Apart from the specific question of access to the most proximate court of competent jurisdiction, I think there arises on this section also a further question. Under this section, the appellant appears to be confined to the net legal question as to whether the Minister has correctly advised himself as to whether the work contemplated by the property owner is or is not a development or is or is not an exempted development. Where a man proposes, for instance, to erect a summerhouse in his garden and the planning authority says: "That is a development for which you will have to get permission" and the appellant does not raise the preliminary question as to whether or not it is, in fact, a development, but simply says: "Very well; give me permission then to put up my summerhouse" and the planning authority says: "We will not", is there any provision under any other section giving that property owner the right to go to the court and say: "This is a wholly unreasonable exercise of the powers of the planning authority in refusing to allow me to build my summerhouse"? If there is such a provision under some other section, I should be glad to have my attention directed to it because I have the uneasy feeling from such perusal as I have been able to make of the Bill, which is both long and complex, that there does not seem to be the same degree of consideration for the rights of the property owner in this situation as there was under the previous Acts of 1934 and 1939.
Local Government (Planning and Development) Bill, 1962—Committee Stage (Resumed).
In answer to Deputy Dillon's question, nothing in this Bill proposes to take away from the individual any existing right he has under common law. He will still have his normal rights under common law to have recourse to the courts in the normal way. We are restricting ourselves in subsection (1) of Section 5 —he may go to the court if he wishes for other reasons, but without any hope of success—on the basis of whether what he proposes to do is a development or an exempted development. It would be on that net point that he would hope to succeed. If he is foolish enough he might, of course, go on other grounds and not succeed. I should like to emphasise again that any rights he enjoys as of now under common law will remain and nothing in this Bill proposes to whittle them down in any way or remove them.
Under Section 80, we shall be dealing in a more general way with appeals under various sections of this measure and possibly the questions that are being raised on this particular section could be more fully debated on that section.
I should not like to let this section pass without some clarification. I have had the answer given to me before that "this Bill does not purport to abridge any existing common law right." I do not know what these common law rights are. Does the Minister mean the right to proceed by way of writ of mandamus, certiorari or quo warranto? I do not know what rights one has against a planning authority which says: “We declare under Section 5 of this Act that the building of a summerhouse in your garden is a development within the meaning of the Local Government (Planning and Development) Act, 1962, and we serve you with notice that we prohibit the erection of such a building”.
Now the Minister says you can go to the court and argue that the building of a summerhouse is not a development at all and you can get a declaration under Section 5 that the Minister and the planning authority misdirected themselves in that matter and you are free to go straight ahead because their jurisdiction in the matter has been completely ousted by the decision of the court that the building of a summerhouse is not a development. Suppose, however, you get a decision from the court that it is a development within the meaning of the Act, admitting the power of the planning authority to control a development, I want to argue that it is an unreasonable use of such power to forbid me to erect a summerhouse in my own garden. Have I access to the court for the purpose of that argument and, if so, where have I it under this Bill?
The Minister replies that I may not have any specific remedy set out in this Bill but I have my common law rights and there is nothing in this Bill that abridges them. I do not know what my common law rights are against a planning authority constituted by statute and I have never heard of common law rights against a body created by statute unless I can establish that the body in question is doing something for which the statute made no provision. This statute does make provision for a planning authority to declare a development to be in conflict with its plan. This statute gives a planning authority power to make a plan and one of the provisions in that plan is, let us say, that they will not allow anyone to erect a summerhouse. I look in the same statutory instrument for a provision giving me the right, as an individual, to make the case before a court of competent jurisdiction that the planning authority has acted in a capricious or unreasonable way. I find no such provision in this Bill and I know of no remedy at common law level to meet that situation.
Quo warranto, mandamus, certiorari—all these envisage an authority doing something they had no right or statutory authority to do and the court is invoked to deter them from proceeding with something the statute does not authorise them to do. That is not my purpose. My purpose is to deter them doing capriciously, and for insufficient reason, something the statute gives them the power to do. I think the illustration I have given is a fairly good one; if I seek to build a summerhouse in my garden, the planning authority should not have the power to say: “We do not allow summerhouses any more and we will not let you build a summerhouse. That is a Victorian kind of thing today.” I think that makes the point clear. I do not think the planning authority ought to have that kind of power.
I can imagine a planning authority coming into court, and saying: "We are prohibiting the erection of a summerhouse in that spot, not because it is a summerhouse but because it is essential, in view of the contemplated road widening which will take place in this area over the next 20 years, that there should not be a building within ten yards of the existing road boundary." That to my way of thinking might be a perfectly valid answer to my allegation of capriciousness on the part of the planning authority, but suppose the situation arose in which the planning authority came into court and said: "Look, it is a silly thing for people to be building summerhouses in this day and age. No one has time to sit in a summerhouse now. It is a waste of money and it will look absurd. We have decided there will not be any more summerhouses." I think the ordinary citizen should have the right to say: "I like summerhouses and, if it is interfering with no public interest, I have a perfect right to build myself a summerhouse." I find no such remedy here and I think we ought to have it. Naturally graver matters will present themselves than the question of the erection of summerhouses but I have simply taken that one instance in order to illustrate the general principles with which I am concerned.
The main theme of Deputy Dillon's fears is that the planning authority may act——
Capriciously.
Capriciously, as he has said. Section 26 is a section—there are other sections and subsections which give added weight to this—to which the planning authority must give full consideration. They must have regard to the criteria laid down at some length in Section 26 in arriving at a decision. If they depart from the rules laid down in Section 26, then there is recourse to the courts by way of certiorari because they would be acting capriciously and unreasonably.
The other question put by Deputy Dillon was what would be the position of a property owner who indicates to the local authority that he wishes to build some structure or other on his property and, having communicated that information to the local authority, they say: "No, you may not do this. This is development and it is not allowed." The property owner in such circumstances could then say: "I do not agree with you that it is development and I do not abide by your decision." He would then have recourse to the courts.
Under Section 5.
Yes. Should the court hold with him, the property owner could, subsequent to the court case, go back and seek permission to do this work which the court held was not debarred by virtue of this new development. If the local authority still refused him permission——
They would have no power to do so. They would be out under Section 5.
The decision so obtained at the court in this hypothetical case would determine only whether or not the proposed work was development.
If it was not development, the planning authority is out?
Yes, the planning authority would be out but if the reverse were the case and the planning authority were still in, the procedure again would be that the property owner would and could go back to the local planning authority for their agreement and if he did not get that, he then would have recourse by way of appeal to the Minister and if the Minister backed up the local authority, then the property owner could have recourse to the courts again.
How can he get to the court? Supposing the planning authority forbids the summerhouse and the Minister supports the planning authority, how does the property owner get to the court?
That would be under Section 8, a question of law again.
This merely provides for making a regulation.
Subsection (3) of Section 8.
I can see, as the Minister says, that under subsection (3) there is an appeal to the High Court with reference to a question of law. I am suggesting to the Minister a perfectly genuine case where the appellant has exhausted questions of law and has got an adverse decision. This is a development and it is not an exempted development and is within the jurisdiction of the planning authority, and the appellant says: "Very well; I apply to the planning authority for permission to erect a summerhouse or a range of bee hives." He gets an order in correct form from the planning authority saying: "We shall not permit you to erect the summerhouse on the ground that we consider summerhouses to be unsuitable." Where is there in this Bill a proviso that that decision of the planning authority, which is not ultra vires and is therefore not open to certiorari, can be challenged on the ground that the planning authority is acting capriciously and should not interfere with the free use of property by a person who proposes to use his property in a way that is not inimical to the amenities of the district or of his neighbours' premises or in any other way in conflict with the public good? I know of no remedy—I do not know if Deputy Colley can help me here—under the common law to meet that situation.
What little legal training I have leads me to feel that you cannot look outside the statute creating this authority and limiting its jurisdiction for any right to bring its decisions before the High Court. As evidence of that, I would point out that the Bill is full of sections of which it can be said: "But this matter can be appealed to the High Court". I suggest to the Minister where there is a decision envisaged by the statute in which there is no express proviso for appeal to the High Court, I am entitled to apprehend that, in the absence of such an expressed proviso, I will not get to the courts at all and that the limit of my remedy is to appeal from the planning authority to the Minister, in the knowledge that if the Minister confirms the decision of the planning authority, I have no other recourse.
I do not believe that a person's right to the enjoyment of his own property should be dependent on decisions other than judicial decisions because, imperfect as our institutions are, their purpose and principle is to ensure that the humblest citizen of the State will have interposed between him and the Executive an independent judiciary. That is the best safeguard we can provide. Like all other human institutions, it is not 100 per cent perfect but it is as good as we can make it and having it there, we should not forbid by statute any person having recourse to it.
I know the argument is made by the impatient reformer and administrator that this constant reference to the courts, as that eloquent, farseeing Deputy, Deputy Burke, has said, is too much of a blooming nuisance. He recognises in principle that it is a most admirable thing but when widows, spinsters or others proceed to implement it, he believes in stoking up the steamroller, rolling down the road and flattening them out and getting on with the job. I can understand the enterprise of so enthusiastic a soul as Deputy Burke but I am obliged to raise the red flag in front of his steamroller——
Is the Deputy going left also?
No, mine is a minatory flag to check Deputy Burke's precipitate desire to sweep aside the claims of lesser men and to tell him that his steamroller must go back because we intend to preserve intact the right of people to have access to the court. I do not think there is any common law remedy. If there is, and I am wrong, I am quite prepared to be instructed. I believe there is no statutory remedy expressed in the Bill but if there is and I have not found it, I am open to correction and if I have failed to find what is in fact there, I shall apologise to the House for unduly delaying them.
We are probably getting back to the main discussion on Second Reading on the question of where the courts come in and the Minister goes out. The right of access to the High Court is there, whether stated or not in this Bill, and points of law may be put to it. The actual merits —I think this is where we are somewhat confused—of a proposal under the planning legislation would fall to be dealt with on appeal not by the courts but by the Minister.
That is all right.
That makes clear the division of the two functions: points of law for the High Court and merits of a proposal for the Minister. In some sections as has been pointed out, the Bill states that you have the right to appeal to the court and in other sections where it appears you should have the right, it is not so stated. Where the right of appeal to the court is stated, it will also be noticed that a time limit within which such appeal should be made is laid down. It is precisely for that reason only—to put a time limit on the period of appeal —that the High Court is specifically mentioned. Where we are not concerned about the time limit, we do not mention the right of appeal but that does not say the right of appeal does not lie.
There is no common law right.
Yes, there would be.
I do not know what the Minister means.
If I or any other Minister operating this legislation were to act in an unreasonable manner, or an improper manner, to make it stronger——
There is a distinction between "unreasonable" and "improper".
Yes, "improper" would be worse than "unreasonable".
Yes, "improperly" would be outside the scope of the Act while "unreasonably" would be capriciously within the Act.
Outside the powers this House had given. In such cases without any question, there is the common law right to have set aside that which was done improperly.
But suppose the planning authority act in a way which, in the judgment of the person concerned, is capricious or unreasonable, he does not seem to have any remedy?
I mentioned the criteria laid down in Section 26 and some other sections, and if the Minister were to go outside those, there is no doubt whatever that in those circumstances he would be acting capriciously and would be subject to being brought back on the rails by means of appeals to the court.
Is there any period within which one must lodge the appeal to the Minister?
Thirty days.
Is that stipulated?
It is stated somewhere and I think we are adhering to it in this matter.
Thirty days from what?
I am glad the Deputy raised this. It is 30 days from the date of the decision. It does not always follow that the person concerned has knowledge of the decision on the day it is made. It struck me that that was possibly a little weakness but on the other hand, 30 days is generally accepted as a time in which he will come to know of the decision in sufficient time to make a formal application of appeal and once he has done that, he is in.
The decision is one thing and the actual operation is another. It does not become obvious to the ordinary citizen that work is going to be done until it has commenced. If the local authority decide on certain development work to which a citizen may have objection, that work may not commence for anything up to 12 months.
No. We have corrected what I thought was a weakness in the past. We now state that the appellant has the period of one month beginning on the day of receipt by him of the decision.
Every citizen cannot be notified by sending him or her a letter stating that work is to be carried out.
In other cases, the period is 21 days beginning on the day the decision is given. That is where the appellant is not the applicant. This would be the case of a third party.
He would not have any knowledge that the decision had been made until he saw men tearing up the street or something like that.
We are providing for the keeping of a register of decisions and it will be from the date of entry of the decision in the register that the 21 days will apply.
How do the general public know such a decision is being made? It is all very well to have registers but the people will not know.
Under Section 25, with which we shall be dealing later, I think we shall be able to satisfy the Deputy and the House that under regulations, we shall endeavour, by various means of publicising decisions, to fill this gap which I know from experience does exist. We can safely leave it to Section 25.
I move amendment No. 39:
In subsection (1), page 10, to delete all words after "Act" in line 28 down to the end of the subsection.
Subsection (1) of the section reads:
A planning authority shall have all such powers of examination, investigation and survey as may be necessary for the performance of their functions in relation to this Act or to any other Act under which they have functions affected by the performance of their functions under this Act.
I do not know at the moment what this subsection means. Presumably the planning authority already have powers under other Acts to discharge any other functions under those Acts, although the performance of those functions may be affected by the passage of this Bill? Could the Minister enlighten us as to the purport of this subsection? I can understand it as far as line 3, but I cannot understand what the Minister has in mind in the remaining portion of it.
The functions we have in mind are those involving the development and use of land by the planning authority acting as housing authority, sanitary authority, health authority and so on. In other words, the planning authority would need to co-ordinate these various functions and make appropriate provision for them in their development plans.
They already have those powers under other Acts?
They would have, in various ways.
They claim them.
They have all these powers under the Sanitary Services Act and it is merely a question of tying them up?
Yes, under the various Acts.
There is no real departure in this at all?
No, there are no hidden implications in it.
Would the Minister say in respect of examination, investigation and survey, what these words really amount to? Would they be entitled to make trial diggings?
Yes. This will be dealt with in Section 81.
They have these powers for the purpose of housing, sanitary services and so on?
Yes. Whether they enjoy them or not, I do not know.
You mean whether they abuse them or not.
In regard to subsection (2), I can understand the planning authority having particular powers in regard to examinations of tourist potential, interest and need and also in regard to land use surveys. It would be a reasonable thing that a planning authority would make a survey of an area and the use to be made of it. I take it the Minister has in mind when the planning authority comes to deal with a particular area under the scheme envisaged in the Bill, they will allocate different areas for different purposes — residential, industrial or otherwise?
In regard to paragraph (c) of subsection (2), could the Minister say what powers the planning authority will have in regard to sociological and demographic surveys? Demographic surveys have been carried out recently by such bodies as Muintir na Tíre within a limited area. Does the Minister envisage at this stage the use of such surveys to provide the planning authority with information to enable them to determine where they shall site residential areas, industrial areas or otherwise? In regard to the sociological survey, in its widest implication, it could mean inquiries into the possible needs of the people and their social status. When they get down to the question of social status, the local authorities may find themselves moving on to very dangerous ground. I can understand sociological surveys if it means the alleviation of the conditions of the less well-off sections of the community. In giving these powers, however, how far will the authorities carrying out these surveys be subject to the authority of this House if they decide to apply them to all strata of society in every portion of their administrative area? I should like to hear more from the Minister in regard to these two matters.
The written statement which we hope will accompany the draft development plan should contain observations on the population trends. For these purposes, graphic sociological and demographical surveys could be of very great assistance. By and large, the value of these surveys would be more related to a region rather than a county. For instance, they could consider the population shift into the east of the country. On the other hand, the movement out of the west could be considered on a regional basis rather than on an individual county basis. We would be thinking of surveys on a regional basis rather than on the restricted basis of the local town or even county boundary.
It is also possible that a feature of future planning will be that certain areas may be decided on as centres for expansion into a larger community. It is difficult to define here precisely in what way these surveys can be of use in the future in planning for possible changing circumstances, changing outlook indeed, where we may be restricting the growth of certain places, yet designating other centres for increased growth. That is only a general mention of the need there might be for surveys such as these.
What may have been in the mind of Deputy Jones when he mentioned the sociological aspect, the interference with the rights of the individual, need not cause us any fear because we do not intend to give to planning authorities any more power than local authorities have at the moment in their investigations into housing needs of particular localities. We do not object to those powers because we know there is need for such inquiries, that they are carried out in the public interest.
Do I understand the Minister as giving me an assurance that the power provided for here will operate in the same way as that conferred on local authorities in respect of inquiries as to housing needs? We have had in the past a type of sociological, indeed demographic, investigation by people who come in from abroad and make surveys involving questions to individuals. I hope the Minister does not envisage planning authorities being permitted to go so far in this respect. I would not like to have power conferred on somebody to carry out surveys requiring individuals to render accounts of their affairs, so to speak.
I can understand that there is a desire, perhaps a need, to make studies of such things as movement of population. That is one of the things that have been interesting people not alone here but in other countries—the fact that the population move in certain directions. We have here movement from the west to the eastern sectors of the country; we have movement of the rural population to the towns. If the surveys are to be of the type that will convey some information which might be useful in determining reasons for such moves and applying remedies, I can see the sense of it. We have on the continent, particularly in places like Holland, a small country intensively cultivated, a movement from the land to groupings of villages. That is something that has grown naturally.
As I say, if that is the type of survey the Minister has in mind for the planning authorities, then I can see the sense of it. I am merely expressing a fear in regard to this matter without prejudice. If the provision is aimed at removing any doubt that the local authority will have the right to carry out this type of survey, then I am with the Minister; but if it is to confer on somebody within the planning authority a power to make public matters involved in a survey, which might entail the disclosure of personal information in regard to individuals or families, I do not think it is a desirable trend.
I can assure the Deputy that there is no such intention. The purpose of giving them the powers we talk about here is to enable them as planning authorities to incur the expenditure necessary to carry out proposals without let or hindrance by the auditor. This would merely give them power to raise the money but nothing in the section entitles them to get the answers to the questions they may ask. Section 9 deals with the circumstances under which obligations lie on individuals to answer questions and any fears the Deputy may have in this respect would properly arise on that section. This merely enables the local authority to be on the proper side of the ledger.
There is nothing in this section to empower any member or officer of a planning authority to go into somebody's house and inquire whether he has a refrigerator or a washing machine?
No.
That is what I was concerned about.
I move amendment No. 40:
In subsection (1) (d), page 10, line 53, to delete "so" and to insert "so" after "authorised".
This is just a drafting amendment. The subsection at the moment reads:
(d) where the address at which he ordinarily resides cannot be ascertained by reasonable inquiry and the notice or copy is so required or authorised to be given or served in respect of any land or premises, by delivering it to some person over sixteen years of age resident or employed on such land or premises or by affixing it in a conspicuous position on or near such land or premises.
I think our amendment makes the intent more clear. Perhaps the Minister would tell me if there is any difference, or whether he thinks this drafting amendment might not improve the subsection. I shall be glad to hear his comments on it.
This is a sort of brain twister, not a tongue twister. We have gone very thoroughly into this, and I am advised by the people responsible for getting what we intend into draft form that the wording as it stands is correct and that we should not change it. I am advised that if we changed the wording, the intention would not be achieved.
The Minister feels it necessary to keep the wording as it is?
Yes. If we accepted the amendment, it would qualify the phrase "to be given or served" which is not what we intend.
"...so to be given"
That is not the intention of the subsection.
I move amendment No. 41:
In subsection (6), page 11, to delete "may" in line 24 and substitute "must"; in line 25 and in lines 26 and 27, to delete "either before or after" and substitute "before" in each case.
In this section the Minister proposes that certain notices will be given. I might have asked this on the last occasion : what notice does the Minister propose shall be given under this section? There is a question of notice being given under Sections 31, 32, 33 and 35. For instance, in Section 31 (a) we see, "...serve on the owner and on the occupier of the land a notice under this section."
Our amendment proposes writing into the subsection that a dispensation must be given under the foregoing subsection. As drafted, the subsection reads:
A dispensation under the foregoing subsection may be given either before or after the time when the notice or copy would, but for the dispensation, be required to be given and either before or after the doing of any act to which the notice or copy would, but for the dispensation, be a condition precedent.
I should like to hear from the Minister if I am correct in regard to the notices I mentioned. A person might be out of the country and the notice might not reach him very readily. I know the Minister makes provision in that regard. A person might be dead and his representatives might not be easily found, and certain things could happen to which I should like to refer after I hear from the Minister what are the notices in this section.
We also want to delete "either before or after" and make sure it is "before". A local authority might decide to do a certain thing to a person's building and say they served notice on him. We know that in this Bill there is reference to such things as unauthorised structures. A local authority might serve notice on an individual that they required him to take down an unauthorised structure. They might go so far as to move in and take it down of their own accord. Afterwards, the authority, finding there was a grievance, could apply for a dispensation from serving the notice. As the subsection stands, it says that the dispensation may be given "either before or after". We want to preclude the business of "before or after". As I said earlier to-day, local authorities can make mistakes just as readily as an individual.
I referred to the case of a person who may be out of the country. Someone from the local authority may put a small notice on the sill of a window, or he may stick a small notice on a pole or a fence somewhere on the property. It might be that the owner of the property is dead and his representatives not yet determined. The new owner might come back and find that his property had been removed, taken down or interfered with, and the planning authority could ask the Minister at that stage for a dispensation. Having already done the damage, they could seek the dispensation. I am not inferring that the Minister would give it, but they could seek it from him "either before or after". Why should they seek a dispensation afterwards for something which they have done? Why should it be that they may seek it? We think it should be that they must seek it when the notice or the copy would require to be served.
A person's property may be interfered with to the extent of demolition under another section of the Bill. Not only could the demolition of a person's building or structure be involved, but he could be charged for that demolition. I think the Oireachtas should make very certain that the individual is given every opportunity to defend his rights. It seems to stem from the type of philosophy which says that the local authorities can make no mistakes. The citizen can make mistakes and can do things that are not correct and are not in accord with the law but the philosophy here seems to be that the local authority and the planning authority set up under the local authority which, in the long run, boils down to some official, cannot make any mistake. But, if he did make a mistake and did interfere with the property of an individual and found himself confronted with that, he might then appeal for this dispensation that somebody forgot to serve the notice or that it was not effectively served on the individual.
I should like to hear from the Minister the reason for the words "may be given" and why the option is being given of "either before or after". I submit the amendment is reasonable. If somebody seeks a dispensation from serving this notice he must make application to the Minister before doing something which may affect the property of a citizen in any way. He must make this appeal to the Minister before taking any steps which might interfere with the property of an individual.
Subsection (5) enables the Minister to dispense with certain notices. These notices mainly, I think, would deal with the matters contained in Sections 21 and 25 and would not operate in the cases outlined by Deputy Jones and about which he has expressed fears — enforcement notices, and so on. I should also say, further to allay the fears of anybody who may have such fears, that the provisions of this subsection have been in operation for a considerable time under other enactments, principally, as far as we are concerned, Section 15 of the Town and Regional Planning Act, 1939, and Section 45 of the Housing (Miscellaneous Provisions) Act, 1931. While the dispensations under the terms of those specific enactments have been used not infrequently, my Department is unaware of there being any complaint whatsoever over these 30 odd years from anyone who feels that any wrong was done him as a result of the operation of these similar sections or subsections.
Did I understand the Minister to say that this subsection deals with notices under Sections 21 and 25 ?
Sections 21 and 25, mainly.
Do they apply to Sections 31, 32, 33 and 35?
They may apply to them, but I do not think they will apply to them. In practice, they will not but in theory they may.
Subsection (2) provides : "Where a notice or copy of an order is required by this Act or any order or regulation made thereunder...." Is that not a generality ?
Yes.
Then it could arise with notices under Sections 31, 32, 33 and 35?
They could arise but I do not think it is very likely they ever will arise.
Is there any particular reason why the Minister thinks they should be excluded?
I do not think the court could ever hold with the use that the Deputy fears under those other sections. The fears that he has would not and could not arise.
We come back again to the point where a person has the right of appeal to the court on this question. Is it to be a question of determining whether the Minister has or has not been right in law in regard to this matter? This is not getting over the essential difficulty which I see in it in regard to the individual himself. For instance, if the planning authority does or does not serve a notice in a certain way—which, indeed, the individual might easily miss—am I then confined in regard to the person's right to appeal?
Only recently, we have had examples where notices were supposed to be exhibited bringing certain things to the notice of the public. It was alleged that these notices may not have existed at all or were so small as not to be legible. Such set of circumstances could arise and evidently did arise recently. I think it was discussed in this House recently in regard to another matter.
If such a notice were served but had not been brought to the attention of the person, is the right of the individual to appeal in that instance confined to a mere determination of whether the Minister's interpretation of the law was or was not right in this respect?
I should have said at the outset that the real purpose of this subsection is to get over technical errors that may have taken place and which, nine times out of ten, are not discovered until after the event. It is mainly after the event that they are discovered. It is vital, therefore, that we should retain the subsection in its present form rather than in the form proposed by Deputy Jones and which he is putting to the House. I say that because its greatest use is in rectifying the situation created by technical errors discovered usually only after the event and not before. Therefore, the insertion of "before" in this rather than "either before or after" would lessen the use and the advantage—and this subsection is really an advantage—and the value of the subsection if we restricted it only to that which went before and did not give ourselves an opportunity of utilising it for errors discovered after. I am told that most of the errors are discovered after rather than before. If they could be discovered before, they would be corrected in time. Often they emerge only after the event.
I see the point. It is desirable, I suppose, for the planning authority to have this power before and after. However, certainly it is not desirable as far as the individual is concerned. What about the notice which will be served on a person that he may not do this or that? Some official in the local authority may say later: "I forgot to serve the notice. I forgot to affix the notice to where this person was last known to be. I forgot to insert the advertisement in the local paper." Somebody discovers it is a technical error afterwards: it is a technical error in so far as the local authority is concerned. They may say it was a technical error that somebody forgot to do this thing but, in forgetting it, the individual whose property is affected by one of these orders is then presented with a fait accompli. Something has been done to his property at that stage and he has been unaware of it, due to the fact that somebody did not serve him with a notice. The result is that the individual is affected. The planning authority is affected by the fact that somebody forgot to give the notice and may decide to apply to the Minister for dispensation afterwards. The individual cannot so apply. He cannot apply before the time when the notice would be required to be given because by reason of the fact that he was absent from home, or some other circumstances, he cannot be served with the order. Afterwards he finds a situation has developed, that the property which he owns has been affected by the implementation of the order and he has no redress at that stage because the authority has applied to the Minister for a dispensation under subsection (5).
We want to make the Bill work and the only way it can be made to work is by creating genuine respect for it so far as every individual is concerned. If an individual feels that his rights can be affected in his absence by an omission on the part of some public official who is paid not to make mistakes and that he has no redress, there will not be the respect for the Bill that there should be. This is a serious matter.
Under the sections I have mentioned and the other sections which the Minister mentioned, property could be affected and the failure of the planning authority or some official of the planning authority could be got over on the ground that it was a technical slip and they could apply for dispensation to the Minister to cover them after the event rather than before the event. If the application were made before the event the Minister would be aware of what was likely to happen and of the circumstances. It is a fatal provision in legislation that they can apply to the Minister for a dispensation after the event.
As the Deputy and the House are probably aware, local authorities frequently experience difficulty in contacting persons who may be interested in a bit of property and in getting their names. Quite frequently, it is a case of the owners not wishing to make themselves known until they have to or until they are going to lose something by not doing so. It very frequently happens that it is only when the CPO is made that certain owners and people purporting to have an interest in the lands in question appear on the scene whereas if you were chasing them for ten years before that you could not find them. It is not for the want of trying to find them that they are not found. In my experience, it is that they do not want to be found until there is a danger of their losing something or they are not quite sure whether it would be to their advantage to remain unknown as the owners or to claim ownership. It is only definite action such as the making of a compulsory purchase order that usually flushes out some of these people. They may come along and say that they saw a notice in the newspaper. Notice may not have been served on them because they were not known or were not registered or, if registered, the address may have been incorrect, not necessarily by mistake on the part of the local authority.
These matters do not emerge before the event. The tendency is for them to emerge after the event. To substitute the words "either before or after" by the words "before" would lessen the advantage available through the operation of this subsection, an advantage not to the local authority or the acquiring authority, but to those who are otherwise interested in any given property. It would reduce the value of the subsection to all and sundry who might be concerned with a compulsory acquisition or some such procedure if we were to limit it to action taken in respect of that which has gone before the event rather than to cover what may have gone before or after the event.
I would refer to the fact that the provisions in subsection (5) are exactly similar to the provisions contained in the Planning Act, 1939, and the Housing Act, 1931. Despite the fact that such provisions have been in existence for all these years and have been used not infrequently in the interval, no real complaints have come to the knowledge of my Department which would indicate that someone is being done down or wronged. After years of operation the Department are not aware of any of the complaints which the Deputy fears might arise. We are not aware of any bad points arising. If the provisions had the bad points the Deputy fears, they would surely have emerged since 1931 and certainly since 1939.
We can see nothing wrong with the provision. Experience shows that it is all right, that it serves its purpose and is doing no damage and inflicting no injury on any party. Therefore, we feel it should be left there. Experience is very much on our side in this case.
I appreciate the Minister's reference to the fact that over a number of years nothing has happened which would justify the fears I have expressed. There have been the 1934 and the 1939 Acts which, admittedly, have not been put into operation. The fact that this Bill is before the House is sufficient indication that those Acts were not in operation and, consequently, some of the things I have suggested might happen could not have happened and did not happen in the interval. But, in this Bill it is proposed to take stringent measures to deal with development and so on, and to give pretty wide powers to the planning authority. For instance, the planning authority may decide that a person is living in an authorised building. I take that as one example.
The individual concerned will then be served with a notice telling him that this is an unauthorised building and he must alter it, demolish it, remove it, or something else. At that stage the notice ought to be served on him. There is provision made in the Bill for the serving of notice in a certain way, in a paper circulating in the district. I shall have something to say about that at a later stage. The Minister has referred to things that may not happen. The previous subsection provides that:
Where the Minister is satisfied that reasonable grounds exist for dispensing with the serving or giving under this Act or under any order or regulation made thereunder of a notice or copy of an order, he may dispense with the serving or giving of the notice or copy and every such dispensation shall have effect according to the tenor thereof.
The following subsection says:
A dispensation under the foregoing subsection may be given either before or after the time when the notice or copy would, but for the dispensation, be required to be given and either before or after the doing of any act to which the notice or copy would, but for the dispensation, be a condition precedent.
My argument is that notice must be given, and before. I am concerned for the fact that even one individual might find himself, because of the failure of someone to serve this notice on him, suffering a loss. The Minister says my fears may be groundless. But this could happen. It may not happen. I hope it will not happen. When we legislate here we should provide for the type of case I have mentioned and it should not be open to an official to say at a later stage that he forgot to serve notice, or failed to serve notice for some reason, on the individual concerned and that he should then be in a position to seek the Minister's dispensation after the event.
I think I have good grounds for asking the Minister to have another look at this. I cannot accept that, because something did not happen under the 1934 and 1939 Acts, it will not happen under this Bill when it becomes law. Under the earlier Acts there was no obligation, but the Minister is ensuring that this Bill will be implemented and will be adopted. He will ensure that local authorities will make a plan. They will have no choice in the matter. The section, as it stands, will come into operation. I believe it is only reasonable that officials who have an obligation imposed on them to serve notice should serve that notice. I believe there should be no loophole to enable them to say that, through a technicality, notice was not served, and then seeking the Minister's dispensation for non-service after the event.
Many difficulties have arisen from time to time because the person on whom it was desired to serve notice could not be found. Many developments have been held up and many wrongs have been perpetrated. It was impossible to right these wrongs because of the impossibility of serving notice. I appeal to the Minister, however, to find another way out of this difficulty other than by writing into the subsection the words "either before or after". I am sure there must be another way of overcoming the difficulties Deputy Jones feels might arise under this subsection.
On the section, is it not a very grave thing when, dealing with property rights and laying down statutory conditions to protect these rights, you come to the kind of case to which Deputy Clinton has referred and under subsection (5) invest the Minister with a very exceptional and special power to be exercised only under his personal supervision to dispense with the service of notice when, in fact, service has proved impossible, and where a whole scheme is being held up because the local authority and the Department have come face to face with a problem that no amount of ingenuity can surmount? I think we should be very slow ordinarily to adopt subsection (5), but I think the Minister can make a case for it.
Experience has taught us that a situation can arise in which you simply cannot get a job done unless this exceptional power exists. Suppose we go so far with him and say: "Very well, if that is absolutely essential, but strictly subject to the conditions that it is a matter to which the Minister will give his personal attention before exercising his discretion, we are prepared to go so far in the abridgment of property rights". But is it not an immense step to ask us to say that, suppose somebody slips up and forgets to give notice that should have been given, and this slip up is pleaded by someone who belives his property right is gravely prejudiced by his failure to receive notice, the Minister should have power ex post facto to say: “I admit you are gravely prejudiced, and I admit failure to serve notice was not as a result of impossibility but of understandable oversight, and I propose to dispense with service retrospectively and sign an order accordingly”? Immediately the aggrieved person's case for relief falls to the ground because suddenly, by an executive order, the ground of appeal has been swept away ex post facto.
Surely that is an immense step to ask the Legislature to take? I think these slips-up do not take place all that often and it is not unreasonable to say that, if they do take place, you had better go back to the beginning and start all over again. If we do not adopt that rigid line the Minister will find he has forged a weapon for his own undoing. If any administrative machine, however excellent, is fixed with notice that there is really no need to be all that careful and, if anybody slips up the Minister will sign an order under subsection (5), it will be extremely difficult to ensure reasonable and proper precautions are taken to see that everyone entitled to receive notification will get it.
I do not think it is an unreasonable sanction to maintain, in respect of private property rights, that if a Government Department has not done what it is bound by statute to do, that Department must be answerable to Parliament for that default. What would happen is that if a default arose in this particular instance, a Deputy representing the constituency would ask the Minister the reason for the delay and the reason why the job was not being done, and the Minister would be under the embarrassing obligation of coming in here and saying someone slipped up and did not notify the person entitled to notification and "I am sorry to say we shall have to start all over again and there will be a delay of three or four months". If the Minister is constrained to do that once or twice, if I have any knowledge of the working of Government Departments, it is highly unlikely he will be constrained to do it a third time, because heads will fall in every direction, and it is a salutary thing that they should fall. The administration of Government Departments is a complex and difficult thing but their glory is that they are administered with scrupulous care. There is a long tradition, especially in the matter of private property where they are required to proceed with special care.
Suppose a situation does arise in which the Minister will be challenged in the House about the delay and his officers say: "Of course, Minister, if you sign this order, you can go into the House and say everything is lovely in the garden and you can go straight ahead" or if the order is not signed, they may say: "You had better tell them you slipped up and the thing will have to start all over again." Cross his heart and hope to die, what Minister out of nine or ten Ministers would not have signed an order under subsection (6)? From such an order there does not appear to be any appeal at all. The only person who could shout is the person who has a sense of grievance and apparently his only remedy is to write a letter to the Evening Press or Evening Herald.
The Minister should acknowledge that if Deputies give consent to subsection (5), they should not be asked to go the distance of subsection (6). I do not want to be associated with a proposal to give retroactive effect to an order of dispensation such as that envisaged in subsections (5) and (6) and I do not think the Minister should ask us to do it. If the Minister says this power existed before, I must say at once I have not the faintest notion whether it did or not. If it did, it should not have been there. We should not have put it there. If no difficulty has arisen, I think that is very largely due to the reason mentioned by Deputy Jones, that the Planning Acts have not functioned because if they had, there would be no necessity for a Planning Bill in 1963, and it is notorious that they have not. Does the Minister feel that subsection (6) is a subsection without which it is impossible to administer the Act?
Despite precedent, I have no wish to have in any Bill a provision which would tend to encourage negligence, or anything akin to negligence, on the part of officers of my Department, any other Department or of any local authority. If you leave a way out, whatever may be the good reason for it, there is always the suspicion that, if there is a slip-up, it was encouraged by the let-out that was there. Having said that, may I point out that I shall give further consideration to this matter between now and the Report Stage in order to provide something to the effect that the dispensation shall not be given unless the Minister is satisfied that no injury was suffered or wrong done to the person on whom the notice should have been served?
Would that be retroactive?
Yes. I shall have a look at the matter.
I think that goes a long way to meet the case.
I am glad the Minister intends to look at it. Might I draw his attention to the fact that in Section 7 (1) (d) there is reference to the affixing of this notice in a conspicuous position "on or near such land or premises". We know in the country that would not be a very permanent fixture and it might be a question of "Gone with the Wind" or perhaps young people going home might take a fancy to it and take it off at the first go.
The court is always concerned to see that justice is done as between citizens of the State and very often notices would be inserted in the Press where a person was last known to have lived, for instance, in places like Manchester and so on. I just want to direct the Minister's attention to that for consideration between now and the next Stage of the Bill. He has gone part of the way to meet us in this matter and we are grateful for that approach. All we are trying to do in these amendments is to obtain a measure which, with co-operation from all sides of the House, will be a workable and acceptable measure to everybody.
I move amendment No. 42:
In subsection (1), page 11, line 31, after "area" to insert "affected by this Act".
Section 8 (1) provides:
(1) A planning authority shall keep a register (in this Act referred to as the register) for the purposes of this Act in respect of all land within their area, and shall make all such entries and corrections therein as may from time to time be appropriate in accordance with this Act and any regulations made thereunder.
We have had a discussion on the area which would fall to be administered by a planning authority. For instance, in regard to the city of Dublin and the borough of Dún Laoghaire, there might be one planning authority. The city and county of Limerick, considering that the areas run into each other, might have one planning authority. It could be equally so in regard to Cork borough and the county of Cork. What we want to ensure by this amendment is that the area which is being defined in Section 8 shall be the area which is controlled by the planning authority, where that planning authority is the planning authority for one or more administrative areas.
The Minister spoke earlier of the necessity for this type of co-operation as between two contiguous areas and I am sure it is a desirable thing that the development and planning of such an area should be done by the one planning authority. The power is there under the Act, as we envisage it at present, where there can be one planning consultant to deal perhaps with two areas, so co-ordinating his plan as to apply the development envisaged in it to two areas, the area, for instance, falling under the control of Limerick Corporation and the area under the control of Limerick County Council. We want to ensure by this amendment that the planning authority for Limerick county will be the elected members of Limerick County Council and the planning authority for Limerick city will be Limerick Corporation. The plan must be adopted by the planning authority. We do not want a single consultant to incorporate in a plan covering two areas something that has not the approval of the authority in one area. It should ensure that the area controlled by the planning authority qua local authority is the area dealt with. I invite the Minister's comments on that.
Try as I may, I cannot see the purpose of the amendment. Neither can I see that it in any way lessens that which is intended in the section as it stands. If the Deputy feels as he has stated, there is no good reason why I should not accept his amendment, although I do not see how it improves the situation he has in mind.
I move amendment No. 43:
To delete subsection (4) and substitute the following subsection:
"(4) (a) A document purporting to be a copy of an entry in the register and to be certified by an officer of the planning authority as a correct copy shall be prima facie evidence of the entry and it shall not be necessary to prove the signature of such officer or that he was in fact such officer.
(b) Evidence of an entry in the register may be given by production of a copy thereof certified pursuant to this subsection and it shall not be necessary to produce the register itself.
(c) Where application is made to a planning authority for a copy under this section, the copy shall be issued to the applicant on payment by him to the planning authority of a fee of ten shillings in respect of each entry."
The amendment, although it seems substantial, merely provides that the register kept in local authority headquarters of permissions granted under the Act, will not have to be produced in court as evidence and that if a certified copy of the relevant extract is produced in court, it may be accepted as a proper record. We do not want to be carrying around this register which will probably become a bulky affair and, secondly, it is required to be available for public inspection and it could not be where it should be if it were being taken around to courts. Instead, we are providing that a copy of an extract from it, certified, probably by the manager or the planning officer, shall be prima facie evidence.
That is reasonable.
I take it this register will contain maps or sketches of the area covered by the entry?
Subsection (2) of the section says it must incorporate them.
When somebody requires an extract from the register, I think the fee of 10/- is rather high, if that person wants to know if his property is affected or wants a document to confirm that it is affected. I want to draw the Minister's attention to the fact that in these days tracings or drawings should be available to the applicant if a 10/- fee is being charged. There is no reason why a photostatic copy should not be supplied. A document describing a piece of land bounded by A or B does not convey the same information as a photostatic copy of a sketch plan or map. Such documentation will be much more valuable if accompanied by a photostatic copy of the relevant map.
It is common practice now in local authorities to have photostatic facilities which are used to produce matter for official use or for the use of members. Therefore, it is only reasonable to assume such a copy would be available from the register it is proposed to establish. It should be something which would convey to the individual looking at it the boundaries of the property he owns and which is affected by the development plan.
Secondly, it can conceivably happen in small towns and villages that people do not know the limits of their property. The Minister has mentioned this frequent difficulty, and I know from my own experience of people who could not point out their own boundaries. If the local authority go to the trouble of making sketch plans covering property under the authority, these sketch plans are valuable documents and should be available to the citizens whose property is affected at a reasonable fee. The fee of 10/- for an ordinary written statement is much too high but 10/- where a photostatic copy of a map or sketch delineating the property is supplied, is reasonable.
Deputy Jones probably expects this register to be more comprehensive than is intended when he talks about the difficult problems of people in many cases not being able to point out the limits of their own property. I know that difficulty exists. I am afraid this register will not be of any assistance to them, because it will not purport to be a register of property with sketches attached. It will be a register of applications for planning permission, together with the actual decision, adverse or otherwise, reached on them. It will be kept so that interested parties may be informed of what is being sought, granted or refused.
Surely the Minister must be making a mistake? Would he look at subsection (2)?
It says:
The register shall incorporate a map for enabling a person to trace any entry in the register.
Is that like an index?
Yes, somewhat. The register will be restricted to giving public information on what decisions have been taken on applications made for planning permission. It is not a register of property as such. We may be confusing it with the map accompanying the draft plan which may indicate regions for this purpose or that purpose. It will be an index in which people such as county councillors or urban councillors can see what has been decided and how it has been decided. It should be of great assistance to them. If they have strong views about it, or their neighbours have strong views about it, they can convey to them that such a decision was made on such a date and that something should be done to prevent its going through. This register is to enable the appeals procedure to function within the time limit of 30 days.
In addition to the register, we hope by way of regulation that it may be possible to find some other way of disseminating the information contained in the register over a more widely dispersed area than the headquarters of the county council or urban council. We are trying to find ways of making this information more readily accessible to members of the general public who may have a particular interest in it. However, we are dealing only with the register on this section.
The map mentioned in subsection (2) is only the sketch map dealing with the proposed development for which planning permission was sought. It would not necessarily delineate the adjoining property.
As far as the 10/- is concerned, we believe that only persons with a real interest in what has been decided will apply for an actual copy of the decision, together with any appropriate sketches. If it is worth their while to apply at all, they will be getting very good value by paying 10/- for it. I do not think it is an unreasonable figure, in view of the cost of services of any kind these days. I do not think the 10/- will be an obstacle if they are interested enough to apply.
What does the Minister envisage the applicant would get for the 10/-, somebody in the area who would be affected by the planning?
He would get the entry in the register, which would outline in brief terms the decision reached on an application received, and he would probably get a little site or location map.
That is what I wanted.
If there has to be a little site map to make what is in the register intelligible, I think he must also get whatever it is necessary to have with the register.
I agree that where a person is going to get something more than a written document—some kind of little sketch map or plan that will indicate to him more clearly than the written document the information he requires—the 10/- would not be exorbitant. I was thinking in terms of a written document which would indicate a particular entry from the register without conveying the information graphically.
Except for some specified legal purpose or for the sale of land, he need not have this at all. He can go in and see the register for nothing. If he wants the documentation however, we say he should pay 10/-.
That is what I have in mind. There will be people disposing of property which will be affected by planning.
It would arise very much in that case. It could be of real use and value to such a person.
I agree. It would make the Bill more workable.
I move amendment No. 44:
In subsection (1), page 11, lines 52 and 54, and in page 12, lines 2 and 6, to delete "or other land" where they occur in those lines.
Subsection (1) of this section states:
A planning authority may, for any purpose arising in relation to their functions under this Act, by notice in writing require the occupier of any structure or other land or any person receiving, whether for himself or for another, rent out of any structure or other land to state in writing to such authority, within a specified time not less than fourteen days after being so required, particulars of the estate, interests, or right by virtue of which he occupies such structure or other land or receives such rent (as the case may be), and the name and address, and the estate, interest, or right (so far as they are known to him) of every person who to his knowledge has any estate or interest in or right over or in respect of such structure or other land.
The purpose of this amendment is to delete the words "or other land." I should like to direct the attention of the Minister and the House to a type of title not uncommon in Ireland which has come to be known as squatter's title.