Amendment No. 142 would go with this.
Local Government (Planning and Development) Bill, 1962—Committee Stage (Resumed).
Debate resumed on the following amendment:
In subsection (1), page 30, to delete "by a person" in lines 14 and 15 and "on that person" in line 18.— Minister for Local Government.
Yes. The purpose of these amendments is to amend subsection (1) by amendment No. 139 and also to insert a new subsection by the terms of amendment No. 142. The section, as it stands, and particularly subsection (1), is too restrictive. We propose to elaborate on it by the insertion of a new subsection and also by making the appropriate deletions in the existing subsection (1), thus making these powers less restrictive and the section more effective.
Amendment No. 142 reads as follows:
To insert the following subsection before subsection (3):
"(3) A notice under this section may be served on—
(a) the person who commenced the development, or
(b) any other person who has carried out or is carrying out development authorised by the permission,
as the planning authority may decide."
This might involve other people. Take, for instance, a building contractor who has been instructed to carry out some work for pay. His failure, then, to comply with this direction would make the matter an offence as far as he is concerned. Surely it would be much better to place the onus, in respect of compliance with any notice, upon the person who gets permission in the first instance? He gives the appropriate directions to the contractor or whoever will do the work. If the new subsection will place the onus on some other person, the interpretation could be very wide.
This subsection is intended to deal largely with the situation that we have and deprecate, namely, the unfinished estates particularly around Dublin city and some of our other cities and towns. At first glance, it would appear that what Deputy Jones says would be quite appropriate, that is, that the person who gets the permission should be the person after whom the powers would go in order to get things done. Permission could have been given to any person may be last year or the year before, and so on. When it comes to actual construction, it need not be the person to whom the permission was granted who now has anything to do with the development. Therefore, there would be no point in following that original person. A contractor would merely be acting as agent for whoever would be responsible: he would not be at fault. It would be those for whom he was doing the work. Therefore, the fear Deputy Jones has expressed is not a real fear.
The Minister says that a person carrying out development under a permission granted to somebody else—for instance, a contractor —is safeguarded?
He would be only the agent for the other party. It would be the other party, in that event, who would be involved in this case.
He would not be "any other person" as envisaged in the subsection?
Not in that sense. With regard to sub-paragraph (b) of this new subsection (3), our thinking, as a result of our experience, is that, for instance, a builder could get a lease of the property which he is proceeding to develop. He would then be acting and regarded as acting on his own behalf. Then, as the lessee, we would go after him—but not as a building contractor acting for somebody else.
Take a contractor who sets out to build a house for somebody and the person goes away and leaves the job with the contractor at that stage and there it stands, needing completion. What is the position of the contractor there?
He still is only an agent in the circumstances described by the Deputy.
And he would be caught?
He would not be caught there but he would be caught otherwise.
He would be bitten otherwise.
Yes.
Amendment agreed to.
I move amendment No. 140:
In subsection (2), page 30, lines 26 and 27, to delete "and any other material considerations" and substitute "and the terms of any permission granted".
Amendment agreed to.
Amendment No. 141 not moved.
I move amendment No. 142:
To insert the following subsection before subsection (3):
"(3) A notice under this section may be served on—
(a) the person who commenced the development, or
(b) any other person who has carried out or is carrying out development authorised by the permission,
as the planning authority may decide."
Amendment agreed to.
Amendment No. 143 not moved.
I move amendment No. 144:
In subsection (4), page 30, line 37, to delete "one month" and substitute "six months".
There is a minimal period here. I know we discussed it with another amendment.
That period will be stretched where the circumstances warrant.
Amendment, by leave, withdrawn.
I move amendment No. 145:
In subsection (5), page 30, to delete all words after "authority" in line 42 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".
This amendment deals with the question of bringing in the courts to decide between the planning authority and the landowner. The previous legislation was the Town and Regional Planning Act, 1934, which laid down the procedure for dealing with contravention. Section 52 of that Act stated:
Whenever the responsible authority has served on any person under this Part of this Act a notice of their intention to exercise in relation to any structure or land a power conferred by this Part of this Act, such person may, before the date stated in such notice for the commencement of such exercise of such power, apply to the Justice of the District Court having jurisdiction in the district in which such structure or land is situate and on notice to the responsible authority, for an order quashing such notice, and thereupon the Justice, unless he is satisfied that circumstances exist entitling the responsible authority to exercise such power in relation to such structure or land in the manner indicated in such notice, may make an order quashing such notice.
In this Bill we have taken away in most of the sections the courts and substituted for them an appeal to the Minister. The Minister has justified that by saying that under town planning an appeal should really be to the Minister rather than the court. I cannot understand why at all stages we are reluctant to allow the right of appeal to the court. If the planning authority are to be always right—and the sections suggest that would be the case—why would it not be a good thing to have that established in the courts in public?
The Minister may reply by saying he is not going to ask the courts to decide what is or what is not good planning. But that does not fall to be determined at all under this section. This is a question of fact within the planning scheme. In other words, has the development been carried out in conformity with such permission as has been granted? That is the issue in this case and not the question of whether it is good or bad planning.
It is to be noted that in this section there is not even the semblance of an appeal to the Minister. If the planning authority can be held in all circumstances to be right, there is no reason why that fact should not be established in a public court and the justification for that planning vindicated in the court. We should not lightly take away from the individual his right of appearing in the court in regard to the question of whether he has kept within the terms of the permission given to him.
I submit that this is a reasonable amendment. No harm can be done to the planning authority's case by this procedure, whereas it would give the individual the right to take the matter before the courts. If he is wrong, it is not a question of bad planning but the fact of his not keeping within the terms of the permission given to him.
While the arguments used by Deputy Jones in this case would appear to be relevant, they are to a great extent purely academic inasmuch as the plan under the 1934 Act never came into existence. In fact, that is one of the reasons why we have this Bill before us at present. But assuming that the plan did come into operation, the parallel drawn by the Deputy does not work out. The recourse to the courts envisaged in the 1934 Act was for the purpose of referring matters to the courts for an interpretation of the law. What Deputy Jones seeks to have referred to the courts in this Bill is the question of determining planning merit and policy. There is a clear distinction there.
I should like to reiterate that questions of planning policy and merit are matters not for the courts but for the administration and ultimately for the Minister for Local Government, who is responsible to this House for his actions. I put it to the House that this section is paralleled by those we have already agreed and having accepted the principle that planning merit and policy are not matters for the courts but for the Minister and this House, I suggest the section should be allowed to stand as it is, bearing in mind that I have agreed to bring in an amendment on Report Stage in regard to reference to the court of any dispute on the right of entry following an enforcement notice, which will apply to this subsection.
In the case of the circumstances envisaged in subsection (5) of Section 35, there probably would have been a challenge to the right of entry of the local authority and the court would have granted an order enabling the local authority to act. This merely says that whatever may be the expense incurred, it becomes an ordinary contract debt. This provision is a standard one in many of our laws at present and is not a new departure.
I am not questioning the business of planning but is there not a question of fact and the determination of fact within the permission given as to whether the individual has kept within the permission or not?
That would already have been challenged and determined by the court on the right of entry question about which I have agreed to bring in an amendment on the next Stage.
It will be in such a form as to provide that the question of fact could be determined in that way?
It would be a question of the court deciding whether the matters sought to be enforced are in conformity with the permission granted and any conditions attached to it.
Will the proposed amendment cover this section?
Yes.
Does the Minister consider there should be a right of appeal to the Minister on this matter?
There would have been a right of appeal against the conditions imposed in the permission itself. Naturally, if the person concerned accepts these conditions without appeal, one assumes he has accepted the situation, even though he disputes it later. On the other hand, if the Minister has already heard an appeal against the conditions and confirmed them, there would be no point in appealing to him again.
Amendment, by leave, withdrawn.
Amendment No. 146 not moved.
I move amendment No. 147:
To delete subsection (7).
I think it is a good principle in matters like this to ensure compliance with the provisions, but I do not think that the threat of a continuing fine is the best way of doing so. I suggest if there is failure to comply with the court's order, it should be left to the ordinary court procedure to deal with the situation. The courts have power when an order is not complied with to hold persons in contempt. To leave that to the courts might have better effect and secure speedier compliance with the planning authority's notice. The proper way to get compliance is not by threatening a continuing fine but by using normal court procedure and allowing the court to use its own machinery to secure that compliance.
I do not quite agree. If I felt Deputy Jones's proposition would be more effective, I should be all in favour of it, but I do not think that would be the case. The idea of a continuing fine is not only a standard one in this Bill, as we already have it in several other sections, but it is one that would make it rather unprofitable for anyone to continue to offend against the terms of the enforcement notice. Therefore, I think we should leave it as it is rather than bring in court procedure which in some cases might be more effective, but in others, might not be effective at all. As the law stands, you will at least have the continuing fine which can become very substantial if the matter goes on for a considerable time. That would make unprofitable almost any undertaking which should not have been there in the first place.
Amendment, by leave, withdrawn.
Section 35, as amended, agreed to.
SECTION 36.
I move amendment No. 148:
In subsection (2), page 31, line 15, to insert "on or" before "after".
Amendment agreed to.
I move amendment No. 149:
In subsection (3), page 31, to delete "plan," in line 24 and substitute "plan and" and to delete "and any other material considerations" in line 25.
Amendment agreed to.
Amendments Nos. 150 and 151 not moved.
I move amendment No. 152:
In subsection (4), page 31, lines 28 and 29, to delete "to the Minister" and to add at the end of the subsection: "in the case of land the rateable valuation whereof 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.".
This section applies to structures which were erected before the appointed day or after the appointed day and within five years of its erection. The same arguments as I advanced previously hold on this section. They are that one of the first principles of natural justice is that nobody who has an interest in a case should take to himself the powers of justice in that case. While there is an appeal to the Minister in these cases, the Minister will not be personally hearing the appeals. They will be heard by an official from his Department.
I have already put the point to the Minister that in these cases the persons who will be determining the facts are individuals who have been in touch with all this question of planning in the Minister's Department. I am not suggesting that that would render them less competent to be judges of fact but I am suggesting that we do not seem to give the citizens who are appealing the same status as the planning authority in this matter. It may be that I am attributing to the individual who will hear the appeal a bias in regard to the course he might take on the case submitted by the individual who is on appeal.
In natural justice, we ought to lean over in favour of the citizen who is making his case. We believe that the courts are judges of facts and it is for that reason that we have submitted these amendments. This amendment is in keeping with the amendments we have put down to this Bill on several occasions. I want to put that principle to the Minister, that on this question of appeal he is not putting the citizen on the same plane as the officials of the planning authority. The planning authority officials are officials of the Department of Local Government, even if they are at local level, and it is from that point of view that I feel that if the ordinary citizen is to have a fair crack of the whip, it would be more equitable to allow him to appeal to the courts.
I am glad Deputy Jones raised this issue in the way he did. It is my wish and my anxiety to give the citizen a fair crack of the whip and we do, in fact, lean over backwards to make it easier for him. The situation will be that under this procedure there will be much less formality and much less cost attendant on these hearings which we propose to be held by an inspector who will be sent down the country than there would be through the normal procedure of the district court.
The idea of these officials being employees of the Department is not true. Sometimes I wish they were, but they are not, and I think they never will be. I might add that in our limited experience in operating the interim control of planning, in one out of every three cases appealed, we have decided against the local authority officials. Even with the somewhat inadequate appeal arrangements of to-day whereby no oral hearing is available, the odds are not loaded in favour of the officials as against the citizen. In one case out of every three, we have knocked the officials and upheld the appeal of the citizen as against the views expressed by the local officials.
I think the proposal for an oral hearing in the locality itself is a much better and cheaper procedure than going through the courts. We have no reason to believe that our past experience of ministerial appeals gives any cause for concern that the rights of the citizen will be thrown overboard in favour of the directions of the executives of the local authorities. Indeed, I feel that our proposed arrangements will further strengthen the rights of the individual.
I should add that when an inspector is sent down to hear an appeal, he will not be sent down to make a decision, to judge his case on one statement as against another. He will be sent down to bring back a report on all that has been put before him, for and against. It will be only from that evidence that a decision will be arrived at over which the Minister will have to stand and for which he will be answerable to this House. That is a fairly decent attitude to take on these matters.
I take it that at these hearings a person could employ the ordinary assistance which he could employ in court?
That will be so but we are hoping that the assistance will not have to be availed of. We hope that because it would make matters more formal and more costly for the appellant.
Very often, a landowner could find himself faced with an appeal and be unable to put it in person.
There will be nothing to stop him from employing advisers or experts but I hope it will be possible for him to present his case without having to employ the costly advisory personnel that would be necessary if he were to have recourse to the courts.
Is it the Minister's idea that the parties will sit down and have a discussion about the matter?
I should like to see it that way. I should like to ensure that the citizen would not be overawed by the occasion.
Amendment, by leave, withdrawn.
Amendments Nos. 153 and 154 not moved.
I move amendment No. 155:
In subsection (7), page 31, to delete all words from "and" in line 53 to the end of the subsection.
Is this a modification of some of the provisions of subsection (7)?
It is an easement of the situation in pursuance of representations we have received.
Amendment agreed to.
I move amendment No. 156:
To delete paragraph (b) of subsection (8)
Amendment agreed to.
Section 36, as amended, agreed to.
SECTION 37.
I move amendment No. 157:
In subsection (2), page 32, line 37, to insert "on or" before "after".
Amendment agreed to.
Amendment No. 158 and amendment No. 159 were discussed with amendment No. 94.
I move amendment No. 158:
In subsection (3), page 32, to delete "plan," in line 45 and substitute "plan and" and to delete "and any other material considerations" in lines 46 and 47.
Amendment agreed to.
Amendments Nos. 159 and 160 not moved.
Amendment No. 161 and perhaps amendment No. 162 could be discussed together. Amendment No. 161 is cognate to amendment No. 133 and was discussed with it.
I move amendment No. 161:
In subsection (4), page 32, lines 50 and 51, to delete "to the Minister" and to add at the end of the subsection the following: "in the case of land the rateable valuation whereof 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".
I suppose there is something to be said for not appealing to the court but to the Minister. The compensation will be payable to the landowners under Section 60 in this case?
Yes.
Amendment, by leave, withdrawn.
Amendment No. 162 not moved.
I move amendment No. 163:
In subsection (5), page 32, line 54, to delete "subsection (2)" and substitute "subsection (3)".
This is a drafting amendment.
Would the Minister give the reason for the change?
It was a wrong reference.
Amendment agreed to.
I move amendment No. 164:
To delete subsection (7).
This is a harsh provision and I would ask the Minister to have the planning authority give a final warning to an individual before they take action against him.
I think that would follow almost as night follows the day. For instance, in the case of land being used as a dump, I do not think you would have all those consequences visited on the offender without his having been made aware, perhaps in an informal way, on a number of occasions before action was taken.
It would not cost much.
There is an appeal as well which has to be confirmed before any or all of these things are done.
Even if a person did not decide to appeal to the Minister or if he had forgotten, the authority would give the final notice.
There is an appeal against the notice and non-appeal would seem to indicate acceptance. You could not go back on that and start all over again. I think we could safely leave it as it is.
Amendment, by leave, withdrawn.
Amendment 164 not moved.
Section 37, as amended, agreed to.
SECTION 38.
I move amendment No. 165:
In subsection (3), page 34, line 2, to delete "the Minister or".
This is in keeping with our general approach. We wanted to ensure that the onus in regard to the main plan would be on the planning authorities, that they would approach their responsibilities under this proposed legislation from that point of view and that the Minister would not interfere in any way with them and that he would leave the job to them. We mentioned earlier that a case could arise where the Minister might have strong ideas in regard to some matter and give a direction to the planning authority for the carrying out or non-carrying out of some proposed development. I made the point that if the planning authority refused to do these things, the Minister is empowered to order the works or development to be carried out. I asked the theoretical question: what would happen if the planning authority were not going to carry it out? The Minister would want it to be carried out and I could not see there was to be any appeal to the Minister, if he determined that it was to be carried out. Our approach is that the planning authority should be the primary body and should accept their responsibility without too much reference to the Minister.
It is necessary to have that in there and not restrict the Minister in any way in his findings on the appeal. This would appear to do that. It was not intended——
I agree that the Minister would want that power.
Amendment, by leave, withdrawn.
Section 38 agreed to.
Sections 39 and 40 agreed to.
SECTION 41.
I move amendment No. 166:
In subsection (1), page 34, line 41, to delete "development" and substitute "permission".
This is a drafting amendment and is really giving a proper title to the wording. What is referred to is wrongly referred to as "development regulations" and should be "permission regulations".
Amendment agreed to.
I move amendment No. 167:
In subsection (1), page 34, lines 48 and 49, to delete "of the Minister".
This again is in keeping with what I have already said but the Minister says he requires this to be left in and the situation could arise where the Minister might need this power.
That is so.
Amendment, by leave, withdrawn.
Question proposed: "That Section 41, as amended, stand part of the Bill."
I wonder would the Minister enlighten me? Does this refer to a managerial order book in a council chamber? It is in reference to giving permission to inspect the managerial order book. As the law stands, the book is available only to members of the local authority.
This is a special problem and it relates to the creation of a new register in which will be recorded all decisions and which must be available to the public at all reasonable times. Such a position does not exist at the moment.
Will it be a substitute for the managerial order book?
It will relate solely to this particular Bill and its provisions in regard to decisions and permissions. This register must be there; all these things must be entered in it; and the public must by law, not through the goodwill of an official or officials, be allowed to inspect it at reasonable times.
Under subsection (15), Section 2 of the 1939 Act, there is provision for inserting in a newspaper notice of permission given by the manager for the erection of new buildings. We never see these advertisements. I am not here trying to make a case for every old crank in the country but there may be structures which may offend and I think the public should be capable of informing themselves of the intention to erect such structures. As the law stands, there is no such provision.
Sections 8 and 25 deal with this question very widely and effectively.
Question put and agreed to.
SECTION 42.
I move amendment No. 168:
In subsection (1), page 35, line 14, to delete "or" where it occurs secondly.
This is purely a drafting amendment.
Amendment agreed to.
Section 42, as amended, agreed to.
SECTION 43.
I move amendment No. 169:
To delete subsection (4) and substitute the following:
"(4) Where an order under this section is proposed to be made, a draft thereof shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House."
Here we are dealing with amenities as they may exist throughout the country. An amenity area may include a very large tract of land. It seems essential that the Order provided for here should receive the prior approval of the Oireachtas. Perhaps the Minister will ask why the Oireachtas should have the right to pronounce on the Order. The subsection as it stands says that the Orders made under it shall be laid before the House as soon as possible after they are made. Here the Order is made by the Minister and requires a Resolution within a certain number of days to annul it. We suggest a more appropriate way of dealing with it would be to bring in the draft Order and lay it before the Houses of the Oireachtas for approval. At that stage, if there is not a Resolution annulling the draft Order, then the Order can be made. Why are the Oireachtas not given the right here to examine the draft of the Order before the Order is made?
The type of Order relevant to this subsection is one in regard to an Amenity Area Order which would specify certain types of construction that may or may not be carried out in that area. That, in the first instance, would have been agreed by the elected body, by the elected representatives of the people. Secondly, if opposition followed on its publication, a public inquiry would have to be held and it is only subsequent to that that the Minister would come to make the Order. After all those safeguards, I think coming to the House would be unnecessary. I suggest that in this case the right of annulment is more than adequate to meet the circumstances likely to arise from Orders such as this. The local elected representatives will have had a first go at it; then there is a public inquiry; and then comes the Minister, answerable in person himself. Finally, when the Minister has made the Order and laid it before the House, within 21 days the House may take steps to annul it. I think that is quite safe and does not call for the procedure suggested here.
I agree the safeguard is there. The Minister brings in the Order here and if the Order is challenged, it may or may not be altered. If a draft Order is challenged, it is the same thing. It still does not carry much force and the Oireachtas, when reviewing it, are dealing with a draft Order rather than an Order by the Minister. I suggest the Minister's Order should not be turned down by the Oireachtas but a draft Order might be amended. I take it that the Minister's Order would be made on the best advice and would not be likely to be out of court. If the Minister comes in with a draft Order, it puts the Oireachtas in the position of approving the draft Order which then becomes an Order.
I do not think we need have any great worry about this. The situation in this case is rather peculiar. I think it has not a parallel with any of the other provisions for which we may have similar powers or seek them. Even after the 21 days in the case of a ministerial Order, after which it has the force of law, there is nothing sacrosanct about it. The Minister may, if he thinks fit, afterwards go against the provisions of that Order by a decision on appeal. I think it would be akin to being somewhat discourteous to the House if an Order were brought in and had positive approval and at the same time it meant no more than that it was a good guide for the moment in that the terms could be changed by the Minister on an individual appeal thereafter. Therefore, it will be seen that this is not of the nature of the Order the Deputy has in mind. It is not as definite a document as might be an Order which we normally refer to the House for prior approval.
Amendment, by leave, withdrawn.
SECTION 44.
Amendment No. 170 was discussed with amendment No. 133.
I move amendment No. 170:
In subsection (2), page 36, line 29, to delete "Minister" and substitute "District Court for the area in which the land is situate".
Amendment No. 171 reads as follows:
In subsection (3), page 36, line 31, to delete "Minister" and substitute "District Justice".
There is just one point of information which the Minister might give me in regard to these amendments. Compensation is payable here for interference with the rights of the individual. How will the Minister decide the real value, for instance, of a hedge? It might be a matter of the appearance it gives rather than the actual financial value anybody attaches to it. Would the Minister envisage that his official, hearing an appeal against the removal of a hedge, would, like a district justice, go to see the location and determine the position? Sometimes we cannot put a financial value on things.
There is a compensation section which would cover this very fully—Section 61.
It is on the 1919 Act, is it not?
Yes.
Amendment, by leave, withdrawn.
Amendment No. 171 not moved.
Amendment No. 172 was discussed with amendment No. 135.
I move amendment No. 172:
In subsection (5), page 36, line 46, before "enter" to insert "apply to the District Court in a summary manner for an order authorising it to enter on any such land and to effect such removal or alteration and replacement specified in the notice and upon such order being made by the court may".
I take it that here, again, if there is objection by the individual, a court order will be sought?
This is very much related to the promised amendment on Report Stage. It is about the challenge —if you go into court and get a court order.
Amendment, by leave, withdrawn.
Section 44 agreed to.
SECTION 45.
With amendment No. 173, the following amendments might be discussed: Nos. 174, 175 and 176.
Yes.
I move amendment No. 173:
In subsection (5), page 37, line 49, to delete "appeal to the Minister against the order" and substitute "at his option appeal to the Minister or the Circuit Court having jurisdiction in the area where the land is situate against the order".
These amendments seem to give the option of appeal to the Minister or to the circuit court. There is no reason why, say, a judge of the circuit court might not be presumed to be a competent individual, after hearing expert evidence, to determine matters fairly, having regard to the interests of the individual and of the community.
I probably would not dispute, nor would I think it would be very relevant to determine, the competency of a judge in respect of evidence, whether technical or otherwise. These are planning matters and, as such, would fall to be dealt with more readily by the Minister on appeal than by the courts, regardless of who the personalities might be in the courts or in the Department. Furthermore, our fees are not quite as high as in the court. That is enough in favour of leaving the appeal to the Minister. They will have a fair deal, no matter where they go.
Amendment, by leave, withdrawn.
Section 45 agreed to.
Amendment No. 174 not moved.
SECTION 46.
Amendments Nos. 175 and 176 not moved.
I move amendment No. 177:
In subsection (10), page 38, line 57, to delete "conservancy" and substitute "conservation".
This is really a drafting amendment. I am told the word proposed to be inserted is more appropriate than that proposed to be deleted.
Amendment agreed to.
Question proposed: "That Section 46, as amended, stand part of the Bill."
Take the type of order envisaged in this section. Can the planning authority use their discretion in matters like this where Departments of State are concerned? Take the Forestry Department or the Land Commission as an example. Can the planning authority order the conservation of, say, trees, woodland, plants, and so on, at that stage as they exist or is, say, the Department of Lands to pursue its own course in these matters, irrespective of whatever the planning authority might have envisaged for the area? Does the Minister propose that they should be excluded from the provisions here?
If the Deputy's question is "May the local authority impose its wishes?" the answer is no.
In many places in my constituency, large estates were planted in the past, and these lands, which lent charm and beauty to the area, have now come into the possession of the Forestry Division of the Department of Lands. Certain types of trees do not come to maturity for 150 years. These lands were a wonderful amenity, even before the State had anything to do with them. If the Department of Lands can act independently of the planning authority in this matter and cut down trees, we are placing them in a position different from that of the ordinary citizen. I do not wish to suggest that there would be ruthless destruction of our woodlands, but there is every good reason why any Department of State should not alone comply with the law but set the example in these matters.
I am thinking of places in my constituency such as Adare and the green wood in Kilfinane, about which Canon Sheehan wrote in Glenanaar. We also think of Killarney, where the Department of Lands have a large interest in the National Park, and the area around Killaloe. If trees were to be removed in these areas, it would interfere very much with the amenities there. It would be disastrous if the planning authority could not insist on some kind of co-ordination by Departments of State. Any Department of State is merely a collection of individuals exercising their own judgement in these matters. I am not prepared to agree that their judgment would be superior to the judgment of the experts of the planning authority. I am rather disappointed to hear that Departments of State are not being brought within the ambit of this legislation. If that is not done, will semi-State bodies seek the same type of exemption? Will they seek to carry on in their own way without reference to the planning for each area?
Government Departments as a whole are out and semi-State bodies and so on are in. This Bill, if passed by the Oireachtas, will, in effect, be a statement of Government policy on future planning. Each Minister will have collective responsibility to ensure that the planning legislation is adhered to. The Department of Lands are one of the prescribed bodies. There will therefore be liaison between that Department and the Department of Local Government on the matter of amenity conservation.
I agree entirely with Deputy Jones that afforestation or deforestation can have a great effect on the amenities of an area. We are not unaware of the need for the greatest harmony between the two Departments on this matter. When the Bill is enacted, there are to be further discussions with the Minister for Lands with a view to establishing the proper type of liaison between the Forestry Division and the planning section of my Department. So far as the removal or planting of trees by the Forestry Division is concerned, there will be the closest co-operation between the two Departments.
Close co-operation between the two Departments might not be sufficient. I have in mind a case in my constituency of a magnificent grove of trees running down to a cove. The land changed hands and the new owner applied for permission to the Forestry Division to cut down the trees. The whole place was denuded and is an eyesore. It would be well if there were provision whereby the forestry authorities in various areas would communicate with the local authority and ascertain if there was any objection to cutting certain trees in that area. There is always the danger that a nice grove of trees will change hands and that the new owner will apply for permission to cut them, saying he will plant so many trees instead; that he will get permission or, in the event of getting no reply, assume he had permission and cut the trees. That is a situation we should be very careful about. I think the authority should be in a position to serve an order on such a person telling him to stop.
They will have that power.
I am very glad to hear it.
We have taken advantage of this Bill to stop a number of gaps left in local authority initiative in cases such as outlined by the Deputy. It will be possible for the local authority to serve an order preventing this or that.
What does the Minister envisage under the term "killing of fauna"? Is the Minister giving the planning authority power to prohibit killing of fauna—something like game orders? Does he think the planning authority should have the right to decide that game should not be killed in a particular area?
That is envisaged but it is something to be worked out.
How would the Minister reconcile that with an individual's right to shoot over his own land?
He is restricted at the moment and may only shoot certain birds at certain times and some he may not shoot at all.
That is the open and closed season.
We would be in no greater difficulty in this case.
Here we are transferring a right existing in an individual to the planning authority who will have the right in future. At present the Minister for Lands can make a game order but it does no more than prohibit a person doing something at certain times. Does the Minister envisage that the planning authority will be entitled to prohibit the killing of game, putting them in somewhat the position as a landlord who prohibits anybody else going in on his preserves?
In certain limited areas, the planning authority may, in the first instance, suggest and agree that certain types of birds may not be killed at all or that no type of bird may be killed. We must remember that this would be done because it is felt by the planning authorities that this is a general amenity and in the public interest that a type of bird might be preserved or that there should be a bird sanctuary in a particular area. This confirms the power of a planning authority to initiate such a scheme. The arguments that can be made for and against it on the basis of the rights of individuals will naturally come to the surface where such a measure is proposed and there can be discussion and inquiry before an order is actually made. It is intended to have the power there to allow the planning authority to do these things if they think fit.
Would this apply to flora? Will the authority have power to order conservancy in regard to certain shrubs?
They will have the power, whether they decide to use it or not.
Irrespective of who owns the land?
Yes, but subject to compensation, if such would apply.
If an individual challenges this——
He can appeal in the first instance.
Suppose somebody is going to enter a man's land to stop him doing something, would that situation be covered by the amendment concerning right of entry and recourse to the courts which the Minister is to bring in?
If the planning authority wanted to enter, the proposed amendment would apply and the authority would have to get a court order.
Are we giving the planning authority power to compel a man to make part of his farm a game sanctuary whether he agrees or not? If so, that is serious interference with his rights as a property owner. Here is a case where the owner of a farm is obliged not only to feed game but to refuse to allow anybody to shoot game on his land or even to shoot it himself.
Many would be delighted to have others prevented from shooting.
I have experienced that, but the property owner should be allowed to shoot game on his own farm and to allow his friends to do so. That decision should not be handed over as a right to the local authority.
We wax hot and cold on the rights of local authorities, their elected representatives as distinct from managers. Here we have permissive legislation which will repose in the hands of the elected members of a planning authority the right to initiate some such conservation as has been mentioned. If they do so, there is first the right of appeal by an aggrieved party with provision for oral hearings at which the whole story can be told regarding the injustice or the loss the landowner may suffer. If the appeal is rejected, the scheme goes ahead, but if it is a serious matter, compensation will be payable to the landowner for the loss he sustains in being prevented from shooting game on his own land, game which he would say were feeding on his lands. It is not easy to prove what birds feed on what land.
We must remember that this will be done rarely but we should have the power to use in certain circumstances. Its operation by the elected representatives will be the greatest possible safeguard. They will be the people who will initiate and approve of this in the first instance. If they do not do that, the matter will not arise at all and if they do it, and if there are aggrieved parties, there will be an appeal and an oral hearing. If the appeal is thrown out, there will be the right of compensation if the person can show that he will sustain a loss.
This provision is not likely to be used for the wholesale prohibition on the shooting of game. I would rather envisage that it will be used in regard to a particular type of bird in a particular area, a type of bird that is peculiar or unique to our country, a type of bird that is in short supply and that is getting less because of the depredations of sportsmen or of its natural enemies. It may be found that this particular type of bird is something that should be preserved and therefore the areas which the birds frequent will be created conservation areas in order that this particular attraction will not be wiped out for ever and always.
It is along those lines that this provision will be used. Its initiation will stem from the elected members of the councils and will not be at the direction of any single individual officer or executive. It will have to come from the elected body before it gets off the ground at all and then there will be the right of appeal and the right of compensation.
I have to speak on this matter again because it is not properly a function of a planning authority at all. I think we are entering a completely new field, a field that is not within the ambit of local government. I can see a case arising where these powers could be extended to include a herd of deer. We could have a herd of deer trampling a farmer's crops all over the place. I have some experience of the destruction that can be done by a herd of deer and how this matter can be a proper function for the Department of Local Government beats me. The question of game sanctuaries and game preservation belongs to another Department and has nothing to do with town planning. I think we are including powers in the Bill which were never envisaged by the local authorities.
I think the real danger in the Bill is that this section, which has nothing to do with town planning, gives these powers to the elected representatives. The proper preservation of game is not a matter that interests everybody. The majority of county councillors or urban councillors will have little knowledge and less interest in these matters but they are often subject to the opinions of various crackpot individuals who know even less than the public representatives themselves.
The best snipe bog in Ireland is in county Louth. If we go out on a Sunday morning to shoot snipe and one wounded bird falls on the road, there would be an outcry from some people. They would say that the poor little snipe did not have a chance although only about one in every five snipe shot at is hit. Yet the members of Dundalk urban council, not one of whom shoots, could demand that shooting be forbidden on this bog. I am being eaten out of house and home by the pigeons of Drogheda and the only reason I have not had five or six men in shooting them is that there would be some woman to say that we were brutes, unfair and cruel. That is the only reason I have not been shooting pigeons in Drogheda for the past five years.
There is another reason —you might lose some votes.
I know it would affect my votes. This is not a function of the Minister for Local Government. The preservation of game is a function of the Minister for Lands and now this provision gives power to local authorities in relation to game matters. There are only two lines of thought about game matters. One is that of the owner of land who decides whether he wants it shot over and if he will charge for the shooting rights on it and the other is the point of view of the person who wants to shoot over the land. These are the only people who have any interest in this thing. Here we are to have members of local authorities badgered by people who know nothing about the matter and they are to have the right to have game birds declared inviolate and untouchable. From what I have heard the Minister say, he does not know much about it.
Not from the same point of view as the Deputy.
I would suggest that the Minister should tell us he will reconsider this matter and bring in some amendment on Report Stage to deal with it.
There are county councils in the country the members of which might know something about this matter. Can you imagine the rebellion which would be started if these county councillors decided that they were going to thin out the flora and fauna of a particular estate or on a particular farmer's ground? They might decide that they were going in on his land to shoot his deer or pheasants. They might even come along and say that he had some shrubs on his land which he should not have, tear them up and take them away.
The Minister knows that I am all in favour of giving power to the public representatives but this is one matter on which I would warn him to be careful. I suggest to the Minister if he wants to make this provision a good piece of law he should leave it to the Department that has been dealing with game preservation and should strike this out of this Bill altogether.
There seems to be a misunderstanding here, as if we were talking about nothing but game birds. That, in fact, is unlikely to be the subject of this development at all. We are rather more likely to be dealing with rare birds that are not designated as game and dealing with rare fauna.
Golden eagles.
Golden eagles, if we have them. There are also two examples of rare fauna, one called the natterjack toad and the other known as Cole's char. Deputy Lynch's suggestion that we should leave them to the Department which was minding them in the past does not hold because nobody was minding them. To Deputy Clinton, I would say that this matter of the protection of the flora and fauna has come to be regarded as a matter that impinges on amenity and amenity is the very essence of planning. As such, it is appropriate that it should be dealt with by this Bill and not by some other Bill. Somebody might suggest what Department or what Bill should look after them. The suggestion was made that the Department of Lands should do it but, in the first place, I do not think they would want to and in the second, there is no reason, just because they control the time for shooting game birds, they should be made responsible for this as well, especially since this type of Bill is much more the medium through which this conservation can be done. There is nothing new about this, in that it is regarded as part of our amenity to preserve that which is rare and worthwhile. It is being done in other countries. It is new to us but not in the sense that it is something outlandish which has suddenly come down from the skies. Deputy Donegan referred to the Minister as not knowing what he was talking about.
I said "seems".
Appearances can be very deceptive and that applies both ways so we will say no more about it. This is not at all the frightening sort of provision that it has been made out to be by those who suddenly got the idea that this is going to take away a man's livelihood or his rights, ignoring the fact we are not dealing with game birds as such.
But you can.
We can, but do not forget that at the moment, in so far as game bird protection is concerned, you can be stopped or restricted whether you are on your own or anybody else's land, from shooting particular birds at particular times and in fact from shooting some birds all the time.
The order is there; whether it restricts it or not is another matter.
The fact is that there is the attempt made to restrict shooting of particular birds between certain times and yet that is accepted as a good thing. Why, then, is there all this objection or opposition to this? It does not relate to game birds in the main and is unlikely to deal with them, but it deals with rare birds which could be something we would be proud to preserve in the future, something that would give us pleasure and might attract people to come here to see these birds in their natural surroundings. In the last analysis, if it can come to the point that a farmer or landowner can be said to be at a loss by rearing and feeding these birds at his own expense on his own land, and then by an order which originated from the local authority, he is denied the right or pleasure of shooting these birds, and if that can be shown, then there is provision in the compensation section of this Bill to have him compensated. I cannot see anything wrong with that.
I am under the impression that the Minister has got a lot more than the House is prepared to give him in this Bill. I can see nothing wrong with the idea but I am inclined to agree with some of my friends on the left here who are not quite sure that this is the correct Bill in which to introduce it.
You want to mind the birds?
I am in support of the idea but I can imagine some lawyer going into court in years to come, perhaps when we are all dead, and he will not read this the same way as the Minister is reading it and he will not have a copy of the Dáil Reports. The Minister should put into the Bill that he is mainly concerned with rare species of birds which need to be preserved and he could mention golden eagles. You could have a whole lot of "boyos" who could use this to suit themselves. When the Bill is going through the House, that is the time to make things clear.
Is that not the bane of our existence? All we can do is do the best we can.
I am suggesting that the Minister should say that he is mainly concerned with the rare species of birds. It should be put into the Bill.
But what is rare now might not be rare in years to come.
I am seriously concerned that this type of legislation is leading us back to the position in which the farmers were before we put the landlords out, when it was treason to tread on a traneen, and when a farmer could not fire a shot on his own land.
Some of them cannot do it now.
But they bought their farms, knowing they had not got the shooting rights. We are setting out now to take the right from the man who enjoys it. In a big town or city, there may be a large number of people who have no connection with land but are interested in shooting. A particular farmer may have no interest in their anxiety to shoot but he is compelled to provide pleasure for them by conserving game which he does not want on his farm. That is what we are asking for in this Bill. There is something wrong about reducing the rights of farmers on their own property.
The Minister's comparison of this legislation with the law about open seasons is puerile. We all know that in regard to game, open seasons are related to breeding seasons and in respect of individual birds which are becoming scarce. There is a particularly short season for partridge. The power of elected representatives of local authorities to decide that any particular place within their local jurisdiction shall be a game sanctuary is a power I could not agree with and although I am only one Deputy out of 143, I will dissent from this section of the Bill. I shall stay here until this debate ends and will still dissent from it. I suggest that the Minister undertake to the House to have another look at this before Report Stage.
Let us look at subsection (1):
for prohibiting (subject to any exemptions for which provision may be made by the order) the taking, killing, or destroying of flora or fauna except with the consent of the planning authority ...
In other words, a local authority may decide the habitation of the ordinary mallard is of such amenity value that the people who for generations have got enjoyment from watching them breeding and all the rest of it are to be prohibited from so doing, or from shooting them in season. I sincerely urge the Minister to do something about this provision between now and Report Stage because obviously this is the work of some nut in the Custom House, somebody who knows nothing about shooting or sport of any sort. I would not be worrying if this power had been given to the Minister or his successors but here we will have local authorities declaring God knows what to be of special amenity value and depriving local people of the right to enjoy something they have enjoyed for generations.
Deputy Clinton's case was based largely on a landowner's rights over his land. It is quite a valid argument and one which the Minister should also examine between now and Report Stage. I wonder if the Minister listened to the speech of the Minister for Lands, his colleague, when he spoke of the rights of landowners? I can assure the Minister, and I am far from wishing his early demise or anything like that, that these rights will be enjoyed long after him. I may have been a little too energetic in my arguments and perhaps there is therefore a temptation for the Minister to say to us on this side: "Go to blazes," but I feel the Minister should undertake to have another look at this section. I can tell him now that I shall stay here until 10.30, if necessary, without my tea——
I am delighted Deputy Donegan has become so interested in this debate at this late stage. We will be very glad to have him here until 10.30, or 12.30, if he likes.
I have been here before and in fact have already crossed swords with the Minister.
Just about. It is quite evident from the last few remarks of the Deputy that he has not been here because if he had been, he would be fully aware that there has not been so far any argument for argument's sake. I do not propose to follow the Deputy's lead because I want this Bill dealt with properly and I do not want to have a town fair about it. The subsection says:
It is expedient in the interests of amenity to make provision for the protection of any flora or fauna of any area.
There you have the two qualifications before you get off at all. That statement is contained in lines 9, 10 and 11 of the very first subsection of Section 46. Despite the fact that Deputy Donegan has suggested we might have another look at this and that one would be inclined to say "no" because he asked for it in that tone of voice, I will say "yes" and will between now and Report Stage endeavour to provide here further qualifications——
Do not forget the golden eagles.
If I can, I shall make every effort to have it provided for Report Stage and come back here with a greater safeguard by way of further elaboration. Having said that, I must point out this is not a power being thrown to the elected bodies. However, if it were being thrown at them, I would throw it to the elected bodies before I would give it to any other group. Of course here we are not talking about urban councils because they have very little to do with birds, at least not the kind of birds we are talking about here, even allowing that their perimeters extend considerably. This will be in the hands of county councils and can anybody seriously suggest that the members of any county council in Ireland are so bereft of commonsense as to take action on the lines feared by Deputies Donegan and Clinton—that they would trample on the rights of landowners, of country people?
We start on the slippery slope.
Surely nobody can seriously suggest that 26, 24 or 21 men drawn from rural parts of a county would be guilty of any of the actions in respect of which the Deputies have expressed fears here, that they would take away the rights of landowners? If there is any group in whose hands I would leave those powers in the knowledge that they would do nothing wrong, it is a county council. I would leave such powers with them safely and without question because it would be far beyond them to injure the farming community. In fact, are not many of the members of county councils landowners themselves? If, by any mischance, something should come about, there is an appeal to the Minister and the Minister in this matter will be guided in his consideration by the best experts we can procure from whatever part of the world we may have to get them.
This matter will not be dealt with lightly and certainly if there is an appeal, if a council have made a mistake and treated unduly lightly the rights of a landowner, thus negativing his rights over his land, no Minister for Local Government who wants to remain, not alone a Minister but a member of this House, will stand over such action. As I have said already, I shall have another look at this section with a view to providing further qualifications which will make for a less easy way through, lest injury might be caused. The whole idea of the Bill is to improve things for everybody as best we can. It would be a complete negation of the whole spirit of the Bill if the powers given under it were, by their use, made to interfere with any considerable number of people and their enjoyment of life. I shall certainly have a further look at the terms of this and I shall be only too glad to put in any other qualification I can get.
I want to thank the Minister for taking it in that spirit. I have the greatest sympathy with Deputy Clinton's argument, being a farmer. However, I am talking now for the shooters. In any local authority area, you will find the shooters in a very great minority. Representations to members of local authorities would be far greater from those who might conserve birds in a given area than from those who would want them, in proper sporting fashion, for shooting.
The Minister rather implies that talking about the urban area means shooting pheasants in O'Connell Street. It is true that at estuaries, where urban areas are along the sea, and at other such points, there are shooting amenities within urban areas.
The power the Deputy has mentioned as being available to shoot in such areas could not be regarded as coming within the terms of this.
This will all depend on three words in the section—"where it appears".
"Where it appears expedient in the interests of the amenity".
The Minister can look it up before Report Stage. I accept his undertaking that he will. I shall be here if he does not.
I am not so happy about the circumstances in which no compensation will be payable. Would the Minister look at that again? If an individual will be prevented from doing certain things having regard to flora or fauna in his area, is there any good reason why he should not be compensated at that stage in regard to it? Consider, for instance, the imposition of a condition on a Department of State: We would not interfere with their rights. Even if it is admitted it is in the interests of an amenity, is there any reason why an individual should not be compensated if the local authority act in a certain way?
This provision is there but it does not follow that no compensation in such instances would be payable on appeal. The provision is there so that there will not be these frivolous claims which would probably waste more time than they would be worth. The fact that we put that in there does not prevent compensation being paid in any of these cases. I shall have another look at it. The appeal procedure is there so that there may be a gate open for compensation.
I thought the words "no compensation shall be paid" are mandatory.
It may appear that way but I am told it is not that way. I shall check on it. I think I shall be assuring the House that it is all right as it is and that the compensation is payable. If there is anything wrong with it, I shall remedy it on Report Stage.
Question put and agreed to.
SECTION 47.
Question proposed: "That Section 47 stand part of the Bill."
"creation, by dedication": does this mean that the person who has the right can pass it over to the local authority?
That is correct.
They could assign a right of way to a planning authority?
Yes. They could dedicate it to the local authority for the public enjoyment. Of course, the local authority would have the onus of maintaining it as well. There would be that little tag to it.
Question put and agreed to.
SECTION 48.
I move amendment No. 178:
To delete subsections (1), (2), (3), (4) and (5) and substitute the following:
"( ) Where a planning authority are of an opinion that there is need for a public right of way over land, they may apply to the Minister for an order creating a public right of way over the land but the Minister shall not make an order creating a public right of way over the land until he has caused a public local inquiry to be held and has considered any objections to the making of the order and the report of the person who held the inquiry.
( ) Where a planning authority apply to the Minister for an order under subsection (1) of this section, they shall serve a notice of the application for such order on every person who is the owner or occupier of any land over which a public right of way is sought to be created."
We are dealing now with land compulsorily acquired. The normal procedure in that instance is to hold a public inquiry before acquisition. Under subsections (2) and (3) of Section 21, there is the question of protection of a public right of way. Is there any reason why a similar protection should not be afforded here in respect of a right of way? While compensation is payable under Section 62 to the owners of land, the compensation payable for land acquired under the Assessment of Compensation Act, 1919, is never adequate. The arbitrator who assesses the compensation under the Act has to operate within very narrow rules. The general view is that landowners seldom get the compensation from public authorities which they would get if they were running a similar facility voluntarily. Therefore, we submit that the Minister should not make this order until the inquiry is held and the objections of the persons concerned are considered. Where the planning authority propose to make this right of way, they ought to give notice beforehand to the occupier of the lands.
Progress reported; Committee to sit again.