Committee On Finance. - Local Government (Planning and Development) Bill, 1962— Committee Stage (resumed).
Debate resumed on the following amendment:
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."—Deputy Jones.
I moved to report progress on this amendment which is designed to ensure that the normal procedure for the compulsory acquisition of land would hold in this case. As Section 48 is drafted at present subsection (1) states:
Where it appears to the planning authority that there is need for a public right of way over any land, the planning authority may by order create a public right of way over the land.
Under Section 21, the existence of a public right of way can be made the subject of an application to the circuit court and is there any less valid reason why a similar protection should not be afforded in the case of the creation of a right of way? While compensation is payable under Section 62, the amount of the compensation is never quite adequate. The arbitrator who assesses the compensation has to operate within very narrow rules and the view is generally held that landowners seldom get a compensation from public authorities that they would get if they were giving similar facilities voluntarily or in private transactions.
I referred on Second Reading to the provisions of the 1919 Act regarding the giving of compensation and I pointed out that in the famous legal case of Comyn v. Clare County Council, it was held that was not the way in which compensation should be awarded. It was decided by judicial process on that occasion. We are concerned here with the procedure whereby a right of way is being compulsorily created. The section gives authority to the planning authority to create a public right of way by making an order. I cannot see any valid reason why the same procedure as is adopted under the compulsory acquisition of land, the holding of a public inquiry, should not operate where there is this creation of a right of way.
Under this section, we envisage a situation different from that of acquiring land to make a roadway. We do not envisage the acquisition of the soil; rather do we envisage the operation of an easement so as to enable the public to pass over the land. That is the distinct difference between the approach to the two things. As far as going to the circuit court about an existing right of way in concerned, you go to the court to establish whether such a right of way does exist. In this case, there is no argument that a right of way exists. A right of way is being created. There is no need to determine whether there is a right of way because a right of way is being created in the first case.
Deputy Jones is probably looking at this matter from a different point of view from that from which I have approached it. He would appear to look at it from the point of view of the landowner, whereas I am concerned with ensuring that amenities such as a good beach or bathing place or a riverside walk may not be cut off from the public by a change of ownership—cut off from the public who have enjoyed it in various ways without any right of way. For instance, if someone buys a stretch of foreshore which has been open to the public for generations, we may find that wires go up, gates are made and locks go on, and suddenly a nice beach is denied to the public and particularly to the locals who have enjoyed it undisturbed for generations.
In such a situation, I envisage the planning authority stepping in and creating a right of way to that beach or that riverside. In that case, there will be an appeal to the Minister but not to the courts. It is in order to facilitate the enjoyment of amenities that can be got at only by passing over lands that we are giving power to planning authorities to create a right of way. It is to make it possible for the public to enjoy these amenities even though no right of way did exist or no definite pathway that we are doing this, even if the public have to go over acres of land. Suddenly those acres of land are no longer open; they have been fenced in, and we want to ensure that because they have been fenced in or a gate erected to prevent access to them, the rights people have enjoyed will not be denied to them. Under the present law, they would not have a sustainable case to ensure that. It is on those grounds and from that angle that this should be approached.
Is there any particular reason why this should not be done by way of public inquiry?
It would be an oral hearing which would be tantamount to a public inquiry. All the interested parties will be there making their case orally.
Would notice be given to the public that such an inquiry was to be held?
The amendment which follows deals with that. All the interested parties will be notified.
Compensation will be awarded? I can see the force of what the Minister wants.
There is a special section dealing with compensation in cases such as this.
Will it be under the 1919 Act?
When this appeal is being heard, it will be a type of inquiry. You would have to show that the beach was being used by the public and that it was available. I know places like that where there is no special way down to the beach and the people walk across the fields, but not many people would do that. If there were a change of ownership and a "Trespassers will be prosecuted" notice put up, it would be the type of case the Minister has in mind.
That is what I have in mind, although it might take in fringe cases as well.
The only aspect I do not like about this is in the right of ownership. The person would not have the right to appeal to the court. The Minister should consider that
Of course, on the other hand, land acquisition as we have it and which is even more serious does not provide for recourse to the courts. We are not creating something new. We are really applying what has been in existence already.
Would there be any question here of the Mass paths, which really exist in rural areas from the Penal Days?
The existing ones, in the normal cases, have been covered by Section 21 and the development plan, where these are said to exist, can show them by way of map or sketch. This is a new situation which has arisen in a few cases already and might arise again in the future.
I can appreciate the type of capricious ownership that wants to keep everything to itself.
I do not think "capricious" would be the proper description.
In regard to these rights of way, quite a number of them have been found to be useless as far as farm machinery is concerned. If there is any question of defining them, the width should be defined because modern farm machinery cannot be taken along them. Last year in my constituency, a man had to take down a pier to get machinery in and the owner not only insisted on the pier being replaced but got heavy damages. That should be guarded against.
Under Section 49, there is a provision that rights of way must be maintained when taken over by the local authority and in order to maintain them, they must naturally be defined so that width must of necessity become part of their operations.
To maintain them might mean to maintain them at their present width. Is there any possibility of ensuring that there will be a minimum width?
I think the Deputy is bringing in a much wider application here. There are rights of way and accommodation roads which, with the passage of years, have become far too restricted to accommodate the ever-increasing size of plant and machinery. We are not really dealing with that particular aspect in this Bill. I am aware of the problem——
Can the Minister not do anything about it? There is no other Bill to deal with it.
These are rights of way to amenities?
Yes, it is in the ordinary or broad sense of rights of way.
You are creating the right of people to go down to that beach, for example.
Amendment, by leave withdrawn.
I move amendment No. 179:
In subsection (2), page 39, line 21, to delete "way" and substitute "way and on any other person who in their opinion will be affected by the creation of the public right of way."
This is really to cover the situation wherein there may be more interested parties than, for instance, the owner. You could have the head landlord on the property or something like that, and this is to widen the types of persons to whom notice may be served in order to protect whatever interests they may have.
Would the Minister consider the point I was making previously? When a special oral hearing is about to take place in regard to the creation of this right of way, the public in an area, not alone a restricted area but a larger area, could have an interest in such a determination, and would he consider that the planning authority should publicly announce that such an inquiry was to be held and do that by way of notice in the paper? In that way, the public would know that the inquiry was to take place. The public could have a great interest in the type of inquiry envisaged here in the matter of creating rights of way and I think it should not be restricted to owners of the property involved. I am talking about people who may have enjoyed the right of access to a beach, for instance, and over which the creation of a right of way is now involved. Since the public would have considerable interest in it, they ought to be given an opportunity of attending oral hearings and, if they want to do so, of tendering evidence.
We have considered this and we shall, by regulation, ask the local authority to put advertisements in the papers to the effect that oral hearings are held and that all who are interested and want to be heard will be welcome.
Amendment agreed to.
Section 48, as amended, agreed to.
SECTION 49.
I move amendment No. 180:
In subsection (4), page 40, line 12, after "may" to insert "after giving at least three days' notice to the owner or occupier of land affected".
This amendment is designed to ensure that the owner of land will be given reasonable notice by the planning authority that they propose to enter on his land. We have already dealt with the type of objection which the owner of land might have to entry by the public authority, and in this instance, I would ask the Minister whether, if the owner of land intends to resist the right of entry, he will be given notice of the planning authority's intention to enter. Does the Minister intend under the amendment he proposes for Report Stage to cover the opposition of an individual who intends to resist the entry of the local authority?
I do not intend to cover it for the very good reason that we have this section, and for the same reason that I am not accepting this amendment. If, as will be the case in regard to a right of way, the local authority are responsible for its maintenance and a cavity appeared or a rabbit burrow collapsed on the right of way and somebody injured himself as a result, the local authority would be liable for any damage so caused. It is too restrictive and too unfair to the local authority to suggest they should give three days' notice before going on to the land to repair the right of way. In the meantime, somebody could be hurt and claim heavy damages for the council's negligence in failing to maintain the right of way.
Since there is a right of way, anybody can go across that land. The situation is not so serious if the local authority can go in and repair the surface of the right of way: it is not quite the same thing as encroaching on another man's land because already any member of the public may cross that right of way. It is, in fact, necessary that the local authority should not be restricted from carrying out repairs except after the expiration of so many days' notice.
I can readily see that point of view but I feel sure the Minister will concede that if the planning authority created a public right of way on, say, the head of a cliff or along the foreshore by the seaside, and that through a storm damage was caused and somebody hurt, the planning authority would need to move in quickly. In such case, grave hardship could be caused to the property on which the right of way has been created. Take the case of a landowner who has planted a crop right up to the right of way. In this we are giving the right to the planning authority to drive over that crop.
No. They are not entitled, even with three days' notice, to do what the Deputy says.
Is it not reasonable to expect the local authority to give notice?
They are not entitled to do it, with or without notice. This relates to Section 49 which has to do with the maintenance of existing rights of way. It is restricted to that section and to that section only. With or without notice, the authority are not entitled to drive through a crop.
If, in the maintenance of a right of way, they did damage, would compensation be payable?
Yes, but by no provision of this Bill. You would obviously rely on the time-honoured common law to retain the rights of the individual. If a landowner can show he was injured by trespass, there is no doubt about the question of compensation.
Then the onus would fall on the owner of the land to prosecute the battle in the courts?
I cannot see the council coming along and making a gratuitous offer, saying: "We damaged your property today; we will pay you compensation."
It is the principle of the thing I am worried about.
Initially, in the laying out of the right of way, compensation would be payable arising out of the provisions of this Bill. On the question of subsequent happenings and damage arising as a sort of side-effect of their operations of repairing or maintaining some defect in the right of way, we do not regard it as necessary to state it here or to try to provide a section to cover it as well as the common law would at the moment cover such an eventuality. Unless we had a great number of sections, and so on, if we tried to do so, we should probably fall short of what the rights are at the moment under common law. He has his rights under the common law and would succeed, if injured, without any doubt.
The Minister will put it in as a desirable recommendation to the planning authorities?
The only desirable recommendation I can make is to do as little damage as possible.
Amendment, by leave, withdrawn.
Section 49 agreed to.
SECTION 50.
Question proposed: "That Section 50 stand part of the Bill."
Would the Minister indicate what he has in mind in regard to subparagraph (b) of subsection (1):
assist any person or body proposing to plant trees, shrubs or other plants on the land by providing trees, shrubs or other plants or by a grant of money.
I think there was some discussion on this already.
A typical case would be assistance to a local development association by the planning authority to do all these things.
Take the new type of regional development under, say, Bord Fáilte. There was mention by the Minister for Transport and Power of inviting people to form regional councils for the promotion of tourism, and so on.
No. Specifically, on such an effort as that, it is not intended here. They are much freer than I am or than local authorities would be in these matters.
Would this be just local development associations within the local authority area?
Yes, within the local authority area: I cannot see them assisting them outside the local authority area.
A joint effort has been mentioned. Take line 29 on page 40 of the Bill. In subsection (3), we read of "land not belonging to the authority". How does the Minister envisage such land? Would this, again, be private property?
In other words, the planning authority could assist the private owner?
Private owner or owners, more likely. Again, the fears which I feel are in the Deputy's mind are not likely to materialise. Local authorities will not assist people to do something just for themselves and for their own benefit at public expense. This is an all-embracing and enabling provision so that local authorities may encourage a private group effort rather than an individual effort to do things which the local authority believe are good and constitute an improvement in the locality and are an amenity or improvement of the amenities of the locality.
For instance, the improvement of a vista.
Yes, or take, for instance, the tidy towns development. I am advised that this will enable local authorities to do things which in fact they have been doing.
Such as road alignment, planting trees, and so on.
Assisting them is a reserved function.
Question put and agreed to.
SECTION 51.
I move amendment No. 181:
In subsection (3), page 41, line 2, to delete "ratepayers residing" and substitute "adult persons having their permanent residence".
It is related to amendment No. 183.
We believe this amendment is wholly desirable. If people want to make noise, they should have the fullest opportunity to do so——
I would not give it to them.
I would—but I would not require other people to put up with it: that is the difference. The restriction on the right to complain to a minimum of three ratepayers residing within the area is bad. Take a person with the right to clothing, support and maintenance in a house— which is very common in rural Ireland —but who, at the same time, is not a ratepayer. What would be the position of such a person. Take an elderly person living with relations. He or she is not a ratepayer. It is very desirable that there should not be provision for the crank who would abuse the right to complain. This amendment seeks to provide that the court would have knowledge of the whole background of the interference. We agree the section is entirely desirable. However, in regard to confining it to the three ratepayers, I have instanced cases where adult citizens would be prevented from making a complaint, although they might be disturbed. Our amendment is designed to ensure that adult persons would have this right no less than ratepayers.
So far as amendment No. 181 is concerned, I would be prepared to accept that but to delete the word "adult" and the word "permanent". In other words, "persons residing or carrying on a business". I am running into amendment No. 182 now. I would add to amendment No. 182 "not less than three persons residing or carrying on a business within the area within which the noise is heard or the vibrations felt".
In connection with the service of a notice, it is one of the essentials of proof under this section before proceedings can be taken. Does the Minister think it necessary to have any saving provision with regard to the service of the notice; for example, to provide it can be served by post or given personally?
Section 7 covers fully the procedure in regard to the serving of notice.
Do all these things include musical instruments?
Surely "similar instruments" relates to such things as loudspeakers and television? If somebody played a trombone for seven days alongside you, I do not think he would be caught here.
Will this interfere with people holding meetings, especially candidates for the Dáil?
I do not suppose it will have any effect. It is not intended to do so.
How will the Minister deal with the amendment?
I shall deal with the matter on Report.
Is the Minister happy about withdrawing the word "adult"?
Let us say I am not happy about its inclusion.
Would the Minister consider the word "person" as against "adult person"?
There are many references in the Bill to "person" but this would be the first reference to "adult person".
It was to get rid of a type of objection which might be made and which might not be desirable that we tabled the amendment.
You think "adult" would make it more sensible?
It might not always do so.
My problem would be the qualification of the word "adult". At what point legally is a person an adult person rather than a person?
We have had the view strongly expressed here that we should give people the right to vote at 18 years of age.
I am not disputing at what point a person might be allowed to do this or that. All I am concerned with is that the use of the word "adult" might be confusing. I am not aware of any legal definition that could be appropriately applied in this instance.
The word "person" might relate to the youngest person. A person is an entity once he or she exists.
There is no reason why the youngest person might not be annoyed as well as the older person.
In any event, would the Minister look at it between now and Report Stage?
My intention at the moment would be to adopt the amendment in principle, knock out "adult" and "permanent", put in "residing" instead of "residence" and couple it with amendment No. 182.
Amendment, by leave, withdrawn.
I move amendment No. 182:
In subsection (3), page 41, line 2, to insert "or carrying on a business" before "within".
Amendment agreed to.
I move amendment No. 183:
Before subsection (5) to insert a new subsection as follows:
"( ) Notwithstanding anything contained in section 78 of this Act an offence under this section may be heard and determined by a District Justice upon the complaint, verbal or otherwise, of a member of the Garda Síochána or any adult person having his permanent residence in the area where the offence is alleged to have been committed."
What we want to do in this amendment is to ensure that the individual will not be held up to any opprobrium by reason of having to make a complaint in regard to disturbance. A nuisance can be a great nuisance and everybody may complain about it, but people do not like to proceed against their neighbours, because their neighbours may be all right in every other way. By this amendment, we have to convince the Minister and the House that it is more desirable that the Garda, who are primarily concerned with the peace of an area, should act on behalf of the community. If the area is being disturbed persistently, the Garda will certainly be aware of it. Since they have the responsibility of maintaining the peace of an area, it is only reasonable to assume they ought to have the obligation of proceeding for the abatement of nuisance. That would avoid the invidious situation of neighbour proceeding against neighbour and also the inherent risk of the individual who proceeds losing the case and having costs awarded against him.
Since action was taken in the first instance in the interests of the community, if costs are to lie, I suggest the community should bear them. That would be done by the Garda proceeding against the individual concerned. The State interferes at present in many ordinary rights of individuals and it is not invidious that police officers should have this power which we seek to give them in this amendment. They know the procedure required in maintaining peace and law and order. They know the procedure of taking a person before the court. If the evidence is not sufficient and if costs are awarded in an action taken by the public interest, the community should bear those costs rather than the individual.
The section does not preclude the Garda coming into this and initiating legal action. I cannot see the point in the amendment because subsection (4) says:
A person who contravenes this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding ten pounds.
If a Garda officer, off his own bat, becomes aware of such an offence, it is up to him to take appropriate action. If the matter is brought to his notice under the section, it is still up to him to take action. What is in the amendment is I feel adequately covered in subsection (4) as I see it. It did not clearly emerge from reading the amendment what was intended but so far nothing has been advanced to make it appear that subsection (4) does not give all that is intended to be added by the amendment.
The position under the section is that proceedings cannot be taken unless notice was first served, signed by three residents.
There are two different situations, one in respect of noises within a premises and the other in respect of noises not necesarily in a premises, in fact, outside premises, on a beach, in a garden or park or any public place. Subsection (3) deals with noise emanating from premises and that is where the point about three persons comes in.
Dancehalls would be covered?
Yes, there are two separate procedures.
How about barking dogs? I had strong protests from my constituents about noise caused by barking dogs.
Every pup may be allowed to bark for a few weeks. Do not be so intolerant.
It is all right until it prevents people from sleeping. That never bothers me.
Under subsection (4), an individual may complain and the Garda would proceed after that?
If the Garda were aware that a breach of the law was taking place, it would be up to them to take action.
I understood the Minister to make the case that as regards premises, notice would have to be served. I think that is so. Subsection (3) says that "proceedings shall not be taken ... unless the annoyance is continued after the expiration of seven days from the date of the service .. of a notice ... signed by not less than three residents"—to call them that. But subsection (1), both (a) and (b) in fact take in the question of premises so that Deputy Jones is right to the extent that under subsection (4) a Garda cannot, on his own initiative, take proceedings even though a complaint has been made to him in respect of premises coming under subsection (1) (b) unless the notice has been served? If the premises come into it, is it not necessary to serve a notice?
Yes, but if it is not noise emanating from premises——
Could a Garda, on a complaint being made to him, take action?
Not if it is in relation to premises?
If the premises adjoin a public place, the answer is, he can.
In the case of any other premises?
Amendment, by leave, withdrawn.
Question proposed: "That Section 51, as amended, stand part of the Bill."
Why does the Minister exclude aircraft? Why should people with aircraft be excluded? In other countries, particularly in this age of jet aircraft, conditions are imposed on those who operate them to abate the noise nuisance. Is it not desirable so far as possible that low-level flying, which sometimes occurs, should not be allowed indiscriminately?
Is it the position that under a different Act there are regulations governing the routes and heights aircraft may fly? The Minister for Justice is becoming adept at helicopter flying. It is not out of the question that within the next decade or so, a number of business magnates will have helicopters and if they keep them on their premises, there is nothing here to prevent them making as much noise as they like, whether on the ground or in the air.
That is trying to deal with something that has not arisen. As the Deputy pointed out, the general regulation of aircraft as to height, traffic lanes, etc., is under the jurisdiction of the Minister for Transport and Power.
My colleague here says the Minister did not have any hesitation in entering the domain of the Minister for Lands. It might be no harm if he entered the domain of the Minister for Transport and Power.
I would be all for the Minister, if he entered the domain of the Minister for Transport and Power.
Question put and agreed to.
SECTION 52.
Question proposed: "That Section 52 stand part of the Bill."
This section provides that people may not throw away food remnants, orange peel, or other organic matter, and so on. That is all right, but this is where the Minister's men in the local authorities all over the country may be falling down on the job. It is very hard on citizens to be told they may not throw these things away when rubbish bins or receptacles which are supposed to be there are not there. If such receptacles are not provided, where do citizens deposit such articles as are mentioned in subsection (1)?
I agree with the Deputy that bins must be provided, if effect is to be given to this provision, but the fact that they may not be there should not prevent our making provision for such a happy eventuality.
There is one matter to which I wish to draw the Minister's attention. I do not know whether it is covered elsewhere in this Bill. I should have thought the Derelict Sites Act would have contained it but I discovered that it did not. It is this question of litter and other organic matter that prompts me to refer to this.
There is leading into the town of Bray a new road called Killarney Road which replaces an old road. There is one section of that road there in a kind of loop forming portion of the old road and there is a very fine house off the old road. I think the owners of the house are the only users of the road to get in and out of their property but this section of the old road has become now completely disused and is used principally, as far as I can see, as a tinkers' camp and general refuse dump. I know the council there are most anxious to do something about it and the owners of the property are also anxious that something should be done about it. However, my inquiries indicate that the difficulty is that there is one person who might have rights through it whose consent has not been obtained. I should like to know from the Minister if under this section or any other section of the present Act, an area such as that could be saved from becoming a nuisance to the residents of the area and also a nuisance to the local authority.
Section 3 deals with material changes in the use of land, caravanning, dumping, or any such matter. These are pretty well covered under that section.
Maybe it is covered in this Bill. I thought the Minister had covered it in the Derelict Sites Act but on inquiry, I was told by the council it was not regarded by them as giving them sufficient powers.
Our belief is that it can and does give that.
I should have thought that, too.
But somebody has advised otherwise, no doubt in some case.
Question put and agreed to.
SECTION 53.
I move amendment No. 184:
In subsection (1), page 41, line 39, to delete "structure," and substitute "structure or other land,".
Amendments Nos. 184 and 186 may be discussed together.
The intention here is to cover something which we found, on re-examination of the terms of this section, was not covered. A typical example in respect of "other land" would be a rock on which there might be some sort of advertisement of one kind or another.
The Giant's Causeway type?
Probably a little more smooth in surface than that, but a large rock probably on the roadside on which there is a slogan—not necessarily an election slogan; it could be anything. It is really to bring that sort of thing within the section that we are asking to make this change and to add the words "other land" to the section.
Amendment agreed to.
I move amendment No. 185:
Before subsection (2) to insert a new subsection as follows:
"( ) Paragraph (a) of subsection (1) of this section shall not apply where the advertisement is temporarily exhibited for the purposes of a public meeting."
This subsection is designed to deal with the advertisement which is temporarily exhibited for the purpose of a public meeting. Subsection (1) by its terms effectively prohibits the display of the customary advertisements of an election meeting. It would certainly impede the democratic process if such advertisements were to be prohibited and, in any event, it is certain that even if the subsection were to prohibit such advertisements, it would not be observed. As the section stands, it would even prohibit the laying of a cardboard advertisement against a wall or roadside. The purpose of the amendment is to ensure that there will be no infringement of this democratic right in relation to election meetings. The exercise of the democratic right of individuals to submit themselves to the electorate should not be hindered in any way. In this amendment, we seek to ensure that that right will be preserved.
The exemption regulations will cover these particular cases. Those exemption regulations will be drawn up subsequent to the passage of the Bill.
Is there any reason why we should leave it to regulation instead of incorporating it in the Bill?
There are so many little bits and pieces that, if we started to put them all in, we would inevitably find ourselves in the position that we would leave out some that should be in and include others that should not be in, and we would, therefore, still have to make regulations. It is much better to leave it all to the regulations because then we can meet any eventuality.
Will the House have an opportunity of discussing these regulations?
They will be laid on the Table of the House.
Orders made by the Minister will be laid on the Table of the House. Does he intend to lay regulations on the Table? Is there any particular reason why the Minister will not accept this amendment? It deals with something that is temporary. It is designed to ensure that a democratic right is preserved. I accept that the Minister will put these things in regulations, but is there any reason why this should be left to regulation when we have a piece of legislation here in which it could quite easily be incorporated?
I regard Section 53 as unsatisfactory because it prohibits any person other than the owner, occupier or person in charge from placing any advertisement on any door, window, gate, tree or post or on any part fronting any public place. By implication, however, the section permits the owner, occupier or person in charge to do all or any of these things, or give permission to another person to do them.
This amendment relates only to public meetings.
We are not on the section?
We are not on the section. We are on amendment No. 185.
Would the Minister indicate the section under which he has power to make regulations exempting?
That seems to refer to exempted developments. Does that permit the Minister to make regulations giving exemptions from what would appear to be fairly explicit directions in this section?
Would the Minister not consider accepting the amendment?
I have considered the whole matter very sympathetically.
Can the Minister justify his refusal to accept it?
He says he will meet us in the regulations.
I do not feel that acceptance of this amendment has been justified by those proposing it.
Under the section, as drafted, it would be an offence for an election candidate to cause a poster to be put on an ESB post. The Minister says he proposes by regulation to exempt such practices. I am wondering just where he gets that power to make such a regulation. Would such a regulation be ultra vires? The Minister says he has power under Section 4, but, in fact, subsection (2) paragraph (a) of Section 4 provides that “The Minister may by regulation provide for any class of development being exempted development for the purposes of this Act”. The regulations the Minister will make under Section 4 will be regulations dealing with exempted development. There is nothing which gives him power to make regulations exempting any person or organisation in regard to any practice under Section 53.
The exemption I have mentioned is exemption from planning control.
The Minister has said he will make regulations under Section 4. Section 4 permits him to make regulations providing for development being exempted development. It does not say anything about providing for putting up posters on ESB poles.
The definition of "development" in the Bill is really the kernel of the argument the Deputy is putting forward.
Has the Minister said his final say?
Yes; I have nothing to add.
I suggest difficulties may arise in this regard. The Minister says he has power under Section 4 and he refers me to the definition of exempted development. Exempted development is defined in Section 4. The closest I can get to it is subparagraph (1) (h) and it might be easily suggested, I think, that this paragraph is not wide enough to cover the particular activity we have in mind, an activity both sides would agree it is both necessary and desirable to have covered.
It seems to me that under Section 53 of the Bill as now drafted, it will be forbidden for any election candidate to put a poster anywhere other than outside his own house, or on a hoarding provided by a commercial firm. The Minister is proposing to take power by regulation to alter that. I very much doubt whether he has that power, and I think it may be found that such power is ultra vires. We all know what happens in this life. We all know that regulations of this sort slip through and, with the best of resolutions, things are forgotten. It is quite easy to imagine circumstances arising six months after the regulations are made where this is not adverted to, where regulations go through, and we are then saddled with something that will not permit the ordinary democratic process to take place.
I do not think it would ruin the Minister's Bill if he agreed to the amendment. It is a reasonable one, and an important one. There may be other things that will be exempted under Section 53. If he has power, let the Minister exempt them by regulation. This is not a small, unimportant matter. It is an important one. We all know from our experience in the heat and tussle of an election campaign that when people wave Acts and say: "You have no power to do this". there is not much use in saying that regulations were made at some time by some Minister. It would be better to have it in the Act.
In subsection (2) of Section 4 the Minister will have power to make special exemption regulations. In section 53 there is a clear illustration of an exemption and that is, that while I may be exempted in the sense of putting up a poster and displaying an advertisement on my own door, that exemption would not cover me sticking the poster on my neighbour's door. My property can be exempted.
You do not need any exemption in respect of your own property.
Under Section 53, "Where any structure ... a person who is not the owner ..."?
Under Section 24 there is control of development and an exemption would be required even in regard to one's own property.
Does that mean that Section 53 has no meaning?
Either it means something or it does not. Section 53 provides that it is an offence except on your own property. That means it is not an offence.
Unless you are authorised.
If you are authorised, it is not an offence.
I think we are confusing the question of authorisation.
I did not bring in the question of authorisation. The Minister did. Let us leave out the question of authorisation for the moment. Let us take a simple example where a person puts an advertisement on his own property. Under Section 53 that is not an offence.
Two things are required: planning permission and the permission of the person who owns the property in question.
Let us get at it by degrees. In effect, Section 53 provides that where a person is not the owner of a property fronting a public place and he exhibits an advertisement he then commits an offence unless he has the authority of the owner.
The Minister is saying that, in fact, he commits an offence whether or not he has authority unless he also has planning permission.
Does that mean we will have to apply for planning permission for election posters?
It is better to make it clear.
I have made it clear a long time ago that advertisements during an election would be exempted. I stated that clearly at the outset. I think Deputies may take it that I will have as much interest, I hope, in the future in this matter as anyone else.
I am sure this is a matter to which the Minister has given considerable thought, but I think it would be worthwhile giving it more consideration. It seems to me that the Minister is relying on Section 4 to make regulations exempting certain developments. He says that by regulations one of the exempted developments will be election posters and advertisements of meetings. If I am prosecuted under Section 53 for putting a notice on an ESB lamp-post, how will I be able to say I am not guilty of an offence under Section 53.
That may be the Minister's intention.
I do not think so. That is the point. If I am prosecuted for putting a poster on an ESB lamp-post during a general election, even though it may be an exempted development by regulation, what answer will I have in the District Court to the Garda who says: "You have not got the permission of the ESB."
If you have not got the permission of the ESB, you are liable to prosecution.
Does that mean that if you put up a notice in any place throughout your constituency, you must first get the permission of the owner of the dead wall or the derelict site before you can put it up?
That is exactly what the section says.
I still am not clear as to the relative significance of Section 53 and Section 24. Section 24 provides that, "Subject to the provisions of this Act, permission shall be required under this Part of this Act" to develop one thing or another. Section 24 is in Part IV of the Bill, and Section 53 is in a completely different Part of the Bill, Part V. To an ordinary person, it would seem that Section 53 lays down that in one set of circumstances an offence is committed, and in another set of circumstances no offence is committed. I understood the Minister to say that no matter what is stated in Section 53 it goes back to Section 24 and that, irrespective of what is stated in black and white in Section 53, you must still get permission under Section 24 or you commit an offence.
Section 53 makes it an offence to carry out fly-posting without consent or permission——
Unless it is done by the person who owns the property.
Does that mean that the person who owns the place is at liberty to do it?
There was one other point I wanted to put to the Minister. The section says "... who is not the owner, occupier or person in charge..." How does that apply in the case of a public road? Who is regarded as the occupier or person in charge of a public road? I am thinking of the ordinary case where there is fly-posting done in election time or where dance bands put up posters on trees along a country road. Who is the person in charge there? Is it the council or the occupier?
We all regard ourselves as the owners of the road when it comes to posters at election times. Where property adjoining the side of the road is concerned, the owner is the person responsible.
In the widening of roads, fences are frequently moved back and quite often we find occasional trees left in a group in the roadway or in a lay-by. It sometimes happens that quite large areas are taken into the roadway. These are not within the ownership of the estate bounding the road. They would form part of the road and who is responsible in that instance?
That part of the road behind the fences would normally be the responsibility of the owner.
Who is regarded as the owner of the trees that line the road?
The local authority. They either planted the trees or took over the ground where the trees are growing.
I can quite see that they are the owners but are they the occupiers?
We have confined this matter to the question of public meetings and we have been talking about election times but public meetings can be held with regard to many other matters besides election meetings. We have bodies posting temporary advertisements outside churches or on roadside trees inviting people to meet them with regard to such matters as group water schemes. We can have posters with regard to the annual meeting of a hurling club or with regard to the Fianna Fáil national collection. Is there any reason why we should not allow that democratic right to continue?
In dealing with elections we would be dealing with the people of the country as a whole but in country districts you have appeals to people to get together for many purposes of interest to the locality. Is there any reason why people should be prosecuted for carrying out that democratic process? I think it is unwise and I would have thought that the Minister would have accepted this amendment to meet the situation.
The Minister is aware, having been in contact with the matter, of the necessity for calling people together to participate in a piped water supply. That is a matter in which the rural areas are deeply concerned. Or there may be a meeting in connection with the extension of rural electrification and the general method of summoning people together to partake in these meetings is not by sending notices through the post but by putting up a temporary notice in a prominent position that a public meeting is to be held. Is there any reason why the people who put up such notices should be prosecuted for doing something that, up to this, they have been perfectly free to do?
I suggest to the Minister that he should accept this amendment. It does not interfere with the Bill and does not narrow the power given by way of regulation. The Minister can make regulations with regard to elections. He controls the holding of elections, their timing and the length they will last but he cannot indicate when any particular hurling club will hold its annual meeting, or when a meeting of the local Red Cross will be held, or when there will be a meeting in support of the Freedom from Hunger Campaign. I do not think it is a good thing that these people should be subject to the risk of prosecution for doing something in the public interest.
I appeal earnestly to the Minister to accept the amendment. By doing that he will observe the democratic process but by doing otherwise he would be inviting people to break the law. People will put up these temporary advertisements irrespective of who tells them that they are not to do it. The Minister should not make a law which is immediately going to invite its own breach. That would be an unwise thing to do and the public have had the right for many years of summoning people to meet in this manner. I deprecate the type of fly-posting which is sometimes indulged in during an election but I would invite the Minister very earnestly to accept the amendment which will in no way detract from what he has in mind.
It is the intention to exempt the matters which Deputy Jones rightly points out are enjoyed by the public for the purposes of summoning local meetings. However, what we never had a right to do was to deface other people's property and we are saying that that may not be done in future. We are exempting the facilities that have been enjoyed by the people in this matter but, at the same time, we say that you may not deface other people's property.
Why is it that the Minister is anxious to do this by way of regulation rather than by legislation?
Because there are so many bits and pieces to be taken into account that if we tried to cover them all we might leave out more than we would put in. We might find ourselves in the position that we were precluded from exempting things that we should have exempted.
Does the Minister not think that the amendment covers every conceivable thing?
It does not. It would not be acceptable from various aspects, apart from the principle we have been discussing.
I withdraw the amendment, subject to the right to put down a further amendment on Report Stage. On Report Stage, we will come back with something that will be acceptable.
I do not think so, but certainly I will look at it. I do not think there is any reason why we should get ourselves bogged down in things that are not relevant. Things which have been described as dangerous here are not really dangerous at all.
Amendment, by leave, withdrawn.
Amendment No. 186 was discussed with amendment No. 184.
I move amendment No. 186:
In subsection (3), page 42, line 2, to delete "structure", and substitute "structure or other land,".
Amendment agreed to.
Question proposed: "That Section 53, as amended, stand part of the Bill."
This is a most unsatisfactory section. It prohibits any person other than the owner of a place or the occupier in charge from putting up any kind of poster. I am against indiscriminate flyposting all over the country but we are asking the Minister to do this by legislation and not by regulation. Bill posting is very important and I am satisfied with what the Minister told me so far as it relates to people like ourselves during an election but I want to go over what my colleagues said. All through the year, in every part of the country, there are groups of people such as the Red Cross, the ICA, the Freedom from Hunger campaign, who want to appeal for funds. One of the best means of letting people know that they intend to hold a collection is by putting up a poster in a parish. This section is a little too drastic in that regard. The Minister should give us more hope that this section will be recast and that he will be prepared to accept an amended amendment from Deputy Jones.
I think that Deputies have taken too much to heart some of the remarks which their less well-informed colleagues have made. Entertainments will be exempt; local meetings will be exempt; and auctioneers' posters will be exempt; but while they will be exempt, the fact will remain that these posters may not be plastered on anybody's property without his permission. Is that not fair enough? We are talking about standing up for the rights of people and surely the person who owns a doorway, a wall or a tree or anything else that lends itself to use for the display of posters, should have his property safeguarded. That is what is being covered here. These exemptions will be made by regulation. As years go by, things may change and there might be a need for further exemptions. If we were to confine ourselves to exemptions written into the law, there could be no change, whereas if it were done by regulation, changes can be made by the Minister to suit circumstances.
I will tell all my supporters not to allow Fianna Fáil posters on their property.
I was thinking of that. It depends on who has the greater frontage.
Will a person who wants to erect an advertisement on a timber hoarding at a place on the public road have to apply to somebody for permission to do so?
If it is a place on the roadway or the border of the roadway, it would, in 99 cases out of 100, be the local authority who own the road, and if you wanted to put something up on that property, you have to get the permission of the local authority.
Does it mean that anybody who wants to put a notice on the public road on a temporary stand must obtain the permission of the local authority? If he wants to put up a poster on a Sunday morning, he must have got permission to do so?
We could go further. In those circumstances we can, in conjunction with the local authorities, exempt the use of their property for some special notices which we feel are entitled to be displayed.
Would the Minister make that type of regulation?
The Minister can, but will the Minister do it?
I would not give the Deputy a general "yes" on that but I certainly would consider it. We probably will. I may be able to say more when I have a further look at it.
Question put and agreed to.
SECTION 54.
Amendment No. 187 was discussed with amendment No. 135.
I move amendment No. 187:
In subsection (2), page 42, line 13, before "may" to insert "upon notice to the person served with a notice under subsection (1) of this section apply to the District Court for an order authorising the planning authority to enter on the land and if the court makes such order the planning authority".
The promised amendment from the Minister on the Report Stage will cover the type of situation in regard to the owner of property who feels so aggrieved that he would resist the right of entry. Would the Minister cover that type of entry by the planning authority having to seek the permission of the court to enter on property in that fashion? Will the amendment cover that type of situation?
Amendment No. 120, which we discussed, and the assurance I gave the Deputy then, holds for this also.
Amendment, by leave, withdrawn.
Section 54 agreed to.
SECTION 55.
I move amendment No. 188:
In subsection (2), page 42, lines 46 and 47, to delete "paragraphs 1, 2, 4, and 6 of Part II of the Third Schedule to" and substitute "paragraphs (e), (g) and (h) of subsection (2) of section 26 and paragraph (d) of subsection (1) of section 56 of".
Amendment No. 204 is cognate and we can discuss the two together. I should say, in fact, that we have discussed broadly the principle of amendment No. 188 on Section 25. These are really technical amendments intended to expand somewhat the powers that are available. We felt the notation in the existing proposals was somewhat restrictive.
Amendment agreed to.
I move amendment No. 189:
To insert before subsection (3) the following new subsection:
(3) In determining reduction of value for the purposes of this section in a case in which there has been a decision involving a refusal of permission, it shall be assumed that, after the decision, and apart from any such undertaking as is mentioned in subsection (2) of this section, permission under this Act would not be granted for any development.
The intention of this amendment is to make matters easier for the applicant for compensation. No longer will the situation be as it is in the present proposals—that he would be restricted to compensation for one development. We are removing that restriction and opening the way for a more favourable compensation settlement for an aggrieved party.
Might I ask how the arbitrator is to assess the various factors?
Under the rules of the Act of 1919, as amended by the Fourth Schedule to this Bill.
Amendment agreed to.
I move amendment No. 190:
In subsection (5) (a), page 43, line 3, to delete "six months" and substitute "two years".
The intention is to extend the period of time available for appeal. In this case, I think six months is definitely too short a period. There are a great many matters to be considered in preparing a case for compensation and if discretion is being given, as it seems to be given in paragraph (b), is there any reason why the arbitrator should not be given discretion, if it is being given to the Minister? What we ask is that the period be extended to two years for the making of an appeal of this nature.
In an effort to reconcile paragraph (a) of subsection (5), we have put in amendment No. 190a which proposes to delete paragraph (b) and substitute another paragraph saying "such longer periods as the Circuit Court may allow .." I think the principle Deputy Jones is worrying about is, in effect, conceded. We are proposing to take out paragraph (b) of the subsection and substitute for it the terms of amendment No. 190a.
There are a number of amendments cognate to Deputy Jones's amendment here— amendments Nos. 207, 210, 212, 214, 216, 219 and 221.
I think the Minister's amendment No. 190a meets the case.
Amendment, by leave, withdrawn.
I move amendment No. 190a:
In subsection (5) to delete paragraph (b) and substitute the following paragraph:
"(b) such longer period as the Circuit Court may allow if it appears to the Court that there are reasonable grounds for requiring a longer period and that it would be just and reasonable to extend the period."
Amendment agreed to.
Amendment No. 191, in the name of Deputy Jones and others, may not be moved in view of the fact that the ministerial amendment has been agreed to.
Amendment No. 191 not moved.
Question proposed: "That Section 55, as amended, stand part of the Bill."
Section 66 provides that in disputed cases compensation shall be determined under the Land (Acquisition) Act, 1919. There is an amendment to that Section—amendment No. 227—which seeks to provide for an appeal to the Circuit Court from the decision of the arbitrator. Under the 1919 Act, there is no appeal from the decision of the arbitrator on entitlement to compensation or the amount awarded. Where compensation would run into thousands of pounds it is altogether too important a matter to leave it to the decision of one person. A grave injustice, that could not be remedied, might arise from such a position. Therefore, it is absolutely necessary that there should be an appeal in this section.
I have in mind an individual who was looking for higher compensation. The officials of the public authority argued before the arbitrator for a lower sum in compensation. The individual suffered a loss of £3,000 on a claim of £7,000 even though the officials of the local authority were agreed among themselves that the higher figure would have to be given. That would not have happened if the matter could have been argued before an independent tribunal.
Question put and agreed to.
SECTION 56.
I move amendment No. 192:
In subsection (1), to delete paragraph (a).
Subparagraph (a) of subsection (1) of this section reads as follows:
Compensation under Section 55 of this Act shall not be payable—
in respect of the refusal of permission for any development that consists of or includes the making of any material change in the use of any structures or other land,
This could be grossly unfair. Our amendment seeks to remedy the injustice that could arise in this case. Take a man who bought property with a view to turning it into, say, offices. He would be entitled to no compensation for refusal of permission to develop it whereas, ten years later, because of a change of circumstances, the planning authority might allow the area to be used for office accommodation. There is no good reason why compensation should not be paid to the individual in those circumstances. Within reason, the planning authority should be able to envisage what lies ahead.
This really deals with a material change in the use of an existing structure or land. The type of case instanced by Deputy Jones of a dwelling house or a block of dwelling houses being taken over and vacated by all the residents and switched over to more profitable office accommodation has never been allowed down through the years.
Take the individual who proposes to erect offices on his land.
This section does not apply to that predicament at all. This is a material change in use of a structure or land as now existing.
Supposing it is virgin land?
This does not refer to building at all. It is merely the change in use of something that exists, whether it be a building or land. We are not dealing with refusal of permission to build an office building on a particular piece of land.
It would not take away from the individual that right to compensation?
Amendment, by leave, withdrawn.
I move amendment No. 193:
In subsection (1), to delete paragraph (b) and substitute the following paragraph:
"(b) in respect of the refusal of permission to develop land if the reason or one of the reasons for the refusal is that development of the kind proposed would be premature—
(i) by reference to any existing deficiency in the provision of water supplies or sewerage facilities and the period within which any such deficiency may reasonably be expected to be made good, or
(ii) because a road layout for the area or part thereof has not been indicated in the development plan or has not been approved of by the planning authority or by the Minister on appeal,".
This amendment is intended to make it possible for the planning authority to defer the granting of permission to a developer until such time as he presents a proper comprehensive overall plan and for the purpose of deterring him from developing piecemeal the same parcel of land. It is to ensure that, even though he may be only building part of what he proposes, he will show his intention in regard to development spread over eight or ten years. The amendment is to ensure that the planning authority will not be obliged to make decisions on piecemeal proposals. They will be empowered to refuse permission and to tell the developer he must outline his intentions properly, show where his roads will ultimately lead and where he intends disposing his streets and terraces. He can then come back and a decision will be given. I believe this provision can work not only to the advantage of the planning authority but to the advantage of the developer as well.
I entirely agree with the type of development the Minister envisages here. It is desirable that the developer should present a comprehensive picture to the planning authority when he submits his plan in the first instance. We mentioned previously the question of final determination of roads and other amenities that ought to be provided for in any developer's plans.
I take it the planning authority would exercise the powers given by this amendment reasonably? In other words, if an individual submits a plan which looks desirable from every point of view, he would not be unduly delayed in regard to the giving of permission? I know the authority can impose conditions on him. I presume at that stage the intent is that such type of permission would be entered on the register?
The private developer will be made comply with planning legislation. What will be the position of the planning authority, which is the local authority, in regard to development in its own area? Will the planning authority have to submit their plans for the development of their own area? Will their type of projected development be entered on the register, and will they have to comply with the same conditions as will be imposed on the private citizen?
The proposed extensions to our towns and villages will be a homogeneous type of development. For that purpose the planning authority will have power to acquire land and make layouts. I want to ensure that they, no less than the private citizen, will have to make clear their intent in regard to the development they envisage for the area under their control, so that everybody would know the type of development they have in mind, particularly in regard to the provision of housing and amenity service. It would be of considerable help to the people who live in the local authority area if they knew the intent of the plan in respect of the area in which they live. For instance, if they knew that roads would be laid in a particular area at a particular time or that sewerage pipes would be laid in a particular area, that would certainly be very valuable information for them. It would help a great deal in promoting the proper development of villages and towns in our rural areas. Does the Minister envisage that the local authorities would have to comply equally with the type of regulation he proposes here for the ordinary citizen?
Not only do I envisage that they would be expected to do so, but I would expect that they would spearhead this whole idea of comprehensive planning. I would expect that all the social amenities and developments proposed in the future would be indicated on their development plan, particularly in respect of the rural areas where they would be responsible for the larger part of the development likely to take place. Since they have all the resources of personnel and technical assistance, I would be disappointed if they did not do very much better than the ordinary individual.
A good many people who intend to build homes would be encouraged to do so more quickly, if they knew power and fuel supplies would be extended.
That is one of the practical advantages of planning.
Amendment agreed to.
I move amendment No. 194:
In subsection (1), to delete paragraph (c).
Amendment No. 198 might be considered with this amendment. The reason we suggest deleting paragraph (c) is that it is covered adequately by amendment No. 198.
Amendment agreed to.
I move amendment No. 195:
In subsection (1), page 45, line 37, to delete "and 11" and substitute ", 11 and 13".
These are really conditions relating to the preservation of an existing right-of-way. For instance, if a condition is imposed that a public right-of-way which exists must be maintained as a public right-of-way, no compensation will be payable in respect of that.
The preservation of it. Preservation of an existing right-of-way may be, and in fact, will, in most cases, be imposed in any development and where this is the case no compensation will be payable.
Amendment agreed to.
I move amendment No. 196:
In subsection (1), to delete subparagraph (v) of paragraph (d).
This is designed to extend the compensation provisions. Under Section 55 we provide for compensation and in this section we say it shall not be payable in certain circumstances. When we come to (d) (v) it states that compensation shall not be payable in
matters in respect of which a requirement could have been imposed under any other Act, or under any order, regulation, rule or bye-law made under any other Act, without liability for compensation.
We think this paragraph extends the restrictions on compensation too far. Might I ask the Minister what are the orders, rules, bye-laws and enactments referred to where compensation will be refused? How will the ordinary individual know of these?
Typical examples would be the Public Health Acts, the Fire Acts, food and hygiene regulations, Milk and Dairies Acts, building bye-laws, regulations covering the storage of petrol, and operation of cinematographs and so on. On public health grounds, for instance, a structure might not be permitted in a certain location—a slaughter house or abattoir. What we say is that if that is so, the refusal of planning permission does not entitle the owner to compensation. He is losing nothing by being refused planning permission because the Public Health Act debars him from doing what he seeks to do. The same applies in the case of the other enactments and it is only reasonable that should be so. If a person is prevented for a very good reason from building on a particular site under some other Act, he may not then seek planning permission and, on being refused, rely on other sections of this Bill to get compensation for something which if there was never a planning Bill he would not be allowed to build.
I am sure the Minister will agree that a number of cases exist where there are breaches of the Public Health Acts and of the Milk Acts. There are still premises that should not normally be used if the law were strictly observed. There is no very serious objection to these at present but there will be more emphasis in future on the type of structure that will pass the test. If the planning authority request the removal of these structures, as they could under this Bill, would no compensation be payable to people who, in order to continue to make a living, would have to erect a new structure to comply with the regulations that will be imposed in the future, in order to carry on their business? I am not defending the defective buildings but I suggest that in limiting the narrow provisions for compensation in the case of something which has existed for a time, we are limiting the compensation too much. Would the Minister consider that a reasonable point of view?
The restriction will only apply to new buildings. It is really a carry-over from the 1934 Act.
In other words, the saver is there under the 1934 Act for people to submit them for approval?
This is not a new provision; it is in the 1934 Act.
Amendment, by leave, withdrawn.
I move amendment No. 197:
In subsection (1), to insert the following new paragraph before paragraph (e):
"(e) in respect of the imposition, on the granting of permission to develop land, of any condition under paragraph (j) of subsection (2) of section 26 of this Act for requiring the removal of an advertisement structure or any condition under that paragraph in a case in which the relevant application for permission relates to a temporary structure,".
This amendment is consequential on the amendment about the advertisements we discussed on Section 36. The effect of it is that the planning authority may impose a life on advertisements; in other words, permit them to continue for two, three, four or five years and at the end of that stipulated life, the advertisement would go without further compensation. It may well happen that a certain amount of investment has gone into an advertisement and that if it had to be taken down immediately the amount of use and benefit that would have been got from it would be a poor return for the expenditure. It is in order to try to balance the two things, not to be too harsh, that we make this provision in regard to what may be an objectionable advertisement.
Will there be a right of appeal to the Minister in this regard also?
Certainly; the same facility as in every other case.
Amendment agreed to.
I move amendment No. 198:
To add to subsection (1) the following new paragraph:
"(i) in respect of the refusal of permission for development comprising any structure or any addition to or extension of a structure if the reason or one of the reasons for the refusal is that the structure, addition or extension—
(i) would infringe an existing building line or, where none exists, a building line determined by the planning authority or by the Minister,
(ii) would be under a public road,
(iii) would seriously injure the amenities, or depreciate the value, of property in the vicinity,
(iv) would tend to creat any serious traffic congestion,
(v) would endanger the health or safety of persons occupying or employed in the structure or any adjoining structure, or
(vi) would be prejudicial to public health".
This is in substitution for a paragraph which was deleted.
Which one has been deleted?
Paragraph (c) of Section 56.
That is gone and amendment No. 198 carries on what was intended in paragraph (c).
Yes, but they are really technical additions.
Amendment agreed to.
I move amendment No. 199:
To add to subsection (1) the following new paragraph:
(i) in respect of the refusal of permission for development if the reason or one of the reasons for the refusal is that the development would contravene materially a condition attached to an existing permission for development,".
The purpose of this amendment is to provide that compensation will not be payable under Section 55 in respect of the refusal of permission for development where the development would contravene materially a condition attached to an existing permission for development.
Amendment agreed to.
I move amendment No. 200:
In subsection (3), page 44, line 21, to delete "Minister" in both places where that word occurs and substitute "arbitrator or the Circuit Court".
Even the best Minister for Local Government might not always be able to assist in these matters and this seems to be a portion of the Bill that should be left within the judicial domain. Generally, the arbitrator who operates under these various provisions where compensation is being determined is somebody who has a judicial training, which seems to be called for in this regard. Without reflecting on the Minister's competence, we believe it is fair to leave it to the arbitrator or to the circuit court.
We could almost say this is a stock argument and there is a stock answer. As I said in many other cases, these details that will come to be determined are more appropriate to be dealt with by the Minister than the courts. I do not think I need add to this because I have said it more elaborately on previous sections.
Is the arbitrator not the person who decides these matters of compensation?
The arbitrator comes into the matter only at a stage subsequent to the dispute. The difference of opinion having become one in which the planning authority have admitted they are liable to pay some compensation, the arbitrator is brought in only at that stage to determine just what the amount of compensation will be. It is a specialist job in order to secure that justice is done to both sides. He is only a sort of instrument, to put it crudely, to bring finality to a situation as regards a difference of opinion as to what amount should be paid. He does not determine whether or not, in the first instance, an amount will be paid at all.
Amendment, by leave, withdrawn.
I move amendment No. 201:
In subsection (3), to delete all words from "but" in line 21, page 44, to the end of the subsection.
Section 56 provides that compensation will be payable where permission is refused for the erection of a new structure which substantially replaces a structure demolished or destroyed by fire, or otherwise, within the two years preceding the date of application for permission. The section also provides that every dispute as to whether a new structure replaces a demolished or destroyed structure shall be determined by the Minister. The Minister cannot really determine that a new structure substantially replaces a demolished or destroyed structure unless he is satisfied that the cubic content of so much of the new structure as would be or is above ground level would be or is at least equal to so much of the demolished or destroyed structure as was above ground level and the superficial area of the ground floor of the new structure would be or is at least equal to the superficial area of the ground floor of the demolished or destroyed structure. For one reason or another it could be in the interest of good planning to change the form of the building, expanding or contracting the floor area, or raising or lowering the height of the building. We propose to delete these words so that the Minister will have greater freedom in meeting that type of case, greater freedom in determining what should or should not be done.
The intention of the Minister is to remove the restriction in the words proposed to be deleted. The Minister will not be confined to granting permission for the erection of an identical structure to replace the demolished or destroyed structure. The Minister desires greater freedom in the interests of good planning. If a house is burned down, will the owner get permission under this section to replace that house? Will he have to apply for permission and will conditions be imposed upon him?
What Deputy Jones has said is quite correct. This will give a freedom that would not otherwise be available.
Amendment agreed to.
I move amendment No. 202:
To delete subsection (4).
The subsection which it is proposed to delete provides that a condition prohibiting development of a specified part of land shall be treated as a refusal of permission for developing that specified part of the land. That provision would create confusion where conditions are imposed reserving open spaces in housing or other developments and the Bill generally will provide that a condition may be imposed requiring reasonable open space to be reserved, regard being had to the number, class and character of structures in any particular development proposal. Unless this subsection is deleted, doubt could arise as to whether the reservation of reasonable open space would be a condition that could be imposed without liability for compensation. If the permission for development requires a reasonable open space to be reserved, I should say that that condition does not involve liability for compensation by virtue of the terms of paragraph (b) of subsection (1) of Section 56.
The intention is to leave the planning authority free to impose the kind of conditions they think ought to be imposed?
Open spaces should be provided on housing estates and compensation should not be paid if such a condition is imposed.
This matter was debated on Second Stage. It is very desirable that there should be open spaces in housing areas. This subsection will ensure that in the future. I think it is a reasonable provision.
Amendment agreed to.
Section 56, as amended, agreed to.
SECTION 57.
I move amendment No. 203:
In subsection (1), page 44, line 38, to delete "applies" and substitute "applies or if compensation has already been paid under Section 55 of this Act by reference to a previous decision under Part IV of this Act involving a refusal of permission."
The purpose of this amendment is to prevent double compensation being paid in respect of one and the same property or refusal.
How would the Minister envisage that double compensation might be payable?
Under Section 55, a person could apply twice for compensation in respect of the same piece of land. This amendment is to prevent such double compensation being paid where it might be claimed.
Under what circumstances is it contemplated a person might apply for double compensation?
He could apply for permission to erect a petrol filling station, be refused, seek compensation and get it. He could then apply for permission to erect a house and also be refused. He might seek compensation for being refused permission to erect the house. I do not suppose he would get it, but without this amendment, he could go through the motions of applying for it.
I thought the compensation would apply to the land rather than the structure.
This is to make sure that he cannot have his cake and eat it.
Amendment agreed to.
I move amendment No. 204:
In subsection (3), page 44, line 51, to delete "1, 2, 4 and 6 of Part II of the Third Schedule to" and substitute "(e), (g) and (h) of subsection (2) of Section 26 and paragraph (d) of subsection (1) of Section 56 of".
This amendment was discussed with amendment No. 188.
Amendment agreed to.
I move amendment No. 205:
In subsection (4), page 44, line 55, to delete "cinemas" and substitute "theatres or structures for the purpose of entertainment,".
This is a drafting amendment to make the intention more clear.
I take it that the Minister will distinguish between theatres and cinemas. He will make sure that all are included?
Amendment agreed to.
Section 57, as amended, agreed to.
NEW SECTION.
I move amendment No. 206:
Before Section 58 to insert the following new section:
58. (1) Where, in a case determined on an appeal under Part IV of this Act, permission to develop any land has, save in a case referred to in subsection (2) of this section, been refused or has been granted subject to any condition relating to any of the matters set out in paragraphs 3 and 4 of Part II of the Third Schedule to this Act, nothing contained in subsection (1) of Section 56 or Section 57 of this Act shall prevent compensation being paid if, an application having been made in that behalf within (but not after) two months after the notification of the decision by the Minister, the Minister makes an order declaring that he is satisfied that it would not be just and reasonable in the particular circumstances that payment of compensation should be prevented by the provisions of subsection (1) of section 56 or section 57 of this Act.
(2) Subsection (1) of this section does not apply—
(a) where there has been a refusal of permission for the erection of any advertisement structure or for the use of any land for the exhibition of any advertisement,
(b) where there has been a refusal of permission for development comprising any structure or any addition to or extension of a structure if the reason or one of the reasons for the refusal is that the structure, addition or extension—
(i) would infringe an existing building line or, where none exists, a building line determined by the planning authority or by the Minister,
(ii) would be under a public road,
(iii) would endanger the health or safety of persons occupying or employed in the structure or any adjoining structure, or
(iv) would be prejudicial to public health."
This rather lengthy looking amendment makes provision for appeals where compensation has been refused by a local authority to some party who has made proposals which were not acceptable. It is a large looking amendment but that is what it covers.
I take it that where compensation has been refused, the right of appeal is to the Minister.
I take it the Minister would order an inquiry to be held locally by an official of his Department. If the Minister should determine that compensation seemed to be payable, would he refer the matter of the amount of compensation payable to an arbitrator?
Yes, but only subsequent to the Minister having determined that compensation of some amount is payable. At that stage, the arbitrator would be brought in to determine how much it would be just to have paid.
In the first instance, the planning authority will have refused the grant?
Would the Minister indicate to the planning authority his reasons for deciding that compensation should be paid? Would he tell the planning authority why he thinks it should be paid?
The Deputy feels there might be an offer and a settlement without any arbitration. That is always possible, but we would indicate to the planning authority at the stage of reaching the decision, why we reached it.
There might be a saving for the local authority.
Amendment agreed to.
SECTION 58.
Amendment No. 207 is designed to enlarge the period in which a claim may be made. I take it that the Minister's amendment No. 207a in part meets my case. If that is so, there is no need for me to move my amendment.
Amendment No. 207 not moved.
I move amendment No. 207a:
In subsection (2), to delete paragraph (b) and substitute the following paragraph:
"(b) such longer period as the Circuit Court may allow if it appears to the Court that there are reasonable grounds for requiring a longer period and that it would be just and reasonable to extend the period."
Amendment agreed to.
Amendment No. 208 not moved.
Section 58, as amended, agreed to.
SECTION 59.
I moved amendment No. 209:
To delete subsection (2).
This amendment is consequential on an amendment already made to Section 36. Perhaps the House will recall that we discussed the principle involved at that stage which had to do with advertisements. In the context of this section as it stands, without amendment, any advertisement which had been in existence for a period of five years or more would not, under any circumstances, be entitled to compensation if it was required to be removed. The amendment makes it possible for compensation to be paid even in cases where a structure has been in existence longer than the five years period. It is in conformity with the earlier amendment to Section 36 which was an easement of the imposition which would fall on the owners of advertisement structures.
In regard to this question of advertisement structures, in a previous section of the Bill, if such a structure existed for a period of five years after the appointed day, would that structure not then be an authorised structure?
Yes, but it could have been taken down outside of that without compensation. The effect of the amendment of Section 36 and of this amendment will be to enable compensation to be paid in cases where, under the original proposal, it would not be possible to pay it.
I cannot follow the section. As I understand the amendment, it provides for compensation if the structure is taken down after five years. If it is an authorised structure after five years, has the owner not the right to say it is an authorised structure? I should like the Minister to clarify that position for me.
The real effect of the amendment, together with the earlier amendment, is that we no longer differentiate between advertisement structures and other structures. It is an easement of the position of the owners of advertisement structures who were being more harshly dealt with than the owners of other structures.
This is a matter we should consider very carefully. I know several small farmers who have permitted big trusts to put up enormous signs in their fields. For these, they get a substantial sum of money which is a great help to them in paying their rates. I have been told that some of these people make a deal with the advertisers for a period of five or ten years. They get a lump sum for that period instead of being paid annually. The Minister should look into that matter.
Ordinary structures for which planning approval has not been secured could be removed and compensation paid, that is, in cases like in the three counties which did not adopt the original planning control. Do I take it that the same procedure is being applied to advertising structures as is being applied to those structures? If advertisement structures do exist in those areas and are not required to be removed, they would now be entitled to compensation in the same way as any other unauthorised structures.
Amendment agreed to.
Amendment No. 210 not moved.
I move amendment No. 210a:
In subsection (3), to delete paragraph (b) and substitute the following paragraph:
"(b) such longer period as the Circuit Court may allow if it appears to the Court that there are reasonable grounds for requiring a longer period and that it would be just and reasonable to extend the period."
This amendment was discussed with amendment No. 109a.
Amendment agreed to.
Amendment No. 211 in the name of Deputy Jones and others may not be moved.
Amendment No. 211 not moved.
Section 59, as amended, agreed to.
SECTION 60.
Amendment No. 212 not moved.
I move amendment No. 212a:
In subsection (3), to delete paragraph (b) and substitute the following paragraph:
"(b) such longer period as the Circuit Court may allow if it appears to the Court that there are reasonable grounds for requiring a longer period and that it would be just and reasonable to extend the period."
This amendment was discussed with amendment No. 109a.
Amendment agreed to.
Amendment No. 213 in the name of Deputy Jones and others may not be moved.
Amendment No. 213 not moved.
Section 60, as amended, agreed to.
SECTION 61.
Amendment No. 214 not moved.
I move amendment No. 214a:
In subsection (2), to delete paragraph (b) and substitute the following paragraph:
"(b) such longer period as the Circuit Court may allow if it appears to the Court that there are reasonable grounds for requiring a longer period and that it would be just and reasonable to extend the period."
This amendment was discussed with amendment No. 109a.
Amendment agreed to.
Amendment No. 215 in the name of Deputy Jones and others may not be moved.
Amendment No. 215 not moved.
Section 61, as amended, agreed to.
SECTION 62.
Amendment No. 216 not moved.
I move amendment No. 216a:
In subsection (2), to delete paragraph (b) and substitute the following paragraph:
"(b) such longer period as the Circuit Court may allow if it appears to the Court that there are reasonable grounds for requiring a longer period and that it would be just and reasonable to extend the period."
This amendment was discussed with amendment No. 109a.
Amendment agreed to.
Amendment No. 217 may not be moved.
Amendment No. 217 not moved.
Section 62, as amended, agreed to.
SECTION 63.
I move amendment No. 218:
In subsection (1), page 47, line 12, before "section 81" to insert "subsection (3) of Section 49 or".
This amendment is designed to give effective right of compensation to the aggrieved person. The same argument as I advanced in respect of amendment No. 179 applies to this one also. It is for the same purpose and to give more effective right of compensation to the aggrieved person.
This was discussed on Section 48 or Section 49, probably inadvertently, but nevertheless fully discussed.
This refers to Section 81.
That is right. As I say, we discussed it before its time.
On subsection (3) of Section 49.
That is right. On Section 49.
Does the Minister accept the amendment?
No. As I pointed out before, I feel that anything we might attempt to do, either by this amendment or any other amendment on which we might jointly agree, rather than improve the situation, could weaken it and the common law is far more likely to be all-embracing and cover every eventuality than anything we might do by way of an insertion in this Bill.
The Minister feels that the common law would be more advantageous?
And it is more embracing, and there is no danger of any eventuality being ignored because it has been well proved over the years and amended over the years, whereas if we were to put something in here, we would find ourselves restricting the benefits of the compensations we intend to have because of defects in our new law. Where there is that danger and where the existing law is absolutely adequate, we would be asking for trouble if we attempted to improve on it.
I agree. That is the basis on which the discussion has proceeded, that the common law rights are paramount in all cases. If the Minister assures me that what we propose is not going to make the aggrieved person any better off, and that the common law would leave him in a better position and secure his rights, then I withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment No. 219 was discussed with amendment No. 190.
Amendment No. 219a will meet our point.
Amendment No. 219 not moved.
I move amendment No. 219a:
In subsection (2) to delete paragraph (b) and substitute the following paragraph:
"(b) Such longer period as the Circuit Court may allow if it appears to the Court that there are reasonable grounds for requiring a longer period and that it would be just and reasonable to extend the period."
Amendment agreed to.
Amendment No. 220 may not be moved.
Amendment No. 220 not moved.
Section 63, as amended, agreed to.
SECTION 64.
Amendment No. 221 was discussed with amendment No. 190.
Amendment No. 221 not moved.
Amendment No. 221a was discussed with amendment No. 190a.
I move amendment No. 221a:
In subsection (2), to delete paragraph (b) and substitute the following paragraph:
"(b) such longer period as the Circuit Court may allow if it appears to the Court that there are reasonable grounds for requiring a longer period and that it would be just and reasonable to extend the period."
Amendment agreed to.
Amendment No. 222 may not be moved.
Amendment No. 222 not moved.
Section 64, as amended, agreed to.
SECTION 65.
I move amendment No. 223:
In subsection (1), page 47, line 48, after "as" to insert "these expressions had".
The intention of this amendment is to make clear what the section indicates. Section 11 repeals the whole of the 1934 Act, if we look at the Second Schedule on page 66. How can a word or expression have the same meaning as in an Act that is being removed from the Statute Book? I suggest that it is undesirable to have legislation by reference in this instance. It seems illogical that we should be referring to an expression in a statute that is being removed from the Statute Book. We believe that where it states the general permission, special permission, special prohibition, planning scheme and work have the same meanings as in the Act of 1934 it should read "had the same meanings" as in the Act of 1934.
Amendment agreed to.
I move amendment No. 224:
In subsection (2) (a), page 48, line 5, to delete "twelve months" and substitute "two years".
This is to ensure that the time lag between the passage of the Bill and the date on which it comes into effective operation will not be too short. We feel that 12 months is too short and there is a danger that the implications of the Bill might not be fully understood. To ensure that everybody concerned with town planning, or who will be affected, will have ample time to get to know the measure effectively, we think the time should be two years. As the Minister and the House are aware, this is a complicated measure and it will be some time before its contents are known and understood, even by the legal profession. I suggest that 12 months from the appointed day is much too short and the period of two years is reasonable. I am sure the Minister, from his drafting knowledge, appreciates that this is a very complicated type of measure.
It would be unreasonable and unfair to expect that everybody who will be affected by the Bill will have digested its contents or know how it is to affect them within 12 months from the day the Minister declares the Bill to have come into operation, the day nominated for the particular area. We therefore suggest in the amendment that the period should be extended, that instead of 12 months from the appointed day, it should be two years within which a person will be entitled to compensation.
The Act of 1934 is well behind us and its various implications and lack of implications for a great many people were not properly understood. With this type of complicated legislation, 12 months would be too short regarding the appeals that would fall to be met. All we are doing here is seeking to give the right to an individual within a period of two years from the appointed day to sustain legally a claim for compensation, if he is affected by the measure.
I think I made it fairly clear earlier on in the Bill that its coming into operation will be given adequate publicity and that this particular section will in a very special way be publicised as widely as possible. That being so, it is inconceivable to me that 12 months should be regarded as too short a period in which claims could in fact be made. Were it not for the fact that the 1934 Act gave a period of 12 months, my own feeling about this would have been that half the period would be adequate, but in order to conform to the intentions and terms of the 1934 Act, we left in the 12 months. I thought it was more than ample but whatever about its being more than ample, I am suggesting that it is quite long enough.
There is of course another side to it. It is not just a case of considering the individual. We have also to look to the local planning authority. If such claims were allowed to be made for two years after the coming into operation of the legislation, then until the end of those two years, until the very last day, local planning authorities would not be in a position to judge the cloth from which they must cut their suit in the following period and from the point of view of the authorities that would be unfair. If it were really necessary to sustain the rights of individuals, I would say let the local planning authority suffer if somebody must suffer, but in this case the rights of the individual are more than adequately preserved and to extend the period in which individuals could make claims would be to place an unnecessary burden on the local planning authority.
Reverting to the real matter at issue, I think that with the publicity about the legislation, with particular reference to this section, 12 months is a more than ample period for anybody to make his claim and we should be very slow to extend it to any degree.
I could understand the Minister's objection to this if it were a question of postponing the coming into operation of this or of hindering or hampering development under the Planning Act, but all we are seeking to do it to ensure that individuals affected by it will not be ruled out 12 months from the appointed day. Does the Minister, for instance, envisage when this piece of legislation comes into operation, that every conceivable type of case that will fall to be reviewed will be dealt with within a period of 12 months?
No, but the number of claims facing a local planning authority will be known.
Suppose some of these things do not come under their notice for a period of 18 months after the appointed day and at that stage it is brought to the notice of the local planning authority that an obstruction of some kind exists and they decide to have it removed, is the owner debarred from receiving compensation because he is not making a claim within 12 months of the appointed day? Is it not reasonable to assume that he should be able to put his case for compensation and that he should not be limited to this period of 12 months? In a number of these cases, the Minister envisages in earlier sections that those affected would regularise the structures which are held to have been legally constructed.
What I have tried to convey by way of this amendment is that despite the publicity given to this piece of legislation, whether large or small, regarding its passage through the House or the type of publicity a planning authority would give to it when it came into operation in their area, there would still be a large body of the public who did not think themselves affected. I do not put it forward by way of making an excuse for it but as a justification for the amendment that under the 1934 Act, as amended in 1938, the various local authorities who were under an obligation to do certain things did not do them and even after a court decision was given against the planning authority at that time, there was a continuing period in which the order of the court was not carried out.
All I say on this amendment is that we should be reasonable. While admitting the Minister's facts regarding publicity, I still believe that we are not doing the planning authority any great harm and that in justice we should give that period of time to people to claim compensation. It is not an undue burden on the planning authority whether they know it within one or two years. I certainly think, and I am sure the Minister will agree, that the financial implications of this will certainly not be determined in 12 months or in two years, or indeed in five or in ten years. They will be widespread as far as the local authorities are concerned.
It would take 12 months to understand the wording of this section.
It is only the legal fraternity who see things which are not there at all.
It will be a money-spinner, this one.
If the Minister would meet us on this amendment, we might get rid of some of the money.
While not saying that Deputy Jones is confused, I think he is considering something that may not at all arise under this provision. What we intend to deal with, and the claims we are thinking about here, are matters arising as a result of the operations of the 1934 Act on the assumption that a plan under the 1934 Act had in fact been in operation. It is wrong to say that 12 months is a short time. There may be people who were refused permission as long ago as 1935 and they have a claim for compensation. To say that they are restricted to 12 months after the coming into operation of the Act is therefore wrong, since they have had a claim as far back as 1935.
It is that type of claimant to compensation that this Bill deals with. We will not be dealing with new applicants who will be refused permission under the new legislation. What we are proposing here is to maintain the status quo of the people who at this moment feel they have a claim arising out of a refusal perhaps of this year or perhaps of 20 years ago. Even though no plan was ever taken on or put into operation, nevertheless if it can be established that compensation would have been payable if a plan had been put into operation, all we want is that a claim in that respect will be put in within 12 months after the appointed day. All we are saying is: “If you have a claim, we want you to enter it within 12 months.” I think that is lightly different from what Deputy ones has in mind.
I follow that, but will every individual affected by this section, on the passage of this legislation, be under notice in regard to a structure —will it be from the appointed day, from the passage of this legislation? The Minister proposes to apply this legislation as from the appointed day. There are structures in existence which contravene the 1934 Act and will the Minister give the people concerned an opportunity of regularising those buildings by submitting an application for permission?
They are not the group with whom we are dealing in this section. In fact, it is almost the reverse. It is not so much where buildings exist: it is more likely to arise in cases where permission is refused and, as a result, no buildings were erected, or it could be a case where a building does exist but does so in such form that it would have to be made to conform to what was a rather penal restriction. It is in that type of case, where there is no building or where there is restricted building, that this question of 12 months arises.
Take a case where permission was granted but the applicant was required to leave a large open space in, say, a building estate and he felt he was being required to leave too much of an open space. Will he come under this provision?
It would be that type of thing.
It may be a case of a person looking for compensation for being prevented from doing this or for being restricted.
In that case, where he had complied, would it not be better that he should be given even more than 12 months?
I should imagine they will be standing around waiting for the day so that they can put in their long-delayed claims. Following on the publication of notice, those very genuine and, in some cases, very substantial claims will not have to be invited. They will be standing around waiting for the day to arrive.
Amendment, by leave, withdrawn.
I move amendment No. 225:
In subsection (2) (b), page 48, lines 22 and 23, to delete "Minister" and substitute "arbitrator or the Circuit Court".
Our object in this is in keeping with previous amendments. The intention is to give to the applicant the right of appeal to the arbitrator who will be dealing with compensation, or to the circuit court, and not alone to the Minister.
Having discussed the principle of this already in some detail, I repeat that the substitution of the arbitrator or the circuit court would, to my mind, cut across the whole basis on which this section was drafted. I do not think I need add anything to that, having said it once already, if not twice or three times.
When I put this point to the Minister, I do not want to be taken as reflecting on him. This section—and this is true of other legislation where appeals lie to the Minister for Local Government or, in health matters, to the Minister for Health—does not lay down any time within which the Minister should give his decision. Particularly in relation to town planning appeals, while I appreciate the difficulties of the decisions that will face the Minister, I would point out that often there is an element of urgency. Under the present code, there is, in fact, no time limit within which the Minister is required to give a decision. I know from practical experience that the Minister's Department, in dealing with these appeals, go very carefully into questions put before them and examine the matter very thoroughly but, in the course of that examination, time is being consumed. If it is a case of an interested person objecting to a general permission, for example, which is being granted, both the objector and the people to whom the permission is being granted are left hanging in the air often for very considerable periods.
There is this disadvantage about any kind of arbitration proceedings that, notwithstanding the delays said to be associated with the law, at least you do come to a final point which can be seen by both sides—a particular date on which you will get a decision. I do not know whether it might not be possible for the Minister, before this Bill is finally passed or in any regulations under it, when enacted, to incorporate some type of machinery which will require him to come to a decision within a particular period.
I am not unaware—I have said it before—of the shortcomings in so far as the delays have been occurring all too frequently. We have been seeking ways and means, even under present laws, of speeding up the process of these appeals. I fully appreciate, particularly if the parties are private people, that both can be greatly inconvenienced, the longer the time elapses.
In so far as the new order of things is concerned, without any doubt whatever I think the establishment of oral hearings will greatly facilitate the early and more speedy processing of these applications. Certainly, they will avoid the frustrating exercise we all have to go through at the moment of writing to the local authority, receiving their letter in reply, sending it on to the other party and asking for comments, then getting their reply, sending a memorandum to the local authority, and so on, and nobody knows quite when it will end. With one sitting of oral hearings, we can dispense with all this tape with which we have become bound up.
In addition, the permission regulations mentioned earlier will lay down certain rules which those making application and those dealing with them must follow. They shall try to short-circuit and compress as far as possible the procedural approach to a planning decision and appeal. That, together with the undoubted requirement which exists in my Department and which we hope to have sorted out in the near future—additional technical staff, which we are in the process of getting at the moment—should bring about a vast improvement in the new order of things, if we make this law, as against the present situation which is not at all satisfactory to me or to anybody else.
The Minister says the oral hearings will speed it up? If the number of appeals likely to come in should be very great, unless there is quite a substantial staff, surely they would tend to slow it up rather than anything else?
I agree that if there were any suggestion that we should be expected to go all over the country to hear appeals orally, with only the same staff as has been doing it up to the moment, there would be absolute chaos. The technical staff must be such as will enable a complete coverage of the entire country to be made and quicker determinations given than has been possible under existing circumstances up to the present.
The Minister knows the position in regard to grants given by the Department. Occasionally an inspector gets sick and the whole county is tied up for a considerable period. With the best will in the world, unless a very serious effort is made to increase the staff substantially, this could backfire on the Minister and he could find himself in a much worse position even than he is at present. He should be very careful about the innovation.
It has gone up 100 per cent in the past week. It was one; now it is two.
The Minister is to be congratulated on his good humour at such a late hour.
Is it the position that, by bending over backwards to meet the people who will be affected, there will not be too many of these questions and there will not be undue delay in dealing with them?
I think our new staff structure will take adequate care of these cases.
Amendment, by leave, withdrawn.
I move amendment No. 225a:
In subsection (3), page 48, lines 33 and 34, to delete "(other than a general permission)" and substitute "arising from the refusing of a special permission or the making of a special prohibition".
This is purely a drafting amendment.
It does not enlarge the matter any further?
From a drafting point of view, it is saying it better than it appears in the Bill at the moment.
We have the special permission, which we can understand. What is envisaged by way of special prohibition?
Under the 1939 Act, the planning authority had power to issue a prohibition notice.
Prohibition in regard to a particular building?
To stop a building being put up or to stop the cutting of trees, for instance—some such thing as that.
Amendment agreed to.
I move amendment No. 225b:
"In subsection (3), page 48, lines 47 and 48, to delete "an interim direction (other than a general permission)" and substitute "a special permission or contained in a special prohibition".
This is the same thing.
Amendment agreed to.
Section 65, as amended, agreed to.
NEW SECTION.
I move amendment No. 225c:
Before section 66 to insert the following new section:
"Regulations may provide for—
(a) the form in which claims for compensation are to be made,
(b) the provision by a claimant of evidence in support of his claim and information as to his interest in the land to which the claim relates,
(c) a statement by a claimant of the names and addresses of all other persons (so far as they are known to him) having an interest in the land to which the claim relates and, unless the claim is withdrawn, the notification by the planning authority or the claimant of every other person (if any) appearing to them or him to have an interest in the land,
(d) the information and documents to be submitted with an application for an order under section 58 of this Act,
(e) the information and documents to be submitted by a planning authority in relation to an application for an order under section 58 of this Act."
This provides that regulations may be made to provide forms for various purposes such as claims for compensation and other matters appertaining to the measures in this Bill.
These are regulations which the Minister is to make? In regard to paragraph (c) of the amendment, what type of obligation does this impose on an individual? How far may a person be presumed to know these things? I remember a case in my constituency concerning the erection of a building for parochial purposes. We made all the inquiries that could be made at that stage. We approached the landlord and obtained permission. The legal people dealing with it prepared the necessary documents. Then we learned of the existence of somebody in Dublin who had a head landlord's interest in the property. In regard to the phrase in (c) "as far as they are known to him," how wide is that going to be? Will an ordinary, simple statement by him that he believes he owns this property irrespective of any other interest be sufficient?
Will he have to produce evidence of the discharge of equities?
No, that would be quite sufficient.
I wanted to get that clear. That is the kind of thing that could be very burdensome in rural areas. People are inclined to let things run and do not deal with them until such time as a settlement has to be made.
I take it the Minister would not envisage that?
No. Paragraph (c) is really intended to ensure that any person who has a claim for compensation will be given an opportunity of making his statement. It is trying to protect people who have an interest and not trying to discover who is or who is not the owner.
When the Land Commission acquire the property of an individual, they publish a notice saying it appears to them that the ownership of this property vests in such a person and inviting anybody else who may have an interest to submit his claim within a certain period. In the type of regulation the Minister envisages here, when an individual claims ownership of the property and submits his claim in writing, it would be for the protection of anybody else who might claim an interest that such type of notice be published. Would it be recorded in the register which will be kept? Would it be open to people to inspect the register and find that certain people would be claiming on a certain parcel of property?
Yes, those details would be on the register.
And anybody could get an extract from that?
The register, as such, would be available in the same way as we have provided it must be made available to all and sundry interested.
Would there be a published notice?
Not necessarily. There could be, but it would depend on the case.
In regard to the smaller rural towns where a landlord's interest exists in the buildings, would it not be desirable that publication should be made of the fact that somebody was claiming compensation in order to preclude any secondary claims to compensation?
I should not like to be too specific on what we will and will not include. We will have to give this a fair amount of further consideration. Here we are merely asking for the power to enable us to do these things by regulation. If I gave an assurance at this stage, I might not be able to adhere to it later on. The whole purpose is to enable us to deal with the matter in the best possible way.
Amendment agreed to.
SECTION 66.
I move amendment No. 226:
In page 49, lines 13 to 15, to delete "determine whether compensation is in the circumstances of the particular case payable at all" and substitute "make a nil award".
Is it possible to make a nil award?
Certainly, but whoever gets it will not get anything.
Is there such a thing as a nil award?
I am advised there is. It is a specific term used only by those who understand these things.
It is in other legislation.
The original words seem to make the position very clear.
Apparently, they raised a certain doubt as to what the arbitrator might or might not do.
Amendment agreed to.
Progress reported; Committee to sit again.
