There is a nice point in regard to this as to what exactly is the meaning of the word "structure". If the Minister will look at Section 2 on page 5, he will find in that definition section at line 36 a definition of an "advertisement structure". If he looks further on in the same section, he will find on page 7, line 24, a definition of the word "structure". I should be glad to know from the Minister if the doctrine of exclusion may be expected to apply here and where in a subsequent section of the Bill, as in Section 24, subparagraph (b), which we are at present discussing in connection with amendment 72, the word "structure" is used, for the definition of which we must turn back to page 7, line 24, are we not entitled to assume that it does not include an advertisement structure and that it refers only to a structure other than an advertisement structure? If that interpretation of the section is correct, then I think a wholly new situation will arise, and unless I am greatly mistaken, that is the construction the courts will put upon this reference. If the Minister were to be deemed by the courts to mean that Section 24 should cover an advertisement structure, they would expect him to say: "all structures including an advertisement structure."
Local Government (Planning and Development) Bill, 1962: Committee Stage (Resumed).
Subsection (2) on page 7 defines structure as meaning, among other things, "any structure" and any structure does mean an advertisement structure. To say an "advertisement structure" is really qualifying the type of structure but the definition says it means "any structure" and it includes without, any doubt, an advertisement structure.
The Minister may proceed on that assumption but I believe the courts will hold otherwise.
I do not think so. It is pretty comprehensive.
You have two definitions.
In view of the interpretation the Minister now says falls to be considered under this section, how would this apply to the matter we discussed on the last occasion, structures that might be regarded as unauthorised? On that occasion, I asked the Minister if there was not a seeming inequality in the circumstances of local authorities which did adopt resolutions under previous town planning legislation and those authorities which did not. There is also the question of people in areas where local authorities did not accept the previous Town Planning Acts and did not adopt resolutions in respect of them. I pointed out there was the question of structures erected at that stage which did not require any local authority permission since the authority had not adopted the planning resolution or, as was the case with a large number of authorities, had adopted the resolution but did not make a town planning scheme. There are counties close to one another in which the same type of structure could in one county be authorised and even across the road could be deemed to be unauthorised.
I invited the Minister to comment on this and to say what treatment the citizens could expect in these cases if the decision is that these structures remain unauthorised. In one case, if the local authority decide that the structures are to be removed, they will have to pay compensation, whereas in the other, the citizen could be made to remove the structure without compensation. It seemed the citizens would suffer from inequality brought about by the failure of adjoining local authorities to achieve uniformity in respect of previous town planning legislation. It would seem that grave hardship would be imposed on one citizen while another might not be so affected because even though his structure might be removed, he would be compensated.
Having heard the Minister on the previous occasion, I suggest this is something that needs consideration in relation to this section. There are thousands of structures throughout the country, if we are to treat an advertisement structure as a structure within the scope of this section, and a great many of them have never come to the notice of local authorities. The owner of land simply gave permission for the erection of a sign. In many cases, the necessary approval may have been given but I am sure that in quite a large number of cases, in the strict town planning sense, these structures might be regarded as unauthorised from the point of view that permission was not sought.
The onus on the advertisers and those who engage in this business would then be, if the section remains as it is, to make thousands of applications to various authorities under this Bill. A great amount of work might fall on the Minister and his Department in regard to the interpretation the local authorities give this type of structure. Now, when we find the Minister feels the word "structure" includes advertisement structure, I invite him to comment at this stage on the generality of the word "structure" as now used and on the use of two definitions in the definition section of the Bill.
Three things have been raised by the Deputy and I shall deal with them in order. He spoke of the position in the town planning authority area in which no resolution was adopted in respect of the 1934 Planning Act. In other cases, the planning resolution was passed and interim control has existed. In the first case, if the planning authority did not pass a resolution, any structure or building which would fall to be dealt with under this Bill, would be there at the moment and would continue to remain there and even after the passage of this Bill could be required to be removed only on payment of compensation by the planning authority. That is in so far as the planning authority area is concerned in which no resolution was passed under the provisions of the 1934 Act.
With regard to the other local authorities who passed a resolution, the resolution was to make a scheme to bring a plan into operation. Even though such plan was not finally and formally adopted, nevertheless interim control has since been exercised by the planning authorities concerned. Any person, therefore, who since the passing of such a resolution, constructed, erected, altered or anything else, any buildings or structures of the nature we are dealing with, and who did not apply for and get permission, will be regarded as having acted contrary to the law on and after the appointed day for the coming into operation of this Bill. That does not mean that each and every unauthorised structure will be subject to removal without compensation. If an unauthorised structure is unobjectionable from the point of view of planning criteria, then that structure will be quite safe. The owner of such property will on application to his planning authority or, if necessary, on appeal to the Minister, be entitled to get permission for that unauthorised structure.
On the other hand, if it is objectionable and the planning authority concerned consider that permission should not be given, it will fall to be dealt with in the same way as present applications for planning permission are dealt with. The local authority will be entitled to refuse permission for the structure. Alternatively, they may say they will give permission subject to the removal of a certain part of it or to certain additions which will make it unobjectionable. If it is a blank refusal, or one subject to conditions with which the applicant is not satisfied, appeal will lie to the Minister. If the planning authority refuse, or grant permission subject to conditions which appear to be either penal or unjustified, and the Minister is satisfied that that is so, then he may uphold the appeal and grant the permission. Such permission will make the position of the unauthorised structure completely clear and safe so far as the law is concerned. If for any reason it has to be removed later it will rank for full compensation.
So far as the definition of structure is concerned, between now and the Report Stage I will have a look at the definition section again.
The Minister will include poles.
It will depend on the type. Poles are mentioned actually. I have been advised that the definition of structure does include such things as advertisement structures. The putting in of the word "advertisement" before the word "structure" in that particular instance is merely for the purpose of qualifying the particular type of structure. I am quite satisfied the position is as I have stated it to be. We will, however, check on it between now and the Report Stage.
I should like the Minister equally to give some thought to the point I made with regard to the vast number of these structures at the moment. Does the Minister envisage that application will have to be made for each and every one to each and every planning authority? There is a large number of such structures here in Dublin and throughout the other cities and larger towns. Advertising is a big business. Leaving aside aesthetic values, and some of these structures are an advantage when they are properly lit at night, this type of advertising has almost become a necessity so far as the general public are concerned.
I want to know if they are to be included as structures which would come under this definition, whether the Minister would consider it a reasonable thing to assume that if the local authority has no objection to them as they now exist, they would be deemed to be authorised structures if a notice has not been served within a period of, say, six months from the coming into operation of this Bill. I am sure the local authority have had advice on this matter. When new structures are being erected and where town planning has been in operation, interim control would have been exercised and, perhaps, permission refused for the erection of some structures. It would simplify the procedure if the Minister were to adopt the suggestion I have made as being the more reasonable way of dealing with the matter than to provide that every individual who has erected such sign or advertising structure must apply to the local authority concerned for permission in respect of each sign. I suggest that it would be more reasonable that they would be deemed to be authorised if notice was not served on the person concerned within, say, a fixed period of six months. Would the Minister comment on that?
Is that covered by amendment No. 72 (a)?
Yes, Sir.
I fully agree-and I could refer back to my contribution on Second Reading—that the business of advertising is a necessary part of our present day way of life and is something which, apart from anything else, gives quite a lot of employment and serves a need. I should not like it to be understood at any stage that we regard advertising as such as something that should be abolished. There is no such thought in our minds. However, we do feel that a certain amount of control of this type of thing is just as necessary as it is in regard to any other type of business or structure.
As far as control is concerned, there is little in the planning codes of any country that goes back as far as control of advertising, which goes back to the beginning of this century, from which date there is evidence of the first effort to control advertising as distinct from many other things which are coming under control in more recent times.
Having said that, let me make it clear that the planning authority in the case of unauthorised advertisement structures may not take any action unless, on planning grounds, they are satisfied that a particular structure is objectionable as it exists. That is even further limited in that even though the structure may be objectionable on planning grounds, unless the local authority have taken their action within five years after the appointed day, they may not do so thereafter. In other words, even if the structure is objectionable, unless they have taken action within the period of five years, they may not ever do it again. I repeat that they may not do it even within the five years unless on planning grounds it is objectionable.
The owner of the advertisement structure, if he feels he wants to regularise the situation and that his structure is sound, good and unobjectionable in every way, may at any time after the appointed day apply for permission to put his position beyond doubt. That may be an advantage to him at the time and he need not wait until he finds out whether the council object or otherwise. He may apply at any time and be dealt with by the planning authority as if it were an application for a structure about to be erected. Appeal facilities will be available in that case also.
So that this matter is not dealt with in the way that may have been understood by Deputy Jones or other members of the House. The manner in which it is being approached is quite fair and certainly where the structure is unobjectionable on planning grounds the owner need have no fears whatever. In fact, he may not have to do anything, either to regularise his position or anything else. He may leave it there and if the planning authority have no objections, they may not call on him to do anything about it and if they have an objection, unless they have called upon him to take action within the five years, his position becomes regularised and his structure becomes legal, even though it may have been objectionable.
Do I understand the Minister correctly, that he says that what we are now dealing with are structures which in fact could be dealt with under the existing law?
Yes.
If that is so, this makes no difference.
I think I can say yes to that.
I think you can.
That would immediately take us back to those authorities who did not adopt the resolution. There are three counties and several planning authorities which did not adopt the resolution and in which, therefore, it would not apply at present although the law was in existence. I take it that what is meant is that this will apply universally and that structures in the three counties that did not adopt the resolution will not be in any different position from those anywhere else.
There will be this difference—and it is not a disability on the property owner and it is only right that it should not be—where structures exist that may prove to be objectionable in planning authority areas in which no resolution was passed adopting the 1934 Act and procedure, if those structures are to be removed because of their objectionable nature on planning grounds compensation must be paid.
There will be that distinction?
There will be that distinction, which falls, if you like, as a penalty on the planning authority that did not pass the resolution but certainly does not fall on the individual who had no hand, act or part in the decision which resulted in the fact that the Act or procedure was not in operation on their territory.
While appreciating the Minister's explanation this morning, which has been very helpful in regard to this whole matter, might I put a point to him in connection with structures which are unauthorised because of the fact that a person did not make application in regard to them and who, on appeal, now finds he is out of court, so to speak in regard to his structure? Would the Minister agree with me that this person would be visited with a penalty but would not be denied some compensation in regard to a structure which is going to be removed? While there would be a penalty attached to the fact that he did not comply with the terms of the law as it existed and on appeal now fails to establish the fact that the structure complies or could be held to comply with town planning, the Minister would feel that he would not visit him with a complete denial of some compensation, but that the authority would pay him some measure of compensation? The Minister might consider it from the point of view of imposing a penalty on him and, at the same time, awarding some compensation for the fact that, in a large number of these cases, a scheme was not made by the planning authority concerned under the previous Town Planning Act.
Is it right to say that outside Dublin city there is no building, or no structure of any sort, in existence that could have been stopped by law? Is that not so? The law was inadequate.
No, it is not so.
How did the law of the country allow these structures to come into existence? Why were they not stopped?
It might not have been the fault of the law.
I think in most cases it was because of the inadequacy of the law.
Not in all cases.
There may be the odd case, but I think in any case where the law is so inadequate or so defective that people could not be stopped from erecting such structures, we should not penalise them retrospectively. If a person built a house and he could not be stopped because there was not sufficient power in the law to do so it would be a shocking business to go back now and say to him: "You must pull down that house, and you must pull it down at your own expense." That is what this section empowers the Minister and the local authorities to say. It is very serious for those reasons.
Taking the question of a dwelling house, there are very few people who built a dwelling house for many years who did not have recourse to Government Departments and local authorities for grants. For many years, the practice has been that no grant was payable, or even considered for approval or allocation, unless and until the permission of the local planning authority was furnished with the application. If some houses were built for which grants or planning approval were not sought, the fact that that is so does not make them removable, as it were, on the passing of this Bill. It will be only in such rare cases as exist, and I doubt if there are any that have not applied for grants or planning approval and yet are in existence in areas where grants were available and planning control was in operation.
To equate the type of dwelling house which was built in recent years with what would be regarded on the passing might exist in that set of circumstances, it must still be objectionable on planning grounds before there is any of this Bill as unauthorised would be a difficult exercise, if not well-nigh impossible. Even allowing that such question of any removal, partial removal or change in its structure or layout under these provisions. If we add that to the very difficult set of circumstances I have mentioned, it is very difficult to see that any house in existence will be required to be removed and removed without any compensation. Candidly, I do not see it happening, although theoretically it could happen, I agree.
Having said that, let us look at it another way. Undoubtedly there are in existence certain structures which may offend from the planning point of view which were erected without permission being sought, and which could have been prohibited by a prohibition order but were not. In many cases, they are of no substance. They can be advertisements which were erected hurriedly and quickly on the roadside without any request to the local authority or the planning authority. It might be some sort of movable shack or hut. Quite a number were erected in different parts of the country but they are probably temporary and movable structures put up to do a particular job at a particular time, without recourse to the planning authority for permission for their erection.
In many cases, permission would not be granted for them and, indeed, the people would not expect permission because of the type of structure they were proposing to erect. From the owners' point of view, they were worthwhile for the time being and for the duration of the job for which they were required. They got a few years out of them and they felt they had paid their way. It also might well be that after some alteration or some slight improvement or titivation, as it were, a structure of a temporary nature which has no great value might come to be regarded by the owners as being worthy of an application for planning permission. It may be that after a little additional trouble and expense, planning permission might be granted for it. That is quite possible and quite conceivable.
It is not our wish or the wish of the planning authorities to penalise people, if it is at all possible to avoid doing so. If we put this law through, we intend to work it in that spirit. We want to regularise things throughout the country in as nearly uniform a manner as is thought to be consistent with good planning. That is really what we are trying to do. The very essence of the whole effort of this Bill is to try to make for more planning for the country as a whole, and in order to do that, we must try, where we can, not to penalise people for the sake of penalising them. We want to bring them within the general scope of, and in conformity with, the law which they may be outside, rather than try to find how we can punish them by application of the law.
If the whole Bill is scrutinised from that point of view, it will be found that our general aim, which runs consistently through the Bill, is not to try to penalise people or catch them out. They may be already on the wrong foot because of a lack in some Act in the past. We are endeavouring, where possible, to bring them within the fold of the law which they may have gone outside in the past, and in that way get everyone into step at the same time in the interests of planning in our country, our cities and our towns in the best possible manner.
I am very pleased that the Minister is now on record as having expressed this attitude to this section because if I were assured in advance that the people who will have the job of implementing this plan later on will apply it in the reasonable, lenient way expressed by the Minister, I would have thought this a desirable section about which no one need have any fears.
I take it No. 72 (a) was discussed with it?
Yes.
I move amendment No. 73:
In subsection (4), to delete paragraph (a).
Paragraph (a) of subsection (4) reads:
It shall not be necessary for the prosecution to show, and it shall be assumed until the contrary is shown by the defendant, that the development in question was neither exempted development nor development commenced on or before the appointed day.
This paragraph of subsection (4) is very much at variance with the approach we have had up to this on the Bill. I suggest to the Minister that this provision is bureaucratic. The paragraph sets out that if the local authority says the person has not obtained permission that will be enough to condemn him. As it stands, the paragraph does not require the planning authority to show it has made a development plan, that the development plan, has come into operation or that the property owner failed to get permission for development.
The whole onus is being thrown over on the property owner in this case. It could very well happen that permission had been obtained but a difference might arise as to the interpretation of that permission, what it actually was, or whether it had been substantially complied with. The planning authority is being put in a position that it may say it has not been complied with. Surely all these matters ought to be determined by an appropriate tribunal. The onus of proof should be put on the planning authority. They should be required to prove to the satisfaction of a court or the type of tribunal the Minister mentioned previously that they have a good case for saying either that a person has not had permission to carry out development or that the development which he has carried out has not been in accordance with the permission given.
This is a complete reversal of the normal procedure and it is an intolerable burden to place on the individual. The scope of this provision is very wide and it leaves the planning authority, which has all the resources at its disposal to produce the relevant documents and so on, in the happy position that it need only say that a person has not obtained permission or has not complied with the terms of the permission he received. I certainly hope that the approach which the Minister spoke of on previous sections will be made applicable in these cases as well, and that the onus of proof will be placed on the planning authority to establish the guilt of the individual rather than that the individual would be required to establish his innocence.
This may be a departure from the normal practice but it is not a unique departure. The principle underlying the placing of the onus of proof in this instance on the person who is said to have offended, that he has, for instance, commenced a structure before the appointed day is something which is within his knowledge. If a person commences some sort of structure it is curiously within his knowledge when he commenced it. What we are getting after here is the persons who erect hoardings, shacks or other objectionable structures and do so secretly. How is a planning authority to prove that it was commenced on any particular day? It is not unreasonable in those circumstances, where no permission has been sought or got, that the onus of proof as to what day it commenced should rest with the person who constructed it.
This is not a unique case as the Deputy would seem to infer. It is a change of practice in so far as other parts of the Bill are concerned but there are other provisions, for instance, under the Road Traffic Act where the onus of proof is placed on the person rather than on the body seeking to deter that person from doing certain things. Any person who carries out unauthorised development will be liable to prosecution and a fine of up to £20. This provision is intended to be a deterrent to such people who would hurriedly and at no great cost erect a structure; if they get away with it well and good and if they are caught they do not stand to lose much. They take that risk and erect these objectionable structures around our countryside. They do it perhaps at night, secretly, in order to evade whatever laws or controls exist.
It is only in such places and where the weakness of the present law has been exposed by practice over the past 30 years that we seek to bring in this provision in order that there will be some deterrent to such practices in future. Possibly it is departing to some degree from our general approach in this matter but the circumstances are peculiar. As I said already, it is not unique; it is a provision we have in many other Acts, even in a much more serious sense than we can envisage under this section. I would ask the House to bear in mind that it is the type of situation which I have outlined that we are attempting to get after. It is not a serious matter in the sense of some of the matters covered in other Acts such as the Road Traffic Acts. In many cases, it would be impossible for the local authority or any other person to prove the exact starting date of a particular structure.
The Minister is dealing with matters which he envisages may arise in the future and did arise in the past, the erection, perhaps, of a hoarding with something at the back of it, but this subsection, which is general to Section 24, applies to all the types of things we have been mentioning. It applies to the type of structure we have already discussed, or houses, or advertisement structures or otherwise. While a number of these cases may be legalised under the terms of this section, there will perhaps be the case that will not be legalised. There could be the type of case where somebody, having sought permission in a general way, did something which the planning authority felt was not in accordance with the permission.
I do not wish to be taken as attempting to defend the type of person who would flout town planning requirements and the aesthetic considerations which should govern all types of structures, and the type of building which the Minister has in mind, but when the subsection applies, it would be a general procedure in relation to all structures and the onus of proof is being transferred to the defendant. That is going back over the years since town planning first came into operation. I can see this applying in the future but it is an undue imposition on the citizen. While its general application would be commendable in so far as the passage of this Act is concerned, there is the retrospective aspect in regard to previous legislation, which was more honoured in the breach than in the observance, by people who should have been giving the example. If the citizen finds himself under this type of imposition which is envisaged, it is totally unfair at that stage to transfer the onus to the individual and leave the authorities say that this was something they could not regard as having been within the type of permission afforded under the previous Town Planning Acts. It is to that type of visitation on the citizen that I wish to draw the Minister's attention.
I can agree with the Minister in regard to the procedure in the future but might I ask the Minister to have a further look at this with regard to the retrospective aspect, an aspect of legislation we do not like, particularly in regard to reversing the normal trend in respect of the administration of what might be classed as justice, where there is retrospection and where it transfers the onus of proof from the complainant to the defendant, if I might put it that way?
(South Tipperary): Subsection (a) is objectionable on the grounds mentioned by Deputy Jones in so far as in ordinary law, the citizen is innocent until he is proved guilty and it is up to the State to produce proof against the citizen. It is completely illogical to say that because the accused person may have more information about a matter, the onus of proof should be laid on his shoulders. That would apply to every misdemeanour and crime. If a man is accused of murder, it may be said that he knows more about the time it was committed than anyone else and, therefore, should be asked to produce proof of his innocence and the State should not be asked to produce proof of his guilt. This is clearly an analogous position where the bureaucrats want the citizen to do the job they are unwilling or unable to do themselves, that is, to produce proof. It is a bad departure and is completely wrong in principle. The Minister's facile argument that he is the only person who would have knowledge of this particular date is completely untenable.
Deputy Jones is applying this much more widely than it will, in fact, apply. This is really a sort of transitional requirement in that it cannot go on indefinitely in the future. It will not in practice; possibly it could in theory. The appointed day is mentioned in many parts of the Bill, and as and from that day, in any planning area, the new order of things comes in. As the House is well aware, we have been dealing very extensively, even this morning to quite a degree, with what the position is in regard to that which is in existence before the appointed day, whether in an area where the controls have been in operation or where no planning proposals were ever passed.
The problem in this amendment has to do with what has happened or what was in existence before or after the appointed day, and there is an advantage accruing to the person concerned. If he wants to show that a structure for which he is responsible was erected or commenced before the appointed day, it is to his advantage to show that was so. He gets a better deal if the structure were not in existence before the appointed day, whether he is in an area where there was control or an area where no control existed previously. If he is in an area where there had been no control, it is a very important thing for him to be able to show that his structure was in existence before the appointed day. He will then be within the law.
When looking at this type of case, it is asking too much to expect the planning authority to go to the endless trouble, and practically the impossible in many cases, of proving whether or not a person commenced the structure on or before a given date, which proof would, in fact, redound to the benefit of the person concerned. Why put the planning authority to all that trouble if, in fact, it is to the benefit of the person who has that knowledge easily within his grasp? If the person concerned does not wish to prove it, surely there is something wrong somewhere. That is really the net situation here.
(South Tipperary): What is he wanting?
A shed in the back garden.
If he can show that he had commenced a structure before the appointed day, even though it might be objectionable after the appointed day, nobody can put a finger on him. He cannot be convicted of anything and neither can he be made to remove the structure without compensation. Surely, therefore, it is not unreasonable to ask him to show whether or not it was in existence before the appointed day? The planning authority would not be aware whether he had erected any structure, while he himself would be peculiarly aware that he had erected it before the appointed day. I submit it is only sensible he should be asked to show, as nobody else can show, that he is entitled to a more favourable set of circumstances.
A lot revolves around the expression "the appointed day". Is that phrase complementary to previous legislation?
To the coming into operation of this Act in each or any local planning area.
The Minister is asking the man concerned not only to prove that the structure was in existence on a certain day but also that it was exempted development. The Minister has not referred to that aspect of the matter.
I was keeping that apart because we have a different procedure for it. In the case of exempted development, if it is claimed to be exempted development and the planning authority disagree and dispute the matter, there is recourse, by way of appeal, to the Minister to determine which of the two parties is right. It is only after the decision on appeal to the Minister that any further repercussions would take place. This provision is, in fact, a buffer between the two parties.
I move amendment No. 74:
In subsection (4), page 16, lines 50 and 51, to delete "on or".
This amendment was discussed with amendment No. 18.
I move amendment No. 75:
In subsection (4) to add at the end of paragraph (b) "or establishes to the satisfaction of the court that a permission or approval shall be regarded as having been given to him pursuant to the provisions of subsection (4) of Section 26 of this Act or was deemed to have been given to him under subsection (6) of Section 57 of the Act of 1934."
Paragraph (b) of this subsection says:
It shall be a good defence if the defendant produces a permission which, by virtue of subsection (1) of Section 28 of this Act, was granted in respect of the development complained of.
What we propose is to add on after that the text of the amendment. This sets out the defence a property owner may make and we suggest it should be unnecessary to say it would be a good defence if the person produced a permission, because obviously that would be a complete answer to a charge of not having got permission. In subsection (4) of Section 26, the Bill contemplates that the planning authority might be dilatory in the discharge of their functions and that if a decision on an application is not made within two months of the day on which the planning authority receive the application, permission shall be deemed to have been given.
When we look at that subsection., paragraph (b), we see this:
in case any notice or notices requiring the applicant to publish any notice, to give further information or to produce evidence in respect of the application has or have been served by the planning authority pursuant to permission regulations within the period of two months beginning on the day of receipt by the planning authority of the application—within the period of two months beginning on the day on which the notice or notices has or have been complied with.
In the normal course, a decision by the planning authority to grant permission or approval shall be regarded as having been given on the last day of the two-month period. The defendant cannot produce that permission if the planning authority are dilatory and do not give the permission until the last day of the two-month period but he may be able to produce proof—a letter or document —to show that he has made an application. Accordingly, we think it is necessary that the words of our amendment should be inserted at the end of the subsection to cover that type of situation.
If the planning authority is in any way dilatory in regard to the application before it, and if it has not given the permission up to the end of the two month period, it would be deemed to have been given. But, if it were to give the permission on, say, the last day of the two-month period, then the person could not produce this, though he might be able to satisfy any tribunal inquiring into the matter that he had made application. He might produce a document, a receipt or a letter from a solicitor acting for the property owner, to prove that he had made application to the planning authority. Therefore, we think that the words in the amendment should be added. Then it would read:
(4) In a prosecution for an offence under this section—
(b) it shall be a good defence if the defendant produces a permission which, by virtue of subsection (1) of section 28 of this Act, was granted in respect of the development complained of or establishes to the satisfaction of the court that a permission or approval shall be regarded as having been given to him pursuant to the provisions of subsection (4) of section 26 of this Act or was deemed to have been given to him under subsection (6) of section 57 of the Act of 1934.
What is sought, I think, in this amendment is not really necessary. What is in the Bill at present covers adequately what the amendment appears to seek. Having heard Deputy Jones just now confirm his views of what it is wished this amendment will do, I would reiterate that the section in the Bill generally does, in fact, give fully what that amendment is seeking.
I would say, even further, that there is this added distinction and improvement in the present proposals as against what existed in the past under the 1934 Act. Instead of permission having been deemed to be granted for all purposes, as it says in subsection (6) of Section 57 of the 1934 Act, in future, under the provisions and terms of this Bill, the document must ultimately be produced showing that permission has, in fact, been granted. In other words, in future, under this Bill, there will be the advantage that, where permission has been gained by default, as it were, on the expiry of a certain date without a decision having formally been given by a planning authority, documentary proof will be given to the applicant, as of right, by the planning authority and that will be his evidence and proof for all purposes thereafter.
As I have said, generally, there is nothing in the amendment, nor has the elaboration by Deputy Jones shown anything to be in or intended by it that, in fact, I can assure the House, is not actually fully covered by our present proposals. In other words, the terms of the amendment are not really necessary. We are doing all and any of the things being asked in the amendment fully and without question.
I am not particularly happy about this section—not the actual words contained in it or any of the provisions that have been disposed of by the various amendments that have been tabled by the members of the Fine Gael Party and dealt with to, I suppose, the utmost extent by the Minister. I understand and appreciate that as far as the formulation and establishment of an overall development plan is concerned, the planning authority have the power to do that—"the planning authority" meaning the elected members of the various councils, corporations, urban councils, and so on. My concern is that in this particular section the planning authority is, in fact, the city manager or is, in fact, the various officials who would be employed for the purpose of this Bill. I want, therefore, the Minister to say—I suppose there is no necessity for him to say it because it is a fact— that, as far as the operation of this section is concerned, "planning authority" means officials and I take exception to that.
I believe that the elected representatives should have a power of control in respect of the type of extra development mentioned in this section. I am not saying that the officials will deliberately act in any biassed manner but we have to be practical about this. We have to try to safeguard the interests of the elected public representatives. The elected public representatives in any district, needless to remark, have a particular interest in their own town, county or village. Whilst this section is not the fully effective section for the purpose of this Bill, it does mean that development which is not exempted development or development commenced before the appointed day will be controlled, so to speak, by the officials of the public authority.
We must appreciate the position of the elected representatives in this matter. They are people who have lived in their areas, in the majority of cases, for practically all their lives. They know the area. They know what is reasonable and what is unreasonable as far as development is concerned. They will also be bound by a decision which they made in respect of the development of their town or village. However, I suggest they also have a particular interest in any further development over and above all that and, in making decisions in matters of that kind, I think the public representatives should be consulted. There seems to be a definite and deliberate trend in Local Government legislation to take more and more power from the elected representatives and to vest it in the hands of some official. For that reason, I would be opposed to this section as it stands and believe that where permission is to be sought for further development over and above the general development plan the public representatives should be consulted.
I am certainly in favour of the general ideas or overall principles for the better planning and the better development of the towns and cities and villages in the country generally, as provided in the Local Government (Planning and Development) Bill which the Minister has introduced, but I suggest that unless it appears that the men who have been elected by the public generally have a say in planning and development it will not be a 100 per cent success.
I would be the first to confess that there are not so many things in the Bill to which I would take exception but the one thing I consider more important than anything else is that in the administration of the Bill the elected representatives should have the utmost say. If we are to confine decisions, as described in this section, to officials, we certainly will not get the goodwill of the public representatives. For that reason, I suggest that the Minister should consider on Report Stage or in the Seanad some method whereby there might at least be granted to an individual the right to appeal— not to the officials but to the public representatives who know their area better and perhaps have a greater interest in it than the officials, who may not necessarily be natives of the county they administer.
In a democratic House such as this, if I appear to take a line slightly different from that taken by the leader of the Labour Party, it is not because I do not sympathise with the idea that public representatives should have what I would call a reasonable say in this matter. The system of local government we have needs an adjustment of mentality on all sides, both by officials and public representatives. It is only going to work if that adjustment is there.
I want to put on record that my experience of local authorities, as much as I have been in contact with them over a long number of years, has left me with a very high opinion of the good standards set by these public servants. I have always found where problems of this kind arise that good public servants tend to heed the advice given to them by elected representatives.
I want in one regard to protect the elected representative. Very often the weaker kind of public representative —and they are in the majority—find it extremely hard to resist the pressure that can be exercised upon them under this kind of lawmaking. If that sounds reactionary, I am sorry. We have to be somewhat reactionary to deal with the problems this Bill sets out to deal with. This country has got into a mess. There is a number of things for which we have to set standards— standards that are acknowledged and accepted in other democratic countries in western Europe, but which we have flouted in the past. If we are to get done what the Minister and his Department seek to have done here, we must see to it that we do not allow public representatives to be stampeded by vested and other interests who want to have the indiscriminate free-for-all that existed up to now.
I hope we on this side of the House will be forgiven if we have one bureaucrat amongst us.
I have some experience of planning in Dublin and my relations with the officials have been very happy. However, while the public representatives under this Bill have the responsibility of making the general plan, it ends there. It would probably be impossible to have it otherwise. There are so many proposals before the planning authority that it would be quite impossible for the elected representatives to make decisions on them. The planning officials take over and they are supposed to give permission within the general framework of the plan agreed by the elected representatives, but that puts unnecessary obstacles in the way of development.
Sometimes I think there is a lack of cooperation. For instance, you get this sort of reply to a proposal: "Elevation and details unsatisfactory." No possible indication is given as to what will meet the requirements of the planning officials. You also get this sort of reply: "Disposal of surface water unsatisfactory." Again, they give no indication of what will satisfy them. You also get: "Plans insufficiently detailed." It is not stated in what way they are insufficiently detailed. There should be a more positive attitude on the parts of the officials. It is not a good practice to send back a curt reply giving no indication as to the manner in which the matter might be rectified to make it acceptable to the people responsible for granting planning permission. That is the only objection I have to bureaucracy. It would be quite impossible for the elected representatives to say it should be done this way or that way. They would not be allowed to live in the area.
Three somewhat opposite views were expressed here but I must say that put together, they all make a lot of sense.
All three put together made a lot of sense last night, too.
There were more than three together. Looking at this matter from the point of view of local authorities—and I have been a member of a local authority for a number of years—I think the situation is pretty well safeguarded as far as the rights and responsibilities of elected representatives are concerned. As I said previously, the very fact that we have over 80 planning authorities proposed under this Bill is in itself indicative of the view the House takes of the role local authorities can play. In the proposals in the Bill we have taken care to ensure that the elected representatives of the planning authority will be responsible in the first instance for the laying down of the general plan to be adhered to by the administrative head of the council, generally the manager.
After the plan has been agreed to by the elected representatives, subject to whatever advice they get from their technical people, the manager will operate it on their behalf and will be governed by the general plan laid down by them. If he should depart from that plan, he will be doing something wrong. That is something he is not likely to do and if he does, the elected representatives may requisition the manager to do as they wish because what he proposes to do is outside their plan. The requisition may or may not be heeded by the manager, but if not, it comes to the Minister. If no requisition arose but there was an aggrieved party, who would then become the appellant, and he appealed to the Minister and if the decision was not in conformity with the local authority plan, that, in itself, would be a fairly good case for the appellant as to why he should succeed.
I do not think it can be said that we are neglecting or writing down the role of the local elected representative. It is rather peculiar that—and this arises not only in regard to this morning but also to other references— much thought does not seem to have been given to restricting the manager if he is giving permission. It is all directed to restraining the manager from exercising his administrative functions in refusing something. On the various questions raised in the House about the role of the elected representative and the right of appeal to them by an aggrieved party, it is always envisaged that the manager will refuse something rather than that the manager should not do something or that whether he is giving or refusing permission, he is not the proper person to do it. I do not understand that distinction.
There is a good deal of sense in what Deputy Barry said. I think it was Deputy Clinton who said that when the local authority members are dealing with these cases, especially the bigger planning authorities, they will be very busy people if they do nothing but deal with awkward planning cases that arise. It is only awkward ones that will come to them, according to the views expressed by Deputy Corish. In a sense, I think this legislation merely continues the pattern which is becoming clearly established over the years, that, as the volume of work in local authority offices increases it becomes impossible for the ordinary elected members to give sufficient time to enable them to, as the old elected bodies did in the past, undertake all the work of their council.
The pattern here is, I think, in conformity with the general trend that local elected representatives generally can lay down what they wish done, indicating clearly what they want the manager and his staff to do but I think it is clearly demonstrated that they have not time to sit around in the local authority offices to ensure that their last word is put into action. I do not think it would be fair to local elected representatives to add the question of determining appeals at planning authority level on to them also. They do the positive and useful work of laying down the plan generally and the manager and his staff take over the working of the plan and carrying out the day to day detailed administration.
If in that administration, including dealing with applications for permission, the manager decides to grant or refuse permission resulting in certain people being aggrieved, then there is an appeal to the Minister. On the ground floor, in preparing the general layout or background of the plan, you have the elected body and no better people can be found for the job. As Deputy Corish said, they have the local knowledge and interest. Then the manager operates the plan and makes the detailed decisions. If anybody is aggrieved by those decisions, they may appeal to the Minister when, under the new law, they may have the benefit of oral hearings.
If the manager has transgressed against the plan as passed by the local body in making a decision, the local body have the right of requisition requiring the manager to do other than he proposes to do. If he refuses, the normal sequel is that it is referred to the Minister for final determination. While I appreciate Deputy Corish's view and those of the other two Deputies who have spoken, I think, in general, we are approaching this in a reasonable and sensible way and, above all, we are recognising the definite, positive and useful role of the elected body without whom the whole proposal could not work. They make it go; otherwise, it fails. We are placing that responsibility on them and I expect they will make it work because of their interest and knowledge of what is good for their own localities. That is why we have retained the big number even though in many cases they may be dealing with small units. That may create difficulties in general administration but we think it is worthwhile since we rely on the members of the local authority to do a better job than any other agency we might consider.
On that basis, I put this proposal to the House and to Deputy Corish and his Party in particular who expressed some views on the matter. I believe we are doing a good job in bringing all three elements into the matter in their order of importance, first, the elected representatives, secondly, the manager and his officials and thirdly, the Minister and his Department. If that still does not seem to certain Deputies to be sufficient, I need scarcely tell the House that I shall be thinking about this between now and Report Stage. Probably I shall not be able to stop thinking about it until it is through both Houses of the Oireachtas.
I certainly appreciate what the Minister says but I should like to see the local representative brought into this section in a more positive way. The Minister has described how public representatives can, so to speak, keep a check on the manager and curb him in respect of practically anything. I have as much respect—I happen to be a local officer; I do not know whether or not Deputy Barry knows it—for them and their judgment as I have for any other section of the community. It is true, of course, that some managers do consult, but I find that, when a manager consults a council in something in which he is not bound to consult them, in nine cases out of ten, he is trying to get the county council to share some of the responsibility where he himself should have one hundred per cent responsibility.
Now, I do not say that against county managers, but that is the way they operate, in my experience. If they have a function, then they have a function and they should be prepared to take responsibility for that function. Where they consult the council, they want to present the matter to the public as being a decision not alone of the manager but of the council as well. It may be some sticky problem.
That is desirable, is it not?
It is desirable, but it shows a defect in the Act. If the manager has one hundred per cent responsibility for the function, he should be prepared to take that responsibility.
I think he should allow the council to discuss it and possibly disagree with him. Managers do that. Actually, it weakens them.
The manager need not heed the council's advice. As far as other functions of the manager are concerned, he is guided more or less by the law, by the various Local Government Acts, by the Health Acts, by the Public Assistance Acts, and so on, and if it is right to do a certain thing in Wexford then it is right in Cork, and Galway, and all these other places. But, as far as town planning is concerned, what is good for Cork may not be good for Waterford, and what is good for Waterford may not be good for Galway. That is the reason I advocate that public representatives be brought into matters like this in a much more positive way than the Minister has described.
I repeat that managers and officers generally, who are usually not of the county in which they operate, could not expect to have the same local knowledge as public elected representatives have. I know they are subject to pressure. We are all subject to pressure from time to time. I do not think there is anything wrong in being subject to a peaceful pressure by any individual or by any section of the community. Deputy Barry said unfortunately—I do not propose to quote his exact words—that many of our public representatives, if not the majority of them, tend to be weak when they are subject to pressure. If that is so, then I suggest the whole nation is weak because these are the men and women who represent the people.
One of the criticisms we can make of local government is, I suppose, that those who criticise most are those who should be prepared to take responsibility in local matters but who never seem to put themselves forward for election. I am glad that a man of Deputy Barry's stature and standing is not within that category; he has demonstrated over the years that he is prepared to take his responsibilities as a public representative not alone in Dáil Éireann but in local bodies as well.
Public representatives should be brought into this matter in a much more positive way. It is true, as the Minister said, and we all know it, that you have the power to establish this plan. I am not concerned now with the day-to-day administration of the plan but perhaps the Minister would listen to this positive suggestion, unless it is already provided for; that is, that the manager be compelled or required to provide for a progress report. Of necessity, in establishing the plan over weeks or months, the council cannot go into the details, details that may be very important, and I suggest, therefore, that the manager might periodically make progress reports on the actual operation of a plan in any particular locality. In particular, I think the local public representatives should be consulted in respect of Section 24, subsection (1), paragraph (b). In areas in which town and regional planning Acts were not in force, structures, the erection of which is commenced without permission after the appointed day for the coming into operation of the Act, can be dealt with by the manager and should be dealt with by him because, in cases like that, they have got due warning so to speak that these authorised structures should not be tolerated. But, in respect of unauthorised structures in areas where town and regional planning Acts were not in force, I think definitely the public representatives should be consulted because, with all due respect again to public officials, and again bearing in mind the great defects in the planning Acts, there have been hundreds, if not thousands, of structures erected without any permission having been obtained because the attitude of local officials and local authorities generally has been: "Well, these Acts are so defective we close our eyes to most of these things."
I venture to remark that there are hundreds, if not thousands, of unauthorised structures. Are we to take from Section 24, subsection (1), paragraph (b) that the manager himself will have the power to deal with cases of that kind? I suggest that in relation to these structures which may have been erected long before a manager came into the area, the public representatives be asked by the manager to at least adjudicate on these. I know that public representatives have two or three different ways under which they may appeal to the Minister and in which they may reverse the decision taken by the manager. In many cases, they are very cumbersome and no public representative, to my knowledge, wants to invoke, and for very good reason, the famous Section 4 of the Act of 1955 or 1956 to reverse a decision made by a manager. Believe it or not, they do not want to do that. They do not want to appear to reject absolutely their manager. For the better operation of the Act, therefore, if there could be some positive proposal in the Bill, whereby the manager or the officials would be required to consult the public representatives, I honestly believe this Bill would operate much more smoothly.
I take it what we want to do is to provide some kind of system whereby the local elected representatives will be made aware of the propositions, proposals and decisions. The procedure in Cork city that we adopted about two years ago is that every two weeks, at the appropriate meeting of the authority, all applications and decisions must be listed and placed on the agenda. The town planning officer is in attendance and the list is gone through seriatim and every decision approved or awaiting approval is subedited in that way. The architect describes what state the application is at—approved or awaiting approval or approval refused for certain detail and the detail is listed. The council are able to discuss every one of these cases across the table. In fact, on the list we have also a list of cases known to be on appeal to the Minister. When a case is on appeal to the Minister, it is obvious that a decision has been taken by the applicant, that he regards his case as in justice requiring that final arbitration take place, and the council members are aware in a case like that that it is probably a finely balanced point of decision and can throw their weight on any side they like. The manager and his architectural adviser, his town planning officer, are required to justify their decisions before the council at these fortnightly meetings.
The manager and the council in any local authority can decide to establish that system. It does not require a law of this House to do it. If there is not that kind of relationship between the manager and local representatives in local councils, then we are in a mess.
Mr. Belton
In a case where a plan is rejected the officials should be obliged to state exactly what they want. If that is not done they could spend two months rejecting a plan for insufficient detail or something like that without telling the applicant what they wanted. Then you could relodge the application and another two months could elapse. The case could take 12 months. This has happened to me in business. It has taken 12 months to pass an application merely for the sake of some small items. Deputy Clinton asked this question and I have not heard a reply to it. Surely when a plan is rejected it is up to the officials to state exactly what they want and what is wrong with the plan.
I would be against an official so dictating a decision of that kind. It is quite easy for the architect for any applicant to get in touch with the planning officer or the architect of the authority and by word of mouth find out the line of country in which he should proceed so that he would satisfy the local authority's needs.
Mr. Belton
Very often in these cases an official is busy and says it is up to the applicant to produce it. He may have some idea as an architect different from the idea the applicant's architect may have. The official must do this. This cannot go back to the local representatives. This must be done by this architect in conjunction with the applicant's architect. If they do not agree on a certain point, he should tell the applicant, not reject the plan.
(South Tipperary): I do not agree with Deputy Barry who said that this would be dictation on the part of officials. Deputy Barry is adopting a very dictatorial attitude today. I do not know whether he got out on the wrong side of the bed.
He thought we were all getting on too well on this side of the House.
(South Tipperary): In our county council affairs, as regards a simple question like a question of boreens, we have drawn up certain stipulations to which people must comply if the boreen is to be taken over. That was done in order to get some kind of control over the following out of demands. In each case the engineer tells the local applicant that he wants such a hedge cut, such a thing done. He can simply state what he requires and the people are free to go ahead and do that. If he just sent back a blank refusal saying: “This is not acceptable” the people would not know where to begin or end. By simply stating what the objections are and what he requires done, it is made simple and workable for everybody. I see no reason why, as regards the planning authority, the same principle could not be adopted.
As regards Deputy Corish's point that he would like public representatives to have a more positive say as regards the administration of this Bill when it becomes an Act, in general, I would agree with him completely. It is a fact, and no one can deny it, that local government as such has practically disappeared. It is a county managerial system now and local government is there only as a name and local representatives are there merely to give a democratic face to bureaucratic government. That is exactly what the position is. No one can deny that.
The position as I see it is that the members of local authorities are completely and entirely ignored by the bureaucrats who often wish to carry out any kind of scheme which suits themselves and to stop any sensible scheme. It is a shocking state of affairs that things which I have seen happening can happen and I hope some action will be taken to prevent them.
Some of these allegedly famous planners have minds on a par with some average 12-year-old children. That is clearly indicated by some of their activities. I have seen a man decide that a petrol pump should be 56 feet from the side of a road and, according to that, it would end up in the middle of a field. I should like to know what use the petrol pump would be if it were in the middle of a field. That happened.
Helicopters.
It is only reputable people in Mayo who can afford helicopters. Were it not for the intervention of the local representatives and the goodwill of the Minister, this person would not have his petrol pump or he would have it in another man's field. How anyone would get into that, I do not know. When we have there a bureaucratic planning genius who decided on that without even looking at it, surely it is time that not only in the towns or cities where you have urban authorities, but in ordinary cases throughout the country these matters should be brought before the local authority by the planning officials and should be discussed with the members of the authority? No matter how little sense the members of the local authority as such may have, most of their servants have a good deal less, as I have found in Mayo and as I see in other counties and particularly in this city where the thing is standing out 100 miles.
It is absolutely essential, unless we are to lose sight of democracy altogether, that steps should be taken to ensure that the members of local authorities would have a say in this matter. They are not all as daft as they are written up to be by many people. Many of them have good, common sense, fortunately, and more common sense than some of the people who try to dictate to them. I hope steps will be taken to ensure that local authorities will have a say in this matter.
I was very concerned from the beginning when this question of reserved functions came up. I take it that in regard to this section and in regard to town planning in general, the regulations which the Minister will make and the subsequent plans or the plans that have been spoken of already will be available to the elected representatives and the planning authority when they come to consider the plan proposed to them and that the elected representatives will know at that stage what regulations the Minister has in mind and what instructions ought to be borne in mind in regard to any particular type of development. This would enable the elected representatives to retain that type of supervisory control which Deputy Corish has referred to and to which the Deputy who has just spoken has referred. I am glad to know that democracy won the day as far as the petrol pump to which he referred is concerned.
If the regulations which the Minister makes or envisages in regard to this whole field of development were available to the elected representatives at the same time as the planners bring before them the proposed plan, the elected representatives would have a reasonable chance of knowing the steps that might be taken administratively to deal with the development plan. Indeed, Deputy Corish referred to the fact that the same set of circumstances would not be in operation in any two counties. It would be very desirable that planning in general would not have complete uniformity which would tend to make it common and monotonous throughout the country. There must be freedom of development which will allow planners to plan for their own regions. The type of situation to which Deputy Corish referred, and the type of procedure which Deputy Barry told us has been adopted in Cork would not only be desirable but necessary, if this Bill is to work as it is envisaged it should work.
From the beginning, I have been saying that goodwill is required to make the Bill work. The goodwill not only of the planners but of the elected representatives in conjunction with the planners is required. If there is a clash of interests between the elected representatives who know the areas, and the planners who may come from outside the areas, there would not be as much respect for the plan. If the Minister could see any way in which the type of situation which Deputy Barry has told us is in operation in Cork could be brought about, it would meet Deputy Corish's point that there should be a type of progress report which would give the elected representatives in any planning area an idea of what was in the official or administrative mind, not only on what was before it at the time but what had been dealt with since the previous meeting of the authority.
It will occasionally happen that representations will be made—I prefer to use the word "representations" rather than to say that pressure will be brought to bear—to public representatives in local areas. That is most understandable, because if people who are affected by any phase of the development want to convey their views of the administrative machine, the public representative is the man to carry them. It is very desirable that that type of representation should be given due weight by the people who are responsible for a decision even before it leaves the planning authority and comes to the Minister.
I do not know whether we are still dealing with the section we started out to deal with. We have ranged quite widely since but, perhaps, in some way there is a connection. There is much talk of getting co-operation by goodwill rather than by compulsion. Previously no distinction was made as between one approach and the other. It was said that the local elected representatives were entitled to this, that and the other. How they got it was not really of any great importance.
We seem to be forgetting that we have Section 2 of the 1955 City and County Management (Amendment) Act. Section 2 (1) provides:
Subject to the provisions of this Section, a local authority may by resolution direct that, before the manager performs any specified executive function of the local authority, he shall inform the members of the local authority of the manner in which he proposes to perform that function, and the manager shall comply with the resolution.
The managers are aware of that, even though all councillors may not be. A request to a manager for information such as this is as good as a command. I am merely putting that to members of the House who feel that the necessary type of information should be supplied. It might be sufficient to meet some of the objections that are being made that the local elected representatives are not properly informed on the question of appeals. Under that section the manager can be commanded to give the information if he refuses, but he will not.
A manager may want to bring to the council a matter which is difficult to decide and on which he wants to spread the load of responsibility and make it lighter for himself. A manager who does that is sensible but a manager who does not bring every type of case to the council, perhaps because it is an easy case, it is popular and has outside support, will get away with that only a couple of times before the council tell him to take a walk for himself. He will not cod them by bringing in only the difficult and awkward cases which he wants to get out from under. If he ignores the council in the ordinary run of business and brings in only difficult cases or decisions which may not be popular, he will get away with it once or twice and if the council are very patient, perhaps, three times. If a manager wants to be helped to carry the burden of responsibility—and most of them do—in regard to decisions which are not always popular, and if he is to get that help, he must co-operate in full with his council. In that way he will get the co-operation and help of his council in awkward and difficult decisions. He cannot have it both ways.
The ideal of our City and County Management Acts is the idea of co-operation. If that co-operation is not forthcoming by goodwill there are powers to compel under various enactments. If we can get that co-operation without compulsion, that is fine, and that is the ideal way, but if there is, as there must be occasionally, a manager or an official who does not seem to be built that way, we try to build into our laws sufficient powers for the local authority to compel such people to co-operate in the interests of the common good.
Deputy Clinton raised the question of the local authority stating the exact grounds for refusing permission. The proposals in this Bill are an advance on the present law. More detail will be required to be given in future if we enact this Bill than is the case at the moment. Furthermore, what is far more important, and coming to what Deputy Belton mentioned, there is provision for oral hearings. In such circumstances undoubtedly the applicant will have an architect; there will be a planning official, or an engineer, or an architect of the local authority, and they will probably get together and have a talk at the oral hearing about what one feels should be done and the other feels could be done. Probably, before they leave the room they will know each other's mind as to what is feasible and what is possible. These oral hearings will probably be a means of short-circuiting some cases.
I agree there is an idea that you may get a refusal which very briefly may give a vague reason or reasons why the application has been refused. The applicant or his architect or solicitor amends that, but, again, because of the vague terms of the refusal, he may misunderstand or not fully understand what is intended or what the objection is. He comes back with the amended proposal, feeling he has now met all the grounds objected to and yet when that is received, he gets back another objection. This can go on, and indeed in many cases has gone on, for weeks or months or maybe years.
We hope the new method of approach, particularly the oral hearing, will to a very large degree prevent that type of frustrating experience. I am confident that we shall get quicker decisions and a more satisfactory operation of the law in regard to planning in the future than we have had in the past.
Mr. Belton
Can they not write all their objections into the refusal instead of waiting for an oral hearing? Can they not give the complete reasons for their rejection of the plan?
At the moment they are not obliged to put in any reason whatsoever, although they do. Under the proposals in this Bill, they will be required to state reasons. As regards the elaboration of those reasons, I think it would be as well for us to get back on the track and wait for Section 26.
The Minister has been very patient and I just want to say my last word on this very quickly. The Minister in this Bill is putting the responsibility on the local authority to prepare a plan. It seems to stop at that. May I appeal to the Minister, therefore, to put the onus on the county manager or the city manager by saying to the county or city manager: "These men have given you a plan. You will operate that." Surely it is not unreasonable to put the onus on the county manager to make a progress report? The Minister has said that public representatives can make the manager do that.
They can do it now.
I want to see it in the Bill.
It was in the previous Bill.
I want it in this. The local authority can sack the manager, if they like. I want to see this strictly connected with town planning. There is a happy arrangement in Cork where it is done by agreement but there are dozens of local authorities in the country who may not think of getting an arrangement like that of the Cork County Council. The onus should be put on the county manager to make that progress report without the county councillors appearing to chastise the manager by saying: "You must do this or that". Then it would operate much more smoothly.
I cannot see this operating without that being provided but that it should be put to the Minister for Local Government that it would be better if the Minister says to the manager that it should provide this or that for the council rather than that the council should say it to their own manager, indicates a certain weakness in approach to this matter as regards having a manager controlled as he should be controlled by the local authority for whom he is working. I know the Deputy's view is that we should bring this about without the local authority seeming to rasp across the manager so that goodwill and co-operation will be forthcoming. However, if the Minister has to tell the manager what he should supply to the elected representatives, it would look as if the local body were afraid of the manager or that they felt they should not tell him what to do, that is, if he does not know already what to do himself, and I would assert that nine out of every ten of them will know it is something they should do. If they do not do it, they can be required to do it.
This same sort of progress report is required in every other field of activity of the local authority, whether it is roads, sewerage, water schemes or anything else. At every committee meeting, progress reports are received from various heads. I do not see why that should not relate to town planning as it does to every other activity of the local authority. It follows as the night the day and without it things would not work too well. Whether I should say it must be done or not is a matter which I can and shall consider.
Let me say again the responsibility is on the local authority to give the county manager a plan. I do not think it should even appear that they are being used as an instrument in the name of democracy to give him a plan and that that is the end of it as far as they are concerned.
No, they do not finish at that.
No, they do not finish entirely at that, but the Minister would be making a breakthrough. I have a certain sympathy for what Deputy Leneghan said in respect of officials and Deputy A. Barry will appreciate this as well. No matter what a county manager or city manager or any officials of the local service do, the public representatives have to take responsibility for him. I would ask the Minister to include this one section to ensure that the county manager will in a democratic fashion tell the public representatives what is happening every week, every month or every three months, as the case may be. This is a small matter and I do not think we should have been discussing it at such length. He could easily do it and would not be creating a precedent which would embarrass him later on.
As the House is well aware, we have gone to great pains to try to evolve a system that will operate to make councillors aware of what is going on and also to devise a way in which we shall make the public aware of what applications are received and what decisions are reached. We are going to endless trouble to provide a register and various other forms of publicity so that people who might have an interest or who might be aggrieved will be aware of what is taking place, what decisions are being made, and can make the appropriate appeal, if they so wish.
That is for the general public. Surely the members of the local authority, the local planning authority, in whose offices the register is kept and in which offices or building they have their normal meetings, if they are not aware through the normal channels made available to the public, must be aware of what is going on, even if the manager never provided such a report. If there is not in the local authority harmony to the degree that the manager will present a progress report to each of the meetings dealing with town planning generally, just as he does in regard to roads, sewerage and so on, then there is something wrong, not necessarily only with the manager. There might also be something wrong with the council.
There is this difference. In all the decisions the manager has to make, he is guided by law or regulation. In this, he must be dependent on judgment and he can relate it to local circumstances.
I do not agree that the county manager's job is as clearcut as that. He has to use his discretion and in many cases, there is neither law nor technical process to determine his way of thinking.
He can invoke the law.
Everybody can do that to suit himself ultimately. He hopes he can, to justify his action. Seriously speaking, managers in the case of executive functions which it is their right to determine — and I have known a few managers in my capacity as a member of a local authority — even where they are not obliged by law to do so do, on the basis of common sense, do seek views and advice from the elected members, particularly if a matter is likely to be disputatious, as planning appeals will be. I must say that there will be something wrong somewhere if what Deputy Corish is seeking does not evolve of itself. He is anxious that I should ask the House to compel the managers or direct them by law to provide this. I shall think about that.
May I make one short submission, that is, in connection with a person who seeks permission for a structure and is advised by the planning authority that it does not conform. The position is that the planning authority should be required to give reasons why it does not conform. I would remind the Minister of an experience which probably he does not remember. When I first became a member of this House, one of the plagues of our lives was that if there was an appeal under the Old Age Pensions Acts, we were simply told the person was not allowed the old age pension or was allowed half the standard rate. If you went to the Custom House, you met a most polite officer who explained the whole case and went through the file with you. When you asked him if he would give you that in writing, he replied: "No; we cannot do that. We are limited to saying that Mrs. So-and-So is entitled to half the pension or to no pension." You could see from the file that the decision was perfectly reasonable but if you tried to explain that to your constituent, your life was a misery.
I shall not apportion credit but a change was made in the regulations and old age pension officers were allowed to state that "Mrs. So-and-So's means have been assessed at so many cows, which represents such an income, and she has another income of so much and that places her within a certain category of income and the appropriate rate of pension is so forth." The relief that has been not only to Deputies trying to serve their constituents but to old people who now know what they have to meet if they are to seek a full pension, has been very great indeed. In 90 per cent of the cases, the old people know that they have no answer to the reasons and the matter can be allowed to drop and everybody is satisfied. In a small percentage of cases, it can be demonstrated that there is a misapprehension.
By analogy I suggest that if a developer or a person intending to build a structure is told: "You cannot proceed with that structure unless the following things are done, A, B, C, and D," he knows where he is and he can make up his mind whether he can conform to the four conditions or abandon the project, or, in the alternative, say: "Conditions A, B and D are reasonable but C is manifestly unreasonable and I want to argue that with you." If he comes to me to complain that he is not getting a fair deal from the Department of Local Government, I can immediately say: "Well, A is reasonable; therefore we can write that off. Condition B is all right and condition D is acceptable but C is unreasonable." You are then immediately in the realm of reality but if he comes to me simply with a categorical refusal, an endless argument goes on at the end of which nobody is satisfied. For that reason if the Minister would consult with those of his colleagues who remember the former system under the Old Age Pensions Acts, as compared with the existing system where some information is required to be given, I think he will agree it is better in the long run to give the reason and allow the matter to be argued on its merits and not on an amorphous sense of grievance which it is extremely difficult to define.
I raised this matter earlier but unfortunately I had to leave the House for a short time and I do not know the nature of the Minister's reply. I understand that he felt it was fully covered by the fact that in future oral interviews would be arranged. I think that that would be quite impossible because there are so many planning decisions to be taken in an area such as Dublin that the responsible officers would spend all their time interviewing people. It is only after the other channels have been explored that we should have recourse to that practice. This is the sort of thing to which I have been objecting for years —injury to amenity, disposal of surface water in such a manner not acceptable, elevational detail unsatisfactory, and so on. It would be just as easy to explain in what way a building was an injury to the district, or in what way plans had insufficient detail, or in what way the elevational detail was unsatisfactory and what would meet with the satisfaction of the officials. If they simply wrote back and said: "Your proposal to dispose of surface water in such a manner is not acceptable to us but if you did it in such a way, it would be," that would be a direct way of co-operating with the developer and we would make progress.
We have excellent people in planning in Dublin but it is an easy way to report back. The same people are coming back again asking "why" and the architect submits a fresh plan and perhaps it may have elevational details which are unsatisfactory. I remember years ago, before I became a member of a local authority, complaining about this and asking if the planning officer would give some indication what elevational appearance would meet his requirements and he replied: "Send me another plan and I will tell you whether it is right or wrong." That is not the sort of treatment that leads to co-operation and rapid development.
It would be as well to leave this to Section 26 and amendment No. 90 when we will be discussing it in more detail.
Very well.
(South Tipperary): I want to refer to progress reports mentioned by Deputy Corish. The Minister should give this matter sympathetic consideration, not alone as regards progress reports in reference to this Bill but in reference to county council reports in general and reports from county managers. We do get reports from the Department of Health and from the Department of Agriculture but we have county managers all over the country spending on average £2 million per year and there is no such thing as a county manager's report. Reports on this aspect are given to councillors, but in the interests of good public relations, and for comparison purposes from year to year and county to county, it would be an excellent idea to have such a report incorporated in the provisions of this legislation.
Only just now Deputy Corish suggested we should have progress reports under this Bill, and now Deputy Hogan would like annual reports as well. Any member of a local authority who does not know what is going on, particularly after the annual estimate meeting of his council, could not have matters made any easier for him, or have a more lucid account of happenings, through any action we would take in this legislation. What the Deputy is asking would, anyway, be inappropriate to this Bill. If the Deputy still wants a report, there are ample opportunities under the County and City Management Act of 1955, which gives the local council, the elected body, the complete right to demand from the manager all sorts of information, including information about how he proposes to use his executive functions, apart altogether from minute details of such things as expenditure and so forth.
I move amendment No. 76:
In subsection (1), page 17, lines 4 to 6, to delete paragraph (b).
This amendment was discussed with amendment No. 72, and I suppose the Minister's answer will be similar.
The same.
I submitted amendment No. 77 which reads:
In subsection (2), page 17, lines 15 to 20, to delete paragraph (a).
My view is that in the following two amendments, Nos. 78 and 79, the Minister deals with the same question and I shall be satisfied to hear the Minister's intention when we come to discuss those two amendments, which actually incorporate part of mine.
I move amendment No. 78:
In subsection (2), page 17, lines 16 and 17, to delete "the constructing, erecting or making of any structures" and substitute "development".
Amendment No. 79 can be discussed with this amendment. The two amendments will serve to remove certain restrictions and bring us in line with existing British planning legislation. They will serve to widen the scope of the section and make it easier for the planning authority to accept the minimum outline of plans when giving decisions in principle. That was really the purpose of Deputy Jones' amendment No. 77.
I move amendment No. 79:
In subsection (2), page 17, lines 18, 19 and 20, to delete "with respect to any matters specified in paragraphs 1, 2, 4 and 6 of Part II of the Third Schedule to this Act".
I move amendment No. 80:
In subsection (2), paragraph (c), lines 23 and 24, to delete "and to any other specified persons".
I should like to get from the Minister the purpose of the phrase in this subsection "any matters specified". The section refers to specified persons to whom the applicant will have to give information. Could those specified persons include competitors in business? I adverted to this problem earlier. If information to be supplied by an applicant were available to a business competitor, it could have serious repercussions on the applicant and I should like the Minister's assurance on this point: whom would the Minister regard as "specified persons"? Would he give us the type of limitation he has in mind in that regard?
I should, first of all, put on record that this subsection is in respect of regulations that may be made by the Minister. Having said that, then, let us get on to the really pertinent part of the issue, that is, who these other persons might be. I will give a couple of examples of who they might be. An applicant for permission, as the House is fully aware need not be the owner of property. Where a decision has been taken on an application received from a person who is not the owner of property, it may be only right and proper, indeed, that the owner of the said property should be informed of the decision or the proposals, lest his interests might be over-looked. If it were, for instance, a question of refusal, the owner's lack of knowledge of the actual refusal for development would leave him unaware that he might be entitled to compensation for that refusal. That is an example of what might be the position in that particular case. There could be several cases, if that were elaborated. That is one.
Another example would be the case of a party wall where something was proposed to be done to it or with it. I think it only right that the other party to that wall should be notified of any proposals that might be suggested. That could be another type of case. Then we might have the question of excavations—say, the digging of foundations which, indeed, could possibly bring about the undermining of adjoining property. Again, that could be a type of case and call in the type of person who is mentioned here—"but any other specified". That could be a specified person again, who by the regulations, as we examine the matter, we feel should be entitled to this type of notice in order that his interests would be protected.
In so far as the type of information required to be given is concerned, it certainly would not include such things that are not really relevant to the matter at issue. It would not include things such as where a man would get the money to do a certain job, or other such detail. It would deal merely with the structural proposal or otherwise which in itself would affect the third or specified party, as the case might be, and nothing else.
When I say that, I say it on my own behalf, and no doubt on behalf of any Minister for Local Government who may follow me, because specified persons and the type of information to be given will be dictated in regulations by the Minister of the day. So far as I am concerned, none of that sort of detail which Deputy Jones fears might be available to the detriment of the applicant, by being available possibly even to his business competitors, will be included or specified in the actual regulations.
We have been dealing now with development. It applies to land as well. We have been dealing with the type of thing which comes up when land adjoins other land. Take the information which a person might supply in regard, say, to a housing scheme on the verge of a built up area; information on what he proposes to do by way of access roadway, extension of water main, extension of sewerage facilities, and so on. That would be the type of information which I assume he would have to supply under this type of application. Would this information be conveyed, so, to a person with property contiguous to his property so that the person might become a competitor of the person proposing this type of development? Could that not reasonably happen? Could it not happen that that type of information would be available to a person and would so enable him to derive an advantage from it?
I should first of all say it is impossible, of course, to cover all possible eventualities. We have to take that for granted before we start on any of these things. Let me then say that in so far as any adjoining property holder would be a competitor in regard to any business, we should not forget the register and the various methods of publicising that for which permission is being sought or has been granted. That type of publicity is available to the public in general. In fact, it is our wish to make it available to them so that no person with a real interest will be unaware of what is happening. When we keep that in mind also, the likelihood of there then being any further information requested or required to be given to some third party that would have any grave effect on a particular proposal is remote.
I cannot envisage very well an adjoining property-holder being entitled, merely because his land adjoins the land of the applicant, to get specific knowledge sent to him by the applicant in accordance with the terms of the section and amendment we are discussing. It is unlikely that there would be much he would need to know that he would not already know without any such action even being contemplated because of the existence of a register and the various other methods of publicity we are designedly bringing in in order to make the public aware. We cannot cover it off but I do not think it is a real danger.
In the light of the Minister's assurance on this matter in relation to Ministerial regulations, I beg leave to withdraw the amendment.
Perhaps amendments Nos. 81, 82 and 83 would go together?
Yes, I think we could take them. I move amendment No. 81:
In subsection (1), page 17, line 53, to delete "and any other material considerations" and substitute "and the matters referred to in subsection (2) of this section".
This amendment has been introduced to meet the points raised by Deputy Jones on Second Stage.
I move amendment No. 82:
In subsection (1), page 17, line 53, to delete "and any other material considerations".
The amendment the Minister just moved was to delete "and any other material considerations". I made reference to this on the Second Reading. I put the point of view that this could be capable of very wide interpretation. The Minister's removal of that phrase at this stage does limit the effect of the type of application that could be inferred from the phrase "and any other material considerations". To my mind, it is not really a cure for the situation because it incorporates all the conditions which are provided in subsection (2) and which are enumerated at the end of page 17, and on pages 18 and 19 of this Bill. The terms of reference under which they operate in lines 46 to 53, ought to be sufficient for their needs and should be restricted to questions of whether the planning development is proper, having regard to the development plan, and any special arrangements should relate to their own area. If we look at subsection (2), we find the conditions laid down are extremely wide.
I felt the adoption of amendment No. 81 would cover amendment No. 82. The substitution we propose here will enable the planning authority to consider all the items in Section 26 which can be imposed as conditions in the granting of permission, including conditions for requiring contribution towards expenditure incurred by local authorities on works facilitating development and the giving of security for the satisfactory completion of proposed development works.
Amendment No. 83 would provide that all subsection (2) should be wiped out. The fact is that a great part of it is already included, and the reason we elaborate on it is that there is a reference to "planning criteria". In subsection (2), there are a number of considerations that could not, strictly speaking, be regarded as planning criteria. We felt it incumbent on us therefore to put these things in a more specified form. By and large, that is the reason for this method of approach. There are matters that might not be regarded as coming within the term "planning criteria" and a dispute over interpretation might give rise to endless trouble, not to mention the deadening effect it might have on the provision as a whole.
Does the Minister envisage that all the conditions enumerated here will cover all types of conditions that might arise under planning? Are they all covered, or is this complementary?
This is complementary, not inclusive. Subsection (1) of the same section gives the general power and this is complementary.
The Minister mentioned that certain things are not included?
Yes. They might be regarded as not being included—let us put it that way—and we are therefore specifically including them.
The Minister will remember that on the Second Stage in regard to paragraph (e), reference was made briefly to this problem. Has the Minister included anything to deal with this problem?
This is the matter of open spaces?
You have open spaces covered and also the case of a developer who leaves the developments unfinished.
Section 35 deals with this in a pretty thorough way.
I move amendment No. 84:
In subsection (2), page 18, line 19, to insert "(either in one sum or by instalments)" before "towards."
Amendment No. 86 is cognate and amendment No. 92 is consequential.
These amendments offer developers a facility which we feel will be of considerable assistance to them. If contributions are required and agreed to, these contributions may be taken by instalments rather than in a lump sum.
I move amendment No. 85:
In subsection (2), page 18, lines 25 and 26, to delete "not earlier than seven years before the commencement of" and substitute "after the appointed day and not earlier than seven years before the grant of permission for."
This amendment conforms to a degree with the views expressed by Deputies who spoke on this matter. A change has been made to bring about an easement of the position. Instead of having retrospection for seven years, as would have been the case, retrospection cannot now go further back than the appointed day. Retrospection can only be in respect of something brought in after the appointed day when the person responsible would be aware of the law and would have due warning that this subsection would apply. Even in such cases the amendment ensures they can go back only seven years and not more. The real easement however, is that retrospection cannot go further back than the appointed day.
The amendment now abolishes all claims by the local authority for improvements carried out by them prior to the appointed day?
Yes.
That is a very substantial easement.
Yes, in so far as those people are caught, but the real thing is that where these contributions will be sought in future, they will be sought by persons who will know that on and from the appointed day, this is the law. That makes a real difference, apart from the differences it may make to existing developers. It is a substantial change. It is a big easement for existing developers who might have been caught as it stood but that is what we propose and it is in conformity with what has been said here. On reconsideration, that is what we feel we should do.
The question of defaulting developers has already arisen and reference was made to the problem, particularly in regard to the outskirts of Dublin where there was a type of uncompleted development. Are we now giving these people a greater measure of relief? Is that the intention?
No. The amendment about which I have spoken has nothing to do with those people or, if the Deputy can show me it has, I should be rather shocked. Amendment No. 85 is not tied up with that.
Does this amendment not mean that if the city of X has carried out roads, sewerage and other amenities far beyond an area which is already developed, a developer going into that area where the roads and other services have been extended can now develop the area and make no ex post facto contribution to the development that has been carried out?
That is the situation.
Whereas, once this Act comes into operation, if a similar situation arises, the developer will buy such developed property in the knowledge that there is a liability on it and when developed, it must bear a fair share of the cost?
Yes.
I do not like to argue with the Minister but perhaps he is being too liberal. I remember in my youth living in Chicago. A gentleman there bought a large section of the prairie. He had some influence with Chicago corporation and to the astonishment of all, the roads, sewers and the lights of Chicago struck out into the prairie. He bought himself an estate in Florida and that was the last Chicago ever saw of him but at regular intervals over the ensuing 40 years—I think it still goes on—whenever he wanted to extend his demesne in Florida, he sold a corner site on what had been the Chicago prairie. The value of his property was in no way related to the soil but related to the sewerage and the water and lighting system which he had induced the corporation to carry out on to the virgin prairie of Illinois.
I wonder is it prudent to say, at a time when certain of our cities housing development is progressing and must progress very rapidly if we are to meet urgent needs, to corporations in these cities in the course of providing essential amenities for a developed area; the general engineering plan of your own Department indicated that you should carry these improvements further out in order to give a completed job. In respect of a quarter of this developed area, it has been built up but in respect of the other three-quarters, there is no housing on it but somebody is going to sail in and purchase the property, develop it and simply because this work was carried out six weeks before this Act came into operation, pay nothing for it, whereas if similar work was done hereafter, he would be liable for a fair share of the total cost?
I do not think that prudent and certainly, if my experience counts, the Minister is in danger of creating not a permanent evil but what might become something of a scandal. Is it unreasonable to say that if a person develops an area within two or three years of these amenities being provided by the municipal authority, he will become liable for whatever share is considered equitable under the new Act? If he does not want to buy subject to that condition, he need not buy but it seems odd to have around cities like Dublin, Cork, Limerick and even Waterford a number of choice pieces of land of a character which can never occur again, municipally developed land in respect of which the developer makes no contribution at all, while the permanent Act, which we are in the process of enacting, provides that once it comes into operation, that can never occur again because we think it unreasonable that the developer should have the value of his land enhanced at public expense without an appropriate contribution from him.
The Minister will agree that we could go into a long philosophical argument about Henry George and taxation of land values and the efforts of Lloyd George in 1909 to provide against this very contingency. I should be prepared to make that argument but for the fact that, once the Bill now before us has come into operation, the question can never arise again. Are we wise to create this anomaly of a certain amount of land in existence prior to the coming into operation of this Act which will have this peculiar value for the vigilant land speculator who fully understands this law? There is a good deal of this kind of land around Dublin. I suggest the Minister should have another look at this and I do not think anybody would regard it as unreasonable to provide that where land has been developed within two or three years prior to the passing of this Act, the person about to develop it would be required to make an appropriate contribution as defined by this Bill in respect of any development work done by the municipality.
As the Deputy and the House know, it is difficult for one to argue against an amendment that is really amending what he originally proposed. That is my present position.
It is a very creditable position.
Perhaps, but it is not an easy position. My original thoughts were embodied in the proposals in the Bill. The amendment was the result of representations received and cases made. I now find myself in the most awkward position of trying to defend an amendment which was only brought in because of representations and cases made. It is a most difficult situation in which to find oneself.
In this amendment, we are abandoning entirely the idea that any developer should pay anything by way of contribution for betterment as a result of the operations of a local authority. Without doubt, certain anomalies will be created but they will not be continuing anomalies. Let me give an illustration: if we take the appointed day as the day as on and from which such contribution will be demanded, there may be on one side of a road lands which will be subject to contributions because of certain circumstances and, on the other side of the road lands immediately facing those subject to contribution for which nothing will have to be paid. That kind of anomaly will be created, but it will not be a permanent anomaly.
Unless we wipe out the contribution for betterment altogether, we are bound to create some anomalies. It was put to me pretty forcibly that there are lands on hands, part of which may have been developed. They have been purchased. They may have changed hands several times from one developer to another. They are provided with local authority services and have a certain value. Suppose we were to anticipate and say that the appointed day would be two years from now, that would mean that the developer owning the land, for which he paid the market price in relation to its situation, water, sewerage and other services, would suddenly find himself faced with a charge he never anticipated and which he could not have been expected to anticipate. That contribution would be levied on him retrospectively and it could well ruin him financially. I doubt if anyone would agree to legislation which, even unintentionally, might ruin a person in his business. It was because of the representations made to me I brought in this amendment. It may have its defects and if the House can suggest a better way of overcoming the difficulties, I shall be prepared to listen sympathetically.
We are, I think, all agreed that where land is developed in the municipal sense of the word, the least we can ask the owner is to make an appropriate contribution to the cost, and many would argue that he should pay the full cost. A very strong argument could be made on that basis. We come now to the case of a man who has bought property under the existing law and who says that it is now proposed to change the character of his property by passing a law with a retrospective provision in it, that, because it is being developed by the municipality, he ought to make a contribution towards that development. I think one could make the same argument about any man who bought whiskey out of bond before the Budget, or tobacco. None of us is an angel in that respect. I suppose there is not a publican or tobacconist who does not speculate a bit every 12 months; he takes it all in the run of the mill. Some years he makes; some years he does not.
The property developer is not like an orphan child. He is an intelligent, shrewd operator. I do not suppose any of us know where the sewers run in the city of Dublin. It has never occurred to us to root about in the City Hall to find out what the map can show us, but I venture to swear there is not a property developer who could not give you the name, number and colour of every sewer, footpath, road, lamp and yard of wire that the Dublin Corporation has strung during the past five years. I venture to prophesy that he has a pretty shrewd anticipation, and a friend in the Corporation to warn him, of where the road is to go. You will find him snuffing around like a setter dog trying to find out if there are any elderly ladies, or anybody else, out there who would like to liquidate their property in the area and come in and take a flat in Merrion Square.
We are not dealing here with innocent children who know nothing about town planning. Indeed, I wish we could get some of them to come in here. They would make this debate even more elaborate than it is. We have met deputations and a great many of these people know this Bill better than they know the Four Gospels. I appreciate one cannot ever hope in legislation of this character to improve that which is perfect but one has to go as near to it as one can. I imagine if you fix two or three years, you will cover all the land which any municipal authority has in fact developed municipally, with consequent housing development. Perhaps some of the people who are active in local affairs would correct me if I am wrong, but I should imagine that generally land which has sewers, roads, lights and water extended across it has been developed with buildings within three years of municipal development having taken place.
I think if you say two years, you may beget the very anomalies the Minister is anxious to avoid, but if you say three years from the operative date, it covers virtually 100 per cent and if some particularly diligent bloodhound has discovered one per cent where he can circumnavigate the law, by the unanimous consent of the House, we would verbally pat him on the dewlap and tell him he was deserving of credit as an exceptional performer and congratulate him on having doublecrossed us in this particular case; but we would have effectively said that in so far as it was possible for a legislature to avoid anomaly and, above all, to avoid situations in which a doubt could arise as to whether an improper advantage had been taken of the law, if we provide that development undertaken by a municipal authority on a property being developed by a property developer three years before the coming into operation of this Bill when it becomes an Act will attract from the developer of the land the appropriate contribution which is set out in the Bill for all those who develop developed land after the coming into operation of the Bill.
The Leader of the Opposition has put a reasonable proposition to the Minister. Everybody is aware that development of the kind he has mentioned has been taking place on the outskirts of built-up areas within, generally, three years of the extension of water mains or sewerage lines or light. Certainly, the person buying land like that has a more valuable property. The Minister's point is that he has bought it at its value as it then exists. I think he means that for the type of development he contemplates in these cases, generally housebuilding, he takes that into consideration in the price he will charge and the general procedure is that he recovers not alone his investment in building but also by virtue of the ground rents which are a feature of this type of property, he ensures that his investment is well remunerated and therefore, the development which has been done by the municipality or local authority could reasonably expect to be remunerated, as is contemplated now in the Bill.
The Minister originally proposed a period of seven years before the commencement of development. We think it goes a bit too far and that the Minister ought to reconsider that point.
I just wonder whether by going over this again, I might not only clarify my own mind but, in the process, clarify the minds of the members of the House. We may be confusing ourselves a little by talking about works and development. What is in question here are the works done by the local authority and not the works carried out by the developer.
Yes, works carried out by the local authority.
Have I understood the Leader of the Opposition correctly, that it would now appear from what he has put to the House that in addition to the terms of the amendment, we might also bring in in some way a going back for two or three years before the appointed day during which time any works of sewerage or roads or whatever it may be having been done by that local authority would have the effect of attracting betterment charges or contributions from the developer on any development that may arise in future?
On the land and, consequently, on any person who chose to buy it and develop it. It would attach to the land, not the individual.
It is not really the person or the developer; it is the land?
The owner of the land.
Does that not bring about a situation—again I am not saying that this is wrong because this is what I thought beforehand, although I have come to change a bit—that land, regardless of who owns it, which is capable, we will say, of housing development at present, stands marked into the book at a certain price which would work out at a figure per site of £X, and that by virtue of the adding in of the two to three years—the stipulation that Deputy Dillon has mentioned —that land would after the passage of this Bill into law become priced per site at £X plus—whatever the divide is into the betterment contribution which has been demanded? I wonder is that a fair thing to do? Is it a reasonable thing to do? Is it the right thing to do? I am not sure.
On the other hand, what we are saying in this amendment now is that taking the appointed day as, say, the beginning of a new age, a local authority may demand in respect of land that is proposed to be developed or being developed for any particular purposes a betterment contribution from the owner or the developer in respect of works that they themselves have done not earlier than seven years before the date on which the development commences. In other words let us put it this way—if in 1990 the local authority, Dublin Corporation or Dublin County Council, were to demand a betterment charge for lands, say, in Coolock in respect of works that they had done in 1970, they would not be entitled to any benefit charge because they may not go back seeking that betterment charge beyond seven years which, if it were 1990, would mean that they could only demand a contribution for betterment in respect of any works done by them back for seven years and no further.
Quite.
That could be applied in various ways. Whether it is of any assistance to the House, I do not know. I am afraid that, having said it, it is still not of any great assistance in clearing my mind about which way we ought to go. Since it has been put very strenuously by the Leader of the Opposition, I would be prepared to withdraw this amendment and to come back on Report Stage with new thoughts on it, if new thoughts are considered desirable.
I should be glad if the Minister would adopt that course. I do not feel for the Minister's embarrassment in having to reconsider his own amendment. This will be a good Bill, principally because the Minister has tried to listen to all sides, and to meet reasonable representations. If it transpires that during discussions on representations made to him, he has leaned rather further in one direction against his better judgment, I do not think that is any reflection on him.
I shall not hesitate to tumble right back if I see that is the best thing to do.
I appreciate that. On the general question of principle in relation to the seven years about which the Minister has spoken, I am trying to see—and Deputy Jones and all of us are trying to see—what is fair.
If a person is living on a demesne or a farm and the city is developing around him, and if he does not want to be developed, it is a great handicap to say to him: "We are going to develop, whether you like it or not, and you are going to pay your share for the development", if that person simply says: "I do not want to be developed. I want to continue milking cows where that has been done for five, six, seven or eight generations, and I wish to stay here." The situation is wholly altered if that person proceeds to skim off his property all the surplus value created by municipal expenditure. Then it seems reasonable for the municipality to say: "If you are going to benefit financially from the heavy outlay of the municipal authority, you must make your contribution towards the cost."
How would you do that?
I think the Minister's test is a reasonable one. If the property owner continues to reside on and farm his property as has been done for years, that is abundant evidence that he really did not want or desire the development.
If he dies and his assets are realised?
If his assets are realised within seven years, whoever develops the land must pay the charge to provide against the case of a land speculator who may buy the land and seek to wait the statutory period in order to avoid making a contribution. It will be dearer for him to sit with his capital idle, and pay rates on his agricultural land for seven years, than it would be to accept his liability under the Planning Bill for the appropriate contribution. Let us be realistic. A man who buys land for development assesses the value of the land. It would be highly improper if a land speculator should buy land and sit idle for seven years in order to avoid what is the relatively trifling expense of making his appropriate contribution towards the cost of development.
As I say, no instrument the Minister can devise will be 100 per cent fool-proof, and no instrument will be absolutely fair in every conceivable case. Therefore, we should try to arrive at an instrument that will be as fair as we can make it, that will not be capable of ruthless exploitation at public expense by the wide-awake land speculator, and that will—and this is all important—operate to get land suitable for housing where houses should be built. We do not want to create a situation in which a man can buy up an area of land where houses should be standing, and leave it to lie fallow for 15 or 20 years. We want to create a situation in which we will induce the development of houses as quickly as possible and, at the same time, protect the municipality from fraudulent exploitation by cute operators.
There are cases present to my mind into which I do not want to go and which could equitably be met by the suggestion I have made to the Minister and which would, at the same time, impose no undue hardship on the people who might become liable for a modest contribution towards the cost of development.
Mr. Belton
Something comparable is done by the Revenue Commissioners in regard to ground rents. If a land speculator buys land, the ground rents are capitalised. If a farmer has land and building extends out of the city and he gives a site to someone to develop, the ground rents are not capitalised. He is not a speculator. It is already done in regard to ground rents and perhaps something similar could be done in this case.
In view of the fact that the Minister says he will consider withdrawing the amendment, I should like to put a point which may possibly be overlooked. When a local authority decide to provide facilities, water is usually provided first and sewerage follows pretty slowly. After that, building takes place. Surely that helps the local authority It creates rateable property. Would the Minister not be wise to ensure that nothing is included in this Bill which might deter people from such development? At present there is extreme difficulty in getting sites. I am sure the Minister is as well aware of that as I am.
I am sure he will agree that if an additional charge is put on by the local authority, it is met by the person buying the site and not by the person selling it. That means that the site is dearer for the person who eventually builds the houses. The Minister should be very careful to see that nothing is done in this Bill which would make the position worse than it is at present, or make it more difficult to get sites for house building.
Reference was made to persons who are able to get prior information about where the city is to be developed. The same thing happens in small towns. We know there are people who you would think had not an idea in their heads, but who can tell you what portion of a rural district outside a town the town commissioners or the corporation have decided is to be developed or acquired. That is beside the point because no matter where the development takes place, if the amenities are laid on by a local authority, eventually greater benefit will accrue to the local authority itself.
I move amendment No. 86:
In subsection (2), page 18, to insert "(either in one sum or by instalments)" in line 28 before "towards"; to delete "contribution," in lines 35 and 36 and in line 41 and to substitute in each case "contribution or the instalments thereof paid during that period (as may be appropriate),"; to insert in line 42 "or any instalments thereof that have been paid (as may be appropriate)" before "so"; and to insert in line 43 "or they are" before "retained".
This amendment was discussed with amendments Nos. 84 and 92.
I move amendment No. 87:
In subsection (4) between lines 31 and 32, to insert in paragraph (b) the following new subparagraph:
"(ii) in case an application is made to the Minister for consent under subsection (3) of this section—within the period of seven days beginning on the day of receipt by the planning authority of notification of the Minister's decision,".
Subsection (3) (a) of Section 26 provides that a planning authority shall not grant permission, save with the consent of the Minister, where the development concerned would contravene materially the development plan —and I want Deputies to mark well the word "materially"—or any special amenity area order. While the application for the Minister's consent under this provision is being considered by the Minister, a situation could arise in which the applicant, by default, through lapse of time, could be deemed to have got permission. We are trying to see to it that that cannot happen inadvertently and so I commend this amendment to the House as being necessary.
Is the section not meant to prevent the Minister from unduly delaying the proceedings? Is there anything to ensure that the Minister will not sit on it?
There are 143 reasons in this House.
Unfortunately, there are only 142 and the Minister having the matter in hands is a better reason than all the others put together.
I move amendment No. 88:
In subsection (5) to add to the end of subparagraphs (i) and (ii) of paragraph (c) the following: "or such longer period as the Minister may allow".
If Deputy Jones agrees, amendment No. 97 may be discussed with amendment No. 88.
A period of two months is provided for. The only purpose of the amendment is to extend the time in which the applicant will make an appeal against the decision of the planning authority.
One of the difficulties about accepting an amendment such as this is that both in this amendment and further on, it would remain in the hands of the Minister as to what he might allow in addition. Harking back to what has been said already about the incidence of delay in dealing with applications, I am inclined to have my mind set against the amendments. There is provision of a couple of months within which the local authority has to make a decision on these matters. That is all right. On top of that, from the date of their declaring their decision and notifying it to the applicant, there is a further period of 30 days, in all, three months. Until the end of the 30 days when it becomes evident that no appeal has been lodged and none can be lodged, no development can commence. To add further to that time even by way of allowing the Minister to do it in a specific case does not seem justifiable. There may be circumstances of which I am not aware or cannot conceive at the moment. I say that on this side of the case, knowing that possibly at times an extension of time for dealing with these matters would be very welcome to any Minister or his Department. However, if somebody has a particular case or circumstance he can outline and which would make it necessary to have the power to extend the time, I shall consider the matter, but, generally speaking, I do not think it would be a good thing.
In regard to the appeals in relation to this Bill, in the main, those appeals are to the Minister. In the ordinary way in legal proceedings, where a certain length of time is laid down for appeal, the court is enabled to decide in its discretion that an appellant should have some extra time. What we are seeking here is that, for a good reason stated, the Minister would have the right to extend the time for any length he would consider reasonable.
I do not think the Deputy who put down the amendment meant this to be of general application. It is a wise power to have in the hands of any Minister. There might be a very good reason for extending the time in certain cases. Everybody is not as slick a businessman as his fellow and, therefore, there should be some protection for the individual. It seems rather odd that we are trying from this side of the House to give the Minister power, not power that would be obnoxious, and at the same time, he is trying to refuse it. Perhaps it is an effort to obtain wisdom on both sides. Perhaps in this instance the Minister could meet this side by allowing for the exceptional case. I would emphasise that the Deputies over whose names this amendment appears intended to meet the exceptional case of the person who for one reason or another did not make the appeal in time.
When we consider that in this Bill we are taking steps to ensure that every interested person is made aware of the permission granted by the local planning authority, and when we consider that appeals can be made by anybody, any third party, against the permission, and that there is the publicity which I have mentioned —the register and so on, and all the paraphernalia we hope to introduce to wise him up to the fact that such permissions are being granted—and that he has 21 days in which to appeal, by the merest informal letter to the Department or the Minister, surely it will be seen that we are taking care of the interests of the third party? If anything we are probably leaning over backwards for the benefit of the public who might be interested. At the same time, we should not forget the man who is standing by, the property owner to whom permission has been granted—
That is the danger. Possibly a crank by acting as a third party could hold it up for a considerable period. Is there anything to ensure that that cannot happen?
We already dealt with that. Where there is a crank operating, it will not be long before we get to know him. There is provision here in case of frivolous appeals so that that type of person will be discouraged on the basis that the Minister can apportion costs. Taking it by and large we are going a very great distance to protect the interest even of the cranks or semi-cranks. All the time the person who owns or controls the property is standing by and may not do anything by way of development and cannot do anything until the appeal is settled.
The suggestion here is that power should be given to the Minister to stretch the time of 21 days further in certain cases. The question is what would the certain cases be and what pressure would there be to have certain cases brought in, and so forth. I do not think it is necessary. If I did, I would be the first to put it to the House. As I say, if anything, we are leaning over backwards for the third party's interests and at the same time, there is the danger that we may be forgetting the interests of the owner of the property who proposes to develop it for his own, or the public's, or the neighbourhood's benefit. He can do nothing until the appeal is settled and why prolong that agony when the period allowed is fairly long as it is?
There may perhaps only be odd cases but in previous sections we did have the case of people who may not be aware of the permission, despite these other provisions. A person might not be in the country at this stage and may have an interest in the matter. In any case, the Minister would be the final court of appeal as far as the amendment is concerned. If the Minister feels that it is frivolous he need not grant the extension. It is completely within his competence to decide whether it is reasonable or not. In one case the Minister might say that he could not give this because he was prevented by the Act, the time was up and he could not give this extension, whereas in our amendment the Minister has discretion to say: "I think this is reasonable and I will allow the extra time."
Is the amendment withdrawn?
Not yet; I am hopeful.
While I cannot radically disagree with what the Deputy has said, nevertheless acceptance of the amendment would introduce a further element of uncertainty as to whether or not a decision and the appeal procedure would have been final after a certain lapse of time. The very existence of this permissive power must create a certain additional uncertainty which, on balance, would not be in the interests of the planning code and the public.
I am at one with the Minister on that score. The Minister's desire and the desire of the House is not to prolong this type of indecision and on that score I withdraw the amendment.
I move amendment No. 89:
To delete subsection (7), page 20, lines 1 to 9.
This amendment is consequential on amendment No. 83 which the Minister did not accept. We have already dealt with this matter and as we have not had the previous amendment accepted, I do not see any reason why I should press this amendment because this part of the subsection would seem to stand when the words have not gone.