Dáil Éireann debate -
Thursday, 16 May 1963

Vol. 202 No. 12

Committee on Finance. - Local Government (Planning and Development) Bill, 1962—Committee Stage (Resumed).

Debate resumed on the following amendment:

SECTION 3.

In subsection (2), page 9, line 9, after "objects" to insert "save such as belong to the owner of the land and are used by him or any member of his family otherwise than for the purpose of gain or profit".

—(Deputy Jones.)

Mr. Jones

Before reporting progress on the last day, I was dealing with Section 3, with particular reference to subsection (2) (b) (i). I pointed out that the growth of caravanning in this country had been rapid and widespread and that a great many families nowadays use caravans. Some families use their own caravans but a business has developed in the leasing or letting of caravans. Some of these caravans are based at seaside resorts. Others are available for touring purposes.

As the section stands, subsection (2) (b) (i) reads:

For the purposes of subsection (1) of this section and without prejudice to the generality thereof—

(b) where land becomes used for any of the following purposes:

(i) the placing or keeping of any vans, tents or other objects, whether or not moveable and whether or not collapsible, for the purpose of caravanning or camping or the sale of goods,

the use of the land shall be taken as having materially changed.

That would mean that such use of the land would come within the terms of development, requiring the permission of the planning authority when this Bill becomes law.

Our amendment seeks to preserve the rights of individuals to use their property for their own purposes and to keep a caravan for their own purposes. Therefore, we have suggested that after the word "objects" in that part of the section there should be inserted:

"save such as belong to the owner of the land and are used by him or any member of his family otherwise than for the purpose of gain or profit".

I can readily understand that it is desirable, indeed necessary, that there should be control in regard to the disposal of caravans but I believe that the section goes too far and that the individual who owns a caravan and places it on his land, say, during the winter or at any other time, when not using it, would find he would have to obtain the permission of somebody to keep his own property on his own site.

Equally, the generality of the subsection would preclude him from permitting a brother or other relative of his who would wish to spend the night or a few nights, or any short period of time, with him, to park his caravan on his site. Here we are imposing on the individual the obligation to apply to the planning authority at that stage for permission to do these things. This is a most unreasonable generality to include.

If the Minister accepts the amendment, he will strengthen the section and at the same time provide for the right of the individual in the circumstances I have mentioned to keep his own caravan or to allow a relative to use his property for the purpose of keeping a caravan for a short period of time. We do not seek any lessening of control where there is any question of gain or profit. The amendment is confined in terms to cases such as I have mentioned. I would suggest that the Minister ought to accept the amendment as being not only desirable but necessary if there is to be respect for this planning Bill.

Minister for Local Government (Mr. Blaney)

I can appreciate the thought in the mind of Deputy Jones in approaching this matter as he has but at the same time I feel that he has not taken into consideration the situation that would arise if his amendment were accepted. The situation would then be that effective control of this type of use, or abuse, would be nonexistent, inasmuch as it would be possible for any person to buy a few perches of land anywhere, in one of our beauty spots or elsewhere, and as a registered owner of that land, in conformity with the terms of the section as they would be if the amendment were accepted, would be entitled to keep his or her caravan on those few perches of land, regardless of the controls in any other direction.

In addition, the situation could also develop, if the amendment were accepted, that all sorts of unsightly objects could be placed on land and left there indefinitely on the pretext that they belonged to the owner of the land. I know that is something that Deputy Jones and the other Deputies are not advocating and would not wish to see. That is, roughly, the other side of the picture of what could arise if the amendment were accepted.

Deputy Jones has outlined the difficulties and what would appear to him to be the unreasonableness of the situation if the amendment is not accepted. What I feel about it is that the amendment should not be accepted and that, in order to cover the type of genuine situation described by Deputy Jones, the owner, his relative, his friend or his family could be catered for in those genuine circumstances by exemptions which it will be possible for the Minister for Local Government to make by way of regulation. In fact, we have a brief outline ourselves so far, but it is not really final, of what these regulations in regard to exemptions may be.

We propose to exempt by way of regulation the placing, keeping, or storing of a single caravan, provided the caravan is not used for the sale of goods or for the purpose of any business undertaking. That is just one part of it. We also propose by way of regulation to exempt the use of land for the purpose of camping for not more than 21 days in any calendar year, provided the land is not used for the sale of goods or other business purposes and further, for what use it may be, in those circumstances we would also exempt the use of land as a caravan site, of course, if it were approved by the sanitary authority in accordance with the general conditions.

With a little further elaboration, which I shall be quite happy to apply if we can find a formula by which to do it, I feel that the first two proposed exemptions would cover the genuine cases and that we would retain the law as we propose in the section, without the amendment, so that we do catch those who are not entitled, who have no genuine, good case and who would merely be abusing the situation if we were to accept the amendment.

That is the way in which we have tried to do it. If we accept the amendment, it will be too general; there will be abuses; and it just would not give us the effective control that is desirable. So we are looking for greater control in these circumstances and where genuine reasons and genuine cases exist such as outlined by Deputy Jones, we exempt those under the regulations which the Minister will be empowered to make. In that way, we can have the best of both worlds.

Mr. Jones

I appreciate the Minister's approach and I can see the force of what he has said. The regulations the Minister will make will go a long way to meet the point of view we have been putting forward. Perhaps the Minister would inform us, too, how he proposes to deal with the caravan that moves about the country: these people have no permanent abode and they move from place to place and park their caravans for a night or two, or perhaps a week, or a couple of weeks. Possibly this matter has come under consideration by the Commission dealing with the problem of itinerants, but will this section cover that type of caravanner? Will the local authority have power to direct these people as to where they can park or prohibit them from parking altogether perhaps? There are a great many people who remain permanently in winter quarters and then move out in the spring and summer. What about the circus and the travelling show? Are they covered? Road shows and circuses are very popular in the country. Sometimes they spend a week, or more, under canvas in a field. How does the Minister propose to deal with that situation? Will these people have to apply in every case to the local authority for permission? I should like the public to be aware of the situation in regard to them.

Mr. Blaney

In the preliminary regulations, the intention is to exempt temporary structures. That exemption would cover all these movable, collapsible and other types of structure erected not less than 50 feet from any road and connected with some sporting or recreational activity and retained in a particular area for not more than 14 days in any calendar year. If there are any suggestions in relation to either elaboration or construction of that preliminary regulation, we will be quite happy to hear them, but this is the manner in which we hope to cope with the situation outlined by the Deputy.

Mr. T. Lynch

There are a great many people, as the Minister knows, who go around the country, staying in a place for just one or two nights. I am referring to itinerants. They devastate the piece of ground on which they camp. They leave an insanitary, unsightly and dangerous mess of bottles and so on behind them. I do not want to be too hard on these people but I do not see why they should not keep the law as well as anyone else. I am under the impression that county councils have apparently no powers because they never do anything. Have we any powers? If we have not, is it the intention in this Bill to cover the situation I mentioned?

Mr. Blaney

So far as the roadside lands, margins and verges are concerned, these are the property of the local authority. Under the 1948 Sanitary Services Act, the sanitary authority has power to control any such objectionable use of their property. The situation is already covered. There is, of course, the fact that the Commission has not yet reported and it is possible that local authorities are awaiting that report before they take positive action. That may explain the laxity in some areas and I think there is laxity.

There is, of course, the caravanner who moves around from area to area, spending a couple of days in each area, He could be a workman of a specialised type. We hope to exempt such people.

Mr. Jones

A pump sinker.

Mr. Blaney

Exactly.

Mr. T. Lynch

I am grateful for the Minister's explanation. I am not being tough on the itinerants but I am sure the Minister has had the same experience as I have had. I have been deluged from time to time with complaints from small and big farmers about the appalling damage done by certain of these people and the shocking condition in which they leave the places where they camp. The farmer dare not do anything. I was under the impression the local authority had no power. I am glad to hear it has.

There are quite a number of very decent people who travel around, horse trading, or dealing in one thing or another. They are not all black sheep, but the majority are, I am sorry to say. There are people who travel around in caravans who work on farms, and so on. There are workers who work for contractors and who live in caravans in order to be near the site of their operations. I am glad the Minister is providing for these. I should not like to think anything we do here might bear too heavily on people securing a livelihood.

Mr. Jones

In view of the Minister's assurance with regard to exempted types, I withdraw my amendment.

Amendment, by leave, withdrawn.

Mr. Jones

I move amendment No. 28:

In subsection (2), page 9, to delete line 16, and substitute "such use shall be prima facie evidence of a material change”.

A cardinal principle of justice has always been that a person shall be adjudged innocent until proved guilty. The fact that something may happen which may appear to be a transgressing of this section ought not be taken as being a transgression without giving the person involved an opportunity, if he so wishes, of appealing on any ground by way of setting out that he does not consider that what he has done is a material change in the use of the land. The fact that somebody on the planning staff says that the use of the land has been materially changed is the opinion of an individual as against that of the person who is affected by the decision. It would be much fairer to say that it shall be regarded as prima facie evidence of a change and to give the person the right to appeal if he feels aggrieved in regard to it.

Mr. Blaney

The purpose of the amendment is undoubtedly to give protection to the owner of property and with that we cannot disagree. At the same time, the amendment would bring about uncertainty where we want to avoid it, if at all possible. The Deputy said he would like to uphold the principle that until a person is proved guilty, he is assumed to be innocent. On the other hand, the fact that he may be accused of committing an offence does not in itself imply that he is guilty. There is that difference of approach in regard to this matter. That may not have been clearly understood to be the case but that is the case and would be the case in any such circumstances as these. The mere suggestion that the man is responsible because he is the owner of the land does not copper-fasten his guilt. The matter must be gone into and if it can be shown by the landowner that he had no hand, act or part in the transgression, he will not have committed any offence and therefore will not suffer any penalty.

Mr. Jones

Are we then transferring the onus of proof from the authority to the individual? Are we providing that the individual must prove his innocence rather than that somebody should prove that he has broken any regulations which may be made under this section?

Mr. Blaney

That is not the intention of the subsection at all. The subsection is there for the purpose of defining the change of user.

Amendment, by leave, withdrawn.

Mr. Jones

I move amendment No. 29:

To delete subsection (3).

The subsection reads:

For the avoidance of doubt it is hereby declared that for the purposes of this section the use as two or more dwellings of any structure previously used as a single dwelling involves a material change in the use of the structure and of each part thereof which is so used.

The Minister is well aware, as a rural Deputy, that in this country when it comes to the time for the father of a family, the owner of property, and his wife to make what is known as a family settlement, generally a document is drawn up which preserves the right of the old people to have a room or rooms in that home set aside for themselves as a separate entity and they retain that right to themselves. The young couple and the old couple then have two separate residences within the same building and they may even have separate entrances to such a building. Indeed it is not so long since a case which originated not far from my own constituency, an action for breach of covenant in regard to one of these family settlements, was decided in the courts in that fashion.

When we legislate here, we are legislating for the generality of cases. The Minister is thinking in terms of buildings which might be used as flats though, in the ordinary way, there could be a situation where a large house might be divided between two people of the same family and one structure might then become two dwellings instead of one. That would contravene subsection (3) and the local authority would have to decide whether it could be permitted under the code we are now seeking to enact. I suggest to the Minister that the subsection is unreasonable because it does not make provision for the type of case I have outlined.

Mr. Treacy

I support Deputy Jones in his contention and I would ask the Minister to have regard to the sentiments he has expressed. As I understand the Bill, the conversion of a single dwelling into flats is directly controlled but the provision, say, in a house which has already two or three flats of a larger number of smaller flats or bed-sitting rooms is not controlled. That is a serious defect in this measure and I would ask the Minister to accept this amendment so as to ensure that the use of a house is not restricted in the matter of providing extra accommodation by way of flatlets or otherwise.

It seems we are placing the owner of a single house in an invidious position vis-à-vis the owner of a house which comprises a number of flatlets and I would ask the Minister instead of allowing the words “as a single dwelling” to stand, to agree to the insertion of an amendment such as “as a lesser number of dwellings”. That, I believe, would be an adequate safeguard for the people we have in mind.

Mr. Clinton

I am concerned about the position of so many families that I know to be living together in County Dublin and it is very important that this section should be clarified. If a person owning a house takes in a member of the family who gets married, does the house then become two dwellings without any reconstruction taking place?

Mr. Blaney

No.

Mr. Clinton

If somebody owninga house gets some business or agency and decides to set apart a room or two in the house as offices, does it then come within the section? Is it a change of use, even though this is all happening within his own home or dwelling?

Mr. Blaney

It is.

Mr. Clinton

That is a pretty serious interference with ownership of private property.

Mr. Blaney

We shall be dealing with change of use later but to answer the Deputy, what he says would constitute a change of use. As regards Deputy Treacy's point regarding the conversion of a number of flats in an existing house into flatlets or bed-sitting rooms thereby causing a multiplication of dwellings, that is in fact now covered. Amendment No. 17 related to a structure or part of a structure and it covers what Deputy Treacy referred to. The multiplication of dwellings within existing flats cannot be allowed to take place without the appropriate permission, if everything else is in order.

In regard to this amendment and what Deputy Jones said, the position is that this subsection has been put in to avoid any doubt. The principle involved in this subsection is already incorporated, so far as I am aware without any real objection, in Section 11 of the 1948 Housing Act. It is something we must have. I can quite see Deputy Jones's point as regards family settlements and arrangements and I agree fully with him on that but we must have control of the creation of flats and there is a general tendency at the moment to create flats. There is nothing wrong with that, provided they are created in such a way as to conform to the building by-laws, the sanitary regulations and the planning laws. We cannot have a position that will lessen the certainty that flat creation will have planning control

Undoubtedly these exceptional cases mentioned by Deputy Jones would also be covered but it is possible for us, and indeed it would be our wish, if no alternative offers, to include these cases as exemptions in regulations which we also propose to make under powers taken in earlier sections of the Bill. We may find that that is the only way of dealing with these cases where family settlements are involved, where legal documents are, or are about to be, drawn up, and where serious repercussions would ensue if they could not be proceeded with. If necessary, the regulations will provide for exemption of that type in the case of the creation of two or three dwellings in an existing structure which in the ordinary way would have to be subject to planning permission.

Even if cases must come for planning permission it does not follow that they must be refused. Only the odd case would have to be refused. Therefore the number of exemptions would be very small. Even if we never had the section and merely operated on the reconstruction grants code in regard to the provision of flats in existing houses, wherever planning has been in operation, my Department, and I think all Departments making grants for purposes of this kind, require planning permission documents to be submitted with the application before it is seriously considered.

That in itself would require planning permission where planning operates but under this Bill planning permission will have to be got, no matter in what area the applicant is in future. Every area will have planning control in operation and therefore the Departments would insist on planning permission being furnished with the grant application. I would certainly be prepared to take any steps open to me to provide for exceptional cases in which family arrangements might be upset to an undesirable degree and such provision could be made by way of regulation exempting certain categories of alteration consequent on family settlement and the drawing of a legal document which exists or is to come into existence in the future.

The overall reason for this provision is—and I think the House will agree—that it is absolutely essential that we should have control of the creation of flats where that is taking place to prevent the multiplication instanced by Deputy Treacy of undesirably small, cramped and insanitary types of dwelling eventually leading to the return of tenements. If the provision impinges on the rights of individuals, I am prepared to deal with genuine cases of that kind by way of exemption. If there is no other way, I am prepared to make such exemption by regulation in the type of hardship cases Deputy Jones has outlined.

Mr. T. Lynch

It is common in seaside places—and there are many seaside places in Donegal—that people let rooms. Sometimes when they have their families reared and have a few rooms vacant, they let these rooms. It is not like the creation of flats. But under this Bill they would be creating two dwellings because it would involve a material change. I do not think these people should be deprived of the right of making up their minds, if there is an influx of visitors in July, to let rooms, if they wish. Under the Bill they would have to apply to the local authority. They would have to be inspected, and goodness knows when they could let the rooms. The Minister would be leaving people out in the street.

There is also the case of people who let rooms to young married couples. There is no structural alteration of the house. I know the Minister has control where people apply for reconstruction grants to make four or five self-contained flats. That is good. But where there is a structural change and where people want to let one or two rooms, they will not be allowed to do so under this Bill. The Minister should either deal with this matter by regulation or accept Deputy Jones's amendment.

Mr. Dillon

I believe we are all in agreement that the purpose of this subsection is to prevent the multiplication of flats in one building. Consequently, that is something to which the planning authority are entitled to have regard. But there is the danger that in trying to do a good thing, we are in fact doing far more than we mean to do. If you read subsection (3), it can be read to mean that nobody can take a paying guest hereafter without reference to the planning authority. I do not think the Minister intends or wants to do that.

There are many people in this country whose circumstances deteriorate. An elderly lady takes in another lady. The neighbours never inquire whether the lady has come in as a companion or as a paying guest. It would be a possible cause of embarrassment to the old lady in question to reveal that her circumstances were now such that she had to take a paying guest. There are many people who take a lodger. It is a very good thing to do. I am continually thundering up and down the roads of Monaghan, urging the people in Monaghan, now that we have improved the fishing amenities here, there and everywhere, to receive a guest in their house for the fishing season, pointing out to them it is a very desirable and beneficial source of supplementary income. I suggest to the Minister that certainly in regard to the first class of persons, it could be said that the introduction of a paying guest on a quasi-permanent basis was substantially the conversion of one dwelling into two dwellings. I do not think we want to have that.

The case raised by Deputy Jones is well known to all of us familiar with rural Ireland. To anyone not familiar with rural Ireland, I recommend Arensberg's book, The Irish Countryman. I commend it to the Minister and to all those associated with him as a very valuable sociological study of rural Ireland. Arensberg refers to the well-established custom in Irish rural society of the west room, a custom to which Deputy Jones also referred. When the old people resolve to hand over the place to the son on the occasion of his marriage, they ordinarily retire to a room. Sometimes there is a written agreement; sometimes there is not. The room to which they ordinarily retire is traditionally in the west end of the house. I do not believe anybody in Dáil Éireann wants to interfere in the intimate domestic affairs of any family in rural Ireland and ask them on such an occasion to repair to the county council's offices and say: “We are going into the west room now and Tom is taking over.” As the Minister fully appreciates, these are very intimate family arrangements that are not freely discussed in rural society. I do not want to make the case for a moment that I think the Minister is trying to poke his nose into the intimate affairs of rural Ireland. In fact, I am quite satisfied from the course of our discussion that we have a common purpose here.

I want to make a concrete suggestion to the Minister. Would it carry us too far if we confined the proposal to operate in cities and towns? You do not have the multiplication of flats outside cities and towns. But the problem is there in even relatively small cities. I am bound to admit, however, I do not think the exclusion of areas outside cities and towns would meet the case of the paying guest. If the Minister accepts we are all agreed we do not want to interfere with the family settlements associated with what Arensberg calls the west room, that we do not want to restrict a person in taking a paying guest and that our sole purpose is to prevent the conversion of individual dwellings into flats, or two flats into four or five flats, without the prior consent of the planning authority, I am sure between now and Report Stage the Minister could find some device to give effect to our common purpose. I should be glad if the Minister would say (1) whether he shares with us our anxiety not to interfere with what I shall call the west room, and (2) that he does not intend to place any restriction on the practice of taking a paying guest.

Mr. Corish

I think this subsection is an excellent one. Frankly, I do not entertain the same fears as Deputy Dillon. I can appreciate his fears, but it seems to me this subsection does nothing to support him. I cannot see anything in it which will prevent anybody from taking in a lodger.

Mr. Dillon

Why?

Mr. Corish

I should ask the same question of the Deputy—why?

Mr. Dillon

Because it is no longer being used as a single dwelling.

Mr. Corish

A single dwelling would be in the nature of what is represented to be a self-contained flat. One takes in a lodger who is treated as one of the family and who has access to all the amenities of the dwelling. It is still a single dwelling. The Minister is trying to prevent the indiscriminate setting up of what are described as self-contained flats. Frankly, I admit these are confined mainly to the cities and towns. But I do not see how these people who fish in Monaghan or on the Slaney and who want to lodge in houses can be prevented from doing so.

Mr. Dillon

What about the west room?

Mr. Corish

I never heard that expression before. Is it a room of the existing house or a room that may be built on to it?

Mr. Dillon

A room in the existing house, cut off from the rest for the old people.

Mr. Corish

If it is cut off, the Minister and his advisers, not under this piece of legislation perhaps, should endeavour to ensure that the ordinary amenities will be available in the west room, that part of the house referred to by Deputy Dillon. The Minister should endeavour to provide that sanitation and the other amenities will be provided. This is the first time I have heard the expression "the west room", but if my wife and I or Deputy Dillon and his wife, are to be confined to the west room, surely we will be given the run of the house as well.

My purpose in speaking on this section is to try to make the provision more watertight. The subsection says:

For the avoidance of doubt it is hereby declared that for the purposes of this section the use as two or more dwellings of any structure previously used as a single dwelling involves a material change in the use of the structure and of each part thereof which is so used.

The Minister has not covered a house which on the date of the coming into operation of the Act has been used as a two or three-dwelling, so that legally one who has used a house as a two or three or a six or seven-dwelling is not covered by this section. I should like to have the Minister's comments on that. I hope that if he thinks it necessary, he will introduce an amendment to cover this point.

Mr. Clinton

The Minister has already indicated his willingness to accept a legal document when it can be produced in a family settlement. I am concerned here about cases where families make such settlements without legal documents and I should like to hear the Minister say that such cases are safeguarded.

Mr. Blaney

I was probably too limited in my outlook when I referred to legal documents. I was really referring to what the legal position would be rather than cencentrating on the actual production of a document. It is the circumstances I am concerned about rather than the method. A certain number of the fears expressed here are groundless. As I have already said, and as Deputy Corish said, the subsection is provided so as to avoid any doubt, or at least to lessen doubts that might exist as to what is covered. All that we have talked about is already covered by the section or in the various other sections.

In so far as the lodger is concerned, the taking in of paying guests and the use of country houses for that purpose is a development I am all for. It is one which has been a practice in my own county for many years, one which I hope will spread and which I believe is in fact spreading. It can be of very great assistance in supplementing the incomes of small farmers in particular through a build-up of the tourist trade. In Donegal, we knew this practice years ago, long before there was this great talk about tourism, and I am glad to see that County Monaghan, among others, has made great strides in this direction.

There is no question whatever that the taking in of lodgers or paying guests in the country or elsewhere will in any way conflict with what the House feels should be done through the medium of this Bill. Whether they are termed lodgers or guests, whether they are paying or not, is immaterial. The fact that they are in a house will not materially change the user of the house, will not create an additional dwelling within the house and therefore will not be caught in any way under this legislation. It is my wish that those situations should be not only outside the scope of the section but that every possible encouragement should be given to this type of enterprise throughout the country.

Deputy Corish mentioned that on the date of the coming into operation of the Bill any house being used as more than one dwelling would not be caught under the terms of this section. Possibly before the Deputy came in, while still speaking on this section, I mentioned that amendment No. 17, accepted by the House, would bring about a change, making it absolutely clear that such cases as he envisaged would be caught. The section refers to "Structure or part of structure". That ties in any or all existing multiple dwellings or dwellings which it might be proposed to convert into such structures in the future. They will be in the same category as a single dwelling in so far as this provision is concerned. The Deputy need not have qualms in that regard.

Deputy Dillon suggested confining this provision to the cities. By and large, that would meet the case but there are important exceptions. For instance, if we were to try to do something like that in the city of Dublin, we would have to have some predetermined limits in order to recognise where it would or would not apply. If we took the city boundary as a limit, we would have a great part of suburban Dublin in which this type of development would be just as objectionable as it would be inside the boundary. We would free those people from these obligations and enable suburban Dublin to become what I might call tenemented by the multiplication of homes within homes. Therefore Deputy Dillon's suggestion, which seemed to meet the vast majority of cases, would be objectionable in that respect.

Cork is another example where the perimeter is rather restricted. Over the city boundary there, they have quite a lot of building. It would be impossible to define Cork city other than by reference to the existing boundary. If we were to adopt the suggestion, therefore, we would be leaving ourselves open to the type of abuse to which I have referred on the perimeter of a city, but outside the boundary, where they would not be caught by this section. While I shall certainly have a further look at this between now and Report Stage, I do not hold any great hope for the implementation of this suggestion. In the meantime, I can assure the House that if there are any genuine cases where hardship would be created through the operation of the provisions of this section, they will be considered.

That power can be used if we find some cases which should not be caught. I intend to utilise that power to make regulations exempting such cases as have been outlined by Deputies, and any others that may occur to a Deputy now or at a later stage. The House need have no fear that we are putting in anything that is unnecessary. Our purpose is not to try to harass people. The whole idea of our planning code is to make the general atmosphere better and the community more livable in. If we are, in a sense, treading on the toes or the rights of certain individuals, it is for the common good. We are trying to get a balance of rights rather than trying to harass people and seek to make them toe the line and obey regulations. The whole idea of this town planning is to help everyone to enjoy what we have more fully in our community, our own homes and our own countryside. We are trying to preserve and improve what we have.

Mr. Jones

We are with the Minister on the broad outlines he has defined. Controls are necessary for the general good. The Minister has seen our point of view about family settlements so far as rural Ireland is concerned. He has said that he will look at the point raised by Deputy Dillon between now and Report Stage. He might consider whether a list of towns in the First Schedule might not meet the point in some degree. He would not then be confined to Dublin, Cork and Limerick. Perhaps the Minister might consider the point about flats and flatlets between now and Report Stage. I appreciate his difficulty.

Mr. Corish

Will the Minister contemplate between now and Report Stage a differential between town and country with regard to the internal development of houses?

Mr. Blaney

I said I would consider it, but that I was not holding out any hope that that consideration would disclose anything we have not already seen. I do not think it is possible to do anything. It would create untold difficulties to try to define where each place——

Mr. Corish

It might not be desirable.

Mr. Blaney

We will have a look at it.

Mr. Corish

If it is bad in a city or town, I believe it is bad anywhere in Ireland.

Mr. T. Lynch

I do not think there would be a demand in rural Ireland——

Mr. Blaney

I shall have a look at it from both angles.

Amendment, by leave, withdrawn.

Section 3, as amended, agreed to.

SECTION 4.

Mr. Jones

I move amendment No. 30:

In subsection (1), to delete paragraphs (b), (c), (d), (e) and (f), lines 29 to 46.

The exempted developments are set out in this section. Paragraph (a) deals with the use of land for agriculture, forestry and afforestation; (b) with development by the council of a county in the county health district; (c) with development by the corporation of a county or other borough; (d) with development by the council of an urban district; (e) with the carrying out of work on the construction and improvement of roads; and (f) with development consisting of the carrying out by any local authority or statutory undertaker of any works for the purpose of inspecting, repairing, renewing, altering or removing any sewers, mains, pipes, cables, overhead wires, and so on.

Is there any good reason, in principle, why a local authority should be exempt from the controls which are being imposed on citizens? Surely the local authorities should be setting an example? If the Bill is passed as envisaged here, it will require citizens to submit themselves to controls, and controls which will be rigid and, in some cases, extreme. Is it reasonable then to assume that the local authorities should have the right to be exempt from complying with any direction which may be given?

When a plan is made, the town planners know, or they have a composite idea in their minds, what they intend for a particular area, or for the layout of roads, sewers, cables, and so on. Indeed, it is very desirable that in future planning the local authorities should have regard to that very necessary type of work. As was mentioned earlier, such planning should obviate the necessity for the erection of overhead wires, and the tearing up of roads for a second time for the supply services which are necessary on building sites or industrial sites.

To say at this stage that those who conceived the plan for the town or the area should not be subject to the same measure of control as an individual citizen, is conferring a right which I think is much too wide. The approach in this section seems to be that the individual, John Citizen, may be wrong and possibly is wrong in many cases, but that an official cannot be wrong or ever make a mistake, and that the planning authority can never make a mistake. The fact that we are providing in this legislation that there shall be a review of town planning for an area every fifth year assumes that changes may be necessary. I suggest that, since there will be a review every fifth year, it is reasonable to impose the same control on the local authority and the people who plan for the local authority as is imposed on the citizen.

Is it to be said, for instance, that the local authority can park their machinery, rusty tar barrels, obsolete machines, and so on, in a green or make a dump wherever they might decide to do so, whereas citizens may not do these things at all? The Minister will have to justify his exemption of the local authorities from this type of control.

Over quite a number of years, there has been a good deal of controversial discussion in regard to things done by local authorities in this regard. I am not offering any opinion but I cite the case of what is known as "The Thing" on O'Connell Bridge. It is one matter on which, perhaps, a number of citizens of Dublin city would have strong opinions.

Travelling around the country from time to time, I have seen old machines scattered in places close to towns where machinery yards of the local authority are sited. I remember some years ago in Castlebar noticing the very beautiful green there. With the county council offices on your left— a stately row of houses—and the church on your extreme right, in between there is an old machinery yard of the local authority facing across the green. Surely the local authority will not be free of any control in this matter. The county engineer, for instance, may decide to locate his machinery yards at any particular place while the citizens of the towns and county in general will be controlled by this Bill.

I seriously suggest the Minister should reconsider this matter from the point of view of the desirability of uniformity of control. The local authorities are every bit as liable to make just as many mistakes as the citizen and indeed they may offend just as much in regard to aesthetic taste as any citizen might. I think a departure from principle is involved. Is there any good reason, in principle, why the local authority should be exempted in these cases when the citizen is being confined?

Mr. Blaney

There is a great deal of what Deputy Jones has said that I would applaud. Nevertheless, I do not think it adds up to the fact that the amendment should be accepted. We could all criticise, and rightly so, what would appear to be the neglect of certain of our local authorities in matters such as these.

Whether or not we criticise the planning authority in so far as planning control is concerned, as envisaged for the future, in each case, in respect of its own territory, the body will have designated and drawn up its own plan and, in due time, will have accepted that plan for a period of five years during which time it may and in fact must review it.

My inclination at first was to have them not excluded but I think the arguments against the principle underlying the amendment are pretty strong. Any of these planning authorities will have prepared their own plan and gone through the whole procedure of bringing their plan into operation, with its stated objective, and so on. That we should then oblige that same planning authority to apply to themselves for permission to do this, that or the other, within the terms of the plan, does not make a great deal of sense when we realise that if they contravene the terms of their own plan they are in fact in trouble. They may not contravene in any material or substantial way that which is laid down and accepted by them as their plan for a number of years ahead. When we take that into consideration and realise that we are really excluding only the things that are permissible within the plan as adopted and published and known to public, we see the folly of having them apply to themselves formally and, in turn, just as formally, make a decision on their own application. I do not think it adds anything to what is there, nor will it correct any waywardness that may be apparent in any of our local authorities in this or indeed in any other matter.

Over and above that, a local authority, as distinct from the members of the public, are very much more controlled in what they may or may not do, as every Deputy knows, indeed to his annoyance at times. There is very little a local authority can really effectively do in the sense of building, taking down or putting up anything without Ministerial sanction and Departmental approval, the provision of moneys, the approval of loans, agreement of plans, and so on. Therefore, the dangers that would appear evident in the first instance of a council's doing the wrong thing without let or hindrance are very much less than would appear at first sight.

I started off on this section very much of a mind with what was expressed by Deputy Jones. However, when I fully considered it and heard all the arguments why we should exclude them from this unncessary waste of time of applying to themselves for permission to do something in their own area merely because we thought they should be obliged to go through the same performance as a member of the public and, in turn, that it might have the effect of preventing them from doing something that would be wrong, I felt that, if a council is bent on doing something that is not in conformity with their stated plan, if they are bent on doing something which would appear to be not in the best interests of their community, to oblige them to apply to themselves for permission to do that something will not prevent them from doing it. They are the people who have a mind to do it. They apply to themselves to do it in the belief that it is right. Naturally, they will grant themselves permission if they thought it was right, to start off with. So, it just does not make a great deal of sense. That would be the rather nonsensical part of it, if you like.

However, outside that, there are the safeguards I have mentioned. They may not contravene, in a material sense, their own plan as adopted and passed by the elected members of the council and which would have been published three months prior to that for objections, and so on by the public. Furthermore, inquiries and investigations would have been held before the plan was adopted. Having adopted that plan, that local authority really may not infringe its terms. If they should do, then they are open to mandamus proceedings by the Minister for Local Government or by any member of the public. If that should not seem to be the handiest way of dealing with them, the Minister can always abolish them, if the matter were serious enough.

Mr. Corish

Ah, now. You are doing all right with local authorities.

Mr. Blaney

Let us be quite clear about this. Here we are talking about local authorities being allowed to run riot, to do something that is wrong. It is only if they are going wrong that any such query or question should arise on this section at all. If they are wilfully going wrong, if they are materially going wrong, if they are going to do damage by going wrong and if mandamus proceedings would not seem to be the way of dealing with them or would not be the most effective way, in the last analysis, there would be the other way, namely, removal from office. That is the entire background, middleground and foreground of the situation.

As I have said, I started out with exactly the same views as Deputy Jones in the consideration of this Part of the Bill. I finished up, as the House can hear, completely convinced and hoping to convince Deputy Jones and others that I was wrong and that, in fact, he now is wrong, and that we would be better to leave it as it is in the Bill.

Mr. Corish

It is perfectly true, as the Minister says, and as I think Deputy Jones concedes, that in the general development of their own areas, local authorities will be guided and, I suppose one can say, strictly bound by the plan which has in fact already been approved by them—the general plan to provide for the development, planning and erection of houses, the construction of roads—all those things that would be covered by the general development of the town.

I have some sympathy with the Minister's point of view that the members of the local authority, being representatives of the people, are the best judges as to whether or not the local authority through its officers was going to engage in work that would be offensive to the general character of the town or would cause inconvenience to the inhabitants.

I think I have a little more respect for the elected representatives of local authorities than the majority of people have but I can visualise work undertaken by officers of the local authority over which the members of the local authority cannot exercise an effective check. Perhaps the Minister would tell me whether in respect of this section and the various subsections in it, the ratepayers or any individual ratepayer has the right to appeal to the Minister against a decision of a local authority, whether through the elected representatives or through its officials, to engage in a certain type of development? I have a sort of thing in mind. I know a borough engineer who erected a waterpower pumping station in a most ridiculous place. Everybody agreed that it was in a ridiculous place. It blotted out a view from a number of houses. It looked ugly where it was. It seemed as if the members of the local authority themselves had not any effective power to prevent the erection of the structure in that place and, indeed, had no effective power to insist that it be taken away, apart from the fact that it would cost too much.

It is the small things that I would be interested in. I am at one with the Minister when he says that the local authority will act generally in accordance with the plan which they themselves have adopted but, again, we know many examples of silly and stupid work done by officials of a local authority through the engineers. I know one borough engineer who decides, in order to save himself maintenance of roads, to make footpaths about five times the size they should be. Is there an appeal against that sort of thing?

Members of a local authority are voluntary representatives. They cannot be expected to behave in the same way or to take the same day to day interest in the activities of the local authority as, say, Deputies are expected to take in respect of Departments. An individual may have a certain point of view that may not be represented by any of the members of the local authority. That person's point of view should be heard. If the local authority—in the majority of cases through its officers—decides to develop, to build, to change or to alter something in any way and a citizen takes offence at this or thinks it should not be done, has the citizen the right of appeal to the Minister or have any body of the ratepayers the right of appeal to the Minister against any work undertaken within the functional area of the local authority and to which they have a decided objection?

Mr. T. Lynch

I have always taken the line that the local authority should have as much power as possible but this is a time when I would change my course. I would be in agreement with Deputy Corish. In this Bill the Minister has brought in State companies such as the ESB, Bord na Móna and other such organisations who were previously exempted. They are not exempted now. The local authority would be exempted, meaning the local authority's engineers. I agree with the Minister that from now on State companies such as Bord na Móna and the ESB should have to make application to the local authority because I have seen the frightful eyesores they were permitted to put up all over the country and which legally they could put up.

I have seen the defacement of the beautiful quays of Waterford. Alongside the town clock, there is an ugly ESB kiosk. That is an example of a mistake being made by an engineer. A local authority engineer could make a similar mistake in future. At the end of the quays in Waterford, there stands in all its beauty Reginald's Tower, one of our greatest ancient monuments. There is one of these ugly kiosks near it. The Minister is ensuring in this Bill that the ESB will not be able to do such things in future and it would be a good thing if the Minister were to put into the Bill that local authorities themselves would not be allowed to deface the cities or the country with what they might consider to be useful structures. This amendment is a good amendment and I would ask the Minister to reconsider it.

Mr. Blaney

Perhaps I could clarify this a little. It is proposed to exempt local authorities only in so far as their proposals do not conflict with their own accepted draft plan, as passed by them, consequent on its publication, and so on. We are exempting them only in the case of matters which conform with what has been accepted by them.

Mr. Jones

Before the Minister goes any further, would he deal at this stage with the interim period between the passing of this section and the making of this plan?

Mr. Blaney

We discussed this on an earlier occasion. The only sensible arrangement is for them to have regard to what is in the plan. The planning authority, apart from Ministerial control on money, loans and so on, are more restricted after the draft plan has been accepted than is the private individual, because the latter may appeal to the Minister. There is no appeal where the planning authority is concerned. If they wish to make an alteration or a change, they will have to go through the initial procedure all over again. There is that fundamental difference. The individual may in certain circumstances appeal to the Minister and his appeal may be upheld. The planning authority has no right of appeal whatsoever.

There would be no purpose in making provision for the planning authority to submit to themselves all over again a proposed departure from the plan already accepted. Such an exercise would be an absolute waste of time. There is enough time wasted at the moment and if we could drop some of the clutter, it would be no harm. If the proposed development or construction conflicted with the plan, then the Minister or any member of the public may take mandamus proceedings restraining the planning authority from doing what is proposed. Making them subject to their own control in such a situation would amount to a mere formality because they would be asking themselves for permission. It would not help in any way, but it would add to the paper work and that would be no great benefit.

Mr. Jones

Would the Minister care to comment on the "statutory undertaker"? What is covered by that? Are we to take it that a statutory undertaker would be a body such as the ESB and the Post Office?

Mr. Blaney

Yes. It applies to these statutory bodies in their operations, except in regard to maintenance.

Mr. Jones

Will there be any compulsion on these bodies in future to adopt a more reasonable attitude? The ESB has been mentioned. Will there be control on the erection of overhead cables instead of underground cables?

Mr. Blaney

That will be controlled.

Mr. Jones

Will there be any compulsion on the Post Office to use underground cables?

Mr. Blaney

No, but the fact is they are tending to use underground cables more and more. We hope that trend will continue.

Mr. Jones

Anything new will be controlled.

Mr. Blaney

New lines will be controlled.

Mr. Clinton

Is it to be understood from what the Minister has said that the plan can be reviewed and altered before the period of five years elapses?

Mr. Blaney

The plans must be reviewed not less than once every five years. That does not necessarily mean there will be a change, but they must have a look at the plan at least once every five years.

Mr. Clinton

Any time a local authority feels alteration or revision is called for, they must go through the whole formality.

Mr. Blaney

The whole formality, yes.

Mr. Clinton

That is a very desirable provision.

Amendment, by leave, withdrawn.

Mr. Blaney

I move amendment No. 31:

In subsection (1), page 9, lines 39 and 40, to delete ",being works carried out within the boundaries of the road".—

This is a drafting amendment. If we left in the words it is now proposed to delete they would restrict operations to the existing boundaries. If there were subsequently a diversion or a cutting which departed from the existing line, that would not be accepted. We do not, of course, want to stymie ourselves in that fashion.

Amendment agreed to.

Mr. Jones

I move amendment No. 32:

In subsection (1) (g), page 9, line 49, to delete "being" and substitute "or of".

Already on page 6 of this Bill, line 10, we have referred to the question of alteration: "any external alterations" have been dealt with. In page 8, lines 3 and 4, we have already dealt with the word "works". It is really to get rid of any overlapping that we suggest the amendment. Perhaps the Minister would enlighten us as to whether that is the proper interpretation of what we have been dealing with.

Mr. Blaney

In regard to the amendment, my advice is that the insertion of the words "or of" proposed here would have the effect of exempting all works and all alterations. That, of course, is not the intention of the Deputy and it would not be my intention either.

Mr. Jones

We felt that we were overlapping because we had already dealt with these matters but if the Minister sees a good reason for keeping the provision, we have no objection.

Mr. Blaney

I think Deputy Jones did speak about the definition. That is not a full definition. It is merely a statement that it might include these particular things but it is not limited to them.

Mr. T. Lynch

I considered here that we were overlapping in regard to "the carrying out of works for the maintenance, improvement or other alteration of any structure." This would bring us back to what we were discussing last week. The Minister mentioned at the time that he was endeavouring to preserve the beauty of Georgian or other period houses, squares, and so on. We all agreed with him. We suggested from this side of the House that we had no objection to his putting it into the Bill that these places be defined, that such places in this city be scheduled by the Dublin Corporation and that the same done in Cork, Limerick, Waterford and other places. We were legislating for the whole country and nobody can alter any structure or any building or any part of it without going to the local authority. I pointed out to the Minister that this would create a whole jungle of applications and a great deal of bad relations between the public and the local authority. Would there be any danger that we are overlapping here and that we are legislating for the whole country again?

Mr. Blaney

The effect of the amendment would be that all alterations would be brought in. At the moment we are bringing in the limited ones which make material changes. This would bring everything in.

Mr. T. Lynch

I would not like everything to be brought in.

Mr. Blaney

I know that is the reverse of the intention of the Deputies. It would be in the wrong direction and that is why I suggest we do not accept the amendment.

Amendment, by leave, withdrawn.

Mr. Jones

I move amendment No. 33:

In subsection (1) (g), page 9 to delete all words after "structure" in line 50 down to the end of the paragraph.

This is something with which I thought we dealt on the question of alterations. We seem to have brought back the same wording as appears on page 6, lines 7 to 11: " `alteration' includes any plastering or painting which materially alters the external appearance of a structure ..." Is there any reason why we should bring it back again, having already dealt with it?

Mr. Blaney

The effect of this amendment would be to narrow the exemptions. The section provides that planning control shall not apply to works of maintenance, improvement or alteration which affect only the interior of the structure or which do not materially affect the external appearance of the structure. If the amendment were accepted, that second category of exemption would no longer be exempted. Therefore, rather than extending the exemptions, we would be restricting them, which is contrary to the intention of the Deputies proposing the amendment.

Mr. Jones

I want to give the Minister all the power in the world in regard to painting, and so on. If the effect of the amendment is to do the opposite, I very willingly withdraw it.

Amendment, by leave, withdrawn.

Mr. Jones

I move amendment No. 34:

In subsection (1) (h), page 9, line 56, to delete "within the curtilage of" and substitute "contiguous or adjacent to".

I understand that "within the curtilage of" is a term very hard to define. I do not claim to have any knowledge of legal terms, but I believe that this is capable of very wide definition, as to what is or is not within the curtilage of a structure. I understand that within the curtilage of a dwelling-house you may have any out office. I suggest that instead of using "within the curtilage of" we should say "contiguous or adjacent to". I am sure the Minister's intention was to give greater clarity to the section rather than to use a phrase-which is capable of very wide definition as I understand it. It would be a great help at this stage if the Minister would define "but within the curtilage of ".

Mr. Blaney

The best thing I can do to define the phrase in law, I take it, is to quote a case in England about ten years ago, Sinclair Lockhart's Trustees versus the Central Land Board decided in 1950 and affirmed in 1951. The Court stated:

"The ground which is used for the comfortable enjoyment of a house or other building may be regarded in law as being within the curtilage of a house or building and thereby as an integral part of the same although it has not been marked off or enclosed in any way. It is enough that it serves the purpose of the house or building in some necessary or reasonably useful way."

Mr. Dillon

That is even wider than "contiguous or adjacent to."

Mr. Blaney

On that question, I think some Deputies who were here will recall that on the definition section, such was the force of the arguments used by Opposition Deputies, that I have undertaken to have another look at the phrase "contiguous or adjacent to" in an effort to get something more definitive. If the Deputies now suggesting that phrase here use the same arguments on themselves as they used on me on the other occasion, we would all be happy and would leave "curtilage" as it is. They pretty well convinced me that the former is a wider term and not so well understood as "curtilage".

Mr. Corish

Within the immediate vicinity of the dwelling house, you may do almost anything, erect almost anything?

Mr. Blaney

Within the curtilage.

Mr. Corish

That could mean the front garden?

Mr. Blaney

No; it is the use of the structure within the curtilage.

Mr. Corish

The existing structure; but changes cannot be made?

Mr. Blaney

No, not just as one wishes.

Mr. Corish

But the subsection says "development"?

Mr. Blaney

Yes, but you cannot build there without permission.

Mr. Corish

I could not erect anything in the front garden without permission?

Mr. Blaney

Yes, not without permission, which you might not get if it were the front garden and protruded.

Mr. Corish

What does "development" mean?

Mr. Blaney

I think it is defined in Section 3:

The carrying out of any works on land or the making of any material change in the use of any structures or other land.

Mr. Corish

But the section itself says that development, in subsection (h), for these purposes is exempt. So, therefore, one cannot carry out works in one's front garden?

Mr. Blaney

It is the use that is exempt, not the actual development.

Mr. Corish

The whole of this is taken together—"development consisting of the use of".

Mr. Blaney

That is right.

Mr. Dillon

Do the words "incidental to the enjoyment of the dwellinghouse as such" exclude the opening of a shop in the front parlour?

Mr. Blaney

Yes.

Mr. Dillon

It must be for the enjoyment of the dwelling house?

Mr. Blaney

Yes. That would be regarded as a change of use and if it were to be done, permission would have to be sought.

Mr. Jones

As "curtilage" is more restricted in its definition, according to what the Minister stated, I can see it is better than "contiguous or adjacent to" and I am prepared to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed: That Section 4, as amended, stand part of the Bill.

Mr. Dillon

Perhaps this is the appropriate stage to mention again a matter that I think has been already mentioned, that is, the protection of venerable buildings from disfigurement by an irresponsible owner. The procedure envisaged in the Bill so far is to make general regulations subject to certain exceptions. These general regulations are designed to apply everywhere a planning authority exists. I wonder are we travelling the right road in this matter? I understand the practice on the Continent, certainly in France and Italy and, I think, in Germany, has been for the planning authority to take the initiative and say to the property owner: "Your house or building is a historic one and for that reason, alterations may not be carried out in the fabric of it without prior authority from the planning authority."

Unless such a notice is served, there are no restrictions on the adaptations of buildings. I believe some provision similar to what we have in mind here operates in Britain. Certain architects of standing there carried out operations in defiance of the planning regulations and were challenged in court where it was alleged by the planning authority that the alterations they had carried out by way of painting and decoration on the facade of the building had disfigured the building.

They went into court and said that that was a matter of opinion and that they thought their opinion was better than that of the authority and that they staked their reputation against the authority's reputation. The planning authority had to put up their architect and the court listened. The court also heard the independent architect and finally the verdict of the court was that the independent architect's opinion was a better opinion than that of the planning authority.

I wonder if it might not have been wiser—perhaps the Minister would give it further consideration—to abandon this whole procedure of forbidding anybody to make a change in the facade of his premises unless with the prior consent of the planning authority and to put on the planning authority the obligation of scheduling historic buildings which are subject to control of this character, leaving everybody else free to make any changes they like? Perhaps before we finally dispose of this section, the Minister might say a short word on that question?

Mr. T. Lynch

This matter came before us previously on another section. I wish to support Deputy Dillon's request that these buildings should be scheduled or zoned. I told the Minister on a previous occasion it was not just a case of advertising the fact that such a street was zoned, but that notice should be served by the local authority by registered post on the owners of such property telling them that under this Act they cannot make any alterations to the fronts of their buildings. I pointed out that we are actually legislating for the whole country, that anybody in a town or village who wanted to change the front of his house would have to apply to the local authority. We appealed to the Minister not to legislate in general, but to legislate in particular. He told us the idea was to preserve the great Georgian squares and terraces in various parts of the country. We fully agree with that. I again support Deputy Dillon's suggestion that these places should be scheduled or zoned by the local authority.

Mr. Blaney

There is provision at a later stage in subsection (1) of Section 21 which deals effectively with the case made by both Deputies. When we come to that section, we shall have another look at it.

Question put and agreed to.

SECTION 5.

Mr. Jones

I move amendment No. 35:

In subsection (2), page 10, line 23, after "High Court" to insert "or in the case of land the rateable valuation of which does not exceed £60 at the option of the owner of the land the Circuit Court".

Under this section as it stands, there is a right of appeal to the High Court. If the right of appeal is only to the High Court, I suggest you are limiting the right of appeal by reason of the cost involved. An appeal to the High Court can be costly. The people in rural areas are often concerned with small quantities of land. We must remember the type of small holding we have and the number of them. Although these people may have a legitimate cause of appeal, the limiting factor may be finance if the appeal is to the High Court.

The Circuit Court generally operates within the county area, which is the area envisaged as the planning authority area under the Bill. Generally the principal office of the county council is in the principal town of the administrative area of the local authority. It is there the Circuit Court sits. Therefore, the individual is not put to as much expense in prosecuting his appeal there as if the appeal lies to the High Court. It might be understandable in the case of large property, where the valuation would be higher than the figure we have mentioned, that it would be desirable for an individual to make his appeal to the High Court; but in the generality of cases a more reasonable approach would be to allow the individual the right of appeal to the Circuit Court. It would avoid expense on the appellant and, equally, it would avoid expense on the planning authority since its officials would be close to the court on this occasion.

I would suggest to the Minister this is a reasonable thing to do, to give not alone the right of appeal to the individual but to make it possible for him to prosecute his appeal without any undue burden on him.

Mr. Blaney

I am advised that the High Court is the appropriate court to deal effectively with the matters likely to arise under this section because, in the vast majority of cases, they will be dealing with points of law. That the appeal should be to the High Court is only in keeping with precedent. A good example of precedent in that regard is the Social Welfare Act, 1952. Furthermore, the High Court decision—whatever it might be—would be binding throughout the country. We do not envisage an appeal to the High Court merely for the sake of an appeal, but rather to ensure that we get an authoritative and uniform interpretation of the law. I am completely in the hands of my legal advisers who tell me that it is the appropriate court in such matters.

I feel that the quoting of precedents for going to the High Court is, in addition to my advisers' advice, secure and good ground as to why we should make it and keep it the High Court rather than the Circuit Court, even though the costs would be less in the lower court. The question of costs alone is not of the greatest importance in these cases. Decisions from the High Court can determine for a long time to come certain other cases that come to our eyes. If we get a clearly defined judgment from the High Court in a particular case, it is likely to settle for a considerable time to come other cases of a similar nature.

Mr. Dillon

Surely this is an inappropriate approach to the question? The Minister talks about matters defined by judicial decisions which could be used to define future cases. He says that here the words have been defined by the High Court and are therefore useful in that we have a definition of them, but to my mind, it is all a matter of how you approach this question. Surely we must approach it from the point of view of the person who feels he has a grievance because the Minister has given a decision which the person feels is contrary to justice? That person wants access to the courts on the ground that our system of government provides an independent judiciary to stand as arbiter between the humblest citizen and the most powerful Department of State so as to ensure that the humblest citizen will get his rights under the law.

I do not think we in the House want to say that if a large property owner or a very small property owner wants to appeal against the Minister, though the Minister has no hard feelings, he insists that this should be determined to the public advantage and that we are going to throw the appellant into the High Court because in that way we will get a definitive and final determination of the law. That is not the purpose of subsection (2) of Section 5. Its purpose is to ensure that an ordinary person will have access to an independent judiciary when he is dissatisfied with an executive decision. It is always open to the Minister, if he feels the appeal raises a matter of substance, to appeal to the High Court from the Circuit Court decision, and a reasonable Minister will not exercise that right to the detriment or disadvantage of an appellant unless he feels there is an important point of law involved and about which there is some ambiguity.

It is quite possible for the Minister to say in the High Court that though he has the duty of appealing, he does not want the costs of the appeal to be borne by the appellant. In that manner the appellant could be relieved of the burden of costs. It is quite open under the amendment proposed by us for a large property developer, or a big corporation dealing with a large block of property, to initiate proceedings in the High Court so as to get the matter settled expeditiously and authoritatively. If, on the other hand, the grievance arises in Ahabawn in County Monaghan, or in Belmullet in County Mayo, it seems unreasonable to suggest that proceedings by way of appeal should either be initiated in the Four Courts or in the High Court on circuit which, I understand, sits two or three times a year. In addition, I think it is true to say that one must go into the High Court with senior and junior counsel.

Mr. Tully

Two senior and one junior.

Mr. Dillon

Oh, no. Surely one senior? Manifestly, that is not a desirable practice to impose without option on ordinary appellants, and I suggest to the Minister that the sensible course is to accept our amendment in the light of the fact that where the Minister thinks it is necessary, for the purpose of due administration of the law, he has the alternative of going on to the High Court and, within his discretion, bearing such part of the expenses and costs as he thinks would be fair and equitable.

Mr. Tully

If the Minister wants this provision in operation, I think it would be preferable that there should be no appeal from the Minister's decision, because with the exception of fairly wealthy property owners, most ordinary owners could not afford in the first instance to employ two senior and one junior counsel. Despite what Deputy Dillon has said on that point, my information is that it is necessary to have two senior counsel in the High Court.

Mr. Dillon

Give us a chance. It is one senior counsel.

Mr. Tully

My information comes from somebody who claims knowledge of the subject. Quite apart from that, however, it would be quite impossible for most ordinary people to have access to the High Court. For that reason, I would urge the Minister to make it an appeal to the Circuit Court. As Deputy Dillon has said, if the Minister is dissatisfied with that decision, he has the right of appeal to the High Court.

Mr. Blaney

It should be clearly understood that these appeals to the High Court or the Circuit Court could arise only after the Minister has given his decision and when that decision is questioned as to its validity under the law. This procedure is, in fact, in operation in regard to the functions of my Department for land acquisition by compulsory purchase procedure.

Mr. Tully

There is a difference.

Mr. Blaney

Such a person has to appeal under a somewhat similar set of circumstances to the High Court.

Mr. Tully

Where land acquisition is concerned, you are dealing with wealthy people.

Mr. Blaney

Not at all. In fact, you can have quite small parcels of land taken from small landowners under the operation of the compulsory purchase procedure. In such a case, after that decision has been arrived at, it is only on an alleged error in law made by the Minister that an appeal will lie. It is not an appeal in the general sense; it is an appeal on an alleged error in law made by the Minister who came to the decision. As I say, a compulsory purchase acquisition appeal is to the High Court on much the same sort of grounds. Under the Social Welfare Act, 1952, it is also the High Court to which this type of appeal may be sent.

Mr. Dillon

Would the Minister excuse me? Is there no appeal from the decision of the arbitrator in a compulsory acquisition order to the Circuit Court?

Mr. Blaney

No.

Mr. Dillon

I thought there was.

Mr. Tully

Who pays the cost of the High Court action? In almost every case, do they not determine that it shall not be borne by the land holder?

Mr. Dillon

Surely there is an appeal?

Mr. Blaney

I think the courts come down heavily on the State in these cases. They generally allow the costs, but it is for the courts to determine. They make the decision, and we usually make the payment.

Mr. Tully

I wonder would the same thing occur here?

Mr. Blaney

That is rather anticipating what the courts might determine. I should imagine that the precedent quoted here would probably be followed.

Mr. P.J. Burke

If you lose a case, you must pay.

Mr. Tully

You do not have to pay if it is a question of land.

Mr. Blaney

Deputy Dillon asked whether an appeal against the decision of the arbitrator went to the Circuit Court. It goes to the High Court. I do not agree with the idea behind the amendment that it should be recourse to the Circuit Court rather than the High Court, and to make the approach to the Circuit Court open only to those people whose rateable valuation does not exceed £60. I take it that is because the Circuit Court has jurisdiction only up to that point.

Surely if we were to consider acceptance of that approach, it would be very difficult to determine how we should set about deciding on the land? Would it be land proposed to be taken or used? Would it be the whole of the rateable valuation of the parcel of land, or part of the total valuation of the land holding? Would that conform to the £60? That might be putting to one side the benefit that might flow from trying to get in under the £60 umbrella of the Circuit Court jurisdiction, and particularly trying to get in under it with a view to going easy on people who you feel can least afford to have recourse to the court or any of the courts? It is not at all clear that the amendment would, in fact, relieve those who can least afford it. There is no assurance that that would be so. Nor is the point about the land clear. Would it be all the land, the whole farm? Would it be on a rated certificate or a demand note, or what would it be? That does not seem to be clear. It would seem that if we were to give serious consideration to the matter that, in itself, would create untold and unknown difficulties which we might not be able to get over.

Over and above that, I should like to hear more reasons why it is felt that the Circuit Court should now be the court for this type of case, whereas in the past on matters just as serious, if not more serious, questions of law were determined by appeal to the High Court. My advice is very strongly that the High Court is the appropriate court for such definitive decisions and questions.

Mr. Dillon

It is all a matter of approach to this whole question. Are we not all agreed that, as a general rule, where the freedom of the property of an individual citizen is concerned, vis-à-vis State action, it is eminently desirable to interpose an accessible and independent judiciary so that we can say to the humblest citizen of the State: “You are in exactly the same position as the President or the Taoiseach or any other person in the State, because if anyone tries to infringe your rights in your person, liberty or property, you can walk into the courts, unattended by counsel or solicitor or anyone else—that is, in theory—and claim the protection of the court”? The nearer we get to that ideal situation I think the better our legislation will be.

It is not much use saying that in theory you can walk into the Four Courts and hail the Chief Justice and say: "I want justice." In fact that is possible, but there is no use in telling a man in Belmullet he can do that. What we want to do is bring that remedy effectively and honestly within his reach. Here the issue to be determined is whether a development is or is not a development within the meaning of the Act, or whether it is or is not an exempted development. I suppose I might say that in 98 per cent of the cases, there will be no difficulty and I think it is probably true to say of the two per cent who will dissent from the proposition of the planning authorities that they are cranky men. One of the glories of a free society is that you are entitled to be cranky in a free society.

I submit to the House that the whole concern of legislation ought to be to ensure, in so far as it is practicably possible, consistent with the public welfare, that our neighbours will not be left under a sense of grievance. A cantankerous man may feel he has a grievance and appeal to the Minister. The Minister may decide the planning authority is right and the aggrieved person is wrong.

If I am Minister for Local Government and the complainant is a cranky supporter of Deputy Burke, he will be around to Deputy Burke in the morning to say that "James Dillon is after doing me down because I voted for Deputy Burke and said so at the last election". If the Minister is Minister for Local Government and the cranky complainant is a supporter of mine in Monaghan, I will have a letter the following morning saying it is well known that he was turned down because he stood at the table for me at the last election. If I am in a position to say: "There is no need to suffer under this alleged injustice; if you are not satisfied with the Minister's decision, you can go to the Circuit Court in Monaghan", and if Deputy Burke can say: "You can go to the Circuit Court wherever it sits for Balbriggan"— whether his complainant is a spinster or a widow——

Mr. P.J. Burke

Justice will be administered, anyway.

Mr. Dillon

Justice will be done and Deputy Burke or I have the right to say to the complainant: "The courts are there available to you." I think that that is what is important— not that the law should be authoritatively defined for inclusion in the files of the Department of Local Government or the planning authorities of the country at large.

I can see, from the point of view of an administrator anxious to get an Act to work smoothly, the allure of the proposition that any net point which is taken on appeal from the Minister should go to the High Court where there will be a written judgment. I can see the duplicators going into work in the Custom House and the note: "Let a copy of that go to every planning authority in the country to be put on their file." I admit that if I were in charge of town planning in all its complexity in the country, that is the sort of thing I would yearn for. But I am not. I am in this House and I submit we should be thinking of the cantankerous man and woman in the country. Will they feel that substantial justice has been done?

Looking on it from that point of view, I suggest we can serve both purposes effectively by allowing access to the Circuit Court. If the appellant first goes to the Circuit Court and the Minister wants a definite decision on the net point raised he can always go from the Circuit Court to the High Court on appeal.

The Minister raises the point as to whether the drafting of this amendment is or is not defective. Of course, it probably is defective. All amendments submitted by an Opposition may have in them defects of uncertainty, or what not, in the eyes of the official draftsman. That is what he is for. He takes long enough, very often, to come up with his own version of the Bills that come before this House.

Any reasonable amendment the Minister may suggest to the terms of our amendment, to make it more precise or effective, will be most acceptable. The net point is whether we can devise a means by which a small appellant from a ministerial decision can go in the first instance to the Circuit Court. Draft your amendment any way you like, if you can devise a plan by which that can be done. We hold strongly that that ought to be done, not by any means discounting the weight of the view expressed by the Minister that in matters of this kind, if the matter is one of substance, what you want is a High Court decision which can be circulated amongst all planning authorities as the law. I suggest that in 95 per cent of the appeals from his decision, no legal point of substance will be raised. If one man thinks the case can be made that this is an exempted matter, or is not a development at all, as a general rule, as the Minister well knows, in the vast majority of cases, the Circuit Court will sustain the decision he has already given.

Mr. P.J. Burke

We have a case going on in Dublin for seven years.

Mr. Dillon

On appeal?

Mr. P.J. Burke

Yes, a High Court decision. It is holding up the common good.

Mr. Dillon

Let the heavens fall but let justice be done. Or would the Deputy favour that the rights of individuals should be brushed aside in the cause of expedition?

Mr. P.J. Burke

Oh, no. But in this case——

An Ceann Comhairle

We should not discuss this case.

Mr. P.J. Burke

The outcome is very obvious.

An Ceann Comhairle

This case has not been decided? The Deputy should not endeavour——

Mr. P.J. Burke

It is decided, but it is going on——

An Ceann Comhairle

It is sub judice? If so, the Deputy should not refer to it.

Mr. T. Lynch

Deputy Burke decided the case.

Mr. P.J. Burke

Oh, no.

Mr. Dillon

It is settled and disposed of? It took seven years to settle this particular matter?

An Ceann Comhairle

If it is decided upon, it is all right.

Mr. Dillon

It may have resulted from Deputy Burke's intervention in the proceedings. He may have jammed up the whole machinery. But even if it took seven years and justice was done——

Mr. P.J. Burke

I was on the other side of the fence.

Mr. Dillon

It is an annoyance that that should occasionally happen but it is a triumphant vindication of our system of government.

Mr. Tully

Deputy Burke does not admit——

Mr. P.J. Burke

It was a case of a narrow road.

An Ceann Comhairle

I hope the Deputy will not try the case here.

Mr. P.J. Burke

I am saying how difficult it is for a local authority to make any progress when you are up against a situation like that. Decent compensation was offered in this case. Alternative accommodation was offered to the people concerned. Still, they went to the court—which we agreed they had a right to do. Then, after appeals and appeals—it went on for about seven years—the property is now being taken from them.

An Ceann Comhairle

And justice was done.

Mr. Dillon

And justice was done. Deputy Burke's heart will rejoice that these simple people were able to confront the full power of the Executive and that the judiciary vindicated that right until justice was not only done but was seen to be done.

Mr. P.J. Burke

May I state another case for you?

Mr. Dillon

I do not want to stress that unduly. Far from shocking me, the fact that that is possible, the fact that in our society that happens, is, I think, something about which we can rejoice. The day when that can no longer happen, the day when a small person can be brushed aside and told: "Your business is of such little consequence that other affairs must take precedence even though you suffer minor injustice" will be a disaster for the country.

I put it to the Minister that you ought to give access to the closest available court to a small person who is concerned to contest the Minister's decision. The Minister may say to me: "If you say that, why do you not give them access to the District Court?" Under our system of law as it is administered, the District Court is debarred from determining questions involving matters of title. It is universally understood throughout the country that in a matter involving title, the lowest jurisdiction to which you can appeal is the Circuit Court. Our suggestion is that in a matter of this kind access to the lowest court of competent jurisdiction should be available to a person who wishes to appeal to it.

Mr. P.J. Burke

I have listened very carefully to Deputy Dillon. I am at one with him on the point that every citizen should have the right to appeal to a court. Suppose the Deputy were a member of a local authority and he were being pushed around by A, B, and C, as Deputy Clinton and I are being pushed around in County Dublin by people who want houses, I wonder what he would say. We spend not alone days but weeks going around the district endeavouring to see how something can be done. Let us say the engineer in the town planning office has decided that a certain place is the most suitable place and we agree to that. We go to housing meeting after housing meeting and we find that John Jones, for instance, refuses to give the land, notwithstanding the fact that we are all for giving him the market value of his land. There may be 20, 40 or 50 applicants for houses in the district, all needing to be housed. A compulsory acquisition order is made and then the owner of the land goes to the courts. That entails another delay of a year or perhaps longer.

In this Parliament, we must weigh what is justice. I agree that the owner of the land should have the right to go to court but is it just that when he is paid the market value in compensation for his property and a number of people are waiting to be housed, matters should be held up in that way? That position has obtained in respect of the city and county of Dublin. Court proceedings were involved. This is a very serious matter. While I am in agreement with Deputy Dillon in regard to the constitutional rights of every citizen——

Mr. Dillon

You do not think they ought to enjoy them.

Mr. P.J. Burke

——there are two points which can be argued. Where the common good is concerned, when the individual gets reasonable market value in compensation for his property, in my estimation, that is justice. I believe in leaving an option in the Bill. The experience in Dublin Corporation especially is that acquisition is too slow. It is very difficult to proceed with the building of houses because of this difficulty. In respect of the city and county of Dublin, acquisition is held up.

Mr. Dillon

This has nothing to do with acquisition at all.

Mr. P.J. Burke

No, but it relates to the right of a man to go to court.

Mr. Dillon

That is right.

Mr. P.J. Burke

I am merely giving the example of the slowness of acquisition and the difficulties experienced by local authorities. Even the Minister has often been blamed here for not getting ahead with the building of houses in this city. We are up against the position that for two and even three years, we have been trying to secure sites in County Dublin and it has been seven years in the case of the city of Dublin. I am referring now to the taking over of derelict property. This is a very serious matter. As members of public bodies, we have had this experience.

Mr. Clinton

So far, in dealing with this amendment, the Minister has not given even one good reason for not accepting it. He has complained that the amendment as worded is open to a number of interpretations but at least he will agree and accept that the intention is quite clear, namely, to give the same right to the small property owner, the poor man, as is given to the big property developer. It is no great hardship on a big property developer to have to go to the High Court but the Minister has not told us what he will do about the poorer, small property owner who feels aggrieved and who, because of lack of financial resources is denied the opportunity of recourse to the appeals machinery provided in the Bill. It is a serious thing to say that such a man must go to the High Court while there is no indication that his expenses will be met, even in part.

Deputy Burke dealt with the difficulties experienced in County Dublin in the matter of land acquisition. I agree. I think this amendment would probably expedite acquisition. Circuit Court proceedings would certainly be much more expeditious than High Court proceedings. When this Planning Bill becomes law and when throughout the country there will be development plans, it is normal to expect that there will be a substantial number of appeals under the legislation. This Bill cannot be compared with existing Acts where it is provided that an aggrieved person must go to the High Court because in the case of those Acts the number of appeals would be considerably less than the number that might normally be expected to arise under this new legislation which will be applicable to the country as a whole and to quite an amount of property.

Mr. Blaney

There are a few misunderstandings about the whole purpose behind this section. The first thing that was brought out here very clearly by Deputy Dillon is that where the State is carrying out some operation or other, it is only right that the court—the independent judiciary is the way he put it—should be interposed between the public and the State institution. That is all very well as a sort of platitude but it does not hold water strictly in this case, for the simple reason that the public we are dealing with here will have been dealt with by their local authority. It is the local authority on the advice of their executive, that will have come to a decision with which an individual property owner may disagree and, arising from the terms of this Bill, the property owner so aggrieved may then appeal to the Minister for Local Government.

The Minister for Local Government then, with the assistance of his advisers, both legal and technical, will after due consideration and having heard all that there is to be said, both from the council's point of view and the individual's point of view, reach a decision on the appeal. If that decision is to be further queried, it is not on whether it is a good decision in the sense of whether the man feels he has got justice or has not got justice, whether he has got his way or has not got his way; it is purely on the question of whether the Minister for Local Government in exercising his rights in determining that appeal has acted in accordance with the law, and the strict letter of the law. What would go to the High Court in such a case would be only the question as to whether the Minister could be said to have made an error in so far as the law was concerned. That would be after the legal advice the Minister would have available to him and only consequent upon the local authority also having made a similar decision, which they would have made in these circumstances with the advice of their legal adviser.

That the two sets of legal advisers, completely unconnected and unrelated, would arrive at a similar wrong conclusion is not likely to arise very often and if and when it should arise, the court which is by precedent established as that which gives the definitive verdict on matters of law is the High Court, by precedent established as such, and I see no real good reason why we should depart from it and step back to the Circuit Court which we have been told, on the one hand, would be less costly than it is alleged High Court proceedings would be and, on the other hand, as we are told at the heel of the hunt of this discussion, would be much more expeditious.

I think it was my colleague, Deputy Burke, who put this into Deputy Dillon's mind by mentioning a case in the courts that lasted for seven years. Actually that case was before the Circuit Court, not the High Court, and it was not, of course, the court which was at fault. Several adjournments were sought. Now this will not be a suit brought by the people; it will be an appeal to the Minister from a decision of the local authority and the decision of the Minister can be queried only on a point of law. The £60 valuation limit in the case of the Circuit Court does not create a situation in which those who are poor go to the Circuit Court while those who might be described as rich go to the High Court. A person with a much lower valuation than £60 might in fact have to go to the High Court. Deputy Tully made a very sensible suggestion, but it is one which is contrary to both the section and the proposed amendment. He suggested we cut out the two courts altogether and allow the Minister's decision to be final. There is a good deal to be said for that.

Mr. Jones

With all due respect, the Minister has over-simplified his argument. We have defined development as the carrying out of any works on, in or under land, or the making of any material change in the use of any structure or other land. We have been discussing exempted developments here this morning. Now a local authority may decide that a certain thing is a development. Individuals affected by that decision may feel aggrieved. They can appeal to the Minister. The Minister can decide to send down one of his officials to take oral evidence. That official will come down to say, Limerick and hear the views expressed. He will report back to the Minister and the Minister will decide on the evidence submitted to him. The individuals may still feel aggrieved.

This might be a case of a small portion of land and a direction from the local authority in regard to the use of that land or a development proposed in respect of it. Nominally, the Minister is the deciding authority on appeal. Is the Minister, in fact, the deciding authority? He will be guided and fortified by the evidence collected for him by his official. The individuals concerned, still feeling aggrieved after the Minister's decision, want to appeal from that. I do not want the terms "rich" and "poor" to create the impression that we are dealing here simply with money value. I am concerned with the quantity and quality of the land an individual may hold.

The generality of holdings in this country are very small. Because of that, the valuations are small. A small portion of land might be very valuable in an urban area and a large tract of land might be relatively of very little value in a rural area. I am thinking of the individual whose valuation does not exceed £60. In Limerick there are 22,000 holdings roughly, 17,500 of which are under £15 valuation. In Limerick, 17,500 landowners would be affected by the decisions of the planning authority. Any one of them might feel aggrieved and, instead of having recourse to the Circuit Court in Limerick, where the officials of the county council have their offices and the court sits at regular intervals, he would be compelled to come here to Dublin to the High Court or wait for the High Court on circuit. Perhaps the amendment is ambiguous but I hope we have conveyed to the Minister what it is we want to protect: the right of the individual in the first instance, vis-á-vis the decision of the planning authority, which affects his property. He can appeal to the Minister but, even after the Minister has decided, he may still have a sense of grievance. It is then he should have the right of recourse to the Circuit Court.

Mr. Blaney

Deputy Jones may feel I oversimplified but he, in turn, has oversimplified even more. Only one per cent would ever be involved in something that might be a point of law and, if it is a point of law, that one per cent would have the right to go to court. The fact that a person merely felt aggrieved would not necessarily constitute a legal basis for a court action if, in fact, the decision conformed with the law. It is only if a legal point is involved that an aggrieved person can have recourse to the courts. That would be the only reason for going to the court.

Mr. Jones

Why would he not have the right of appeal to the court?

Mr. Blaney

Because that is the way it is. That is the way it is in the Land Acquisition Bill and also the other Bill I mentioned, the Social Welfare Bill; in other words, the effective appeal is to the Minister for Local Government against a decision of the local planning authority. It is only in the case of a point of law arising from a decision that there is an appeal to the High Court or any other court. It it not on what the aggrieved person feels that an appeal can be made. If he goes to his solicitor, he might be told he had a good case in respect of a point of law but the number of these cases will be infinitesimal, despite the fact that there will be quite a large number of appeals to the Minister. Under the Social Welfare Act, where there is this recourse to the High Court on points of law, going back to 1952, I do not think any case has arisen but certainly there would be very few.

Mr. Treacy

May I take it that it is only where the aggrieved person has been turned down by the planning authority and has appealed to the Minister and the appeal has been turned down, that the question of going to the High Court comes into it?

Mr. Blaney

And then only on a point of law.

Mr. T. Lynch

The local authority makes a decision and the person concerned makes an appeal to the Minister who turns it down. His solicitor tells him that legally the Department and the Minister are wrong. However, the Minister now puts this very high fence up to him, that he must in such a case go to the High Court. Immediately the man drops out because he is afraid to go to the High Court on account of the cost. In the amendment we mention a valuation of £60. That was not just for the sake of the poor man as against the rich man because a limit of £60 will not define whether a person is rich or poor. It was put in because only up to that amount would it be legal for the Circuit Court to give a decision. This is a very reasonable amendment. If a man is poor enough, we should legislate for him. Even though he might be aggrieved, he would be afraid to face the High Court but he would not be afraid to face the Circuit Court.

Mr. Blaney

On the question of costs, I should have said that from similar cases in the High Court in the past, all the indications are—although it is not obliged to do so—that the High Court does take into consideration the wealth, or lack of wealth, of the appellant regardless of the actual outcome of the case. That has generally been the case, that they are going in that direction. In regard to this Bill when such cases come up they will, I feel sure, although I cannot say more than that, they will take the means of the person concerned into consideration and allow him the costs even if he loses the case.

Mr. Jones

The Minister says that the person had not the right of appeal to the courts. I should like to clarify my position in this regard. In the Town and Regional Planning Act of 1934 and the amending Act of 1939, there were three forms of appeal allowable. First, the resolution of a local authority which decided to make a planning scheme under Section 29 of the 1934 Act was subject to a confirmation order made by the Minister which was laid before each House of the Oireachtas. In addition to that, the property owner affected by a planning scheme had a right under Section 31 to apply to the High Court for an annulment of the whole of the planning scheme or part of it.

There was also a right of appeal under Section 5 of the 1939 Act for the annulment of a resolution by a local authority to make a planning scheme upon the grounds that the resolution was invalid. This particular relief would not in the normal course be very important but once the planning authority have resolved to make a planning scheme, then there could be no dealing with property without first obtaining the permission of the planning authority. That was provided for in Sections 57 and 58 of the 1934 Act.

Section 59 of the 1934 Act provided that any person aggrieved by the decisions of a planning authority during the period of interim control, that is, during the period between the passing of a resolution to make a planning scheme and the coming into operation of the planning scheme, could appeal to the Minister and the Minister could confirm, revoke or alter the decisions of the planning authority as he thought proper.

That is the only right of appeal in relation to the granting or refusal of permission by a planning authority which was vested in the Minister for Local Government in the 1934 and 1939 Acts. Once the planning scheme was made, the right of appeal against decisions of the planning authority was to the District Court. Section 45 provided that where a planning scheme contains a provision conferring on the planning authority power to regulate and control the design, colour or material of structures any person aggrieved by a decision of the planning authority could appeal from such decision of a District Justice, and the District Justice had power to confirm vary, reverse or annual such decision.

There was power in subsection (2) of Section 45 of the 1934 Act to set up a special tribunal of persons of special knowledge or practical experience, and while that tribunal could exercise the same powers as were vested in the District Justice, every decision of this special tribunal was appealable to the Circuit Court.

Section 52 provided that whereever a planning authority had served on any person a notice of their intention to exercise in relation to any structure or land the power conferred upon them by Part 6 of the 1934 Act that person could appeal to the District Justice for an order quashing the notice. Here the Minister says that the person may not have an appeal to the courts on this type of grievance.

In this Bill, an appeal to the courts is provided for in Sections 5, 21, 34, 51 and 81. I shall deal with these later. As against the five occasions in this Bill when a person may appeal to the courts to assert certain rights, we have a large number of sections where the appeal lies only to the Minister. Only because the Minister says that the individual has nothing to appeal about do I raise the point at this stage. I hold that in dealing with the question of development the right of the individual to his property and to whatever use he might desire to make of it may be interfered with by the planning authority. In Sections 18, 26, 27, 29, 30, 33, 36, 37, 44, 45, 46, 48, 56, 65, 83, 86 and 87, we are told the appeal is to the Minister.

On this section with which we are dealing at present, if the question arises, if the Minister lays down the principle that the person has nothing to go to the courts about, I cannot see the validity of his argument. The Minister says this is a factual decision of the Minister but that decision affects the individual in the first instance. He feels that he has been interfered with in the right to use his property in a way in which he thinks is not at variance with development. I think this is the first instance where a person's right to seek the protection of the courts in this matter is being challenged.

The Minister may say it was in the 1934 and 1939 Acts. That is why I referred to both because in both cases there was only a very limited appeal to the Minister. We are now reversing the process so that the appeal rests in the main with the Minister and not the courts. I believe my point is valid that the development plan made by an authority may aggrieve somebody; that the Minister's determination on that may still leave the individual with a grievance and the logical thing to do is to allow the individual access to the courts at that stage. I suggest that he should have access to the Circuit Court in his own area where the valuation of the land is not above the sum laid down for that court.

Amendment put and declared lost.

Mr. Jones

I move amendment No. 36:

In subsection (2), page 10, line 24, to delete "six weeks" and substitute "three months".

The appeal here may be taken any time within six weeks. As the section now stands, it states:

Where a decision is given under this section, an appeal to the High Court from the decision may be taken at any time within the period of six weeks after the giving of the decision or such longer period as the High Court may in any particular case allow.

We suggest the period should be extended to three months and we think that is not unreasonable. Circumstances can easily be envisaged in which six weeks can be a short time. For instance, a solicitor acting for an individual could become ill or the client himself may fall sick. Equally, there could be a question of death. There could be a question arising of the determination of next-of-kin or administration. I think I am right in saying that in regard to the acquisition of land, in the Housing Acts and even in the Derelict Sites Act, the term was three months. I should like to know why the Minister feels he should move from that precedent of three months to six weeks? I suggest this amendment would help us to feel that Parliamentary democracy, as it operates here, is an effective instrument and that when a reasonable point of view is put forward, we should legislate for every case that could conceivably arise. I have instanced such cases and I urge the Minister to accept the amendment.

Mr. Blaney

The consideration that guided us here was the Housing Act of 1931 and the Act of 1932. Section 17 of the 1931 Act provides for six weeks and a somewhat similar section in the 1932 Act actually reduced that time to three weeks. In the Local Government Act of 1960, land acquisition procedures were more or less consolidated and brought into line, all of them with a period of six weeks. Really, that is our precedent and that answers the question as to why we are going from three months to six weeks. Six weeks has been the established period. However, I am not terribly concerned about this, and I will not fight with anybody who wants to make it two months or three months, but I would not go beyond three months.

Mr. Jones

The Minister will accept the amendment then?

Mr. Blaney

Unless other Deputies feel otherwise.

Mr. Treacy

I certainly should like to support Deputy Jones's request that the Minister should stipulate three months instead of six weeks.

Amendment agreed to.

Amendment No. 37 not moved.

Mr. Jones

I move amendment No. 38:

To add to the section a new subsection as follows:

"(3) The procedure or practice under this section shall be regulated by the Rules of Court."

The Bill at present does not provide the form the appeal shall take. Might I ask the Minister at this stage whether it will be by way of an oral hearing or by way of affidavit?

Mr. Blaney

By oral hearing.

Mr. Jones

Not by affidavit?

Mr. Blaney

It could be, but it may be by oral hearing.

Mr. Jones

Will the appeal to the High Court be by way of ordinary summons or special summons?

Mr. Blaney

That is one I would have to ask somebody else about. It will probably be by case stated.

Mr. Jones

The common form is that the court would make rules governing an appeal. Would there be any objection to our saying that the practice shall be regulated by the Rules of Court?

Mr. Blaney

As far as I can ascertain, this amendment does not appear to be necessary at all. Section 17 of the Interpretation Act, 1937 provides:

Whenever an Act of the Oireachtas confers any new jurisdiction on a court of justice or extends or varies an existing jurisdiction of a court of justice, the authority having for the time being power to make rules or orders regulating the practice and procedure of such court shall have, and may at any time exercise, power to make rules or orders for regulating the practice and procedure of such court in the exercise of the jurisdiction so conferred, extended or varied.

It would appear the court already has that jurisdiction. I hope that clarifies the matter.

Mr. Jones

Would the same procedure apply to the taking of oral evidence as envisaged by the Minister?

Mr. Blaney

No, apparently not. Subsection (7) of Section 80, with which we will be dealing much later, deals with this matter.

Mr. Jones

I can raise the matter again at that stage. What I am concerned about is this. In the first instance, you have the person who feels he will be aggrieved by a development and makes an appeal to the Minister. I take it the Minister intends to assign one of his inspectors to hear and collect evidence?

Mr. Blaney

Yes.

Mr. Jones

What procedure does the Minister envisage at that stage? Will the person be entitled at that stage to be represented in the ordinary way by solicitor or counsel, if he so desires?

Mr. Blaney

If he so desires, but there is no obligation on him to be represented.

Mr. Jones

Will he have the right to have access to documents and to call witnesses?

Mr. Blaney

I imagine the procedure we would follow would be the local authority public inquiry procedure. We want to make it effective, but to keep it as cheap as possible.

Mr. Jones

Will the Minister make regulations to cover that?

Mr. Blaney

No, we will not have to do that. If we follow the procedure of local authority inquiries, we will be following something recognised at present. I doubt if we need make regulations specifying every step, and I would prefer if we had not to do that.

Mr. Jones

Except so far as regulations would have to be made covering these things. We have had regulations put in by way of amendment. I thought, therefore, this would be the logical thing to do.

Amendment, by leave, withdrawn.

Question proposed: "That Section 5, as amended, stand part of the Bill."

Mr. Jones

I should like to refer again to the fact that we seem to be by-passing the rights of the individual in regard to his property. We seem to have here a clash of opinions as to whether or not a person has the right of appeal to the courts. The Minister advances the idea that this appeal of the individual shall only lie to the High Court in cases where the Minister is argued to have been wrong in the interpretation of the law as it applies in this Bill. He does not envisage that a person will have the right of appeal in regard to being aggrieved by the proposed development or curtailment of development. This departure is one that we do not accept. We on this side have already mentioned that we do not for a moment accept the principle that a person should be limited in his right of appeal as to whether the Minister contravened the law in respect of what is or what is not development, in regard to whether something should be exempted or not exempted.

We believe the substantial right of the individual to have recourse to the courts of the country to determine whether in fact his property, or the use of his property, is being affected in a serious manner by the action of the planning authority is a fundamental right of a property owner. You cannot contravene the fundamental rights of the individual in regard to the use of his property. Yet that is what we are doing here. I do not wish at this stage to deal further with it, beyond saying this is a section that could find itself, on its present interpretation, declared as unconstitutional. It is moving dangerously close to a denial of the rights of the individual to exercise his rights to the use of his property. It is a principle we should be very slow to impose on the individual. We say it is a very dangerous principle.

Mr. Dillon

I want to associate myself very emphatically with what Deputy Jones has said. We have provided under the Constitution the High Court, the Circuit Court and the District Court. We have made provision in addition, in relation to title, that the District Court shall not have jurisdiction, that where a question of title arises in the District Court, there shall be a stay for decision by the higher courts. Now, Section 5 of this Bill draws a distinction between the individual and the State in matters relating to trespass. Anybody can go in on another person's property to prevent that person doing what he has a legal right to do, and if he persists in that, the appropriate remedy is an action for trespass. That action should lie in the first court of competent jurisdiction to which the complainant has access.

There is no reason why we should have Circuit Courts or High Courts at all in this country according to the implications of this section. It would be perfectly permissible to say the only court operating would be the High Court. But the Oireachtas has long ago decided that if substantial justice is to be done, courts of competent jurisdiction must be more readily available than the High Court normally is. We have tolerated the scale of costs obtaining in the High Court only because the vast bulk of the people transact their business in the Circuit Court and the District Court, where the burden of costs is relatively low.

Is there any conceivable reason why, if the Executive is the trespasser on my property by controlling or saying I cannot do this or that in relation to the use of my own property, I should not have the same remedy against that trespass by the Executive as I have against my neighbour? The case made by the Minister is that that would not be convenient. If he only got a Circuit Court decision, that would be of relatively little value for the purpose of determining the true meaning of the law. I want to put it to the Minister that that is not the important thing at all.

If in any case a point of substantial or general application of the law arises the Minister should have the right of appeal to the High Court for an authoritative decision, if he thinks it is in the public interest to do so, but ordinarily the man who believes a trespass is being attempted upon him by the Executive should have access to the nearest court of competent jurisdiction. If we depart from that principle—and I warn the House that I have seen this happen time and time again—we will be told next year or the year after in connection with some other Bill that there is provision for further exemption for the Executive from the ordinary process of law.

It will be said this is being done only in accordance with the precedent established in Section 5 of the Local Government (Development and Planning) Act, 1962 which was, it can be said, exhaustively discussed in Dáil Éireann. It would be perfectly true that it was exhaustively discussed but what will not be in the minds of Deputies is that the discussion consisted of loud and emphatic dissent from everybody in the House, bar the Government Party. This will be dressed up with all the grandeur of a precedent established by Dáil Éireann.

It is for that reason that I press on the Minister, not the detailed terms of our amendment but the principle of it, which is simply that if a person has such a grievance as is envisaged by the appeal procedure provided in this subsection, he should be given access to the most proximate court of competent jurisdiction available to him, the Circuit Court. Do not let us accept the illusory belief that this is a matter of relevant insignificance. It is not. It goes to the root of the whole question as to whether we believe, as between the Executive and the private individual in this country, the independent judiciary should be effectively interposed. It is no use giving people theoretical remedies if they are not enforceable.

Progress reported; Committee to sit again.