The phrase in this section "any person" could mean any professional troublemaker. Whether this individual was affected by a proposal relating to a right of way or not, he could make trouble for neighbours. The amendment would limit it to the landlord or to any person claiming to have a right of way, for instance, a person who would normally use it. It is apparent that a person who is sometimes described in the country as "a man of straw" might use the provision to create an element of trouble for an individual, and in this amendment, we seek to rule out people who have no real interest in the matter; we seek to provide that the interest shall be confined to the landowner himself or to persons who claim to have an interest in the right of way. They would normally be persons who would use the right of way at times during the year and might seek to establish a claim to it.
Committee on Finance. - Local Government (Planning and Development) Bill, 1962—Committee Stage (Resumed).
As Deputy Jones has said, it is true that the amendment is intended to restrict the right of appeal to the circuit court. This proposed restriction, however, is such that almost any person could come within it. According to the wording of the amendment, it is necessary for such person to claim he had been affected by the provision or had an interest in the right of way. Those two terms are so wide that the purpose of the movers of the amendment would be nullified in that it would not really restrict. What we should keep in mind is that the purpose of the appeal which we are discussing here, and the right of appeal, is not to claim a right over land but rather to prevent the establishment of such a claim.
It would be fortunate if we could delimit and restrict the persons who would have the right of appeal but we did not, in our examination of the matter, find it feasible to restrict and we have not, therefore, proposed any such restriction. The proposed restriction in this amendment is more apparent than real. For that reason we see no real purpose in the amendment. It does not do what Deputy Jones wishes should be done. We did not find it possible to bring in any sort of worthwhile restriction. The proposal here does not restrict in any real sense the right of persons to appeal because all they have to do is claim to be concerned or indicate they have an interest. Anybody can do either of these two things.
Leaving it as wide as that, does the Minister not consider there could be the type of person to whom I have referred?
I do not disagree with the Deputy. That had occurred to me and to my advisers. There is, of course, the very real deterrent of the expense incurred by anyone who might capriciously, or for some other reason, make such an appeal to the circuit court. We are all aware, though not from personal experience, that these things cost money, substantial money.
Some people seem to have a lot of it.
That is true. The amendment, I suggest, will not do what the Deputy seeks to do.
The Minister says he does not think there is any effective safeguard. If this amendment will not secure a safeguard, I will withdraw it.
I move amendment No. 62:
In subsection (4), page 15, line 57, to insert "the Iris Oifigiúil and in” before “at least”.
This amendment was discussed in conjunction with amendment No. 57.
I move amendment No. 63:
To add the following subsection:
"(6) (a) A document purporting to be a copy of the development plan or of a part thereof and to be certified by an officer of a planning authority as a correct copy shall be prima facie evidence of the plan or part, and it shall not be necessary to prove the signature of such officer or that he was in fact such officer.
(b) Evidence of a development plan or any part thereof may be given by production of a copy thereof certified pursuant to this subsection and it shall not be necessary to produce the plan itself.
(c) Where application is made to a planning authority for a copy under this section, the copy shall be issued to the applicant on payment by him to the planning authority of such fee as they may fix not exceeding the reasonable cost of making the copy."
The subject matter of this amendment was discussed earlier and the question of cost was debated on that occasion. Where an application is made for a copy of this plan, I hope the Minister, by regulation or otherwise, will convey to the various planning authorities that such copy should be delivered within a reasonable time. It will not be necessary to supply a copy of the entire plan, since all the applicant will require will be that part of the plan which affects him personally. What I am concerned to ensure is that the applicant will receive that copy in sufficient time to enable him to exercise his right of appeal, should he wish to do so. The cost of these extracts, since that is what they will really be, should be reasonable so that those of modest means will be able to obtain them. In these modern days, it should be possible to provide photostat copies of the part of the plan required. I ask the Minister to ensure that those applying will receive whatever information they require without undue delay so that they will be in a position to exercise their right of appeal within the specified period. Secondly, the extract should be so costed as to put it within the reach of all, irrespective of how little an applicant may have.
Deputy Jones has mentioned two matters: first, the speed with which the planning authority would produce the copy of the development plan or part thereof, as the case may be and, secondly, that the cost of production would be kept within reasonable limits. Both of these matters can be and will be dealt with administratively. Any dilatoriness on the part of the planning authority in producing any plan or part of a plan required for court proceedings, on request and on payment of the prescribed fee, would be regarded very seriously by the court and the planning authority would be rapped across the knuckles for such delay. So, while we would attempt administratively to ensure that there would be no such delay there is the very real deterrent that the court would be held up as a result of the delay and would deal with such delay in an appropriate manner that would bring about speedy production of the documents. There is no fear under either of the headings referred to by Deputy Jones.
Before Section 21 is passed, I should like to give notice that, following very recent and strong representations, it is my intention to bring back to the House on Report Stage a matter which would be pertinent to this section. It has been represented to me that persons whose property is affected by the provisions of the draft should be afforded an opportunity to state their case before a person appointed by the planning authority. I am considering that. I feel it has a certain amount of merit. I have not had sufficient time to give it full and final consideration before dealing with the section here tonight. I am giving notice that we hope to introduce an amendment, somewhat on those lines and bearing on this section, on the Report Stage. The section says—subsection (2) (b):
... that objections or representations with respect to the draft made to the planning authority within the said period will be taken into consideration...
It has been put to me as a fair request that interested parties should be afforded not only consideration of any case that they might wish to make by written submission or otherwise but should by right be entitled to an oral hearing of their objection or representations before final conclusions have been reached by the planning authority. It is on that basis that I probably will be coming back to the House on Report Stage, as the only possibility of affording the House an opportunity to consider it.
Does the Minister intend to bring in an amendment in those terms?
I have not finally come down on the side of it but at first sight —I have received the representations only very recently—I feel it has a certain amount of merit and in order that the House should have an opportunity of considering it, now that we are passing away from that section, the only thing I can do is to bring it back on Report.
I am very glad the Minister is doing that. By a previous amendment, we tried to make some such provision in the case of a person making representations. The representations might be to some effect and the plan might be altered. The Minister may remember that I moved an amendment in similar terms. It is a useful thing in regard to this type of measure that there should be somebody in the local authority area who would hear people in regard to these matters. I am glad the Minister is bringing in an amendment on those lines because it is sometimes not feasible to put on paper what a person wishes to convey whereas it might be possible to do so across a table. Such a provision would give interested parties a better opportunity of expressing their point of view. It is a desirable type of development that might be availed of in a great many cases in so far as the administrative machine is concerned that there would be some officer who would be available to hear people on these matters.
May I suggest that the Minister should consider providing that where a report is made in this connection to the planning authority or to the Minister, a copy of such report would be available to the person who has made the representations?
I move amendment No. 64:
To delete subsection (2).
Subsection (2) of Section 22 says:
The Minister may require the development plans of two or more planning authorities to be co-ordinated in respect of matters and in a manner specified by him and thereupon—
(a) the authorities shall comply with the requisition, and
(b) any dispute between them arising out of any matters inserted or to be inserted in a development plan shall be determined by the Minister.
elected representatives to decide on a
Under this Bill the local authority shall be the planning authority and it will be the function solely of the development scheme to be put into operation in any area. The development plan will be expertly drawn up and then submitted to the elected representatives.
The Minister, I suggest, has sufficient authority already over local authorities. He has sufficient means of making them amenable in the ordinary way to the overall control which the Minister exercises in these matters. If the ultimate responsibility for planning is vested in the Minister for Local Government, I want to suggest to the House at this stage that it is not the type of development which is most desirable in the approach to planning. Here we have a division of authority as between the elected representatives and the Minister. I believe there would be a more responsible approach to planning, in so far as it would affect an area, a region or the property of individuals, if there were not the type of control which is envisaged in the section.
In saying that, I do not wish in any way to minimise the necessity for the overriding control which the Minister exercises, and which I believe he has ample power to exercise. If the local authorities, the elected representatives, feel that they have not the final responsibility for planning, or that they can be requested, or even compelled, in fact, to do certain things, I want to suggest that that is not the desirable approach to planning which we set out to attain in this Bill.
It has been found, particularly in England where they have gone in for this development, and have more experience than we have, that the most essential thing is to get local enthusiasm for planning, and to get that measure of agreement which brings with it civic pride and civic responsibility. It can be shared with the voluntary associations, but if at any stage we are inclined to say we will require people to do things, we immediately change from the voluntary aspect to the compulsion aspect.
The development on which we are about to embark is new. The Minister introducing the Bill, and speaking from the House to the elected representatives, in his tour of the country, and in his addresses to the officials of the local authorities, has impressed on them the necessity for this co-operation. We cannot get co-operation from them by taking all the responsibility from them. I do not wish to refer to any instances that might be in anyone's mind at present, but I believe, and I have always felt in regard to local authorities and local government generally, that we should have local government rather than local administration.
I believe that leaving the responsibility to the elected representatives to ensure that what they plan, or what is planned for their area, will have the best results for their area, is the surest way of ensuring that they have a healthy respect for all aspects of planning. If, as the section stands, the elected representatives find that they can be required to do certain things, that they must comply with a requisition, or that when a dispute arises, the Minister can determine the solution, an impasse will be created in the long run. That will mean that there will not be the reasoned approach to planning which there should be.
For that reason, and having regard to the overriding responsibility of the Minister to see that the Bill works, we suggest that this subsection of Section 22 should go. The Minister has sufficient control. He could inculcate into the local authorities a greater sense of responsibility by ensuring that they are responsible for planning and then they would approach the problem feeling that what they did would be final. They would approach it from that point of view, always remembering that people affected by their decisions have the right of appeal to the Minister.
Anyone who feels that his property is affected by the type of planning which is contemplated by a local authority can appeal to the Minister but if, having put the onus on the local authorities and made it a reserved function of theirs to plan for their areas, we then turn around and seemingly take it away from them by putting in the Bill a section under which the Minister may require those plans to be co-ordinated in a manner specified by him, we immediately take away from them their responsibility to plan.
I want to suggest to the Minister that the Bill would be improved by the omission of the subsection, and that he is entitled to seek that degree of responsibility from the local authorities in matters of planning. Under the Bill, he would have power of direction. When we say in one section that planning is a reserved function of the elected representatives, and in another section, that the Minister may require certain things and they must then be done, if he so desires, the two sections are at variance.
I know an occasion can arise when it might be desirable for the Minister to intervene. Such a thing can be visualised in a sensible approach to planning, but since this is a new departure in this country, and since it will work only with a wholehearted voluntary acceptance of the need for good planning, we should throw the responsibility on the local authorities and their advisers, and trust them not to do anything which would not be desirable in regard to planning at any stage. I believe the weakness of this Bill is that we say in one section that they have the right to do certain things, and then, in another, that the Minister may intervene and direct them to do certain things. It is for that reason that we put forward this amendment.
I must admit I am surprised at the Deputy's approach to these amendments. At the same time, I must add that the fact that we are going to all this trouble to provide ourselves with better and more adequate machinery wherewith to get proper planning done is, in itself, an indication that we wish to have proper planning done. To my mind, that denotes a certain amount of co-ordination of our efforts and plans, whether they are of vital regional, national, or in some cases, county interest. The majority of the professional people, when we requested observations of any and everybody interested in our proposals, felt that we should not have so many and so small units as planning authorities. Their arguments were quite convincing but I withheld my approval to liquidating a number of the smaller local authorities as planning units and have retained a great number throughout the country, many of which are quite small.
I have done that because, as Deputy Jones has mentioned, many of these local authorities which will be planning authorities in the future, as many of them are at present, are in very many respects the best people to initiate and ultimately carry through whatever plan will have been adopted by them with a view to improving their own locality. Despite the strong arguments made by the various professional bodies, it seems to me that not having that large number would create the impasse that Deputy Jones has mentioned rather than that an impasse would be created by leaving the Bill as it is.
Take, for instance, the ordinary, typical cases where co-ordination is absolutely vital as between area and area or a number of areas, whether it be an urban within a county or whether it be adjoining counties, a borough in a county or a borough with a county surrounding it, whether it be three or four areas that are concerned, with the best will in the world, the interests of a planning authority may not be the interests of the greater number in the adjoining areas. Take the question of the layout or the route of an arterial road. One local authority might want it entering or leaving their particular locality, if they have the last word, at a point that did not correspond with the place where the other county were agreed it should be. There could be also a very great divergence of opinion among local authorities in regard to water supply mains or sewerage facilities and so on. An intolerable situation could be created. Supposing Dublin Corporation, for example, determined, as they probably will, that Foxrock should remain residential, there would be nothing to prevent the adjoining local authority of Dublin County Council saying that they proposed to have an industrial estate on the boundary. That seems outlandish but I am giving those examples of what could happen in order to drive home the reasons for the proposals in the Bill and as to why it should not be watered down by substituting "request" for "require".
If such divergences of opinion emerge and cannot be solved as between neighbouring planning authorities, then a mere request from any Minister is not likely to bring about a solution. If their own goodwill and neighbourly spirit that will have existed down the years have not succeeded in preventing the break, with one saying it is going this way and the other saying it is going the other way, and both fully convinced they are right, then somebody must come in to make the peace, as it were, quite impartially and standing away from the problem as it appears in all its aspects.
I have deliberately left this great number of planning authorities, as the House agreed they should be left there because of their adherence to the view that local authorities are best qualified to deal with these matters and should be given as much power as we can possibly delegate to them. I am not proposing now to take that power from them but what I am proposing to do is vital to the whole context of this Bill, that if, in the exercise of the power in the making of their plans, these plans conflict with each other, some outside, disinterested and impartial person must make a decision after hearing all the arguments. Without that, the whole benefit of our planning as proposed in the Bill up to this point would be nullified as would the substantial progress we have made by way of agreement and which promises to make it a worthwhile Bill.
I feel most strongly on this and I have gone into the matter thoroughly. Even though it may seem a small matter to change "require" to "request" it would blow such a hole in the bottom of the legislation that it would not be worthwhile spending as much time as we are likely to spend on completing it.
(South Tipperary): Does subsection (3) merely deal with co-ordination?
Subsection (2) deals with that.
(South Tipperary): Subsection (3) reads:
The Minister may require a planning authority to vary the development plan in respect of matters and in a manner specified by him and thereupon it shall be the duty of the authority to comply with the requisition.
Does that merely relate to disputes between respective planning authorities? Is it merely to enforce co-ordination as far as possible?
That is only so far as subsection (2) is concerned. Subsection (3) deals with variation as well.
(South Tipperary): It applies to all aspects of the plan?
It does, yes.
(South Tipperary): I think I would——
Probably I could add a little to that to make it clearer. We should keep in mind that the plan as approved, or accepted, or proposed by the local planning authority, will not at any stage have been approved by the Minister. That is being preserved so that the Minister may, on appeal, approach the matter with an open mind and may be uncommitted, which he would not be if he had approved, at a prior date, the plan about which there was an appeal. If, on consideration of an appeal or appeals, the Minister finds that a variation of the plan is required, in order that effect may be given to his determination of a particular appeal or appeals, then that variation would be covered by subsection (3) of Section 22, to bring about a change in the plan to correspond with what he had decided on a particular appeal or appeals.
I would not wish that the type of consideration we have been giving to this Bill, or the ideals we have set before ourselves, should be weakened in any way. In this approach to planning, I assume we are not going to have, for a start certainly, a planner for each local authority. In so far as the boroughs or county boroughs are concerned, anybody could see that a single planner is the kind of individual who is going to deal with, say, Dublin and county, Limerick and county, or Cork and county, and that at the beginning, the type of expert planners we will have will not be restricted in number. I should imagine that with the type of co-ordination and consultation which is taking place under local government in all its phases—with the county managers coming together at regular intervals and the health authorities coming under unified control— something the same will operate in regard to planning and that we will have a number of expert planners who will not plan for a single region but rather for the region covered by perhaps two or more planning authorities; that we will be doing regional planning rather than county planning.
It is from that point of view that we hope to overcome some of the difficulties to which the Minister has adverted, extreme though they may be. It is unthinkable that men who were supposed to be experts would lend themselves to the type of plan whereby you would have commercial undertakings or industrial undertakings side by side with residential areas. It is unthinkable that they would even suggest such a type of development to the elected representatives. In this amendment, I am trying to suggest that this would be more or less in keeping with the type of development which we have been contemplating under subsection (6) Section 19, where the making of a plan or any variation shall be a reserved function.
There are, if you like, going to be two aspects of the planning: there will be the administrative and the executive end. The administrative end will be the actual planners who will deal with the plan for the region and who will prepare the plan; the executive end will be those who having received the plan will adopt it. Those are the elected representatives of the people. It is to maintain our primary interests in good planning that we have submitted this amendment and not for the purpose of weakening any type of control. The whole purpose of this Bill is to get some kind of co-ordinated planning and that is not going to be done piecemeal. If the Minister were to give the impression that he contemplated planning of the type that was going to be dealt with by, say, 26 or 28 planning authorities and result in a jigsaw puzzle, I could not agree more with him that there would have to be some type of coordination and direction.
I should hope that under this Bill there would be a number of officers of such calibre as would be able to plan for regions and not just for the area under the control of a planning authority. This subsection seems to cut across what the Minister said earlier about a reserved function and I want to suggest that until such time as he finds it is not going to work in that fashion, he should be prepared to leave the responsibility with them. They will be working to a coordinated plan as submitted by the planners rather than piecemeal planning by a number of planners. If the Minister felt that the opposite was going to happen and that he was going to have a type of jig-saw puzzle which could not be fitted in and would require the over-riding control of the Minister to fit it in, I would be prepared to regard that as a serious defect. I hope that such will not happen. If this is a reserved function, then in this subsection the Minister seems to be taking away from it and until such time as he feels that it is inexpedient to do so, he should leave it until the inexpediency has been determined. I should like to hear the Minister on that in regard to the over-all planning.
To Deputy Jones's point that if this is a reserved function, it should be left as such, and am I now contemplating taking from the planning authority that which I proposed to give them in an earlier section, I give a direct answer. I believe this type of planning will be in the national interest. I would be prepared to take from them what may have been given to them in earlier sections but only in such cases. When we talk about reserved functions, the whole basis of this legislation is grounded on the fact that, instead of this legislation being defective, as was the earlier, by way of its being permissive only, we are in fact requiring each of our 87 planning authorities to undertake planning and to produce a draft plan.
How many?
There might be even a few more or less than 87 planning authorities but I think there are at least that number.
Does the Minister contemplate that each of the urban councils will be a planning authority?
Yes; it is in the Bill. That is the point I am making. The very fact that there are as many, for our small-sized country, as 87, or any number around that, in itself creates the situation wherein it is even more necessary than it might have been, if we had fewer in number, to have these very terms of the proposed section rather than the section as it would be if amended by the proposed four or five amendments.
The various urban districts are under the control of, say, one executive authority at present. How many executive authorities would there be in the State?
About 30 odd. Getting back to this whole argument of reserved function, the very first real change in this proposed legislation is that no longer will these local authorities be left to decide for themselves whether or not they are to have a plan. Therefore, though we are making the drafting of the plan a reserved function, we are, in fact requiring those same people to make such a plan.
If, as Deputy Jones has suggested, the same planner may be preparing plans for several adjoining planning authorities, we would have this much-desired uniformity. On the other hand, if this reserved function we talk about is exercised by the elected members of the planning authorities, it does not follow that though they may have a joint planner for several adjoining planning authorities the reserved function will bring about an acceptance by all of the adjoining authorities of the plans proposed by the one mind. The very essence of the reserved function is that each of them would have their own mind. In such circumstances each would have in mind the best interests of their small community. Difficulties may and undoubtedly will arise in bringing about this uniformity of plan which, in the national interest, is desirable and necessary. In such circumstances, somebody must be left in the position to straighten the way, as it were, and to say: "This is the way that should be done through all of your territories", having heard, in advance, the case put forward by each of those affected.
Roads, water mains, sewers, even zoning provision, the construction of airports, the provision of harbour facilities at some of our coastal ports— all of these things can have a very direct bearing on a number of adjoining planning authorities. How the roads go: how they may have to be developed, for instance, to serve an airport or a deep sea port. Take Cork, Galway or Dublin city. Take the road services we need, say, to serve our own port here in the city of Dublin. It just does not end when you get to the boundary of the city. It is a question of disseminating to and gathering traffic from all over the country.
An airport, even with the existence of roads, can quite well have a very far-flung effect. Therefore, the idea that development of a very real national interest—with its offshoots, as it were—should solely be left to the discretion of the planning authority within whose territory such a development may arise, without regard possibly to its effects on others, would strike at the very foundations of what we are attempting to do which is not just plans for towns, counties, rural areas or ports but, in a broad national sense, is the co-ordination of all the plans of the 87 authorities into a composite whole for the benefit of the community as a whole and in order to advance the national economy. I put it again to the House that it is very vital that we should have this power of requisition rather than request.
I am all in favour of what the Minister said in regard to getting things done nationally—something that will be of broad national and even local benefit. However, I felt there ought to be a sense of responsible approach by the elected representatives to this matter of planning. It was in the hope that we would get a responsible approach to this desirable and needed type of planning that we put forward the amendment.
The whole approach to planning will depend on the co-operation of everybody. If we cannot get this co-operation we are not likely either to get good planning. If the Minister feels that that is absolutely necessary and that we cannot have responsible planning without this subsection which takes away immediately from them the type of responsibility they ought to have in regard to their approach to planning and to the people advising them on planning, I am prepared to give way on this matter. In so doing, I regret the Minister feels there is not a sufficient sense of responsibility among the elected representatives of local areas and their competent advisers to sit down and think out what is best, what is in the best interests of the regions and what is in the best interests nationally. It would be a poor approach to the type of co-operation we expect from the local authorities when they get down to it.
If the Minister feels he has not sufficient bite in this Bill otherwise, or that this would in any way weaken it and not leave it capable of giving us the type of desirable planning everybody wants, I am prepared to withdraw the amendment.
(South Tipperary): I wish to appeal to the Minister in regard to subsection (3).
We are discussing only an amendment at the moment. The section will come before the House afterwards.
(South Tipperary): Subsection (3)?
This is amendment No. 64—to delete subsection (2). We are dealing only with the amendment at the moment.
I move amendment No. 65:
In subsection (3), page 16, line 8, to delete "require" and substitute "request".
Amendments Nos. 65, 66 and 67 really have the same content as amendment No. 64. They are in line with the ideas I have given the House already. On the question of "require" and "request" to which the Minister has referred, "require" is the operative word needed in the Bill. "Request" is not sufficient in regard to this section either. A request to the authorities may not have the effect of getting the co-operation the Minister needs.
(South Tipperary): I appeal to the Minister to reconsider subsection (3). If that subsection is implemented with force it will mean that local authorities will be asked to prepare sketch plans and the Custom House will be the final planning authority for every local authority. I do not think that is right. Being a county councillor, I am anxious to preserve as much authority and as many privileges as possible for local representatives. The Minister has been a county councillor himself and knows the difficulties.
There is considerable criticism at present, and there has been for years, of decisions made in the Department of Local Government. For example, there has been considerable criticism recently in our own council about the distribution of road funds and in regard to money diverted from country roads to arterial and main roads. Everywhere one finds criticism of the 100 per cent grant schemes designed and planned entirely in the Custom House. Many schemes that are planned locally never come before the local representatives. The first we know is that a big bend is taken off the road and we are accused by the local people of squandering their money while we know nothing about it.
If this provision is implemented with considerable force, as it probably will be—it depends perhaps on the Minister in power—I believe it will considerably nullify any incentive to local effort and cause considerable frustration to local voluntary associations and county councils in general.
The Minister has many way of bringing county councils to heel without the power sought in this subsection. If he intimates his wishes to a county manager at any time, usually the county manager has sufficient influence with the county councillors to get these wishes adopted. The Minister should at least give a trial to less coercive methods. I believe that would pay good dividends and that he would get better co-operation. He would also produce a better Bill. He said he had to deal with 87 planning authorities. I do not dispute his point about having taken powers to enforce a degree of co-operation because you cannot get a half-dozen—or even two—planning authorities to agree. I can understand the need for that power, particularly when he has so many to deal with but I appeal to him to reconsider this subsection and, perhaps, he would find it possible, if he does so, to amend it or even delete it altogether.
I should like to have some assurance at least from the Minister that only in exceptional circumstances would he invoke the authority sought in this subsection. I should like to know the circumstances in which he would be likely to require this power. Like Deputy Jones and Deputy Hogan, I want the maximum power of decision left to the local authority, the people who have local knowledge and who have the interest of the area at heart. They are perfectly intimate with the circumstances of their area and it is altogether wrong to assume that the Custom House people are in a better position to pass final judgment on a plan than those who have local responsibility.
Answering Deputy Clinton first as to the circumstances in which this clause or variation is likely to be used, I should say that the whole system of appeals by individuals against planning authority decisions would be almost completely nullified if there did not repose in the Minister power to vary a draft plan to conform with what was ultimately decided on an appeal submitted to him by an individual aggrieved under a planning authority decision. Such a decision in almost every case would be made in conformity with the authority's own draft plan and statement of intention of planning. If there is any meaning in the right of appeal to the Minister against a local authority's planning decision made in conformity with their own accepted plan, the power of the Minister subsequently to vary the draft plan of such an authority to bring it into conformity with a decision he has upheld on the appeal of an aggrieved party, is an absolutely vital part of the procedure.
Reverting to subsection (2) on the question of co-ordination, the co-ordination of the plans of adjoining planning authorities will almost inevitably call for variation in order to bring them into conformity with each other and the general pattern in the regional interest, an interest greater than the interest of any one of the parties to the local divergence of opinion. The power of variation is not being put in so that, in a veiled way, the Minister or the Department of Local Government will, in fact, become the planning authority for every local authority. I want to give a categorical assurance that that is not the intention and never will be. I want to put that on the records of the House and let it be specifically understood. That never will be my intention so long as I am Minister.
The requirements of both subsections (2) and (3) are a basic part of the whole machinery necessary for planning. Far from indicating that I lack confidence in the members of our local authorities, the fact that 87 planning authorities are mentioned in this Bill should give all the assurance necessary, even to the smallest urban council, that I, as Minister, am fully satisfied they have a part to play in finding the type of planning best suited to our society.
As far as the Minister requires this power for the co-ordination of schemes between one county and another in the national interest, I am entirely in favour of it, provided it is confined to that and so long as the Minister does not interfere unduly with the planning powers of the local authority for its own area where it has no connection with the adjoining area.
I move amendment No. 68:
In subsection (4), page 16, lines 15 and 16, to delete ", with the consent of the Minister,".
As the subsection reads at the moment, it depends on previous subsections in this section. The Minister has taken power in the previous subsections to give directions and has power to require planning authorities to do certain things and make variations. I want to get the mind of the Minister in regard to subsection (4). If subsections (2) and (3) require the planning authority to make necessary changes, why is it stated in subsection (4) that the changes must be made with the consent of the Minister? Are they not changes the Minister has already required them to make?
Perhaps I should have referred to amendment No. 68 at an earlier stage. Assume the situation develops that, for one reason or another, a variation is required by the Minister and he makes that known. The planning authority have got notice requiring them to make a certain change. That certain change must be given the same full range of publicity as would have been given to the original proposals in the draft plan. Consequent on that publicity, certain objections and representations may emerge or a strong case may be made for an alternative variation. In fact, it may be decided that not all of what has been asked for by the Minister should be done and that another way may be the better way. In that event, it will not be what the Minister required in the first instance that will be proposed to be done, but something different. In that event, the Minister must be asked for his consent to depart from what he himself asked the local authority to do.
(South Tipperary): Consent to an amendment of his own amendment?
Yes. The full publicity given to his requirements may bring up objections or amendments which cast a different light on the matter. Therefore, it is not quite as brutal as Deputy Jones thought. The requirements of the Minister are not absolute until the whole procedure of publicity, objection and representation has been gone through. It may then be varied or amended only with the consent of the Minister.
That certainly takes some of the sting out of it. Recent events preclude me from dwelling too much on these matters. The Minister has had to make representations, and I do not wish to refer to the matter at present. Certainly, what the Minister has said clarifies the position. In my references to the previous subsection, I had that very much in mind. If the Minister felt in the national interest he required these powers, I would not put forward an amendment to weaken his hand. What he has said has helped me to understand the intent.
I move amendment No. 69:
In page 16, line 20, to delete "general instructions" and substitute "suggestions", and in line 21, to delete "model" and substitute "specimen".
The intent of this amendment is to put the planning authority in a superior position in regard to planning. If we take the words "general instructions," there is more there than merely the conveying of ideas. The suggestions there ought to be followed. When it is a question of helping them along in regard to planning, suggestions would be very welcome, if they do not take away from local initiative. When we use the word "model," we are inclined to think of the ultimate in achievement. It might not be always true, but I suggest "specimen" might be a more apt word to use for the type of planning the Minister may propose to local authorities. It is from the point of view of leaving it to the goodwill, the good sense of the local authorities, that we move this amendment.
I recognise, and I said so earlier, that in the new development taking place in this country, there will be great need for preparing and training the necessary personnel to get the best type of planning in the country. The Minister has already taken steps to ensure that the local authorities will have at their disposal the advice of qualified people. In regard to this term "model planning", what I do not want is that this would be handed down to the local authorities as something that must be followed. I feel sure the Minister does not mean it in that way. I believe he means it will go to the authorities as a suggestion and this again involves the question of local control in planning matters.
I support Deputy Jones on the need for these changes, especially in regard to the proposed change of "model" to "specimen". A model is a thing that in these days all politicians should be anxious to avoid. Apart from that entirely, the term makes one immediately think of model schools or model farms. I shall not mention the other models. As I have said, it would be more reasonable to substitute "specimen". On the proposed change from "general instructions" to "suggestions", although it appears in the Bill as a potential instruction, I do not think it was intended in that way because that term would be nullified by the later reference to "guidance". It would not be mandatory in any sense. I feel sure the term "general instructions" was meant to convey guiding suggestions.
The first part of the amendment seeks to substitute "suggestions" for "general instructions". The context in which the term appears here is the important thing. The feeling is it would be desirable the same general form of map notation would be followed by all local authorities in preparing their development plans. This is not merely a facility to be subjected to scrutiny at a later date by officers of the Department. Far more is it to facilitate more readily a recognition in any planning authority area of what is, in fact, intended. If a map is done in the same way, if the outline is prepared in the same way, as the result of the general instructions having been issued, then everybody will be facilitated greatly in that all local authorities will be dealing with the same type and form of approach to planning as a whole.
In so far as the model forms are concerned, candidly I much prefer "model" to "specimen". We have had model by-laws, model clauses and Deputies can bring themselves up to date as to what type of models we are having at the moment. The word has been used in the context in which it is in this section for many years in different types of legislation. A change of the wording here would not be any improvement: in fact, as suggested, it might be a weakening of the intention in the subsection. For those reasons, I suggest there is little, if anything, to be argued for the change.
Reverting to the first part of the amendment, the implementation of the general instruction would bring about uniformity of approach in the preparation of plans. It is not necessary to get uniformity of planning for the areas but a matter of getting the map notation similar in all areas—that the general approach to the plans will be faced in the same manner by all local authorities. All would be facilitated, in that once local authorities got to know the lay-out of the plan in one area, they would be preparing for a similar approach in other areas. "General instructions", therefore, is a more useful term.
Does "general instructions" mean they would have to be followed?
Yes, that is the purpose. Suggestions need not be followed and therefore, we would not get the benefits that would follow from map notation.
It was stated earlier that this provision was for the guidance of planning authorities.
This would be intended to bring about the minimum of uniformity in approach in order to get a general line on mapping, notation, and so on, in some sort of common form.
But not rigidly to be adhered to.
Oh, yes. The instructions would probably issue to the manager, instructions as to how he should set about getting his plan into its final form, the plan which would have been agreed to in all its main principles by his elected body. It is that type of instruction that will go out in order to help him to tackle the matter. Why should we have 30 or 40 ways of doing it when we can be helpful to local authorities by telling them that they should follow a certain line in certain respects? It is merely the setting out of the draft plan, not what is actually contained in it.
It is instructions to the planner rather than to the planning authority.
In a sense, that is so.
I move amendment No. 71:
In subsection (1), page 16, lines 29 and 30, to delete "on or".
This amendment was discussed with amendment No. 18.
Amendments Nos. 72, 76, 104 and 105 might be discussed together. They are related.
I move amendment No. 72:
In subsection (1), page 16, lines 31 to 34, to delete paragraph (b). Might I ask the Minister if he would inform me whether the word "structure" is confined solely to structure as defined?
Yes. It is as defined.
In the section, as drafted, it is provided that:
(b) in the case of a structure which existed immediately before the appointed day and is on the commencement of that day an unauthorised structure, for the retention of the structure.
Paragraph (a) requires permission to be obtained for the new development of land and paragraph (b) deals with the retention of a structure erected during the currency of the Planning Act of 1934 and in respect of which permission was neither required nor obtained. Under the Acts of 1934 and 1938, once a local authority passed a resolution to make a planning scheme for their area, they were required to make this plan with all convenient speed. Now structures were erected for which permission should strictly have been obtained. No planning authority, with one exception, made a scheme. They were in breach of their statutory requirements and that was very forcibly borne out by a court decision in a case in which the Dublin Corporation were sued by Modern Homes.
No penalty was imposed on local authorities for their failure to observe the law and I suggest to the House that no penalty should now be imposed on private individuals who failed to observe the law. Very little publicity was given to the making of planning schemes and it may well be that structures were erected by people in ignorance of the law. Great hardships might be imposed on these people now if they were required to remove these structures. It would be inequitable, for instance, that a native of Leitrim should be compelled to remove a structure while his next-door-neighbour in Cavan is not penalised after such fashion, though his structure is identical in every respect.
If local authorities are not penalised for their failure to comply with the law, I do not see why individual citizens should be penalised. Up to this, very little thought has been given to planning. Very little regard was had to the 1934 and 1938 Acts. Very few knew there was such a thing as town planning. A great many people learned of the various provisions of town planning and their effect when the action was taken in the court by Modern Homes to insist on certain things being done. The public are aware that even after judgment was given by the court the procedure was protracted.
In most counties where there were planning authorities under the previous Acts, while they may have adopted the resolution which brought town planning into operation, there was very little else done. In a great many cases people had erected dwellings for which they had no permission from the planning authority at the time. Judging by the types of building one sees on the outskirts of towns and cities it would seem as if building was rather haphazard and did not conform to any plan.
I suggest, therefore, to the Minister and to the House that it is inequitable at this stage to impose on the private citizen the type of sanction which could be imposed by this subsection. If he did not obtain permission, whether advertently or inadvertently, under previous Town Planning Acts, he now finds himself in peril of being ordered to remove some structure. I suggest that that is something we should not do. The private citizen should not be visited with sanctions which are not imposed on local authorities when they were remiss in regard to town planning. For that reason, we put forward the amendment.
(South Tipperary): This section embodies the worst type of coercive retrospective legislation possible to imagine. Here we have a position arising where a previous Act was passed which some local authorities adopted and some did not but in no instance was a plan prepared. Apparently, there was a hiatus in the Act which some people discovered and found they could flout the local planning authority and did so. Now this section is introduced to punish these people retrospectively for a fault which lay in the first instance with this House and with the Parliamentary draftsman and in the second instance with individual local authorities who may not have adopted the Act or, where they adopted it, did not produce a plan. Now the draftsmen who drafted it foolishly go unpunished and the people who had sufficient intelligence to find a gap in the Act are to be punished retrospectively for discovering the gap.
For years and up to the present time local authorities have been placing controls upon people in the name of town planning without, apparently, having legal power to do so. This section means that we are going to take legal power. It looks as if the intention may be to punish those who were bold enough to disobey us previously. If this is meant and is applied merely to remove some very objectionable thing that may have happened in the intervening period, I can understand it but this is a sweeping section which gives retrospective power to the local authorities everywhere to deal with any flouting of their suggestions over the past 20 years.
There is at least one feature of this Planning Bill which comes to my mind in respect of which it is extremely desirable to have retrospective legislation. I refer to the question of unfinished estates. However, I regard this subsection as a very dangerous subsection in respect of which to have retrospection. So many unauthorised structures come to my mind that it would seem, if the Minister were fully to exercise his powers under the subsection that he would demolish half the countryside.
It is very difficult to decide in some cases what is an unauthorised structure. For instance, is a structure in respect of which application for permission was made and permission was not granted and the statutory period of two months elapsed and the person proceeded to build, an unauthorised structure? The man who applied for permission has no written evidence that it is not an unauthorised structure. The only thing he has is an application, to which he has no reply.
What use does the Minister intend to make of the subsection if it is passed? Does he intend to require a large number of people or a limited number of people to demolish structures, the building of which there was no power at the time to prevent? I find it very difficult to see in what way the power can be used. Is it the intention to require people to demolish buildings? Otherwise I do not see that this power is required. It is unthinkable that in respect of dwelling houses, factories or other buildings the Minister should now be given power to say that they must be demolished, and demolished at the expense of the persons concerned. That is what the subsection states and I would be very much opposed to it.
I think there is complete misunderstanding — an understandable misunderstanding, if I may put it that way—in the minds of the Deputies who have spoken on this matter. Let us take the situation as it is. In a number of counties the Planning Acts were in operation; in a number of other local authority areas they were not. An unauthorised structure would be a structure for which no permission had been given in an area in which the Planning Acts were in operation at the time of its construction.
(South Tipperary): Where they were adopted?
Where they had been adopted, yes. If no such planning had been in operation in a planning authority's area, then no permission could possibly exist. In such circumstances, the structures, even objectionable ones, are not and will not be regarded or described as unauthorised. What it boils down to is this: the planning authorities who did not go for, and put into operation, their powers under the 1934 Act, are now facing a situation in which, if there are structures in existence which are objectionable and, for good reasons, they want them removed, and take steps to have them removed, they must pay compensation in full for their folly in not operating the 1934 Act.
For those counties which operated the Act and where, through alleged ignorance of the planning laws, and through the operations of the "wide boys" who took advantage of certain loopholes in the law, not through ignorance, but through their great insight into the law, certain buildings were erected without permission, in such circumstances they will be unauthorised structures after the appointed date mentioned in the Bill. That does not mean to say, and it is not intended to convey, that every building erected without written authority must be brought down.
In fact, the intention of this Bill is to make legitimate, where it is possible, that which is now illegitimate. In other words, we want to end the present situation in as many cases as we can. The position will be that within five years of the passing of the Act, or the bringing into operation of the appointed day, a planning authority may require a building or structure to be removed. It could be hoardings or advertisements or any one of many things, none of which may necessarily be of any great value, and their removal may not cause any great hardship. In fact, a very good profit may have been got from their existence during the intervening years.
We also provide that persons who own such unauthorised structures can apply for permission to make them legal. If they are refused permission, they have the right of appeal to the Minister who, on further consideration, may decide against the local authority. Despite the fact that permission was not sought or got, and despite the fact that the structure may not be a very desirable one, it might be held that it is not so objectionable as to merit complete condemnation and removal without compensation. A great many structures that will come to be regarded and named as unauthorised will, for the first time, by virtue of the proposals in this Bill, become legalised and be entitled to exist, and if in the future they should be caused to be taken down by the operations of the local authorities, they will rank for compensation in the same way as any other property, or something that may exist legally at the moment.
Will the Minister say how he proposes to prove that a building was erected on a date during which planning was in operation?
I do not propose to set about proving that a building was in existence on a particular date. What we will be seeking is evidence that the building which is in existence on the appointed date of the coming into operation of this measure has got planning permission if it is in an area where the Planning Acts have been in operation.
If it is claimed that it was erected before the Planning Acts——
In that event we go back to subsection (4) of Section 24.
The Minister will have to write in a few more subsections to get that in.
No. We are quite well and adequately armed here. I want to make it quite clear that the intention is not to catch people out. It is to try to bring some sanity into the situation that exists at the moment.
(South Tipperary): I understand the adaptation of the plan, and I understand the making of the plan, but what does the Minister mean when he talks of the plan coming into operation?
I mean the proposed plan, the plan we are talking about in the Bill.
(South Tipperary): The Minister mentioned the operation as regards the previous plan. Which does he mean: adaptation by the council or when the plan is made?
I would have to ask the Deputy what he means. I may have confused him, but he is now confusing me.
What we really want to get from the Minister is whether under the 1934 and 1938 Acts the fact that a planning authority passed a resolution to make a plan but never proceeded to make it, and, therefore never adopted it because it was not made——
I am not talking about its being adopted. Deputy Hogan is talking about adaptation. I may have been brought to use the wrong word. I am talking about areas of planning authorities in which the planning Acts were in operation. The Deputy may dissect that in any way he wishes.
Only one authority made a plan.
I am not talking about plans having been made, but about areas where the Planning Acts were in operation.
(South Tipperary): They passed a resolution.
They were in operation.
By passing a resolution?
Yes.
(South Tipperary): They were not legally in operation.
That is not what is at issue here.
It will be under this subsection.
I suspect that some Deputies are talking with their tongues in their cheeks. Some people, by employing the best legal advice they could get, found ways of getting around the law, and they enhanced their personal gain to a very considerable degree. By getting around the law, or ignoring it, and by taking advantage of any weakness in the law which they found in their search, they enriched themselves and they are continuing to enjoy that enrichment while, at the same time law-abiding persons refrained from doing the same thing because they knew that was not the intention of the law. Are they to continue to be poor while the other man continues to get rich on something he should never have been allowed to do, and which he did, knowing he was breaking the law, but having found a legal way of getting around it? Surely there is no justice in that, and surely no brief should be held for such people.
If the law was faulty and inadequate, surely we cannot go back and patch it up retrospectively.
Deputy Clinton is well aware that that is not what we are talking about.
The Minister said it is not the intention that hardship would be caused under this section, but that people could be compelled to pull down buildings or structures. Can he think of an instance where he could use it for the purpose of having a building pulled down at the builders' or the owners' expense?
We are getting away from the point. It is the planning authority who will cause this operation to take place, not the Minister.
It may come to the point where the Minister may be asked to intervene.
That is right.
A planning authority may not like the colour of some individual's eyes. He may have found a way of getting around their rules and regulations. He may have given them a lot of trouble, and they may not like him, and they may say: "We want that building pulled down. We told you you should never have built it." Can they require him to pull it down at his own expense?
Not on the colour of his eyes or because of like or dislike.
Can they require him to pull it down because of the fact that they did not authorise the building of the structure, and because they had not the legal power at the time to enforce the rules which they were trying to get this person to adopt and agree to? They want new restrictive powers to deal with this man, to punish him in fact and there is something all wrong there. We are trying to patch up defective law. People did this in a perfectly legal fashion; otherwise they could have been stopped.