas, density, building lines and height of structures and the treatment of spaces around and between structures;
(e) the control of the design, colour and materials of structures, in particular the type or quality of building materials used in structures;
(f) the promotion of the maintenance, repair or cleaning of structures;
(g) the promotion of an appropriate mix of uses of structures or other land;
(h) the control of any new or existing uses of structures or other land;
(i) the promotion of the development or redevelopment of derelict sites or vacant sites; or
(j) the regulation, restriction or control of the erection of advertisement structures and the exhibition of advertisements.
(3) A scheme prepared under subsection (1) shall be in writing and shall be consistent with the objectives of the relevant development plan and any local area plan or integrated area plan (within the meaning of the Urban Renewal Act, 1998) in force relating to the area to which the scheme relates.
(4) (a) A scheme prepared under subsection (1) shall indicate the period for which the scheme is to remain in force.
(b) A scheme may indicate the order in which it is proposed that the objectives of the scheme or provisions for their furtherance or attainment will be implemented.
(5) A scheme shall contain information, including information of such class or classes as may be prescribed by the Minister, on the likely significant effects on the environment of implementing the scheme.
(6) In this section, and sections 83 and 84-
'city' means a county borough;
'town' means a borough (other than a county borough), an urban district or a town having town commissioners that has a population in excess of 2,000.".
Amendment agreed to.
I move amendment No. 393e:
In page 87, before section 79, but in Part IV, to insert the following new section:
83.-(1) Subsections (2), (3), (4), (5) and (6) shall, upon the passing of a resolution by the planning authority concerned, be complied with in relation to the scheme specified in the resolution.
(2) The planning authority shall, as soon as may be after the passing of a resolution under subsection (1)-
(a) notify in writing the Minister, the Board and such other persons as may be prescribed, of the preparation of the scheme,
(b) send copies of the scheme to each of the persons referred to in paragraph (a), and
(c) publish a notice of the preparation of the scheme in one or more newspapers circulating in the city or town concerned.
(3) A notice under subsection (2) shall-
(a) indicate the place or places at which, and the period (being not less than 8 weeks) during and times at which, a copy of the scheme may be inspected (and a copy of the scheme shall be kept available for inspection accordingly), and
(b) invite submissions or observations in relation to the scheme within such period (being not less than 8 weeks) as is specified in the notice.
(4) (a) Where the scheme prepared under subsection (1) includes an objective or provision relating to-
(i) the co-ordination, upgrading or changing of specified shop frontages,
(ii) the control of the layout of specified areas, the density, building lines and height of specified structures and the treatment of spaces around and between specified structures,
(iii) the control of the design, colour and materials of specified structures,
(iv) the promotion of the maintenance, repair or cleaning of specified structures,
(v) the control of the use or uses of any specified structure or other land in the area,
(vi) the discontinuance of the existing use of any specified structure or other land,
(vii) the development or re-development of specified derelict or vacant sites, or
(viii) the control of specified advertisement structures or of the exhibition of specified advertisements, the planning authority shall, as soon as may be after the making of a resolution under subsection (1), notify in writing each person who is the owner or occupier of land thereby affected, of the objective or provision concerned.
(b) A notice under paragraph (a) shall refer to the land concerned and shall-
(i) specify the measures that are required to be undertaken in respect of the structure or other land to ensure compliance with the proposed objective or objectives,
(ii) indicate the place or places at which, and the period (being not less than 8 weeks) during and times at which, a copy of the scheme may be inspected (and the copy shall be kept available for inspection accordingly), and
(iii) invite submissions or observations in relation to the proposed objective or provision within such period (being not less than 8 weeks) as is specified in the notice.
(5) (a) Not later than 12 weeks after giving notice under subsection (2) and, where appropriate, a notification under subsection (4), whichever occurs later, the manager of a planning authority shall prepare a report on any submissions or observations received in relation to a scheme prepared under subsection (1) and shall submit the report to the members of the authority for their consideration.
(b) A report under paragraph (a) shall-
(i) list the persons who made submissions or observations in relation to the scheme,
(ii) give a summary of the matters raised in those submissions or observations, and
(iii) include the response of the manager to the submissions or observations.
(6) In responding to submissions or observations made in relation to a scheme prepared under subsection (1), the manager of a planning authority shall take account of the proper planning and sustainable development of the area, the statutory obligations of any local authority in the area and any relevant policies or objectives of the Government or of any Minister of the Government.
(7) A planning authority may, after considering a scheme prepared under subsection (1) and the report of the manager under subsection (5), by resolution, approve the scheme with or without modifications, or refuse to so approve, and a scheme so approved shall be known as and is referred to in this Part as an ’approved scheme’.
(8) An architectural conservation area, or that part of an architectural conservation area, to which a scheme approved by a planning authority under subsection (7) applies shall be known as and is referred to in this Act as an ’area of special planning control’.
(9) (a) Where a planning authority approves a scheme under subsection (7), it shall publish a notice thereof in one or more newspapers circulating in the city or town concerned.
(b) A notice under paragraph (a) shall indicate the place or places at which, and times during which, an approved scheme may be inspected (and a copy thereof shall be kept available for inspection accordingly).
(c) A planning authority shall send a copy of the scheme to the Minister, the Board and such other persons as may be prescribed.”.
Amendment agreed to.
I move amendment No. 393f:
In page 87, before section 79, but in Part IV, to insert the following new section:
84.-(1) A planning authority shall, from time to time as circumstances require and in any case not later than 6 years after-
(a) its approval under section 83(7), or
(b) it has most recently been reviewed,
review an approved scheme and may by resolution, amend or revoke the scheme.
(2) Where a planning authority proposes to amend an approved scheme under this section, section 83 shall, subject to any necessary modifications, apply as respects any such amendment.
(3) Notice of the revocation of an approved scheme under this section shall be given in one or more newspapers circulating in the city or town concerned.
(4) The amendment or revocation of an approved scheme shall be without prejudice to the validity of anything previously done thereunder.".
Amendment agreed to.
I move amendment No. 393g:
In page 87, before section 79, but in Part IV, to insert the following new section:
85.-(1) Notwithstanding section 4 and any regulations made thereunder, any development within an area of special planning control shall not be exempted development where it contravenes an approved scheme applying to that area.
(2) When considering an application for permission in relation to land situated in an area of special planning control, a planning authority, or the Board on appeal, shall, in addition to the matters set out in section 34, have regard to the provisions of an approved scheme.
(3) An owner or occupier of land situated in an area of special planning control may make a written request to the planning authority, within whose functional area the area of special planning control is situated, for a declaration as to-
(a) those developments or classes of development that it considers would be contrary or would not be contrary, as the case may be, to the approved scheme concerned,
(b) the objectives or provisions of the approved scheme that apply to the land, or
(c) the measures that will be required to be undertaken in respect of the land to ensure compliance with such objectives or provisions.
(4) Within 12 weeks of receipt by a planning authority of a request under subsection (3), or within such other period as may be prescribed by regulations of the Minister, a planning authority shall issue a declaration under this section to the person who made the request.
(5) A planning authority may at any time rescind or vary a declaration under this section.
(6) The rescission or variation of a declaration under subsection (5) shall not affect any development commenced prior thereto in reliance on the declaration concerned and that the planning authority has indicated, in accordance with paragraph (a) of subsection (3), would not be contrary to an approved scheme.
(7) A declaration under this section is without prejudice to the application of section 5.
(8) A planning authority shall cause-
(a) the particulars of any declaration issued by that authority under this section to be entered on the register kept by the authority under section 7, and
(b) a copy of the declaration to be made available for inspection by members of the public during office hours, at the principal office of the authority, following the issue of the declaration.”.
Amendment agreed to.
I move amendment No. 393h:
In page 87, before section 79, but in Part IV, to insert the following new section:
86.-(1) A planning authority may serve a notice that complies with subsection (2) on each person who is the owner or occupier of land to which an objective or provision of an approved scheme applies.
(2) A notice under subsection (1) shall-
(a) refer to the structure or land concerned,
(b) specify the date on which the notice shall come into force,
(c) specify the measures required to be undertaken on the coming into force of the notice including, as appropriate, measures for-
(i) the restoration, demolition, removal, alteration, replacement, maintenance, repair or cleaning of any structure, or
(ii) the discontinuance of any use or the continuance of any use subject to conditions,
(d) invite the person on whom the notice is served, within such period as is specified in the notice (being not less than 8 weeks from the date of service of the notice) to make written representations to the planning authority concerning the notice,
(e) invite the person to enter into discussions with the planning authority, within such period as is specified in the notice (being not less than 8 weeks from the date of service of the notice) concerning the matters to which the notice refers and in particular concerning-
(i) the period within which the measures specified in the notice are to be carried out, and
(ii) the provision by the planning authority of advice, materials, equipment, the services of the authority's staff or other assistance required to carry out the measures specified in the notice,
(f) specify the period within which, unless otherwise agreed in the discussions entered into pursuant to an invitation in the notice in accordance with paragraph (e), the measures specified in the notice shall be carried out, being a period of not less than 8 weeks from the date of the coming into force of the notice,
(g) state that the planning authority shall pay any expenses that are reasonably incurred by that person in carrying out the steps specified in the notice, other than expenses that relate to unauthorised development carried out not more than 7 years prior to the service of the notice, and
(h) state that the planning authority shall, by way of compensation, pay, to any person who shows that as a result of complying with the notice-
(i) the value of an interest he or she has in the land or part thereof existing at the time of the notice has been reduced, or
(ii) he or she, having an interest in the land at that time, has suffered damage by being disturbed in his or her enjoyment of the structure or other land, a sum equal to the amount of such reduction in value or a sum in respect of the damage suffered.
(3) If the invitation in a notice in accordance with subsection (2)(d) to enter into discussions is accepted, the planning authority shall take all such measures as may be necessary to enable the discussions concerned to take place.
(4) After considering any representations made and any discussions held pursuant to invitations in a notice under subsection (2), the planning authority may confirm, amend or revoke the notice and shall notify in writing the person to whom the notice is addressed.
(5) Any person served with a notice under subsection (1) may, within 8 weeks from the date of notification of the confirmation or amendment of the notice under subsection (4), appeal to the Board against the notice.
(6) Where an appeal is brought under subsection (5) against a notice, the Board may, after taking into account-
(a) the proper planning and sustainable development of the area,
(b) the provisions of the development plan for the area,
(c) any local area plan or integrated area plan (within the meaning of the Urban Renewal Act, 1998) in force relating to the area to which the scheme relates, and
(d) the provisions of the approved scheme concerned, confirm with or without modification, or annul, the notice.
(7) A notice served by a planning authority under subsection (1) may, for stated reasons, by notice in writing, be withdrawn.
(8) A notice under this section (other than a notice that has been withdrawn) shall not come into force-
(a) until the expiry of any period within which an appeal against the notice may be brought, or
(b) where an appeal is taken against the notice, when the appeal has been withdrawn or decided, as may be appropriate.”.
Amendment agreed to.
I move amendment No. 393i:
In page 87, before section 79, but in Part IV, to insert the following new section:
87.-If, within 8 weeks from the date of the coming into force of the notice or such longer period as may be agreed by the planning authority and the person to whom the notice is addressed, the restoration, demolition, removal, alteration, replacement, maintenance, repair or cleaning required by the notice has not been effected, the planning authority may, subject to section 228, enter the structure or land and may effect such restoration, demolition, removal, alteration, replacement, maintenance, repair or cleaning as is specified in the notice.”.
Amendment agreed to.
I move amendment No. 393j:
In page 87, before section 79, but in Part IV, to insert the following new section:
88.-(1) Where a person served with a notice under section 86 fails to comply with a requirement of the notice, or causes or permits a person to fail to comply with such a requirement, the High Court or the Circuit Court may, on the application of the planning authority, order any person to comply with the notice or to do, or refrain from doing or continuing to do, anything that the Court considers necessary or expedient to ensure compliance with the terms of the said notice.
(2) An order under subsection (1) may, without prejudice to that subsection, require such person as is specified in the order to carry out any works including the restoration, demolition, removal, alteration, replacement, maintenance, repair or cleaning of any structure or other feature or the discontinuance of any use, or continuance thereof subject to such conditions as are specified in the order.
(3) (a) An application to the High Court or the Circuit Court for an order under subsection (1) shall be by motion and the Court when considering the matter may make such interim or interlocutory order, if any, as it considers appropriate.
(b) The order by which an application under this section is determined may contain such terms and conditions (if any) as to the payment of costs as the Court considers appropriate.
(4) Rules of Court made in respect of section 27 of the Act of 1976 (inserted by section 19 of the Act of 1992) shall apply with any necessary modifications to an application under this section.
(5) (a) An application under subsection (1) to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the land the subject of the application is situated.
(b) The Circuit Court shall have jurisdiction to hear and determine an application under this section where the rateable valuation of the land the subject of the application does not exceed £200.
(c) Where the rateable valuation of any land the subject of the application under this section exceeds £200, the Circuit Court shall, if an application is made to it in that behalf by any person having an interest in the proceedings, transfer the proceedings to the High Court, but any order made or act done in the course of such proceedings before the transfer shall be valid unless discharged or varied by order of the High Court.”.
Amendment agreed to.
I move amendment No. 393k:
In page 87, before section 79, but in Part IV, to insert the following new section:
89.-Where a person served with a notice under section 86 fails to comply with a requirement of the notice, or causes or permits a person to fail to comply with such a requirement, he or she shall be guilty of an offence.”.
Amendment agreed to.
I move amendment No. 393l:
In page 87, before section 79, but in Part IV, to insert the following new section:
90.-Notwithstanding Part III, permission shall not be required in respect of a development required by a notice under section 86 or an order under section 88.”.
Amendment agreed to.
SECTION 79.
I move amendment No. 394:
In page 87, before section 79, but in Part IV, to insert the following new section:
"79.-(1) The Minister for Arts, Heritage, Gaeltacht and the Islands, shall, after consulting with the Minister, issue regulations to planning authorities concerning-
(a) the identification of planning applications and developments which are likely to have an adverse effect on linguistic factors in Gaeltacht areas;
(b) the criteria to be used in assessing such planning applications and developments;
(c) the preparation and content of linguistic impact statements in relation to such planning applications and developments.
(2) Notice will be given to the Minister for Arts, Heritage, Gaeltacht and the Islands, to Údarás na Gaeltachta and to Comhdháil Náisiúnta na Gaelige of the receipt of planning applications and of proposed developments likely to have an adverse effect on linguistic factors in Gaeltacht areas.
(3) A proposed development in respect of which a linguistic impact statement has been prepared shall not be carried out unless the Minister for Arts, Heritage, Gaeltacht and the Islands has certified that the proposed development (or the proposed development as varied or modified), in the opinion of the Minister, will not have significant adverse effects on linguistic factors in the Gaeltacht, or will embody the best practices aimed at preventing or limiting such effects.".
The Minister indicated he would consider this proposal between now an Report Stage.
I gave that commitment.
Amendment, by leave, withdrawn.
I move amendment No. 395:
In page 87, subsection (1), lines 25 to 28, to delete "because the payments calculated over the course of a year would exceed 35 per cent of that person's annual income net of income tax and pay related social insurance".
The purpose of this amendment is to delete the reference to 35% of a person's annual income net of income tax and pay related social insurance. Its effect would be the removal of a reference to a proportion of income from the definition of an eligible person. It would mean an eligible person would be one who is in need of accommodation and whose income would not be adequate to meet the mortgage repayments on a house required to meet his or her accommodation needs. That would widen the definition of eligibility. I am sure the Minister will agree a requirement to meet payments on accommodation over a year which would exceed 35% of a person's net income is a hefty burden.
When I first bought a house 32 years ago, a general rule of thumb was that one could afford it as long as the repayments did not amount to more than 25% of one's gross income. These days, for most people, 35% of net income would probably constitute more than 25% of gross income. The Minister is not adopting a very generous approach to the definition of an eligible person. It would be difficult enough for people today to allocate 30% of their net income to mortgage repayments. Why has the Minister chosen the figure of 35%? It seems to be an arbitrary figure and quite a high level. Will he give us the background to his decision on this.
I have not tabled an amendment to this definition, but I marked it in several colours of ink to raise it with the Minister. I am not clear on what is provided for in this definition of an eligible person. The original Bill included a provision similar to the old building society formula of two and a half times the principal earner's gross income and one times the subsidiary earner's gross income. The Minister changed it to this formula which essentially provides that if one's housing repayments are more than 35% of one's net income, one qualifies for the affordable housing provisions of the Bill. What does that mean in income terms? Does it mean a different level of income required? Is it understood that housing is much more expensive in Dublin than in other parts of the country? A housing statistics bulletin issued yesterday shows that the price of new and secondhand homes in Dublin and the rate of their increase in price is considerably ahead of other parts of the country. Does the definition mean an eligible person in Dublin would have to have a higher income than an eligible person in other parts of the country? How does it relate to the standard of housing that is available? Does it mean an eligible person with a high income seeking larger accommodation could claim he or she was eligible under this section as he or she would have to spend more than 35% on repayments? How does the definition of an eligible person square with the accommodation that is available?
I want to raise with the Minister the income limits used for various types of social and public housing. An income limit applies to eligibility to get on a local authority housing list. A complicated income formula applies to eligibility to participate in the shared ownership scheme. Another formula will now apply to qualification to get into the affordable housing bracket. The problem arises that income limits are constantly going out of date.
I know of a couple with three children with one income earner earning approximately £25,000 working in a factory who cannot afford to buy a house. That couple are not eligible to participate in the shared ownership scheme or to qualify for a local authority house. There is a case for removing such income limits. Those who can afford to buy privately will do so. Those who cannot will consider schemes such as the affordable housing scheme, the shared ownership scheme or, perhaps, admission to a local authority housing list. The question of repayment can be dealt with under the repayment mechanisms for the shared ownership scheme, the affordable housing scheme or under differential rent arrangements that apply to local authority housing. It might be best to remove income limits, consider housing needs and design schemes and a repayment formula in such a way that people will opt for the scheme appropriate to their level of income and housing need. I ask the Minister to clarify what is meant by the income limit provided in the definition of an eligible person.
The Deputy is right in saying that when the Bill was published it included a different definition, that which normally applied to mortgage repayments of two and a half times the gross income of the main earner plus one times the gross income of the second earner. Following representations and discussion in the Seanad, we considered that definition and revised it to make it more generous, which is what we have done in this case.
The Deputy is also correct that there are certain limits on qualifying for local authority housing, although, in general, local authorities put people on a list and will only check that when houses are being allocated. There are different criteria for shared ownership. However, this qualification or test is based on the shared ownership scheme. It is similar to the eligibility criteria for that scheme. It was felt that was a better way to operate.
This relates to people who can qualify for a mortgage for a house, but whose repayments would exceed 35% of their net income. Such people would be eligible for this scheme. Accommodation needs are defined in the legislation. The Bill states that the size of the accommodation required by an eligible person will be determined in accordance with the regulations made by the Minister under section 85(1). An eligible person is defined for the purposes of Part V as a person in need of accommodation and whose income would not be adequate to meet payments on a mortgage for the purchase of a house to meet his or her accommodation needs because the payments calculated over the course of a year would exceed 35% of that person's after tax income.
The amendment proposes the deletion of the reference to 35% of after tax income. It is important to remember that we are not discussing a person who is looking for a mortgage or repayments on a mortgage, but an eligibility test for being placed on a list to qualify for affordable housing. It is not about whether a person can get a mortgage. It is only a benchmark, a measurement of what is meant by an eligible person.
If the amendment was accepted, there would be an imprecise definition and that would not be in anybody's interest. People seeking affordable housing would find it difficult to know whether they were eligible. Local authorities would find it difficult to know whether a person should be put on a list and it would be difficult for them to implement the scheme. Regardless of Deputy Dukes's arguments about whether the figure should be 35% or 30%, removing the reference to 35% would not add anything to the provision. It would be a huge disadvantage.
The revised definition of eligibility was introduced following a constructive debate in the Seanad. It is designed as a more robust definition in place of the earlier definition. It will take into account not only the income of the person, but also interest rates which can vary, etc. As the Deputy is aware, a house is more affordable for a greater number of people when interest and tax rates are lower. Indices of affordability should take account of prices, interest rates and incomes. The definition is an attempt to take account of all these criteria.
A household on any given level of income may need and be eligible for affordable housing in one area where house prices are high, while a similar household with the same income would not be eligible for affordable housing in another area where the market price is lower. We are trying to ensure there is a robust definition which also takes into account interest rates, the price of houses and income. It is a reasonable definition.
The Minister made part of my point for me. I take his point about interest rates and the different level of prices in different areas. They are two factors which would enter into consideration. However, at the start of the section, accommodation needs are referred to in the definition of an eligible person. If the amendment is accepted, an eligible person would be somebody whose income would not be adequate to meet the payments on a mortgage for the purchase of a house to meet his or her accommodation needs.
The Minister has defined accommodation needs and there is an objective test as to whether the person can afford a mortgage. He or she goes to a building society and finds out what a mortgage will cost on the type of house he or she wants to buy and he or she decides if they can afford it. The figure of 35% is entirely arbitrary. The Minister wants robustness and exactitude, but he will not find them. It is conceivable that a family, where mortgage payments on a particular house did not exceed 30% of their income, might be unable to afford that mortgage while another family with a lower income might be in a different position and, therefore, able to afford it.
For example, a family which had particularly high outgoings on education, special care for a child or other items could find that a lower figure than 35% of net income would be unaffordable in terms of paying a mortgage. Somebody with a net income of £100,000 a year could easily afford to take on a mortgage which accounted for 40% of their net income and still be able to live happily. Picking an arbitrary figure of 35% does not give the Minister the type of exactitude that he is seeking because there are so many variables.
Would it be possible before the discussion resumes on this matter for the Minister to consider tables or examples of levels of income in relation to family size and accommodation needs? It would be helpful to the committee to have such comparisons because, although I have read it a number of times, I confess that I do not understand the section. I would welcome examples to help me understand how it will operate. I might then have some points to make on it.
That would be helpful for all of us.
Acting Chairman
In accordance with the decision made earlier by the committee, it is proposed to adjourn the meeting. I remind members that the committee will resume its deliberations on Tuesday, 16 May at 1.30 p.m.
The Select Committee adjourned at 4.40 p.m.