When we discussed this on the last occasion, I said it was an amendment in which we felt a principle was involved. Possibly what the Minister said in reply to the Leader of the main Opposition will be of assistance, that there is a provision in the Bill whereby the owner of property if he resists entry will be brought before the court and a court order obtained to permit entry. Do I understand the Minister correctly?
Committee on Finance. - Local Government (Planning and Development) Bill, 1962—Committee Stage (Resumed).
SECTION 31.
Debate resumed on the following amendment:
In subsection (5), page 26, to delete all words after "authority" in line 61 down to the end of the subsection and substitute: "may apply, in the case of land where the rateable valuation thereof does not exceed £10, to the District Court of the area where the land is situated and in the case of land where the rateable valuation thereof exceeds £10 to the Circuit Court having jurisdiction in the area where the land is situate, for an order requiring the owner to comply with the notice and the court, if satisfied that the owner should comply with the notice, may order the owner of the land to comply with such notice upon such terms as to the court seem just."— Deputy Jones.
What I suggested was what I intend to do in order to meet the points raised.
Is it the Minister's intention to do that?
Yes. I propose that we should retain the right of entry consequent on the serving of an enforcement notice, as provided in the Bill, but if the entry is challenged or objected to or if force would have to be used, it is now proposed on the Report Stage to put down an amendment that would deal appropriately with that situation to ensure that recourse to the courts would be had by the local authority to determine if the due process of the law had been adhered to in accordance with the provisions of the Bill. If the court found this to be the case, the order would be given confirming what was already the position. If it was found the law had not been properly observed or that there had been any departure from procedure, obviously the authority would have made some mistake or were not entitled to entry and would not get the order.
This would preserve the individual's right over entry to his home if he resisted?
By resisting, he would force the local authority to go to court and get an order if they are entitled to it.
The Minister's proposed amendment goes a long way to meet the point we have in mind and in these circumstances we shall withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 121:
In subsection (6), page 27, to delete all words from and including "and any sums" in line 3 down to and including "notice" in line 6.
I invite the Minister's comment on this. There may be a question of interpretation of a permission given. A person may carry out development in respect of what he believes to be a permission granted and he may do something which the planning authority may say was not within the provisions of the permission granted. There may be a technical breach of the permission and in that case what I suggest in this amendment is that the planning authority should not visit the costs of any removal involved on the individual. It is not a question of anyone flouting the planning authority but just a technical breach of a permission. If the authority get a ready compliance and agreement from the individual concerned when this breach is pointed out I am asking if they would not be in a better position to bear the cost involved rather than the person responsible for the technical breach of a permission.
I do not know if I am clear on what Deputy Jones wants but the position, as we envisage it, is that with which subsections (6) and (7) propose to deal, particularly (6), the situation in which permission is granted with conditions possibly attached to it and in the execution of the work certain conditions are not carried out. Then follows the enforcement order. It is in relation to that order pointing out what had not been done and which it had been agreed would be done and which was specified in the permission that this subsection is intended to apply.
If it is purely a technical breach, as the Deputy suggests, I cannot see where the costs would arise which he feels the local authority should bear. If this is the cost of removing something erected in contravention of the actual permission granted, I can see no reason why the planning authority should be asked to bear the expense of removing something which should not have been there and which was excluded possibly by the very conditions of the planning permission granted in the first instance. I agree that in 99 cases out of 100, the planning authority would be better able to bear the cost, but if that cost has been brought about by deliberate intent or omission——
I prefer omission.
——by the person concerned, I do not see why the local authority should be asked to bear the cost merely because the authority has a broader back. I do not think that would be fair.
There will be development and there will be conditions attaching to that development. If the conditions are specific, that will be all right. If they are vague——
If they are vague, it will be just too bad for the planning authority. If there is an enforcement notice, it will have to be specific. Otherwise, they will not be able to draw the attention of the offender to what he added or omitted without permission.
Amendment, by leave, withdrawn.
I think we discussed amendment No. 122 with amendment No. 120.
Yes. Generally speaking, that covers all three of these amendments, plus some that are to come.
Amendments Nos. 122 and 123 not moved.
Question proposed: "That Section 31, as amended, stand part of the Bill".
All we are concerned with in relation to this section is to ensure that there will be the maximum amount of goodwill in regard to this matter of planning and that the paramount right of every individual to enjoy his property in consonance with the rights of his neighbour will be protected. There will be, as there always are, divergences of opinion. There may be people who feel strongly about the conditions imposed on them in regard to their use of their property. All we want to ensure is that the planning authority will not move into any individual's property without an order from a court of competent jurisdiction. With that right, an individual will not be able to feel aggrieved. We would like to ensure maximum goodwill between the planning authority and the individuals concerned. The various amendments we have tabled have been designed to secure that. A question of principle is involved. The Minister now proposes to introduce an amendment on Report Stage to cover the position. I gladly acknowledge his gesture in doing that.
Question put and agreed to.
SECTION 32.
Amendment No. 124 was discussed with amendment No. 115.
I want to get some clarification and, with that intention in view, I move amendment No. 124:
In subsection (1), page 27, to delete all words after "condition" in line 42 down to and including "structure" in line 45.
Paragraph (b) of subsection (1) reads:
In the foregoing paragraph "the appropriate date" means, in relation to a condition, the date specified in the condition (or, in default of being specified in the condition, specified by notice served by the planning authority on the owner and on the occupier of the structure) as the latest date for compliance with the condition.
These words suggest that the planning authority can serve notice without specifying the date by which the conditions are to be fulfilled. In other words, the deletion of these words would oblige the planning authority to make up their minds at the outset, when serving the notice. I should like to hear from the Minister what is the purpose of giving the planning authority power to specify a date in respect of the conditions which they attach to the original permission and then to specify a time in connection with the notice.
We have had that point already. I shall briefly outline again the circumstances in which this section, without the amendment, would be necessary. In very many cases, the planning authority will not be enabled at the time of the granting of permission to which conditions are attached to specify the date by which the conditions must be fulfilled. An illustration of that might be, as I have already said on amendment No. 115, that permission to build a house could be granted and a condition added that certain drains must be laid down. The planning authority cannot know at that stage when the house will be built. It would be ludicrous for them to attempt to say that the drains must be laid down, fitted out and piped by 31st December of this year. In fact, they might never need to be laid down if the house is not built.
In those circumstances, if a condition such as that is attached, in respect of which a terminal date cannot be specified at the time of the issue of the permission, it is necessary that should the structure come to be built ultimately according to the permission and there was failure to carry out the conditions specified as to drains, then, by notice, the planning authority may, and under this subsection is empowered to, say to the developer, owner or occupier that he must lay the drains and have them completed by 31st December, 1963. If we were to accept the amendment, the planning authority would be debarred from taking effective action to see that a condition attaching to a permission granted at some previous date was carried out. That is the kernel of the matter.
Amendment, by leave, withdrawn.
I move amendment No. 125:
In subsection (2), page 27, line 54, to delete "and any other material considerations" and substitute "and the terms of any permission granted".
This is one of a number of amendments in which we have proposed the deletion of the words "and any other material considerations". These deletions were introduced by way of amendments as a result of the cases made, particularly by Deputy Jones. This is one of about six that have gone before.
The amendment would substitute the words "and the terms of any permission granted" for the words which we delete. We are deleting the words complained of by Deputy Jones and others and in order to make sense out of the subsection we are putting in these words.
I take it the terms of the permission will specify the type of thing we have been speaking of in relation to amendment No. 124. I take it the terms will be fairly specific.
As specific as is reasonably possible in whatever the circumstances may be. It is very difficult to be specific in cases like this.
They will have to be reasonably specific so that the person getting the permission will understand what is expected of him?
Yes. There can be no question about that. The Deputy can disabuse his mind as to there being any confusion or that the applicant will fall into error as a result of not knowing what the conditions mean. I do not think that will arise in any case.
Amendment agreed to.
Amendment No. 126 not moved.
I move amendment No. 127:
In subsection (3), page 28, lines 4 to 10, to delete paragraphs (b), (c) and (d).
In subsection (3) we are dealing with a notice which is served on an individual requiring him to do certain things, requiring him to remove a structure or all or any of the following:
(a) the alteration of the structure,
(b) the carrying out of works (including the provision of car parks) which the planning authority consider are required if the retention of the structure is to be permitted,
(c) the provision of space around the structure,
(d) the planting of trees, shrubs or other plants or the landscaping of the structure or other land.
The section deals with the retention of a structure on the conditions laid down by the planning authority. Section 27, subsection (1) (a) lays down the conditions that may be imposed for the retention of the structure. Amendment No. 96, which I dealt with previously, sought the deletion of subsection (2) of Section 27. Subsection (2) of Section 33 requires the planning authority, in deciding to serve a notice under the section, to comply with conditions imposed in Section 27 and subsection (3) empowers them to add new conditions in respect of the matter contained in clauses (b), (c) and (d) of Section 32. I submit that it should not be permissible to impose at a later stage conditions that were not imposed originally.
In this connection again, there is a question of retrospection. There are quite a number of structures in existence which will now fall for compliance with this planning Bill when it goes through the Oireachtas. Some of these structures may have offended against the law as it existed under the 1934 and 1938 Acts and the regulations made thereunder, in as much as permission may not have been obtained for them or, permission having been obtained for the erection of a structure, the structure does not comply with what would be considered proper planning now. Under this subsection, conditions may be imposed on an individual now who applies to have his structure regularised under the new Act and the planning authority will be in the position of saying to the individual that not alone will he have to alter the structure, but he will have to carry out works included in paragraphs (b), (c) and (d). He might have to put up a car park or some other structure. He might have to provide space around the structure. Indeed, there could be conditions with which it would be quite impossible for the individual to comply.
I wonder what would be the position of the individual who is told where space is scarce that he must provide space around the structure as envisaged in paragraph (c) of this subsection. There is also the planting of trees and shrubs, and landscaping. Here again the paragraph is very wide. I know the Minister will probably tell me that a reasonable interpretation will have to be put on these things. The point I want to make is that it may be impossible for a person who has such a structure to comply with these conditions, or he might think they were unreasonable in the way they were being applied to him.
I am sure the Minister can envisage, as I can, structures of this type in various parts of the country which would not be held to offend at present but which, by reason of the changing conditions since their erection, might not be such as reasonably to comply with the type of condition envisaged in this subsection. Therefore, I want to suggest that it is reasonable to take them out from this section. When this Bill is passed by the Oireachtas, it will be possible for planning authorities to impose any condition which they deem necessary for good planning in the future. Consequently, they will be able to determine the type of surroundings in which a structure will be erected, and the type of planning that must be done to comply with the desirable things that may be necessary in regard to layout, car parks and so on. Such conditions may apply to hotels or halls, particularly halls.
I suggest that these conditions are much too onerous to impose on owners of structures already in existence who may now have to seek permission from a planning authority in regard to compliance with the town planning law. I invite the Minister's comment on this amendment.
What we have to keep in mind here is that we are dealing with the owner or occupier of what was at the outset an unauthorised structure. Under an earlier section permission would have been sought and granted, subject to certain conditions, and those conditions have not been observed. The words proposed to be deleted in amendment No. 127 relate to conditions already imposed under an earlier section. This does not in any way relate to any new factor or condition, or any new condition being added to what had already been made known to the applicant who sought permission for the unauthorised structure.
We have made provision that where a person has an unauthorised structure, he may regularise it by applying for and getting permission, not necessarily for the structure as it now stands. It may require to be altered, added to, or taken from, to make it unobjectionable from the planning point of view. This subsection comes into play in the case of failure on the part of the applicant who sought and got permission, with conditions attached, to observe the conditions. I suggest that it would not be a bright idea to delete these words because of the fact that we are dealing with something that is not new. We are merely confirming that the conditions attaching to the permission granted under an earlier section are obeyed and not ignored.
I can understand that from now on, when a person applies for permission and it is granted, and conditions are imposed, it is reasonable that he should comply with those conditions. The Minister admits that there are structures in existence which are not regularised. I take it that when this Bill is passed and applications are made, the planning authority will deal with some of them and regularise them "off the cuff" as being all right and not offending against good planning. There are others that will require some alterations, and there are the third type which will have to fall. There is a right of appeal to the Minister in the case of those who do not comply in every respect, and he can regularise them, with or without conditions.
I want to take the case of an individual who has a structure which may not pass the planning authority at the start. In future, the planning authority can impose conditions envisaged in the section in regard to the structure which was in existence, and is in existence, without any thought being given to car parks, shrubs, landscaping and so on.
Not under this section unless it was already dealt with under Section 27. Section 27 is the governing section and this is the consequential section. The Deputy has rightly pointed out that there are three categories of unauthorised buildings. There are those which can be regularised by the mere formality of applying for and getting permission through the ordinary channels. There are those which are not too bad but offend to a certain degree and must be changed in one way or another, and improved to make them less offensive and less objectionable. They may need landscaping. A business premises carried on, on the roadside, may lack a car park and be an obstruction and a danger to traffic. We may say that it is not too bad and that if car park space is provided which takes away the danger, it will be all right. The applicant will be told that, subject to his providing car park space for ten, 12 or 20 cars, he will be given permission and his structure will be regularised.
The applicant in that circumstance may disagree with the condition and appeal to the Minister. The Minister may take the same view as the local authority or he may not. Assuming he does take the same view and confirms the condition, the applicant is back where he was when he went to the local authority. Under this subsection with which we are now dealing, it is only then the amendment would come into it at all. Then after getting the decision from the planning authority and having it confirmed by the Minister, if the applicant then fails to carry out the condition, say, refuses to provide a car park, that is the essence of the matters in connection with which Deputy Jones would wish this amendment to be deleted.
Both Section 27 and this section contain the proposals of this Bill which will enable us, so to speak, to lean over and try to regularise what is now unauthorised. It is that effort that is putting this on the book at all. As the House will appreciate, one of the first things we want to get done is to regularise all structures that are to remain there so that it can be said they are entitled to be there, and without this and the preceding section, we could not so readily do it.
As I said earlier, I am in agreement with the intent of the two sections and it is desirable that future planning should conform with certain requirements. However, the Minister will appreciate the extreme difficulty, particularly in country areas, say, in regard to car parks and in regard to a country hall which may be situated on a very small bit of land and where further land cannot be acquired.
This is a problem of trying to legislate for defects which have occurred in regard to buildings erected already and I should like to have the Minister's assurance that there will be no undue strain on individuals by reason of decisions which may be taken. It will be the planning authority which will have the onus of dealing with these matters, but again I believe the Minister could help by the issuing of general instructions and guidance to the planners. Although these are problems of a technical nature, the planners should be advised to look on these structures as a reality and to realise that in a good many cases, it will be impossible to comply with these conditions as the buildings now exist. I want to be assured that paragraphs (b), (c) and (d) will not be used in such a way as to leave the person concerned with no option but to take down the structure and perhaps to deprive him of his living or, say, in regard to an area, to leave it without the amenity of a hall which the rural population may have enjoyed as a dancehall, for the showing of films, the holding of concerts and so on. I want the Minister's assurance that this condition will not bear unduly on the individual.
I think I can very safely assure Deputy Jones that one thing that will not be absent is reasonableness, if not on the part of the local authority in the first instance, then on the part of the Minister for Local Government, whoever he may be at whatever time. That will be the keynote and in fact has been the keynote of our operations up to the moment.
Amendment, by leave, withdrawn.
Amendment No. 128 involved a typographical error.
Amendment No. 128 not moved.
Amendment No. 129 is cognate with amendment No. 120.
Yes, and I take it the Minister's amendment will meet that.
Amendment No. 129 not moved.
Section 32, as amended, agreed to.
SECTION 33.
I move amendment No. 129a:
In subsection (1), page 28, lines 26 to 29, to delete all words from "may" in line 26 to "expedient" in line 29 and substitute "at any time within five years after the appointed day (subject to the structure's remaining at that time an unauthorised structure) may, if they decide that it is expedient so to do, and, subject to subsection (9) of this section, shall, if they are directed by the Minister."
The intent of this amendment is to empower the Minister, by direction, to require the local authority to serve a notice under this section where they themselves by default or omission have failed to do it.
This is the same as the amendment moved previously by the Minister that where there has been an omission on the part of the planning authority, the Minister may act.
It would be a rather rare exception but we do feel the provision should be there.
Amendment agreed to.
I move amendment No. 129b:
In subsection (2), page 28, lines 31 and 32, to delete all words from "In" in line 31 to "authority" in line 32 and substitute "The planning authority, in deciding whether it is expedient to serve a notice under this section, and the Minister, in deciding whether he will direct the planning authority to serve such a notice,".
Amendment agreed to.
I move amendment No. 130:
In subsection (2), page 28, to delete "plan," in line 36 and substitute "plan and" and to delete "and any other material considerations" in lines 37 and 38.
This is our old friend, the "material consideration".
The permissions previously inserted cover all this?
Yes.
Amendment agreed to.
Amendments Nos. 131 and 132 not moved.
I move amendment No. 133:
In subsection (4), page 28, to delete "to the Minister" in lines 52 and 53 and to add at the end of the subsection the following: "in the case of land the rateable valuation of which does not exceed £10 to the District Court of the area where the land is situate, and in the case of land the rateable valuation whereof exceeds £10 to the Circuit Court having jurisdiction in the area where the land is situate."
If the Minister says that this is covered under the amendment which he preposes to bring in on Report Stage, it will meet my case. Here again we want to provide for the right of appeal in court. I take it that the amendment which the Minister will bring in on Report Stage will cover that type of action. Subsection (5) says that "where an appeal is brought under this section against a notice the Minister may confirm the notice with or without modifications or annul the notice". The appeal here is to the Minister and we want to protect the right of the individual who feels that his property is being affected and that he is going to be compelled to do things without a court order. Here we are dealing with a notice. All the appeals in the Act are, in the main, to the Minister and there is bound to be this divergence of opinion but here again the individual's rights are concerned.
We could hark back to the discussion we had on Section 5 when I went to some lengths to give my views and we had a full discussion on this matter. The view I expressed then is similar to the view I would express now. Just as Section 5 dealt with matters that were planning matters and planning policy or relate to planning criteria, I would advance the same arguments here. Where policy and planning and planning criteria are at issue, it is not, with due respect, a matter for the courts. I think we agreed with each other on Section 5 that that generally was the proper course and that where it is a matter of planning policy or determination of a planning matter, that should be left to the Minister and the ordinary administration rather than that it should be brought to the courts. I hold that the same principle is involved here to a lesser degree and that we should adhere to that principle which was agreed on in Section 5.
I do not know if the Minister gave me a specific answer to a question in regard to the type of appeal. Where the appeal is to the Minister, does he envisage that the Minister will send somebody to the area where the appellant is living to hear this appeal? I suggested previously that that would be a reasonable thing to do. Rather than that the individual should have to come to Dublin the Minister should send an inspector to hear the appeal there and the individual could produce material evidence before the inspector. The person would appear before an appeal tribunal which would be advising the Minister and he would have the benefit of the technical advice which the appellant could produce that the development which he envisaged was not contrary to good planning or good development. If that type of appeal were available, then the individual's rights would be protected. If this were available to the individual in his own locality, it would be the type of appeal tribunal which would minimise the effect of the taking away from him of his right of going to court.
Under Section 80, with which we shall be dealing later, it is outlined, by regulation among other things, that persons to hear these rural appeals will be inspectors appointed by the Minister for Local Government. It is the intention, and will be, without question, the practice, that not only will these oral hearings be carried out by technical persons appointed by the Minister but they will, in so far as is possible, facilitate the appellant by getting as near or as convenient as possible to him. In so far as the facility Deputy Jones seeks is concerned, the answer is: "Yes, we will provide these local oral hearings in all cases unless there is some very good reason why it should not be done."
Amendment, by leave, withdrawn.
Amendments Nos. 134 and 135 not moved.
In relation to the last amendment, I take it the amendment which the Minister proposes to bring in on Report Stage will cover my point.
This will be one of the sections that will be dealt with in that fashion. I move amendment No. 135a:
To add to the section the following subsection:
"(9) Where any such direction as is referred to in subsection (1) of this section is proposed to be given by the Minister, a draft thereof shall be laid before each House of the Oireachtas and the direction shall not be given until a resolution approving of the draft has been passed by each such House."
This amendment is related to amendment No. 129a. Where the Minister gives a direction to a local authority to serve an enforcement notice where they have omitted to do so in circumstances where the Minister feels they should have done so, such direction must in draft be approved by both Houses of the Oireachtas before it is sent to the local authority.
Does this amendment envisage correcting the situation in regard to Limerick, Cork and other such places?
I do not quite know what the Deputy has in mind.
Does it concern matters where there might be a divergence of opinion in relation to a planning authority acting for two areas?
This would probably arise only where something of real significance was being done or was not being done by a local authority and where the Minister felt so strongly about it that he would have to take this sort of action by giving the local authority a direction. Before giving them that direction, this amendment indicates the Minister must have the approval of both Houses on the draft of the direction he proposes to give.
Up to this, in the legislation before the House, we have been dealing with powers given to local authorities. Planning is a function reserved to the elected representatives in each planning authority area. Do I take it now that if the elected representatives, acting as a planning authority, should propose to do something with which the Minister does not agree, or should omit to do something which the Minister feels they should have done, the Minister then would make an order and send an instruction to them that they should comply with certain instructions or desist from doing something which they had proposed to do? I take it he would not do this unless, in fact, the authority had already refused either to carry out an instruction or were continuing to omit to do something which the Minister felt they should have done. It is to be hoped that this is something that would rarely if ever happen. All in the House would hope that the Minister would never have to bring any such matters before them.
It is a type of order which, of course, would be open to debate in the House and I take it that any individuals who might be affected by such an order—they would be the elected representatives in any area—would have an opportunity of discussing it or bringing it to the attention of members of the House? The elected representatives would at all stages be the supreme body in these matters, guided as they are by their local advisers who would be regarded as experts, competent to advise the local authorities on such matters. In such circumstances, where the local representatives had adopted a plan drawn up for them by their own experts, they should not be interfered with very lightly. I do not deny that, perhaps, it might happen that the Minister would need this power but I would hope it would be used rarely if ever. I can envisage that such a case might arise. While the Minister might consider it necessary in the odd case, I would hope it would be very much more honoured in the breach than in the observance.
I join with the Deputy in that pious wish.
Amendment agreed to.
Question proposed: "That Section 33, as amended, stand part of the Bill."
I am sure the Minister appreciates that we want a democratic process in this connection. We would hope that that spirit would animate the whole picture of town planning.
Question put and agreed to.
SECTION 34.
I move amendment No. 136:
In subsection (2), page 29, to delete all words after "land" in line 38 down to the end of the subsection, and substitute therefor "and gives to the prosecution proof of cessor of his ownership the proceedings against him shall be withdrawn and the prosecutor shall be entitled to have the person who then became the owner of the land brought before the Court in the proceedings".
I think the word "cessor" should be spelled "cesser". If a person ceases to be the owner of land it should be sufficient for him to establish that fact and that proceedings to be held against him will then be discontinued. He ought not to have to institute proceedings against the person to whom he has sold the land. This amendment seeks to place the onus of instituting proceedings on the planning authority. Take, for example, a contract for sale. Notice may be served on an individual before the sale is completed. Having made a contract to sell, it is doubtful if the vendor could enter on the property. Although he has ceased to be the owner of the land, we are requiring him to deal with a matter which, from a legal point of view, it is very doubtful he could deal with. It should be sufficient for such an individual who is served notice by a planning authority to point out that he no longer owns the property. Then the planning authority could serve notice on the person deemed to be the owner of the property.
The effect of these two amendments would be to relieve the owner who is served with an enforcement notice of his obligations and liabilities in respect of that notice if he ceased to be the owner of the land. The proceedings would have to be withdrawn once he gave the prosecutor proof of the transfer of ownership. Whilst that might, at first sight, seem to be very fair to the owner we must keep in mind the new owner who would be coming into possession. He could come into possession in a matter of days, hours or weeks but at any rate in a period all too short before the expiry date of the enforcement notice to enable him to take any adequate or proper steps to carry out the conditions of that notice. Yet, despite that impossibility, which was not of his making, he would be liable to the inconvenience of prosecution.
That would be an unsatisfactory arrangement particularly when the greater part of the time had expired during the ownership of the original owner and it could be said to be his fault that the enforcement notice was not given due consideration and that nothing was done as a result of it. In those circumstances, I think it would clearly be the case that the original owner was the person who had fallen down on the job and had not taken the action he should have taken the week or day before the expiry of the notice. Merely because of these two amendments, the new owner would immediately, the day after, be liable to prosecution and probably could and would be successfully prosecuted even if it were not his fault.
In regard to the time being short, nowadays property generally does not pass from one to another without people who are competent to advise intending purchasers having an opportunity to look at the conditions of sale attaching to the property. I take it that persons who buy property at present will know that town planning applies to it and will satisfy themselves in regard to that matter? I suggest it is a hardship to put the onus on a person who has made a contract for sale and serve the notice on him after the contract was made but not completed. Can the Minister assure me that at that stage the person can legally enter the property to deal with the matter? Supposing he has made a contract to sell a property and notice is served upon him and he decides to comply, can he at that stage legally sell, having made a contract with that type of inhibition?
Am I correct in believing that the Minister's proposal is that, if there is a vendor who has directed against him an order to abate or remove a structure and a vendee, the vendor can come into court and say: "Before I had time to comply with the order, I sold this to the vendee, who has ample time to carry out the terms of the order, and, if it has not been carried out by the due time, the fault is the vendee's rather than mine. It was sold to him on the undertaking he would have to carry out the terms of the order"? That is the theory of the Minister's proposal.
Deputy Jones's suggestion is that if the vendor wishes to effect a transfer of the property to the vendee with the order attaching to it, he should be entitled to say to the Minister: "Let me out and deal now with my vendee who has the property with this notice attached to it." I understand the Minister to say he wants to provide against the man who held the property up to the day before the final day set out in the order and who then sold it to the vendee in order to avoid the liability of the order or left it to the vendee to say: "It is not physically possible to carry out this order before the final date because I only acquired the property yesterday."
Is there any middle course that could be pursued in which, if the vendor were able to satisfy the Minister he had sold the property to the vendee with full notice of the order against it and with a reasonable time still to run in which to carry out the Minister's order, he should then be entitled to a discharge? There is a case to be made if a vendor in good faith, knowing there was an order attaching to his property requiring certain work to be carried out before the 1st July, sold that property in April to a vendee, who tells him, "You need not worry any more. I shall carry out the order." Then comes the 1st July and the order has not been carried out through the fault of the vendee who had undertaken to do it. It is a hardship to bring the vendor, who may be a perfectly respectable and honest man, on prosecution before the courts. The Minister will agree there are many decent people here who still recoil from the ordeal of being brought before the courts for allegedly having broken the law.
Perhaps the Minister would indicate that where the vendor had sold his property with notice to the vendee and the vendee had reasonable time in which to comply with the order, the Minister might consider an amendment which would permit the vendor, on establishing that fact, to claim to be discharged from the proceedings?
Might I put another point to the Minister? Subsection (3) puts the onus on a private person to secure compliance with an enforcement notice. Why should this onus be put on an individual to discharge this duty at that stage? What real powers has he to secure compliance with it? Surely the enforcement of the Planning Act should be the responsibility of the planning authority? Here we are transferring the onus from an individual who at that stage would have got rid of his interest. What we are suggesting in these amendments is that the planning authority would place the onus on the person who is in possession at that stage. The planning authority have all the facilities. They have the architects, the lawyers and so on.
If there is failure to comply, that fact should not be visited on the original defendant, if I may term him such. He should be acquitted without having to go to court to prove he had taken steps to secure compliance with the terms of the order. That is the point the Leader of the main Opposition has been making. In circumstances in which a person has entered into a contract for sale but the sale has not been completed, it is reasonable that the notice may be served on him and the property sold subject to conditions. That is the normal procedure. In this case, instead of asking the original owner to take the person buying from him to task, the planning authority should use its own powers with the person actually in possession.
No matter which way we go about this, there will be slightly greater inconvenience on one party or the other. Under the amendments proposed by Deputy Jones the slightly greater inconvenience would fall on the new owner in the majority of cases. In the Bill as it is proposed the slightly greater inconvenience would fall on the original owner in the majority of cases. As far as I can see, there is no way of getting a straight line down the middle. In that event there is every reason why the original owner should carry the slightly greater responsibility since it is he who has offended to the point of having an enforcement order served upon him. If, consequent on the receipt of that enforcement notice, he does not take immediate steps to carry out the terms of that notice, I do not see anything wrong with putting the onus on him, even though he has sold his property in the meantime, to show reason for his failure to comply with the enforcement notice, that it was no fault of his, that he had in fact sold the property well in advance of the expiry date and that it was a condition of sale that the enforcement notice should be carried out by the new owner but that the new owner had not done so.
There is nothing wrong in that, but there could be a lot wrong with having the new owner, within days of the purchase, being prosecuted for not carrying out the terms of the order, an order for which he had no responsibility in the first instance and in respect of which he had not sufficient time to comply with the terms of the notice. In that case, I think that is the greater inconvenience and I do not think it goes further nor is it likely to arise in a big number of cases. Even when it does, we think our approach is slightly the better of the two. If we were to take the amendment proposed by Deputy Jones, we would be putting the greater responsibility or inconvenience on the lesser of two offenders, to put it like that. Both might be only very slightly offenders. In choosing between the two, if we must, I think we should give the benefit of the doubt to the person least likely to have had responsibility for this type of lapse.
Subsection (2) of Section 34 says:
If a person against whom proceedings are brought under this section has at some time before the end of the said period specified in the enforcement notice for compliance with the notice (or of such extended period as the planning authority may allow for compliance with the notice) ceased to be the owner of the land, he shall, upon complaint duly made by him and on giving to the prosecution not less than three clear days' notice of his intention, be entitled to have the person who then became the owner of the land brought before the court in the proceedings.
On a complaint being duly made, at that stage we are putting on the individual the onus of doing what, in effect, is the planning authority's job.
No.
The Minister says "no" but notice has been served on the individual to do something. He sells the property and the person who buys the property is aware of this notice.
Not necessarily.
Nobody nowadays buys a pig in a poke.
It is surprising how many litters are sold that way.
We think it is reasonable that the individual who sells the property should inform the local authority that he is no longer the owner and at that stage the planning authority know the property has passed to somebody else. It is within the time of the notice. Surely, it is reasonable for the planning authority to proceed on that information and require the person now in beneficial ownership to carry out the terms of the notice rather than ask the individual to take his neighbour to court after he has bought the property? It is more reasonable to ask the planning authority to do it and that is what we suggest rather than have the individual become prosecutor of his neighbour in regard to compliance with the order. If the authority requires proof of the sale, that can be produced. Probably these notices would not specify a short period of time for compliance, particularly if a major development or alteration were to be made in the property. We could envisage it in regard to an earlier section involving the provision of car parks or something like that.
I do not agree at all with the Deputy's interpretation of the section and subsections. We must be clear as to whom we are dealing with under Section 34 (2). We propose to deal with a person who deliberately and wilfully, for instance, ignores a condition attached to a permission he has sought and has got to legalise what was up to then an unauthorised structure. He fails to carry out the conditions and gets an enforcement order to do what was stated in the original permission. That is in regard to what exists at the moment. Under Section 31, I think, what may come into existence by way of structure or building in the future, after the appointed date, could be involved. Ignoring everything we may propose in new laws such a person erects some structure without seeking or getting permission. An enforcement notice may be properly served on him to remove it. These are the types of persons we are discussing in subsection (2) of Section 34. All we seek is that the person who brought about the situation of having an enforcement notice served and with the expiry date stated on it, if that person sells or disposes of the property, should not slide out of his responsibility in regard to non-compliance with the notice.
We really say in subsection (2) that this person may use as his defence the fact that he has sold the property and that the person who bought it has had sufficient time to carry out the terms of the enforcement notice. Subsection (2) provides a defence for the type of person mentioned. While giving him that defence, it in no way places on him the onus of proving the guilt, as it were, of the new owner. That must be determined by the court. It merely empowers the original owner to bring him in as a sort of co-defendant. Only after that will the court determine which of them is really responsible for non-compliance with the enforcement notice served on the original owner. That is really what we are proposing in these sections here. I think the proposal is quite just and fair. There will be the minimum of interference with either the old or the new order consistent with effective control of planning in the future and no more than will be absolutely necessary for the proper administration of such control.
I do not want to seem unreasonable but, if there are a number of structures up and down the country which will fall to be regularised after the appointed day, and notice is served on the individuals concerned that they must comply with certain conditions, the situation could arise in which an individual might decide that these conditions were conditions with which he could not comply. It could be the type of action we were speaking about earlier. It might be the provision of a car park, or major alterations, or landscape gardening. An individual may decide he cannot comply and sell his property, subject to compliance with the notice served on him. All we are saying is that that individual should be dismissed from the proceedings if he gives proof of cesser of ownership and the planning authority should then proceed against the existing owner rather than against the original defendant.
I can see the Minister's point in regard to it from this on. I can see the reasonableness of the intention in the sections here, but we are not legislating only for the future. We are legislating also in relation to structures in existence before the appointed day. These structures will fall to be dealt with and conditions could be imposed. I hope the Minister does not think I am being unreasonable but I maintain it should be a good defence for a person who feels he cannot comply with conditions imposed and who sells his property subject to those conditions to give proof of cesser of ownership. He should be taken out of the proceedings and the authority should proceed as if the man now in beneficial ownership is the person who always owned the property.
The only comment I can make is that in all these circumstances the reasonable course would be taken. An extension of the time can be got and the utilisation of that facility should avoid any difficulty. The court will deal effectively and fairly with the remaining cases which I do not think will be very great in number in any event.
I hope the Minister's intent will reach right down to all who will be dealing with this section.
Amendment, by leave, withdrawn.
Amendments Nos. 136 and 137 go together.
Amendment No. 137 not moved.
I move amendment No. 138:
To delete subsection (6) and substitute the following subsections:
"(6) If the owner of any land is obstructed or interfered with in taking steps required to be taken by an enforcement notice under any of the last three preceding sections, the person obstructing or interfering shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding one hundred pounds; and if in the case of a continuing offence the destruction or interference is continued after conviction, he shall be guilty of a further offence and liable on summary conviction to a fine not exceeding twenty pounds for each day on which the destruction or interference is so continued.
(7) Subsection (6) of this section shall not apply where the person obstructing or interfering is the occupier of the land unless the owner has given to him not less than fourteen days' notice in writing of the intention to take the steps."
The net difference now will be that, though the two subsections deal with the same matter, they approach it in a somewhat different way. In the section as it stood a person had to do what Deputy Jones was, in fact, complaining about just now; he had to make a complaint in order that the person obstructing or interfering with steps taken to comply with an enforcement notice was brought to book. We propose now to delete that and make such obstruction or interference an offence and the local Garda officers, or others, can actually take a prosecution and have the obstructing or interfering party or parties brought before the courts. The onus of someone having to go and complain, perhaps against a relative, a neighbour or a friend, is removed and there is the more objective approach of the ordinary process of law in dealing with an offender.
I should like to ask the Minister who, in fact, is the owner of land which is let? Is it the landlord or the tenant?
The definition section on page 6, Section 2, defines owner.
That states:
"owner", in relation to land, means a person, other than a mortgagee not in possession, who, whether in his own right or as trustee or agent for any other person, is entitled to receive the rack rent of the land or, where the land is not let at a rack rent, would be so entitled if it were so let.
It is not the occupier.
It need not necessarily be.
It could be, but it need not be.
The amendment says: "If the owner of any land is obstructed or interfered with .... the person obstructing or interfering shall be guilty of an offence." I will take what may appear to be an extreme case but it illustrates the point I want to make. How would the Minister propose that a crippled old lady living in a premises which were the subject of a notice to the landlord by a planning authority should be dealt with? The landlord would be guilty of an offence if he did not comply with the order. The crippled old lady may not wish to be disturbed. The landlord might indicate to her that he would compensate her for the disturbance. The old lady does not want compensation but wants to be left where she is and where she has been living for a long time. Because the landlord cannot get the old lady out of the place, he is not complying with the order that has been served on him. What would the Minister think should be done in a case like that? That is a difficulty that will arise in such circumstances. I can see the purpose of providing for a large fine in a case of defiance of an order but I suggest it is unreasonable to provide that an individual in circumstances such as I have outlined should, on summary conviction before a court in respect of failure to do something which it is unreasonable to ask him to do, have to pay a fine of £100 and a fine of £20 for each day in respect of which the offence is continued.
I am sure the Minister has given some thought to that type of case which could arise and I should like to hear from him what he thinks could happen in such circumstances.
The answer to that question would be that one would expect the court to use its good sense to solve this matter which is really a matter for the courts and not, as I might have said in respect of other parts of the Bill, a matter for the Minister. Planning is a matter for the Minister, the Department and local authorities. The court would be in a position to determine what was reasonable, possible or impossible in the odd queer case. If we were to take the view that many matters in this Bill would be dealt with other than in a reasonable way, the probability is that we would pitch the Bill out the window and, having spent so much time on it, we would probably jump out after it. I feel the courts will take the reasonable view in these cases and that we can safely leave it to them to deal with the rather unusual case, the nearly impossible case and the odd queer case that undoubtedly can arise but which will not arise as a general rule.
Who is the prosecutor?
Under the new subsection (6), the State—the Attorney General—or it could be the planning authority.
Is it envisaged that an owner obstructed in the carrying out of the terms of an enforcement order should make a complaint to the Gardaí that he cannot carry out the order and ask the Gardaí to prosecute the person whom he alleges is obstructing him? This is a new departure. Heretofore the procedure always has been and the thread I detect running through the Bill is that if you are unable to meet the terms of an enforcement order issued by the planning authority you notify the planning authority who must then amend their procedure by bringing somebody else before the court as well as yourself— but here is a case where a man says: "I am unable to carry out the terms of an enforcement order" and he does not notify the planning authority of that. He is required to go to the Gardaí and lodge an information that a named person is obstructing him in carrying out the order. That person is then prosecuted at the instance of the Attorney General. Suppose the court finds that that person is not guilty of that offence, where are you then? The man goes back to the planning authority and says: "I cannot carry it out. The court says the old lady is quite entitled to continue doing what she is at present doing." We seem to be in a blind alley. The owner says, "I am prevented." The court says the person whom he alleges is preventing him from carrying out the order is doing nothing in contravention of the section and you are stuck.
Deputy Jones, in visualising the aged lady who is a tenant on a landlord's property, quite unconsciously described a case of which I had personal experience. They are all dead and buried now but Honor Quinn occupied a cottage on our home for 100 years. Astonishingly enough, she then bestowed it on her daughter who died when she was 96. It was with the greatest difficulty that we succeeded in barring the door of a house out of which we had been trying to get the old ladies, because it was not safe or sanitary, against another old lady who proceeded to rush in as Honor Quinn was being ushered to her eternal reward and we just got poor Honor's daughter, Mary, buried before we had another tenant on our hands. Suppose we had got a notice from the planning authority to prevent them erecting a henhouse or the variety of extraordinary structures these two ladies used to erect on every possible occasion and I went to either of these ladies and said: "You must not put that there or if you do I will take it down" they would have replied that if I attempted any such thing they would throw a sod of turf out of the fire into my haggard, which they would have done without the slightest hesitation. What on earth good would it do me to go to the Gardaí and say a woman of 102 years of age is obstructing me from carrying out the planning authority's instruction and lead an old lady of 102 years to the district court in order to have her prosecuted and fined for obstructing me? It does not seem to get me any further at all.
I admit there is a dilemma here. What does the Minister suggest the landlord should do? When the enforcement order issues I cannot see why it should not issue against the occupier. If the planning authority gets in face of an awkward tenant and issues an enforcement order, surely it is open to the tenant to carry out the enforcement order. He is secure from any proceeding against him by the landlord by saying he is carrying out the terms of an enforcement order which constitutes the law of the land. If you put the obligation on the owner, with a continuing penalty for failure to comply, and you are unable to give him effective means of inducing the occupier to stop the obstruction, and carry out the terms of the enforcement order, surely you are creating an impasse. I do not think we should do that.
What is the objection to placing the obligation to carry out the terms of the enforcemnt order on the occupier, and if he does not do it let him bear the penalty? If you reverse the procedure you are creating unnecessary difficulties for everyone, whereas if the obligation is squarely on the shoulders of the occupier you are creating difficulties for no one. Will the Minister consider this?
What we have first to look at here is that this situation only arises where an enforcement order has been served on the owner of the premises to do a certain thing or have something removed. There are penalties attaching to his non-compliance with that order. This section is really for the protection of the owner, to help the owner, and to ensure that, if necessary, the courts will deal with any third party who is interfering with or obstructing the owner from complying with the enforcement order which had been served upon him after due process of the law. He will be prosecuted for non-compliance with the order. This section is to help him. If, for instance, as Deputy Dillon pointed out, in the unique case he has mentioned——
It is not unique; it is fairly common in rural Ireland.
I would not blame everyone for rushing to get into that place if its history was that one tenant lived to 102 years and the next lived to 96 years. However, in such a case if an owner finds himself in that unusual dilemma, and the individual who is causing the obstruction is the type you would not force out of the way, he can stand by and take the rap for non-compliance, and he may be prosecuted and fined. That is one thing the owner can do if he is soft enough to stand by and do it. The other thing he can do is go to the Garda and take a Garda with him and let him see that, in fact, he is being obstructed, and the obstruction in itself under the section will constitute a breach of the law and the Garda will take action against the person constituting the breach.
The whole idea of the section is to help the owner to adhere to the terms of the enforcement order which was served on him, and if he does not comply with its terms he is guilty of an offence and subject to various fines which are attached not only to the offence itself but are continuing for every day it remains undone thereafter. I am inclined to agree with the Leader of the main Opposition when he says this is a dilemma, but we will not remove that dilemma by running away from the situation. We have got to take a stand if these laws are to be effective at all.
To say that the occupier should have the responsibility of carrying out the requirements of the enforcement order placed on his shoulders is, I think, entirely wrong. We are dealing with the owner all through the Bill. It might well be asked why we are not dealing with the occupier all through the Bill, but I will not start arguing on that. Right through it is owner, owner, owner. In this case it is fairly reasonable that it should be the owner. He is the person who is getting most out of the property or premises. He is the person who is deriving the greatest benefit from the property in question, and surely the responsibility should rest on his shoulders. To pass that responsibility back to the occupier might not only be unfair, but in many cases it just would not work because the occupier would be unable to do the things which would be required to be done. By virtue of getting profit from the premises and deriving income from it, the owner would be in a position—and it would be in his interests to be in a position—to undertake to do those things so that he could continue to enjoy profit from the premises or the property.
I can see that we are putting the owner in the position in which he can lay a complaint before the Garda who, acting on behalf of the Attorney General, could take action. There are many cases throughout the country of properties which will fall to be reviewed under this legislation when it has passed through the House. The owners will find themselves in a position to use the courts to secure compliance with the orders that will be made. I am sure the Minister will say that there will be reasonable interpretation. The fines will be £100, and £20 a day for a continuing offence. Those fines may be in line with other types of legislation. If we make the fines sufficiently high we may succeed in achieving our intention.
They may be low too.
£100?
That is the maximum. It may be necessary to have them high.
The Minister envisages that it might be necessary to have the penalties so high. Certain people may be obstructing the carrying out of enforcement orders, and they would need to be dealt with by the imposition of such high fines. It is within the discretion of the court.
There might be people who could afford little fines in order to be left undisturbed.
I assume the Minister would take steps to deal with those people in another way.
There are more ways of killing a cat than choking it with butter.
Amendment agreed to.
Section 34, as amended, agreed to.
SECTION 35.
I move amendment No. 139:
In subsection (1), page 30, to delete "by a person" in lines 14 and 15 and "on that person" in line 18.
Progress reported; Committee to sit again.
The Dáil adjourned at 10.30 p.m. until 3 p.m. on Wednesday, 3rd July, 1963.