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Dáil Éireann debate -
Wednesday, 26 Jun 1963

Vol. 203 No. 12

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

SECTION 26.

Amendments Nos. 90 and 98 might be discussed together.

I move amendment No. 90:

In subsection (8), page 20, line 13, to delete "of" and substitute "setting out with particularity".

Subsection (5) of Section 27 reads:

(5) A decision given under this section (whether on the original application or on appeal) by which permission is refused or is granted subject to conditions, and the notification of such decision, shall comprise a statement of the reasons for the refusal or the imposition of conditions.

Subsection (8) is designed to ensure that where permission is refused, the planning authority will give reasons for refusing or for imposing special conditions. The general Civil Service practice in such cases is merely to quote the relevant section of the Act as justification for the refusal of permission. Such a communication gives no indication as to the real reason for refusal and the purpose of the amendment is to oblige the planning authority to set out the real reasons with particularity.

We had some discussion this morning verging on this particular interpretation in regard to this subsection. Examples were quoted as to the type of reason given for withholding permission or imposing a condition. An analogy is apparent with other legislation of which Deputies and the public have experience in dealing with Departments of State, particularly under the social welfare code, where an appellant is referred to a subsection of a section of an Act. I suggest to the Minister that the reasons for rejection of an appeal should not be stated in that way under this Act. The reasons should be set out with particularity so that it will not require an interpreter to explain them. The reasons should not consist of the recital of a clause or subsection of a section. The individual should be informed that his application contains an inherent defect which should be pointed out.

The other amendment which we are taking with this amendment deals with an appeal and notification of the reasons for the refusal or for the imposition of conditions. There are two types of cases which fall to be dealt with under this amendment. The first is an original application made to the planning authority which is refused or is granted subject to modification and the modification is notified merely by reference to a subsection or section of the Act. The second type of case deals with the upholding or rejection of an appeal by the Minister. The Minister should give the reasons. Where the planning authority have refused an application for reasons which seem good and sufficient to them and the Minister, having considered the evidence submitted to him, decides to allow the appeal, it is incumbent upon him to inform the planning authority, with particularity, of the reasons why he has allowed the appeal. It has advantages both for the applicant and for the planning authority. The applicant, as an individual, is in greater need of clarification. He has not the advantage of having advisers to inform him.

It may be that I am misinformed in regard to this matter. If the Minister tells me that the reasons will be cogently set out so that the ordinary layman can understand the reasons for a refusal or for proposed changes or conditions imposed on the applicant, I shall be very pleased.

We have had experience over the years of decisions coming from various organs of Government in cases where appeals have been made to Departments and the applicant was referred to subsection (3) of Section 2 of such and such an Act. That is not the type of information which would be helpful to an appellant.

In order to get goodwill and co-operation and to avoid frustration of the individual and of the planning authority the reasons for refusal of an application should be clearly and cogently stated. That should apply also in the case of the imposition of conditions. In the case of an appeal, the reasons for rejection or acceptance should also be clearly stated.

Mr. Belton

The architect who lodges a plan for a builder or developer and the corporation architect who receives it are both professional men and when the two cannot agree on a plan the official who rejects it must have some reason for doing so which the architect who lodges the plan may not know. Is it not reasonable to suggest that if the architect has objections to a plan he should specifically state every one of them? If he does that, the plan will be passed within four months at the outside. If he does not specify his reasons, it may take 12 months or two years to have the plan passed. That leads to loss of continuity of building in an area and the cutting down of building operations. People move out and if they have to be re-employed, it costs more money. That type of disruption leads to parttime employment.

All I am asking is that, if possible, where a plan is rejected exact reasons should be stated and the conditions for acceptance of the plan if relodged. That would give the builder more time, would reduce costs and would lead to harmony between officials and builders.

When a man rejects a plan he must have reasons for doing so. Why not insert them on the rejection or disapproval form? The builder's architect may not know the mind of the official architect. The reasons should be exactly stated.

There is a slight misunderstanding here as between what is contained in the Bill and what is proposed to be added by way of amendment No. 90. Subsection (8) as it stands does set out that the notification of decision shall comprise a statement of the reasons for the refusal or the imposition of conditions. That is, in fact, what we propose in this Bill at the moment, as distinct from the present situation in which no such requirement actually exists in the law, although in practice, to some degree, reasons have been given, possibly vaguely at times, but nevertheless the practice has been developing.

In this Bill as distinct from the present law, we clearly say in subsection (8) of Section 26 that the notification of the decision shall comprise a statement of the reasons for the refusal or the imposition of the conditions. The only difference of opinion we have as between the subsection and the amendment is that the amendment wishes to insert that the reasons should be set out with particularity. Setting the reasons out with particularity could be very difficult to operate from the point of view of the local authorities. It could be more difficult than the annoyance and the flustration caused by the lack of a requirement to set out the reasons.

If we insert the words in the amendment, we will bring about a situation which has been adverted to briefly by a speaker earlier today. He envisaged a situation in which if you had a bit of property and you wanted to do something with it, you could bang in any old plan at all which had no hope of getting through, and to all intents and purposes, the planning authority would have to draw a plan for you. I do not think we should go so far because we must remember our planning authorities are there to try to control and to a degree their overall functions in their day-to-day administration are not really of a positive kind.

We cannot by any stretch of the imagination come to the point where a planning authority, by virtue of the wording of the law, would be obliged to do what was tantamount to planning in each individual case and that otherwise they would be rapped across the knuckles. Subsection (8) is a result of our having had regard to the existing situation about which Deputies complain. To go the whole hog would be overdoing it.

I propose that while, according to subsection (8), the notification shall comprise a statement of the reasons for the refusal or the imposition of the conditions, that could be supported and made much more meaningful in the sense requested by the Deputy, if the Minister, by circular, by instruction or in whatever way you will, conveyed to the local authorities throughout the country that they should go as far as possible, consistent with their overall administrative duties in regard to the planning laws, to set out in a helpful way the reasons for refusal. If that would meet the situation, I should be quite happy to undertake it, and I shall probably do it anyway.

There is another suggestion I could make. We could provide that the notification of the decision would comprise a statement specifying the reasons or some such wording which would not be as detailed in its intent as the words proposed in the amendment. I feel we would be going a little too far in inserting the words in the amendment. I understand the wish of Deputies who are sponsoring the amendment, but I feel that by overdoing it, we could offend in the other direction, and make the situation very difficult, if not wellnigh impossible, for some authorities where there is a big volume of applications to be dealt with. It would make the smooth running of their planning administration very difficult.

I am putting it to the House that we might deal with the matter in two ways. We might leave subsection (8) as it stands; it is a distinct improvement on and elaboration of the present law which does not require any statement of the reasons for refusal if the local authority do not want to volunteer such information, plus the added improvement we would hope to get by instruction through circulars to each and every planning authority setting out what we feel would be a reasonable approach to the requirements of subsection (8).

On the other hand, and in conjunction with that, we might consider inserting the word "specifying" after the word "statement". That might go just a little further without going too far in the direction the amendment would tend to go. I am throwing out those suggestions to the House for consideration. I appreciate the point of view of Deputies.

I appreciate the Minister's approach. I think I conveyed to him what we have in mind. We want to avoid being referred to a section or a subsection of some Act. The Minister assures me that the statement will contain the reasons without going into them in great detail. That goes a lot of the way to satisfy me. He also suggests the words "specifying the reasons". If that means what the Minister now says it means, the statement would set out in general, and not in particular, why the application is refused or conditions imposed. That goes a long way to meet the objections we had in mind.

I was reminded by my colleagues who had recourse to the planning authorities of the case where objection was taken to a plan and it was sent back as not being suitable. The person in question got in touch with the local authority and asked in what way it was not suitable. He was told: "Submit a plan again and we will tell you about it." That is why we want this type of document or statement which will set out what ought to be done to improve the conditions so far as the applicant is concerned.

I am also anxious to hear from the Minister whether he would specify his reasons for refusing or granting an appeal made to him, either to the applicant or to the planning authority. I should like to know the Minister's intent on that point.

The Minister will be obliged to give reasons for his refusal of an appeal. In fact, that is in the proposals as they stand at the moment.

The other matter mentioned earlier by the Deputy was that in upholding an appeal, the Minister should give reasons to the local authority. We are getting down to very fine points when we start justifying the actions of the Minister for Local Government and the local planning authority. We are beginning to make life a little too difficult for both strata at that stage. I should say that in the annual report of the Department, which does not always follow quickly on the heels of the year in question but nevertheless does ultimately emanate from there, there are typical cases that have been decided, either upholding or refusing an appeal. It will give examples of the manner in which these appeals have been approached and the criteria on which they have been decided. In other words, they will give annually a view of these matters, particularly if they are of outstanding complexity. They will be listed and given in full detail, as if they were case histories, as a guide. They will be given not only as a justification of the action of the Minister during that year in some of these typical cases but also as a sort of guide to the local authorities as to what has been taken into consideration in arriving at whatever the conclusion may have been. In so far as that end of it is concerned, we shall be covering it to quite a degree.

In regard to there being any apparent radical departure by the Minister on an appeal against the views of the local authority as they had determined the case, there are many ways and means of finding out, or attempting to find out, at any rate, from the Minister why he came to the conclusion he did as against the view of the local authority and altered their decision. I do not think we should worry so much as to how things may stand between the Minister and the planning authority. That is not the important part of it. The matters which affect the public, on the one hand, and the local authority and the Minister, on the other, are the problems we have to iron out and which it is vital we should iron out. Problems that might arise between ourselves are not insuperable. I do not think, in relation to anything a local authority or a Minister does, that either of them cannot be brought to book in one way or the other ultimately, and that is our general safeguard in our treatment of each other as Minister and local authority. However, the public we must try to safeguard in so far as laws can be devised to do so.

Does the Minister intend to put some word in here at some other stage? He mentioned the word "specify".

Yes; I am considering that. That is something that would go a little further to clarify what is intended, plus the fact that we shall also send, by way of circular, introduction or otherwise, to our planning authorities our views as to what these things should contain in order to facilitate everybody.

Could the Minister not include that in the type of regulation he will be making?

I do not think it would properly come within the terms of a regulation. If it does not come within that, we shall try to make it as our view and our wish as to the right way of doing things, as a general guide rather than a command.

Will the Minister on Report Stage bring in an amendment?

Yes; I propose to do that.

Mr. Belton

In regard to the word mentioned, "specify", I agree, provided it covers this point. Heretofore, when there was a shortage of workers under a local body or pressure of business, they could just send some reason. If the word "specify" is put in, does the Minister think that will cover the majority of reasons?

I should have added this. If, for instance, a local authority is so minded—I am not saying they will be but it could happen—that they get around whatever we might put here so that no matter what words we put in, they will not operate the provision in the spirit in which it is intended, when reasons for a refusal are given by the planning authority, if the applicant is not satisfied and feels he will get nowhere he has the immediate option of appealing and there will be the new facility of an oral hearing. Therefore, if there is any sign of dilatory action on the part of any local authority at any particular time in giving the reasons as we would wish them to be given under the law, the applicants can appeal, can have the oral hearing and then everything, plans, elevations and so on, will clearly emerge.

Amendment, by leave, withdrawn.

I move amendment No. 91:

To delete subsection (10), page 20, lines 32 to 37.

This seems to be consequential on amendment No. 83 which the Minister did not see his way to accept. Therefore there is nothing I can do about it at this stage.

Amendment, by leave, withdrawn.

I move amendment No. 92:

To add to subsection (10) the following new paragraph:

"(b) Paragraph (a) of this subsection shall not apply where a condition referred to in paragraph (g) or (h) of subsection (2) of this section requires a contribution by instalments except in respect of development which is the subject of the permission or approval and is carried out after default in paying an instalment of the contribution."

This is associated with amendments Nos. 84 and 86 which we have already discussed and is again in the direction of making it possible for contributions to be paid by instalments rather than by lump sum as was the original proposal.

Amendment agreed to.

I move amendment No. 93:

To delete subsection (11), page 20, lines 38 and 39.

Amendments No. 93 and 99 may be taken together.

As this subsection stands, a person is not entitled solely by reason of a permission or approval under this section to carry out any development. I wonder what reason the Minister will advance for this subsection. It would seem to be obvious that a permission or approval will not entitle a person to do something in relation to the property which he could not do if there never had been a Town Planning Act. I wonder would the Minister justify this section on that ground. There does not seem to be any reason for the subsection. Would the Minister like to justify it for our enlightenment?

This is to put beyond any doubt the fact that planning permission conveys nothing other than just that in relation to a particular proposal. For instance, a person who might apply for planning permission does not have conferred on him by that permission any rights to erect a structure or maintain it and have it in a particular place unless he has cleared his rights to ownership in so far as the property is concerned. This subsection is really setting out that the mere getting of a planning permission conveys no rights to the proposer other than planning permission. It in no way assists a person who has not otherwise cleared his other obligations.

Mr. Belton

Surely the legal end, the title, would cover that or he could be up for trespass? You cannot build without the title and——

We are talking about the permission, not the actual construction. The planning permission confers nothing but what it says.

Mr. Belton

The legal end of any property would cover it because you cannot build if you do not own the property.

It is not quite true to say categorically that you cannot build unless you own the property. It has been done and much money has been lost in the courts over such transactions.

Mr. Belton

You have no title to do it.

We are not talking about title. We are merely making sure that this planning permission document cannot be regarded as giving any rights that do not exist.

Has the person who is granted permission from the planning authority any right to interpret or submit his interpretation of the permission to any other type of appeal beyond the planning authority's decision in this matter? Has he a legal right other than the right of appeal to the Minister to interpret the permission?

Does the Deputy mean a sort of prescriptive right?

Having got permission, having that right of interpretation of the permission——

To use it to the best of his advantage, of course.

What about the other situation whereby this subsection could mean that a local authority, having given town planning permission, could afterwards stop a person from building by some other duty that they had, such as whether or not it complied with public health provisions? The local authority afterwards could refuse even though they gave the permission. They could stop it for another reason relative to their functions. That is what it means.

That, together with a dozen other things.

Yes. I am not criticising the Department but I know the way the outfit works—if I may be slightly derogatory in a jocose way— and that is exactly what it would mean.

Not exactly.

Anyone who sat on a local authority knows it.

I did, and I am saying it is not in specifically for that.

That is what it is.

The Deputy can have his view and I will have mine. As long as it is left in, I do not mind why it is in. I have my own views.

That is my view and I honestly believe that.

Is the amendment withdrawn?

Yes, in the light of what the Minister says.

Amendment, by leave, withdrawn.
Question proposed: "That Section 26, as amended, stand part of the Bill."

This is a long section and it provides a lot of the machinery by which town planning will proceed in an orderly fashion. I want to reiterate what I said previously. In this matter of conditions which will be imposed on individuals, I hope that town planning authorities, having made a plan on good principles, and having had the benefit of the instructions and regulations which the Minister will issue, will use these to get from the public the type of co-operation which is both desirable and absolutely necessary. I have been assured and reassured by the Minister in regard to some of the matters which we thought were objectionable and he has clarified quite a number of these points.

I hope that the section, when it is operated by the planning authorities, will at all times be used, as it is intended, for the good of the neighbourhood or locality in giving the widest possible liberty of action to the individuals in the local authority area. That is the wish of the Minister and the House in regard to this type of legislation. There were portions of the section which we felt were unreasonable but the Minister has to a certain extent met these fears and has expressed the hope—which may be regarded as more than a pious hope— that the local authorities will operate the section with the same intent as has been discussed here.

Question put and agreed to.
SECTION 27.
Amendment No. 93 (a) not moved.

Amendment No. 93 (b) on today's Order Paper seems to be connected with amendment No. 72 (a).

That is right.

Amendment No. 72 (a) was not moved.

I move amendment No. 93 (b):

In subsection (1), page 20, line 42, after "structure" to insert "and for the retention of which permission is not deemed to have been granted under subsection (*) of this section". (*) Subsection (1) proposed to be inserted by amendment No. 93a.

I adverted to the fact earlier that a large proportion of structures exist throughout the country in respect of which there is a general permission. These structures are mostly advertisements. They are so numerous that they are well known in the areas where they are erected. The effect of this amendment would be to ensure that, where they are in existence after the Act comes into operation, within a period of six months if notification has not been given to the individuals concerned, permission may be assumed to have been given for the continuance of these structures.

It would be perhaps a much easier and a much less costly manner of dealing with these structures than that the people who owned them would be asked to make application to the planning authority. If that were to prevail, I could imagine some of the technical staff in the local authority going out to find where these structures were. It is easy to find them because they are mainly situated on highways but, from the point of view of familiarity breeding contempt, we pass them by without taking notice of them.

However, by this time, with the Bill being debated in the House, the advisers of the planning authority would have them listed. If there are any that are offensive from the point of view of being badly constructed or from the aesthetic point of view, they would be already written down in the lists and it should be a simple matter for the local authority to notify the owners at an early date after the coming into operation of the Bill that they were objectionable. I would hope that the effect of this amendment would be to ensure a more ordered and quicker type of development in regard to these matters than had the owners of the structure themselves applied in respect of each one of them.

I would have thought that, having dealt with amendment No. 72 (a), we had really dealt with all these matters. If we were to accept the amendment, we would have to go back and amend Section 24. That in itself would not have been an impossible task, but take the case made by Deputy Jones. I should like to set out a few reasons why even now we do not feel it would be a good thing to accept this reduction of time from a five year period to six months. Six months would be the first six months after the appointed day and it would also be the first six months of the three year period within which a draft plan would have to be made. Naturally, from the appointed day to the date of acceptance by the elected members of the draft plan will be a very difficult period for technical staffs. To say to them that on the appointed day, or within six months of it, they must make a special survey in order to ascertain what is unauthorised or otherwise in their area—and not only that but that they should take the steps that should be taken—would create untold difficulty. It would be a task beyond the capacity of a planning authority or their officials.

It is far more sensible to leave the situation as it is—that there will be a five year period, including the period of three years in which the draft plan will be in the course of preparation and during which there will be general surveys for the purpose of drawing up the draft plan. In that process, these structures will emerge in the ordinary course and will not create a special problem. Therefore, the imposition of this five year period could not be held to be any penalty on those who own these unauthorised structures. If the unauthorised structure eventually turns out to be one about which the planning authority have grave objection, and if it were to be on the six monthly basis, it would mean that six months after the appointed day the owners of these unauthorised structures would be out of business, whereas under the present proposal, if it were an objectionable structure it would be five years before the owner was, as it were, brought to book.

In fact, if it is not brought to book through any lack of persistence by the planning authority, the structure would, through lack of any action, come to be a legally authorised building as against its present status of unauthorised building. I cannot see it would be to the detriment of any person who may own these unauthorised buildings that we should leave the five year rather than the six month period. It would, in fact, add four and a half years to the useful life of the structure. In the other cases, no harm is coming to them as a result of the five years probably elapsing.

There are very good reasons, I think, why we should not have a special task force to go out and find them, wherever they are, and then take action in every case and go through the whole paraphernalia of consideration, rejection and probable appeals arising from them, and so on. We do not necessarily have to do that. This information will come as a matter of course from the surveys which will come after the appointed day by the planning technical officers. Without adding in any way to their overall onerous task, it will emerge as a factual statement of unauthorised buildings in the area. We are not putting pressure on them. We shall be sensible and approach it in a general way in the drawing up of the whole draft plan.

Regardless of what we have already decided in amendment No. 72 and Section 24, I think the argument could well be said to be slightly in favour of leaving the proposal in the Bill as it is in the belief and knowledge that it does not harm those who have the unauthorised structures. It is an advantage to those who have objectionable unauthorised structures and, overall, it will facilitate, I think in a difficult time, the technical people of the planning authorities who will have their hands more than full in the initial years in getting this thing under way.

Amendment, by leave, withdrawn.

A number of amendments are cognate to amendment No. 94. A series of alternative amendments has been submitted by Deputy Jones and others. For the purpose of debate, perhaps the House would agree to take a number of these together? It is suggested that the following amendments could relevantly be discussed together—Nos. 94, 95, 110, 111, 130, 131, 149, 150, 158 and 159.

Yes, I think these could certainly be taken together.

The position, then, is that if the Ministerial amendments Nos. 94, 110, 130, 149 and 158 are agreed to, the other amendments may not be moved. They are amendments Nos. 95, 111, 131, 150 and 159.

I move amendment No. 94:

In subsection (1), page 20, to delete "plan", in line 54 and substitute "plan and" and to delete "and any other material considerations" in line 55.

This amendment is designed to meet the representations of Deputies, including particularly Deputy Jones, who argued that the phrase "and any other material considerations" could be misleading. That was their case on this. It was also argued that it might be capable of abuse. The amendment proposes to delete these words "and any other material considerations" in line 55.

The section relates to structures which existed immediately before the appointed day and which on the commencement of that day are unauthorised structures. The section also provides that application may be made to the planning authority to retain the structures and it may refuse or grant it. I take it that, in so far as the deletion of these objectionable words is concerned, Deputy Jones may have something to say but will not ultimately object.

The Minister's amendment is to meet a point of view which we originally put forward. As he says, he meets that point of view. I think, in the main, the amendments which stand in our names are really at one with these amendments which the Minister is proposing. It is a wise thing, as we said originally on Second Reading, to be more specific and the Minister has now done that by taking away these words which may be too wide. In so far as that has met us, I do not see any reason for prolonging discussion on these and the other amendments which, I take it from the Minister, are in line with that.

They are really continuing that right through.

There is no necessity, therefore, to prolong discussion on them.

We can take the lot together.

Amendment agreed to.
Amendment No. 95 not moved.

I move amendment No. 96:

To delete subsection (2), page 20, lines 56 to 58 and page 21, lines 1 to 22.

This really is in line with the type of argument which I made on previous amendments. It is in line with the logic of amendment No. 95 where we already spoke of trying to confine the planning authority to the broad terms. On the previous amendment, the Minister felt that to confine it to the terms of reference laid down in lines 49-55 was not wise. I would hope that, by leaving in this subsection (2), the planning authority officials would still use the section in such a fashion as not to include things that were not necessary for the proper and orderly planning of the particular area.

Restrictions are imposed in the Bill. In this subsection, quite a number of restrictions are imposed on the individual. The Minister said in a previous subsection that he felt these were necessary. On discussion, the Minister advanced the argument as to why the subsection should stand. I do not think there is anything further I can usefully say in regard to it beyond referring again to the Minister's view that if this is not left in the Bill the planning authorities would be restricted in some way.

I can appreciate even more fully at this stage than I did when the amendment was put down what was in the mind of the Minister when this section was put into the Bill. I can see even more so now the necessity for such things as planting trees and shrubs. Therefore, I am prepared to accept the Minister's assurance that this provision is necessary for proper town planning.

I can assure the Deputy that, having fully considered this and related sections, in our view, it is necessary that the subsection should stand, notwithstanding what has gone before. We want to make the situation clear beyond doubt.

The Minister mentioned open spaces. Will this apply to all types of open spaces? I take it the Minister has in mind structures other than ordinary dwellings?

We are not confined at all to dwellings. This can apply to any structure—factory buildings and so on.

Would this apply to places similar to places in America which are designated a national park area?

It is not impossible, but it is unlikely to be used in that way.

Amendment, by leave, withdrawn.
Amendments Nos. 97 and 98 not moved.

I move amendment No. 99:

To delete subsection (7), page 22, lines 35 and 36.

Subsection (7) states that a person shall not be entitled solely by reason of a permission under this section to retain any structure. I take it what the Minister means when he says "solely" is that he wants to ensure that the giving of permission will not, of itself, authorise a person to retain a structure?

Yes, that is the intention of that section. I think we need that.

Amendment, by leave, withdrawn.
Section 27, as amended, agreed to.
SECTION 28.

I move amendment No. 100:

In subsection (1), page 22, line 40, to insert "on or" before "after".

Amendment agreed to.

I move amendment No. 101:

In subsection (1), page 22, to delete all words after "application" in line 41 down to the end of the subsection.

This amendment is consequent upon the stand we took on Section 24 and on which we had a long discussion already this morning.

I think we discussed this already on amendments Nos. 5 and 26.

Amendment, by leave, withdrawn.

I move amendment No. 102:

In subsection (1), page 22, line 42, to insert "on or" before "after".

Amendment agreed to.

I move amendment No. 103:

To delete subsection (2), page 22, lines 49 to 53.

This is consequent on amendments Nos. 5 and 83, and I have nothing to add at this stage.

I think we are all at one here as to what we wish to be done. The only question that arises is that Deputy Jones and the others who put down the amendment feel that the subsection is unnecessary. I believe, however, we should give the benefit of the doubt to the people who may be affected and should put in the subsection, so that there can be no doubt about it.

Amendment, by leave, withdrawn.
Amendment No. 104, by leave, withdrawn.
Amendments Nos. 105 and 106 not moved.

I move amendment No. 107:

Before subsection (6) to insert the following new subsection:

"(6) Where permission is granted under this Part of this Act for the construction, erection or making of a structure, the grant of permission may specify the purposes for which the structure may be used; and if no purpose is so specified, the permission shall be construed as including permission to use the structure for the purpose for which it is designed."

The purpose of this amendment is to make it clear that, where permission is granted for the erection of a structure, the grant of permission may specify the purposes for which the structure may be used and if no purpose is specified the permission shall be construed as including permission to use the structure for the purpose for which it is designed. This would avoid the position where permission is sought for the erection, say of a dwelling house which, on first occupation is used as a shop. Another case is where permission is granted for the erection of a store and on first occupation it is not used as a store but as a factory. If this situation is not clarified as proposed, persons could get around the control of use and that would be creating quite a large gap where we are trying to close gaps with these general provisions. The Bill provides that a material change of use requires planning permission, a change from one use to another, but on first occupation of the structure there would be no change of use so that the use control provisions of the Bill would not apply. That is why we find it necessary to propose this amendment so that control of use shall be properly maintained and capable of being maintained.

A person under this section may obtain permission for the erection of a structure for a specific purpose, in which event the structure can be used only for that purpose, if I understand the Minister correctly. There is no provision authorising the town planning authority, the Minister or even the court, in the event of the use for which the structure was erected ceasing to exist, obtaining permission for the use of the structure for any other purpose. In this case, I should like the Minister to clarify the position generally. If the amendment is agreed to, is the right of an owner to apply for permission to use the structure for a purpose other than that for which he originally obtained permission, protected?

If there is to be a material change of use, he would be required to seek permission to make that change.

I can see the reasoning behind the amendment and the necessity in principle for it but I should prefer the amendment to place on the authority the onus of indicating why another use would be obnoxious. Obviously, in a residential area one would not like a building put up for a particular purpose, a shop or hair-dressing establishment which could reduce the value of houses around it. I should like to see some provision whereby the reason for the change of use not being acceptable should be stated.

I do not quite understand the Deputy's point.

I have noticed in various parts of the Bill sections where the local authority simply says "no" with a full stop. I can understand the necessity for the local authority to say "no" but I should prefer in all possible cases that they would say "no, because..." It would be a happier situation if they would indicate the reason why they do not like the new use of the structure. That is merely a thought which I am not putting forward by way of destructive criticism.

The Deputy would not know how to be destructive any more than myself.

Thank you for the compliment.

I assure the Deputy and anybody who might have misgivings about this amendment, or those who have the idea that the planning authority will simply say "no", that while they may have been entitled to do that in the past, that will not be the case in future. In the case of an application for a change of use, which is what we are discussing here in detail, the applicant will have the same safeguards regarding the method in which he may be treated by the planning authority as we have already indicated in regard to applications for development in other sections of the Bill already passed. There is no difference here. He is at no disadvantage in an application for the change of use compared with a person applying for permission to develop for the first time.

Does the amendment envisage that permission shall be construed as permission to use the structure for the purpose for which it was designed? It may specify the purpose in the first instance?

We take it the applicant would put in a plan, say, for a dwellinghouse if that was what he sought permission for. It would be obvious in most cases that it was to be a dwelling-house but the onus would be on him to erect the house for which he sought planning permission.

If at a later stage he applies to use it for another purpose, could the planning authority impose whatever new conditions they thought fit?

If it is a material change of use from that which was specified in the first permission, the applicant would have no less right to make application nor the authority any less right to deal with it as they thought fit and impose whatever conditions they thought necessary for its future use.

There would be the same right of appeal against the imposition of these conditions?

That is what I have been conveying to Deputy Donegan. Generally speaking, this will be regarded in the same light as if it was a first application for development of virgin territory and all the safeguards and requirements would apply. The advantages or disadvantages would not change in any appreciable degree as between the applicant, the planning authority and the Minister.

Amendment agreed to.

I move amendment No. 108:

In subsection (6), to delete paragraph (b), page 23, lines 22 to 26.

Paragraph (b) of this subsection says:

In determining for the purposes of this subsection the purposes for which land was normally used before the grant of permission, no account shall be taken of any use of the land begun in contravention of the provisions of this Part of this Act.

The purpose of the paragraph does not seem very clear. I should like the Minister to explain what exactly it is intended to achieve. On ordinary reading it would seem to be a limitation of the rights of ownership and a limitation on the full enjoyment of property. If a planning authority have any grounds for grievance in relation to the wrong use of land or the use of land in contravention of the Act, there are means available to them under this measure to prevent such wrong use. There does not seem to be any reason why this paragraph should remain. I should like the Minister to give us the justification for the insertion of this paragraph.

I think the interpretation of this subsection is that, if the land is being used wrongly and in contravention, and after some little time, it is used for a proper purpose, its reversion to being wrongly used again cannot become right. That may sound complicated, but the idea is that it may not revert again to a wrong use of it.

That is not the way it reads.

That is the way it works out.

Amendment, by leave, withdrawn.
Section 28, as amended, agreed to.
SECTION 29.

I move amendment No. 109:

To delete subsection (6), page 25, lines 3 to 11.

Subsection (6) deals with the obliging of the local authority to buy land where permission to develop it has been refused, or granted subject to conditions which the landowner claimed render the land incapable of reasonably beneficial use in its existing state, and the land cannot be rendered capable of reasonably beneficial use by the carrying out of other development for which permission has been granted under the Act; and, where permission was granted subject to conditions, that the land cannot be rendered capable of reasonably beneficial use by the carrying out of the permitted development in accordance with these conditions. In such circumstances the landowner may require a notice to be served on the planning authority requiring them to purchase his interest in the land. Provisions are then made for the making of an application to the planning authority requiring them to purchase the land compulsorily.

Subsection (6) which this amendment seeks to delete, provides that in determining what would be the beneficial use of land no account shall be taken of any prospective use of that land which would involve the carrying out of development of any class which is not exempted development. This is a restriction which could work out very unfairly. In addition to the matters which are regarded as exempted development it is specified in subsection (2) of Section 4 that the Minister may, by regulations, provide for any class of development being exempted development. Exempted development is, therefore, a variable. It is variable in accordance with the regulations which the Minister may make from time to time. In one particular year an owner of land might find himself not entitled to have certain development taken into account, because it is exempted, and in another year another owner of land, by reason of regulations made by the Minister, might be entitled to have certain development taken into account because it has, by regulation, been made exempted development. I do not think that is the type of subsection which should be permitted in legislations like this. Subsection (6) of Section 29 provides:

Where, for the purpose of determining whether the conditions specified in paragraphs (a) to (c) or paragraphs (a) and (b) (as may be appropriate) of subsection (1) of this section are fulfilled in relation to any land, any question arises as to what is or would in any particular circumstances be a reasonably beneficial use of that land, then, in determining that question for that purpose, no account shall be taken of any prospective use of that land which would involve the carrying out of development of any class which is not exempted development.

Exempted development is dealt with by ministerial regulation. One person may find himself able to claim that his property should be acquired by the local authority because he is not allowed to use his land beneficially and another may suffer the disability of finding himself not entitled to the beneficial use of his land because, by ministerial regulation, he has been deprived of it.

This subsection is contrary to prudent legislation. I can imagine a situation in which a local authority produces a plan, setting aside an area for industrial development. That development having taken place —this has happened in my constituency — certain disabilities follow for certain people. There may be obnoxious fumes from factories, and so on. In my constituency, a man who was carrying on horticultural activities by choice actually had a very valuable holding, far more valuable, as he knew, than the profits he could hope to derive from it through agricultural or horticultural activities.

The reason he had this valuable holding was that it was an area which according to the plan was open to housing development or industrial development and was therefore far more valuable than its value as agricultural land. The reason it was far more valuable is removed in the assessment of the purchase price if the local authority are to buy it from him because he can no longer carry on because of the smoke and fumes from the industrial activity in close proximity. That may sound far-fetched but, in fact, it is not. In my view, it would appear to be unfair to that individual.

I should say that agricultural land is not affected in the manner envisaged by Deputy Donegan.

By the smoke and the fumes?

Does the Minister mean physically by the smoke and the fumes or in relation to legislation?

In relation to legislation.

I know farmers in Drogheda who got large sums to compensate for the smoke from the cement factory chimney.

That is a matter of law that was dealt with. That was valuable land. I think some of it is still.

The section is inserted in order to give some redress to a person holding land that is incapable of reasonably beneficial use in its existing state and who is not permitted some proposed development which he feels will give him a good return. Subsection (6), which the amendment proposes to delete, affords some guidance to the interpretation of the phrase "reasonably beneficial use" on which to a large degree will hinge the decision as to whether or not he is to get compensation. An application to purchase land on refusal of permission cannot be imposed on a planning authority by service of a purchase notice under Section 29, unless the land has become incapable of reasonably beneficial use in its existing state. This subsection (6) makes it clear that a claim may not be disqualified unless the existing use of the land or any alternative use is found to be reasonably beneficial, provided that in considering alternative use no account is taken of any use involving the carrying out of development other than exempted development.

In a sense, I would put it to Deputies that the deletion of subsection (6) would to a degree weaken the section as a whole, which, by and large, is there in order to enable some redress to be given to the owner of land who is prevented, for one reason or another, under planning legislation, from developing it in a way that would be beneficial to him as against its existing condition which he may hold is non-beneficial. The deletion of subsection (6) by acceptance of amendment No. 109 would weaken that redress which the whole section is intended to give the owner of land in those circumstances.

I do not understand what the Minister means when he says this does not affect agricultural land. What I was thinking of was a market gardener who found himself within this industrial area which, according to the plan, was being developed as such, and who as a result of industrial fumes or any other reason, found the land was incapable of reasonable use. This man now is in the position of seeking to have his land bought from him by the local authority. This land was always far more valuable than its use to him and he was quite aware of the fact, but, with his way of life, was giving him a profit. In using these lands, he was employing far more capital than the profit therefrom would justify. The situation as I see it is that this man cannot get account taken in the assessment of a fair sum for the purchase of the land of the fact that for years he was using a far greater capital value in land than the ordinary profits therefrom. I may be dense but that is the way I see it.

It seems to me that what Deputy Donegan is talking about, while akin to the matter we are dealing with, is not at all the same thing. The owner of the land with whom the section deals would have proposed a development which would have been refused by the planning authority and only consequent upon that and for various reasons would he then be enabled to require the local authority to purchase the land from him. Deputy Donegan's case refers to a man who has, for instance, a market garden which as a result of other developments becomes not so useful or not usable at all as a market garden because of smoke or pollution or so on. He thinks that is the type of case we are dealing with. That is not so. We are dealing with the case where the owner of the land proposes a development that is turned down by the planning authority. The case put by Deputy Donegan is where the activities of developers of adjoining lands have a detrimental effect on the market garden potential of the person's land. They are two distinct things. We are not dealing with that case in this section. I want to get that quite clear. The type of case mentioned by Deputy Donegan is not dealt with by this section.

You are dealing with the case where there has been a refusal.

We are dealing with the case where a proposal has been made and refusal has resulted, and we go on from there.

Is it not a fact that under the section the owner has no redress, if he does not like the modified conditions, and therefore must you not consider that aspect, too, on the amendment?

It is not so much a question of modified conditions. We have been fairly specific. Alternative beneficial use comes into this. If alternative beneficial use is not possible, then the question of the compensation and the purchase by the planning authority arises.

Can it not arise when there are modified conditions which, in the view of the owner, are useless to him? He has not got redress either way.

No. It is not just the local authority. The Minister must be satisfied ultimately.

I am thinking of the case where there is a refusal to permit development except subject to certain conditions. The owner appeals to the Minister and the Minister modifies the conditions, but, as far as I understand it, then the situation is that the owner is left without any redress, that there is a new set of conditions in respect of which he has no opportunity of considering his case.

You then rely on Section 55 to apply for compensation.

On modifications of conditions by the Minister as well as by the local authority?

Quite so, yes—in both instances.

In relation to subsection (2) of Section 4—the exempted development—is that not capable, by way of ministerial regulation, of becoming variable?

It is, yes.

Could that not change the position for owners of land? Exempted development might change in any particular area or period of time?

No, I do not think that is at all likely to arise.

Unlikely, but it could arise.

So many things can arise in the last analysis that it is difficult to say categorically that it will not arise. I would go so far as to say that it is unlikely, but I will not go so far as to say that it certainly will not arise, or could not arise.

Amendment, by leave, withdrawn.
Question proposed: "That Section 29 stand part of the Bill."

This section refers to the beneficial use of land, and it is the section under which the owner who feels himself aggrieved in certain circumstances may require the authority to purchase his land. I am not too happy about it in so far as its variable content is concerned, if by way of regulation the Minister can determine what is an exempted development at one stage, and if a situation can arise that it has become variable and the development is no longer exempt.

It is clear on another Section that of two individuals having the same type of problem, one can feel aggrieved by the type of interpretation which we would give to this question of exempted developments. In the ordinary way this section obliges the planning authority to buy land from a person who has been refused or granted permission according to certain regulations. A person may feel he cannot use his land beneficially, and he is entitled to oblige the local authority to purchase the land from him. In addition to the matters already classed as exempted developments, there is provision that the Minister may make regulations under subsection (2) of Section 4 to provide for any class of development being exempted development.

The point I want to make is that an exempted development is a variable in that instance. It may change from year to year or from time to time. In one year, the owner of land might find himself not entitled to have a certain development taken into consideration, and in another year, may be entitled to have a certain development taken into account. In certain circumstances, the property owner may not be dealt with in an equitable fashion.

It is clear that if, by regulation, the planning authorities are to schedule areas for development in certain ways, and control the usage of land, then that usage is necessary for the type of planning and development which the Minister envisages in this Bill, but if a person feels that he is aggrieved under this section, and that he cannot use his land as benefically as he had hoped to use it by reason of conditions that are imposed on him, the exempted development figures very largely. Of course, that is particularly true of land which is rather close to the builtup areas, or to the areas where industrial development is taking place.

The Minister says it may never happen but it is certainly conceivable that by way of ministerial regulation, irrespective of who is in charge, a change may occur in so far as land-owners are concerned. I am not terribly happy about the determination of the questions arising from what is the reasonably beneficial usage of land. Perhaps the Minister would advert to that point.

Deputy Jones is probably placing too much emphasis on the question of exempted developments which, in the context of this question, would be of no great significance at all. He is probably placing greater emphasis on exempted developments and exempted structures than is called for in the light of the general intent of the section. The intention of the section and of the Bill is that if a landholder makes an application to his planning authority for permission for a development and is refused that permission, or such penal conditions are attached that it is tantamount to a refusal, the applicant then becomes the appellant and makes an appeal to the Minister who, in turn, may confirm the views of the local authority and refuse the appeal.

At that stage the landholder, or the proposer, or the developer, would approach his local planning authority by serving a purchase notice on them and indicating that his development proposals, which had been refused in the first instance by the planning authority, had been refused on appeal. Assuming that the planning authority refused to act upon the purchase notice, the next move would be that the Minister is again brought into the matter by being invoked through appeal by the aggrieved party and, in this instance, if the Minister is satisfied that no reasonably beneficial use could be made of the land other than that which had been proposed and refused, he may decide, subject to the guidance of subsection (6), in favour of the appellant. That would bring about a situation in which either the land would be purchased by the planning authority on the one hand, or compensation would have to be paid on the other, if it was not agreed that purchase was going to take place. By and large, the whole intent of the section is to give redress to this type of applicant or appellant. Subsection (6) is a very necessary provision for the guidance of the Minister and for the benefit of the appellant and the applicant.

Would the Minister clarify "exempted development"? Is "exempted development" a variable?

Yes. It is.

Does the Minister not agree the fact that it is a variable has a very distinct bearing on this section?

Let me give a few instances of what exempted development in this type of case would be: a greenhouse, a potting shed, a toolshed, a cycle shed, a fuel shed, and so on. It is these smaller and insignificant types of structure or development that are in mind and Deputy Jones has given to exemption in this section and as it is related to this section an exaggerated importance.

Would it not be related to "exempted development" in Section 4? In Section 4 "exempted development" is defined.

Section 4 states what is exempted, and these which we propose to issue by way of regulation or otherwise would be marginal additional exemptions. Section 4 states positively what are exempted and they are the major exemptions. What we suggest here and what would be of importance to Section 29 would be marginal exemptions which would be of the nature of greenhouses, toolsheds, fuel-sheds and that sort of smaller development.

In other words, the examples the Minister has mentioned would be additional?

Additional to what is in Section 4.

Question put and agreed to.
SECTION 30.

I move amendment No. 110:

In subsection (2), page 25, to delete "plan," in line 24 and substitute "plan and" and to delete "and any other material considerations" in lines 25 and 26.

This amendment was discussed with amendment No. 94.

Amendment agreed to.

Amendment No. 111 was also discussed with amendment No. 94.

Amendment No. 111 not moved.

I move amendment No. 112:

In subsection (5), page 25, line 41, to delete "completed" and substitute "commenced".

Subsection (5) reads:

The power conferred by this section to revoke or modify permission to develop land may be exercised—

(a) where the permission relates to the carrying out of works, at any time before those works have been completed.

This is the section whereby things which are brought to the notice of the planning authority will influence them in modifying the permission which they already gave. In other words, permission to erect a structure already commenced could be revoked and the building demolished. It would seem in this instance the planning authority have it all the way. They ought, in the first instance, to be required to make up their minds in regard to the type of permission they will give. A developer of property at that stage should have some certain knowledge of the type of permission he has and what he can do under this section. The landowner is equally entitled to this knowledge and he ought to be entitled to the knowledge that the permission he has got for development will not be revoked.

There have been cases where this type of development has taken place and it is most unfair that the planning authority in such cases should be enabled to change their mind in regard to the permission they have given. When the proposition is put before them in the first instance, they have had the technical staff available to examine the proposal. They have had it long enough to determine whether the type of development which is proposed is reasonable and proper.

There is a very topical case in this and it certainly pinpoints the whole purpose of the section. If somebody seeks permission to erect a building and having got permission—I want to emphasise that—he should not find, having gone a certain way, that he may have to comply with regulations or a change of permission and have to demolish his work. This is unreasonable. In the first instance, the planning authority should ensure that their examination of the proposals has been carried out meticulously enough to ensure that permission is a certainty in so far as the development is concerned.

I feel that this is rather as if the Department and the Minister wanted to have three parachutes, instead of two. It seems to me that the Minister has a real responsibility to tell us, very lucidly, why it is necessary to have this power to revoke. The expense that can be incurred, even in engineers' and architects' fees, is considerable and the amount that could be incurred in the development of land, even before building is more so. A horrible set of situations could be set in train if a revocation did take place, or even a modification, some time after permission had been given. The development of a site is a highly expensive business. However you look at it, the individual citizen is in grave danger as long as the section remains in the Bill. Legislation, as well as looking after our people and trying to put things on a proper footing, should also see that the individual is not trampled upon. It is also necessary that the Minister should give us examples of where such power would be necessary.

As a person who has, in the professional end, some little experience of building development in general, it seems to me, if I understand it correctly, that it will have the effect of completely stopping development. No developer who proposes to develop a building scheme in a big way can possibly face that development, if he feels that, having got permission and having got all his arrangements streamlined into effect, there is a possibility of being stopped without his consent halfway through.

We are dealing here with a case in which a person has applied and has produced all the appropriate information prior to the application and, having done that, has been given his permission. The basis upon which that permission was given is not in issue. We are not suggesting that the power, as in, say, financial legislation, could not be varied if there was fraud in the submission of the plans or anything like that. Nothing like that is in issue. A person makes a plan when he goes on a site to carry out a big development and he does that on the basis of running through it. If he is not able to plan with certainty that he can run through it and go on from the development, if you like, of the first half-dozen houses to the remaining 24 houses in his scheme of 30, he cannot really plan where he is going.

Unless in relation to what one might term speculative building estates, there is complete certainty at the beginning, of where the person concerned can go, you will have either of two things. You will either have substantial costs added to the development, because it will be a stopping and starting operation, or people will be afraid to start at all or certainly afraid to start at an early date. They will want to allow the planning permission to lie there for a time to see if there is any possibility of second thoughts in relation to the power of revocation or amendment. The margin of profit in relation to sales and development of that sort by these people, by the speculative builder or owner, should be kept as low as possible. This will not assist in bringing that margin of profit down.

I can see that there could be a necessity occasionally to amend or to revoke permission for a particular purpose, but it should be only on the basis of the amendment being made with the consent of the person, or his representative, to whom the original permission was given. I cannot see otherwise how there can be the certainty in relation to the planning of overheads, in relation to the planning on the site itself, if the developer feels that at any time the permission obtained could be changed.

The Minister will readily concede that there is quite a substantial what I would call head office overhead personnel machine, necessary for the planning of development of this sort by the builder, be he speculative or otherwise. It is impossible to run such a machine economically, unless there is an even flow and unless the people concerned are able to see with certainty for some period ahead where they are going. I cannot see the certainty being there at all if this power of amendment or revocation is kept. I will put it this way: it seems to be such an extraordinary provision that I feel it may be possible there is some point in it which I and my colleagues have missed.

The first thing we seem to have ignored or to have missed is that any operations by way of modification or revocation of planning permission granted will carry full compensatory measures from the planning authority in question.

I appreciate that, but it would be very difficult to bring in the consequential loss on that.

I quite agree, but nevertheless to start off with, it is a fairly high premium which the planning authority would have to pay if they needlessly, or frivolously, or as a result of negligence, were to leave themselves in the position that such revocation or modification would be required in any of the plans they had approved. In addition to compensation, it can so happen in this case that a personal notice under the previous section can also be sought and the whole outfit, lock, stock and barrel, of half-finished or imperfectly-finished state of development might be foisted on to the local authority or the planning authority, if they in fact seem to make a complete misuse of this section.

The section as now drafted provides for the revocation or modification of permission at any time during the course of the works and before they are completed. The section was really drafted, having in mind the rather large housing estate development which possibly would have commenced a considerable number of years previously and was done in planned stages but during the passing of time, from the time the original permission was sought and granted, new factors have emerged. For instance, it might be the realignment of a roadway not all of which is completed in the estate which would tie in more readily with some new road development of the planning authority. It is for that type of situation that the section has been drafted and it conforms in spirit to the general spirit of our new conception of planning laws, which is that it should be flexible, if there is in fact to be any progress with planning at all. We have found ourselves in our present position with regard to planning laws due to the fact that the laws if put into full operation, would have been completely inflexible.

Progress reported; Committee to sit again.
The Dáil adjourned at 6 p.m. until 10.30 a.m. on Thursday, 27th June, 1963.
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