Vol. 204 No. 3
I move amendment No. 227:
To add to the section new subsections as follows:
"( ) An appeal shall lie from every determination of the arbitrator under subsection (1) of this section to the Circuit Court having jurisdiction in the county where the land, or part of the land which is the subject of a claim for payment of compensation, is situate.
( ) Rules of Court shall provide for appeals under subsection (2) of this section."
Amendments Nos. 227 and 228 may be discussed together.
As the section is drafted, it does not provide for an appeal from the award of the arbitrator. Furthermore the section does not specifically say that any Rules of Court are to be made, and if they were not made, there would be legal disorder in regard to this matter. We think it desirable that there should be this right of appeal from the award if a person feels aggrieved, particularly having regard to the effect of the Minister's amendment last night in respect of a nil award. This amendment is to ensure that in the process of law the individual's democratic rights are safeguarded, and that some Rules of Court will be laid down to provide for appeals.
Under the 1919 Act, it is laid down that in land acquisition cases, the findings of the arbitrator shall be final and binding on both sides. There is, of course, an appeal to the High Court on points of law, but only on points of law, and in a rather exceptional circumstance, the arbitrator may have a case stated on something which is agreed and put to him by both sides to the dispute. This principle of the arbitrator's award being final and binding in land acquisition cases has operated satisfactorily since 1919 and we have not found in all those years any real grievance in that respect. There is no reason to expect that difficulties will arise in relation to this measure and I suggest to the House that the provision be left as in the Bill which, in my estimation, is the best way to approach this.
I mentioned earlier that the Valuation Act of 1919 has not been found always to work satisfactorily. There are instances where its operation has proved unfair. As regards an appeal to the High Court on a point of law, the amount of compensation might arise on that. Under this legislation, appeals are likely to be more numerous. Much more control will be exercised by planning authorities in regard to property throughout the country and if the determination of appeals were to lie only to the High Court, this would certainly result in long delays in the clearance of business. Therefore, it is reasonable to suggest that the appeal should lie to the circuit court in the area in which the land is situate.
The provisions of the 1919 Act cannot in general be said to have always worked out quite fairly in every instance. We are now at the stage in which the State, by legislation, is interfering more and more in the rights of individuals where property is concerned. Concomitant with that, we should, I think, make every legal provision we can to ensure fairplay through the least costly machinery from the point of view of the individual affected. It is for that reason we say appeal should lie to the circuit court. That court is readily available and there is less risk of prolonged delays. That machinery will also be less costly on those who use it.
This matter was reviewed as late as 1960 and no change was then proposed, despite the fact that we had had 40 odd years of experience from the time of the passing of the 1919 Act. The provisions in that Act actually covered the practice that had existed in many cases for over a hundred years previously.
With regard to arbitrators, official arbitrators are appointed, one might say, by the courts. They are specialists chosen because of their knowledge of land values and other factors. The official arbitrator is appointed by the Reference Committee. Indeed, I think that is the reason why in these arbitration matters over the years, there has not been anything like the difficulty and troubles that could have been anticipated. In general, real satisfaction has been given all round. The findings of the arbitrator are binding on both sides and that can be as much of an advantage to the landholder as it is to the body concerned in the acquisition of land.
Are the arbitrators appointed by the courts?
By the Reference Committee.
Was Colonel Winters not arbitrator for a long period? I thought he was appointed by the Minister.
He was appointed by the Reference Committee.
I thought there was an obligation on the Minister to appoint panel of arbitrators from which the interested parties could agree upon one. In fact, what happened was Colonel Winters was the only person nominated.
That is correct.
I understood there was a statutory obligation on the Minister to appoint a panel of arbitrators.
No. The Reference Committee consists of the Chief Justice and the president of the Surveyors Institute, or some such body. There may be a third and that third person would also be legal personnel. The Reference Committee is the body which draws up the panel upon which the parties to the dispute can draw. So far as Colonel Winters is concerned, he was the only one put forward by the Reference Committee and, therefore, the only arbitrator available to the Minister and to the disputing parties.
The intention of the legislation was that this body should provide a panel so that there could be agreement amongst the parties to the dispute in respect of one member of that panel of eligible persons. We have been operating under a system in which there is, in fact, only one arbitrator. Deputy Jones's amendment suggests that people should have a choice, that they should be able to go either to the circuit court or to an arbitrator drawn from this panel. I imagine it would mitigate the objections of Deputy Jones to the section as it stands if there were a guarantee that in future there would be an adequate panel of arbitrators. Perhaps the Minister would inform us as to whether there is a prospect of an adequate panel being provided now that this substantially new burden will be put upon the arbitration machinery?
We are slightly behind the times. The panel went out of date in 1960 because of certain complaints made by various Deputies, chiefly Deputy Sweetman, I think. The Property Values Arbitration Act was brought in in 1960 and provided that this Reference Committee should provide an arbitrator or arbitrators. That is the position at the moment.
Surely the Minister will agree that makes it all the more necessary to consider favourably Deputy Jones's amendment? One of the most sacrosanct principles of law and equity is that the contending parties shall have the right to go to somebody with judicial tenure, that is to say, someone who is utterly independent, and, even if his decision is subsequently displeasing to the Executive, there will be no right in the Executive to exclude him from his judicial functions in the future. If this body to which the Minister refers appoints ad hoc for each case an arbitrator, is there not a serious danger that, if the person appointed gives a decision which is harshly criticised by the Minister for Local Government for the time being as grossly at variance with the intentions of the Town Planning Act, that that person will be fixed at once with notice that the likelihood of his being appointed for a further arbitration, presumably on a fee basis, will be very hypothetical? On the other hand, parties may say they are quite prepared to accept an arbitrator operating under those conditions and they do not apprehend any such problem as being likely to arise. There can also be somebody who believes he might have a case for compensation or for exceptional treatment if he had access to an independent judicial person. He might want to go to a circuit court judge. Does the Minister see any particular objection to adding a circuit court judge to the panel?
We still have not fully grasped how independent these arbitrators can be. It is wrong to say that the Minister has any part in their choosing; it would be wrong to deduce from the situation that if a Minister or Ministers should be dissatisfied with the operations of an arbitrator, the arbitrator might not be called upon at a later date and that in that way he would be given notice of ministerial criticism and dissatisfaction to the extent that if he did not pull his socks up and do the work as a Minister thought it should be done, he would be out.
An arbitrator has in fact a judicial tenure in the sense that no Minister can dispose of him. He is not on a fee basis but on a salary, so that he is independent of all Ministers and all Departments and may not be removed by any Minister. He does not have to depend on a fee for any particular job. In so far as that aspect of Deputy Dillon's argument is concerned, no fear need therefore be held. I agree that if the position were as Deputy Dillon fears, it would be a serious matter and could lead to just what he has outlined. However, it is not so. An arbitrator's appointment cannot be put in jeopardy because of a decision with which some Minister may not agree. The arbitrator will in fact be in a very independent position, and rightly so. He is completely free to decide according to his own expert knowledge.
Perhaps I should explain I was reading amendments Nos. 227 and 228 together. Amendments No. 227 provides that an appeal shall lie to the circuit court while amendment No. 228 provides that the circuit court should be added to the panel for arbitration purposes. Perhaps when we come to the latter amendment, the Minister will consider the argument I have made.
There is another sideline in relation to the Reference Committee to which I should perhaps refer here. The full Committee shall consist of the Chief Justice, the President of the High Court and the President of the Surveyors Institute. That is the full membership of the Reference Committee whose obligation it is by the law of the land to provide and appoint official arbitrators on whom any or all Departments may call whenever disputes arise.
Supposing they appoint only one arbitrator. Is there anything to suggest that they are obliged to appoint a panel?
This House.
How?
I would hesitate to say how, but I feel sure the House would find a way.
In fact, there is no panel, only one.
They are obliged to provide an arbitrator or arbitrators, as required.
For each case? They do not provide a panel from which we can choose?
No.
Just an ad hoc appointment?
No. The arbitrator is appointed to a permanent position and is called upon as required. If more than one is required, more than one is appointed in that permanent manner.
I wonder would the Minister look at the portion of the amendment which deals with the provision of Rules of Court for appeals under subsection (2). Has the Minister any intention of providing for Rules of Court? The section does not say there shall be any Rules of Court in regard to appeals.
The arbitrator would be covered by Rules provided in the Fourth Schedule to the Bill and under the 1919 Act, so the drawing up of Rules by us would be completely unnecessary.
I move amendment No. 228:
In subsection (1), page 49, line 37, after "arbitration" to insert "or by the Circuit Court".
This section deals with the question of compensation and the compensation payable under the section as it stands relates to agreements or to compensation awarded by arbitration. We seek to have added here the words "or by the Circuit Court". I have already mentioned the provisions under the 1919 Act as far as the arbitrator is concerned, and I cited a case where, in arbitration, an individual suffered a serious loss through being unable to appeal to the circuit court where a much higher award would have been given. In these compensation cases, the circuit court is competent to be added. It is a reasonable provision.
This Bill when it becomes an Act will not be dealing with isolated cases. The powers of direction will be increased and enlarged immensely so far as property all over the State is concerned. The Minister knows that in a good many cases the rights of the individual will be interfered with in this respect. He must anticipate that a large panel of arbitrators will have to be appointed if cases are to be dealt with expeditiously.
The Minister said that the arbitrator who will be appointed will be there in a permanent capacity, and one can appreciate the reluctance there would be, naturally, to any more than a limited number, but if they were to be limited, the provisions of this measure could not be worked expeditiously. The circuit court is available and competent to deal with these matters. It has been able to deal with matters of land valuation as between citizens. We suggest our amendment provides a ready fashion for dealing with appeals where compensation is involved. It will provide a process which will guarantee to the individual speedy solution of his dispute with the planning authority and, at the same time, enable the Act to work with expedition.
The insertion of these words would not have any meaning and therefore there would be no point on putting them in. I should like to emphasise that the Reference Committee consists of the Chief Justice, the President of the High Court and the President of the Surveyors Institute, so that the appointment of an impartial arbitrator or arbitrators does rest in the hands of two of the very top of our judiciary. Further than that, I cannot see what assurance one would have by merely referring it to the courts. After all, we are going to refer to the courts which are presided over by such people as these. We can surely feel quite satisfied that the Reference Committee, composed as it is of three people, two of whom are the Chief Justice and the President of the High Court, will appoint the best arbitrator available, an arbitrator who will be specially qualified. If more than one arbitrator is required, it will be their obligation also to ensure that such are made available at whatever time they are required.
Of course, what the amendment seeks to do is to have the relevant portion read "When the amount thereof has been determined by agreement or by arbitration or by the circuit court" and the insertion of these words brings in the circuit court as an alternative means of providing the method of determining compensation. You have the agreement method, the arbitration method and then you have the alternative of the circuit court to determine compensation.
The principle of this amendment is to provide an alternative to the proposal that there should be an appeal to the circuit court from the findings of an arbitrator as was suggested in amendment No. 227. That amendment has been withdrawn and I take it that amendment No. 228 is an alternative.
Yes.
If the House decided not to allow an appeal from an arbitrator to the circuit court, then we want to make this case. We are dealing with the property of individual citizens. The local authority or the planning authority places some restriction or imposes some duty on the owner of the property which causes him a loss which must be measured by an impartial tribunal so that the owner may recover the measure of his loss from the local authority or the planning authority, whoever they may be. The Minister says: "Well, he can either sit down and agree on a sum, and once agreement is registered, he can recover it as an ordinary debt, or he can ask for an arbitrator, in which event, the Chief Justice, the President of the High Court and the President of the Surveyors Institute will name a man to undertake the duty of arbitration and his findings are binding on both the planning authority and the aggrieved party. "And," the Minister says, "we can trust the Chief Justice, the President of the High Court and the President of the Surveyors Institute to choose a suitable man."
I am sure we can, but I am thinking of one of my constituents who is required to part with a piece of his front yard as a result of a road-widening operation. He feels that he is holding the rough end of the stick and that there is arraigned against him the county engineer and all the officials of the county and that he is fighting a desperate rearguard action to protect his own interests against all the panoply of the local authority or the planning authority. As the situation obtains at present, the way he looks at it is that the arbitrator is chosen and there then turns up the same expert who has functioned as arbitrator repeatedly before, a man who is quite familiar with the county engineer and the local authority officials, and who is continually hearing local authorities and planning authorities putting their sides of the case but who never before has heard the problem of a particular individual who is living in particular circumstances such as the claimant believes himself to be.
The important thing to bear in mind is that where we are dealing with property and matters of compensation, the universal rule applies with particular emphasis: justice must not only be done, but it must be seen to be done. We should do everything in our power to carry conviction to the mind of a person from whom property is being taken that the compensation he is receiving in exchange is fair and just, and is being fixed by someone who is just as far removed from the planning authority as he is from the claimant to compensation.
Let us assume that 30 or 40 per cent of the cases in which an aggrieved party is represented by a competent solicitor will be settled by agreement. The solicitor will say: "Look, do not waste money going to arbitration. You may get another £5 note but you will lose more by going to arbitration than by having a sensible settlement." Probably in another 40 per cent of the cases, the solicitor advising his client will say: "The best thing you can do is go to arbitration and you can depend on getting a fair deal." There may be a very small minority of cases in which the client will say: "I want to go to the courts." Why should we prevent them?
Is the circuit court not an admirable tribunal for the purpose of assessing compensation in respect of the value of a piece of land. Who is afraid of a circuit court judge? Why should a planning authority be afraid? Why should we be afraid to send a planning authority to a circuit court to be judged? It is not clogging up procedure. It is a very expeditious and convenient form of arbitration. I submit to the Minister that the circuit court judge would be a much more expeditious arbitrator than an arbitrator appointed under the procedure envisaged in this Bill. I think it would provide a very comfortable feeling for any small minority of persons who do not like arbitration and who feel that, if they went before a circuit court judge, substantial justice would be done.
Why does the Minister feel it inexpedient to add the circuit court judge to the panel of arbitrators envisaged in this Bill? Bearing in mind that we will be dealing with a lot of small property holders, it would be a useful tribunal to have. In respect of all the substantial cases that will arise, no one will want to go to the circuit court, but for the minority who may feel that it would be a safer and a more comfortable tribunal for them, it appears to me that the circuit court would be expeditious, convenient, and on every score, unobjectionable. I suggest to the Minister that he should add the circuit court to the panel of available arbitrators.
I am not taking issue with Deputy Dillon on all he has said but, as I have already said, I feel this amendment is meaningless as applied to the section, because no provision has been made for recourse to the circuit court to determine the award of compensation. This section really deals with the recovery of the amount of the award already determined as compensation, and it does not in any way determine the amount of compensation payable. Therefore, since the circuit court did not already come in to the determination of the compensation award, the putting in of the circuit court in this context just does not make any sense. It is valueless, useless and completely out of context.
As an alternative to our proposed amendment, I think the Minister is probably right technically. It would involve a consequential amendment if the verbal amendment had been accepted.
We will withdraw amendment No. 228, with liberty to resubmit it on Report Stage.
This section deals with registration of compensation and provides that a planning authority shall enter in the register particulars of the statements prepared by them under this section, and that every such entry shall be made within the period of 14 days, beginning on the day of the preparation of the statement. Is this imposing conditions on the planning authority? Is the object of the phraseology that they will enter these particulars in the register within 14 days of the determination?
Yes. The onus will be on the local authority to enter these details in that register which will be available for inspection by interested persons or by the general public.
This deals with amounts of compensation over £20?
And the land to which it applies. A picture will be got from that register of any transactions that have taken place and the detailed determination as to the compensation arrived at so that anyone who is interested at any time may ascertain——
It binds the planning authority to get it recorded within 14 days.
Yes.
The section provides:
No person shall carry out any development to which this section applies, on land in respect of which a statement (in this section referred to as a compensation statement) has stood registered under the last preceding section for less than fourteen years, until such amount (if any) as is recoverable under this section in respect of the compensation specified in the statement has been paid or secured to the satisfaction of the planning authority.
Is this imposing a limitation of 14 years on a person doing anything to land for which compensation has been regarded as being payable? What is the object of providing for 14 years?
It merely means that if he does a job within 14 years on land for which he got compensation, he may be asked to repay all or part of the compensation received at the earlier date.
We contemplate that this Act will be reviewed at least every five years——
Not less than once in every five years.
——not less than once in every five years, but here we are running practically three cycles together. Does the Minister think it is necessary to have the limit as long as that on land?
Does the Deputy feel the limit is too long?
I am thinking in terms of 14 years. Does the Minister think 14 years a bit long? It seems to me to be a bit long.
It is quite possible in some cases that very substantial compensation may have been paid. In a sense, we would be trying to relate the length of years thereafter, keeping in mind the large amounts that have been paid.
Does this mean that if a man is prevented from building a house on a plot of land and is compensated and then later builds the house——
No. The point is that, having been refused and having been compensated, the law or plan is changed so that he is now in a position to build the house.
If he is paid compensation and the plan is not changed for 14 years, he can build the house and keep the compensation?
He may be required to pay back part of the money unless 14 years clear have elapsed.
In the case of the extinguishing of a public right-of-way, would it not be desirable that the Minister should order an inquiry to be held before the order is made? Would it not be desirable that the planning authority would first give notice to the Minister of their intention and that the Minister would then order a public inquiry?
That is what the section provides.
It does, but I think they will make the order first.
The sequence is that the planning authority may, by order, propose to extinguish a right-of-way but the Minister's approval to that order is required. Even before his approval is sought, public notice must be given and a public local inquiry held and any objections considered.
It does not often arise but we are familiar with similar procedure under Section 18 of the Housing (Miscellaneous Provisions) Act, 1931. There must be other cases but the only ones to my knowledge where that provision is utilised concerns housing development in Dublin city.
The only public rights-of-way I know of in rural Ireland are Mass paths.
I know of one or two which I should be glad to see closed. They are big grassy roads put up during the Famine and nothing has been done with them since. The local authority will not touch them.
I move amendment No. 229:
To delete subsection (1) and substitute the following subsection:
(1) A planning authority may develop or secure the development of land and, in particular and without prejudice to the generality of the foregoing, may—
(a) secure, facilitate and control the improvement of the frontage of any public road by widening, opening, enlarging or otherwise improving,
(b) develop any land in the vicinity of any road or bridge which it is proposed to improve or construct,
(c) provide areas with roads and such services and works as may be needed for development,
(d) provide areas of convenient shape for development,
(e) secure or carry out, as respects obsolete areas, the development or renewal thereof and the provision therein of open spaces,
(f) secure the preservation of any view or prospect, any structure or natural physical feature, any trees subject to a tree preservation order, or any flora or fauna subject to a conservation order.
This amendment is an amalgamation of Sections 72 and 76. We have already deleted Section 72. It may be necessary to come back on Report Stage as I am advised by legal advisers to some of our local authorities that they are not fully satisfied that the powers mentioned are adequate or watertight.
I move amendment No. 230:
In subsection (2), page 54, line 5, to add to the end of paragraph (c) "so however that such ancillary services shall not be such as will compete with services provided by private enterprise".
This section gives very wide powers to the planning authority. The amendment seeks to limit these powers in such a way as to prevent them form interfering in any way with private enterprise works. Subsection (2) of the section provides:
A planning authority may provide—
(a) sites for the establishment or relocation of industries, businesses (including hotels, motels and guest-houses), dwellings, offices, shops, schools, churches and other community facilities and of such buildings, premises, dwellings, parks and structures as are referred to in paragraph (b) of this subsection,
(b) factory buildings, office premises, shop premises, dwellings, amusement parks and structures for the purpose of entertainment, caravan parks, buildings for the purpose of providing accommodation, meals and refreshments, buildings for providing trade and professional services and advertisement structures,
(c) any services which they consider ancillary to anything which is referred to in paragraphs (a) and (b) of this subsection and which they have provided,
and may maintain and manage any such site, building, premises, dwelling, park, structure or service and may make any charges which they consider reasonable in relation to the provision, maintenance or management thereof.
"Ancillary services" could be interpreted as the actual carrying on of shops. If you provide a shop building, and speak of providing ancillary services to the shop building, the section might be interpreted in such a way as to enable the planning authority to undertake business which, properly, is the right and domain of private enterprise or ordinary commercial enterprise. That is very undesirable. The activities of the planning authority should not in any way interfere with the ordinary commercial life of the country.
We are aware that various semi-State bodies have engaged in the provision of shops ancillary to the service they originally provided. If in the provision of hotels, motels and amusement parks, we widen the position in respect of ancillary services, that would be very unwise. We seek to limit the interpretation of ancillary services so that they shall not include services so that might reasonably be provided by private or commercial enterprise. The planning authority should not be allowed under any guise to compete with private or commercial enterprise.
I fully agree with Deputy Jones but I do not agree that is the intent of the section. I agree local authorities should not be allowed set up shops in their areas to compete with their own ratepayers. But when we talk here about ancillary services, we are not talking about setting up shop. We are talking about services ancillary to the developments already mentioned, factory buildings, office premises, shops and dwellings. This would mean the provision of water, sewerage and gas mains. It might even mean district heating, such as is operated in other countries, and would include such things as caretaking of houses. There is no fear of the dangers in the minds of those who put down the amendment.
But it is capable of that interpretation, is it not?
I shall not say it is not, but it would be a long stretch of the imagination.
In paragraph (a), we deal with the sites; paragraph (b) provides for the actual buildings; and paragraph (c) mentions ancillary services. The Minister says that is an extension of servicing?
It is servicing that which we were enabled to provide under paragraph (b)—servicing in the sense that we understand it and not engaging in retail business.
I mentioned that some semi-State bodies set up to provide services engaged in ancillary services in selling rather than providing service.
I do not think they had the terms of this section to restrain them.
I move amendment No. 230a:
To add to the section a new subsection as follows:
"(4) For avoidance of doubt it is hereby declared that the powers which a planning authority may exercise pursuant to section 10 of the Local Government (No. 2) Act, 1960, with respect to compulsory acquisition for the purposes of any of their functions under this Act apply in relation to anything which is specified in subsection (1) of section 2 of this Act as being included in `land'."
This is really a clarifying amendment to remove doubts about the acquisition of land.
I move amendment No. 231:
Before Section 78, but in Part VII, to insert the following new section:
"78. (1) `business' in the Landlord and Tenant Act, 1931 shall include the carrying out by a planning authority of any of their functions.
(2) Subsection (1) of section 22 of the Landlord and Tenant Act, 1931, is hereby amended by the insertion after paragraph (b) of the following paragraph:
`(bb) that, such landlord being a planning authority within the meaning of the Local Government (Planning and Development) Act, 1963, such tenement or any part thereof is situate in an area in respect of which the development plan within the meaning of that Act indicates objectives for its development or renewal as being an obsolete area, or'.
(3) Subsection (1) of section 15 of the Landlord and Tenant (Reversionary Leases) Act, 1958, is hereby amended by the addition of `or alternatively, being a planning authority within the meaning of the Local Government (Planning and Development) Act, 1963, satisfies the Court that, in case the reversionary lease would be a lease of the whole of the land, the land or any part of the land is situate in an area in respect of which the development plan within the meaning of that Act indicates objectives for its development or renewal as being an obsolete area or that, in case the reversionary lease would be a lease of part of the land, that part or any part of that part is situate in such an area'."
This amendment is to facilitate urban renewal.
That is one of the most important tasks requiring attention.
The primary aim of the Bill is to facilitate it.
I move amendment No. 232:
In subsection (1), page 54, line 29, to add to the end of the subsection "provided that an offence under section 52 of this Act may be prosecuted by a member of An Garda Síochána".
In this section we are dealing with the prosecution of offences under the Bill. By our amendment, we seek to ensure that what is intended in the Bill will be effective, inasmuch as the Garda will have the right to prosecute for offences under Section 52. Section 52 deals with the throwing about of litter and so on. This section before us provides that where such an offence occurs, the local authority may prosecute. We want to add that offenders may be prosecuted by a member of the Garda Síochána. In saying that, I readily concede that the Garda have too many duties on them in the ordinary way. Their duties have been extended to include participating in the taking of a census and such other duties. However, they are the people who have the expert knowledge and technique in regard to obtaining names and so on.
I cannot see how the planning authority could provide the people to ensure that the provisions of this section are kept. Where people throw litter about, I do not think any planning authority could provide a horde of officials to look after the matter. But the ordinary guardians of the law are in every area, and by this amendment we seek to give them the power to prosecute under Section 52 of the Bill. The amendment is necessary if the section is to work. Even in a large urban area where you have an authority having officials of its own, it would not have them to the extent that they could deal with this matter in the fashion the Garda could deal with it. I suggest this amendment is necessary. It would be meaningless in regard to Section 54 unless the planning authority are to employ a large number of officials.
In your parks in Dublin, there are attendants available to stop the throwing about of litter but if you take the streets of this city, one must assume that the Corporation of Dublin have not sufficient personnel to ensure that litter will not be thrown about with impunity. The Garda are available and they have the technique to deal with this matter and to handle the public. I think it reasonable that they should have the power to prosecute under this section.
This section is merely to put beyond any doubt that a local authority or planning authority may act in the manner specified in the following subsections as here described. The putting in of the amendment as suggested by Deputy Jones is unnecessary, for the good reason that under Section 52 it is an offence to leave litter in a public place. An offence under that section may be prosecuted in the district court by any person acting as a common informer. No special provision is necessary in order that the Garda Síochána will have the power to prosecute or to pull people up for the disposal of litter in this manner.
This section is merely an elaboration of the powers contained in Section 52. If we did not have this section, the planning authority might be questioned as to their right to act in the matter at all. This is an addition to Section 52 and it puts the right of the planning authority to deal with the matter beyond question.
I want to ask the Minister does he seriously think that people will act as common informers under Section 52? I know that civic virtue should impose on all of us the obligation to see that such things do not happen but if we are to leave the onus on the common informer, it will not be done.
But we do not. Section 52 makes it an offence to leave litter in a public place and therefore the Garda are expected to enforce the law as in the case of any other offence. In Section 78, we are making provision for the planning authority to do the same and putting beyond any doubt their right to act as any other person might act. We are giving them the right to take action in this matter rather than putting the onus on the public to act the part of common informer. This is in addition to the general supervision the Garda will have in this matter and it gives a special place to the planning authority to make arrangements to enforce the law under this Bill.
Would the Minister not consider it desirable, if the planning authority is to employ officers for this purpose, that they should wear uniform? Suppose the Minister or I were at the seaside and the planning authority appointed some excessively officious person and such a person approached us in ordinary clothes and demanded our name and address, are we not entitled to ask such a person to produce his warrant of authority?
Line 35 does that.
I see that, but is it not a rather alarming experience for an ordinary citizen to be approached by a neighbour who apparently has no official function and asked for his name and address? Is it necessary to add this category of person to the Garda Síochána at all?
The Garda authorities may not have the personnel at their disposal to make effective the cleaning up of any public place frequented by many thousands of our people in our all-too-short summer periods. This section enables planning authorities to make special arrangements in special circumstances of which they will be fully aware and of which we might not be aware. That is the idea of supplementing this, so that if the normal process of the law is not effective and cannot be made effective without undue strain on the personnel available, and if the planning authority are not satisfied that they are getting the service necessary to pursue the matter fully, they will have specific powers to make alternative arrangements.
Should such people not wear some exterior sign that they are public servants?
That is a matter that would be covered by the local authorities themselves. To put in the obligation that these people must wear a uniform might possibly defeat the very purpose for which they are appointed. While we expect that they will be uniformed and recognisable, I do not think we should make it a legal obligation on the planning authorities.
Suppose we are abroad on the beach at Dieppe or Brighton and a man in ordinary clothes comes up and purports to enforce the law. If we live in this country, we have the right to demand that such a person produce his warrant of authority but, having some experience of the strange adventures one can have in a foreign place, we are more likely to tell him to go to hell, only to find that under subsection (3) we have committed an offence which, on summary conviction, makes us liable to a fine. It is dangerous to create a body of persons with an official position, if they have no outward sign of it, and give them power to question people in a public place. Everybody is presumed to know the law but few do.
In Dublin, the corporation take the precaution of providing that a parking attendant wears a distinguishing mark. I think every parking place in Dublin now has an official attendant during certain hours and when he goes off duty, a variety of rather uncertain-looking characters infest the vicinity and do nothing but haunt the place. For strangers, are we introducing the new principle that these unofficial persons will enjoy the protection of the law, if, in fact, they have concealed on their person a warrant or authority in writing? If we think it desirable to prescribe that a parking attendant in Dublin should wear a distinguishing mark, we should provide that the local authority, desiring to supplement the Garda Síochána with special personnel for the enforcement of the sections referred to here, will also cause to be worn some mark as distinguishing as that worn by parking attendants in Dublin. If you do not do that, awkward situations will arise. If that simple precaution is taken—it must be reasonably simple when Dublin city is already doing it—much unnecessary inconvenience could be avoided. Perhaps it could be done by regulation.
If it were to be done, regulation certainly would be the only way in which it would be desirable to do it. I do not think it would even be desirable to put it in regulations if we were to suggest, at the same time, that they should have some distinguishing mark. I could give half a dozen reasons why, in many instances, these people should not be in uniform. Uniform will not make the man and the point mentioned by Deputy Dillon just now tends to show that they do not improve very much by having a uniform. The other point is that there is "a handout" to the uniformed parking attendant while you do not give anything to these people except your name and before you give it, you may ask and receive proof that he is duly authorised. Surely that is not asking too much? If a uniform is desirable, local authorities would be the best people to determine that. At present they have public health inspectors and there are many good reasons why they should not be in uniform. It would defeat their purpose if they could be seen coming. Everybody could get things cleaned up and put in proper order and something that had been going on for the previous month would be immediately stopped and when the inspector walked in, he would find it had ceased.
Is that not what we want to do under this section, to make people pick up litter?
Not pick it up and dump it again as soon as the official has passed. In the case of dangerous litter such as broken bottles on beaches, some of that is accidental. If there is glass about with children around some is bound to be broken but there is no doubt there are thugs who take pleasure in littering our beaches, particularly at weekends when people have left bottles behind. They delight in smashing them on the beach and there is not much point in having people from the local authorities on guard in uniform when that type of thug is about. They will do nothing when they see the guard or the officer but as soon as he has gone, they will smash the glass. They will cease if they see him coming. They cannot be brought to book because it is too difficult to establish who did it. In those circumstances, the uniform could be a liability. There are circumstances in which a uniform could be useful if they are appointed in any numbers by local authorities.
I suggest we leave the position as it is and not even permit ourselves to put it in regulations. If it is felt necessary, it can be done by way of instruction or circular advising local authorities that in the normal way a uniform or distinguishing garb should be worn by those whom they appoint but we should not make it obligatory on them to have a distinguishing mark in the performance of this duty and be so recognisable as to defeat the purpose for which they are appointed.
I can see the desirability of what the Minister says in regard to the detection of the type of offence he has mentioned but what I might add to what the Leader of the Opposition has said is that law-abiding citizens are ready and willing to come to the assistance of somebody in uniform. I do not think a Garda has ever been left——
They have. The exception now is when anybody assists a garda, particularly in this city. That is an unfortunate development.
I can see the Minister's point but is an individual armed with a piece of paper authority any more protected from the thug——
I am not suggesting that. I am talking about the thug being protected because he can see these people coming.
The Minister's idea is to detect these offences. I submit it would be better to prevent them.
In certain cases, the only way to prevent them is to detect who is causing them. In the ordinary way, a uniformed man walking about will remind the ordinary law-abiding citizen but it will not prevent elements doing damage when his back is turned.
In the case of the element I have in mind, if the man produced his authority, it would not deter them in the least. I have some experience of beaches where beach guards are on duty. If they go about in ordinary bathing togs and tell people it is dangerous to bathe, it has no effect. They must identify themselves as beach guards, whereas if they were properly equipped with a special top to their togs, it would convey immediately that they had an official position when approaching people. Lives have been lost because of this.
While health inspectors go around in civilian clothes, we have in Waterford what are known as borough constables. They are in uniform and they stop people putting rubbish outside doors. When they appear, they are obviously officials and do not have to produce credentials. They find out where there are people dumping stuff or where there is a menace to public health, and they are very effective. I put it to the Minister that he should meet our suggestions from this side and accept the amendment. It would be a deterrent and that is the great thing. Bottles would not be broken and litter would not be scattered if a man were there and the people had the idea that that man could take their names and have them prosecuted.
Would the Minister consider the position of tourists coming here? They are a growing number. Take a French family, a Belgian family or a German family on the beach, at a fair ground, a camping ground or anything else, who offend against the litter section of this Bill. An anonymous man comes up to them and remonstrates with them. Possibly they get excited and ultimately they are asked for their names and addresses. Of course, they know nothing about subsection (3) and the man puts a piece of paper before them which they are unable to read or understand. On the other hand, if I am on a French beach or a Belgian beach, somebody walks up to me with a cap on him marked garde municipale or something of that kind. The ordinary presumption is that that man is acting under some municipal authority and is entitled to do what he proceeds to do.
I put it to the Minister it is not a good thing to multiply the number of persons who may come and talk with the public in civilian clothes. The public are entitled to some notice that they are dealing with a person vested with authority. I do not believe that Section 78 will be widely used. I imagine most of the municipal authorities will depend on the Garda Síochána to enforce the law. However, if municipal authorities do consider it necessary to supplement the uniformed Garda for enforcement of this section, the persons authorised by the municipal authority ought to wear some distinguishing mark.
It is dangerous and a bad arrangement to authorise persons who are not wearing official uniform to approach or remonstrate with ordinary citizens and it is liable to give rise to serious misunderstanding and, I want to put it to the Minister, liable to give rise to serious abuse. Suppose you get some ordinary fellow with no good purpose in his mind advancing on somebody and threatening to prosecute him for having deposited litter, and exercising a form of blackmail, saying: "If you give me 10/-, you will hear no more about it." That can and will certainly happen, and all the person can do is to say: "Produce your authority", whereupon the fellow can turn on his heel and walk away. He has represented himself as nothing and he has no authority at all. He simply says the person has broken the planning law and then can walk away when he is asked to produce his authority. What offence has he committed? On the other hand, if there is a prescribed band to be worn on his arm or cap, as a mark of municipal authority, and he fraudulently seeks to imitate it, then he has probably committed an offence in itself by making that fraudulent pretence.
I say to the Minister quite deliberately that I regard with grave apprehension the authorising of ununiformed persons to enforce regulations against the public at large. It is susceptible to grave abuse and I am prepared to go as far as to say that it could become a very real danger. I am certain that on continental beaches, it would be a very real danger. There have been brought to my attention a variety of situations in which people have been approached by individuals at continental resorts when the greatest danger attended them. I do not think that it is likely to happen on any large scale here in Ireland in view of our general social pattern and background but it is a bad principle.
A person authorised to question individual citizens ought to bear some external mark of the authority with which he is vested. It is not sufficient to say that on an occasion such as this the only precaution the citizen has to take is to demand that the person questioning him produce a warrant of authority. There is no parallel between this and the case of the health inspector. In regard to anybody coming into your premises, the presumption is that he is coming into the establishment of a responsible citizen who is fairly well acquainted with the law and certainly knows that nobody has the right to go into his home to interrogate him without specific authority from the Oireachtas. The first thing you do when any person comes into your home or enters your business premises to ask you questions is to ask: "By what authority?" It is perfectly normal experience for us all that he produces a warrant of authority from the Department of Local Government, the county council, the Department of Agriculture or one of the various Departments which have supervisory functions.
It is quite another thing for a man to approach you in a public place, when perhaps you have your wife and children with you, and to start interrogating you without any exterior sign of his authority. I put it to the Minister there is nothing embarrassing or offensive about a park attendant or a car park attendant or anybody wearing an official uniform, coming up to a family and remonstrating with them. It is quite another thing if an un-uniformed person does it. I put it strongly to the Minister this is a matter which requires further and more careful consideration.
I think Deputy Lynch who has now departed from us for the moment gave the full answer, which I probably had tried to say in ten different ways and did not succeed, when he referred to the fact that Waterford has town constables.
They are uniformed.
Yes, but not prescribed by law of this House. It is the same thing here. We are not prescribing that they must be uniformed. It need not be assumed that I am against the arguments that have been made. In fact I favour most of what was said. However, I do not think it is desirable that we should write into the law that these persons must be uniformed. We have not prescribed in the case of the town constable that they must be in uniform but, in fact, they are.
They are permanent officers.
The local councils have determined this the right way. The local council may in their wisdom say when and where it is desirable to have them in uniform. I am merely saying we are leaving it to them to do as they have already done in respect of the town constable.
The town constable is a permanent employee.
So also will these people be. I do not want the Deputy to get the idea we shall have a corps of these people. They may be existing staff.
If they go out on this work, they should, I think, bear some mark.
It is a matter for the local authorities to decide.
Where you have a permanent employee, such as a borough constable, it is perfectly normal for the borough authority to provide him with a uniform. Suppose you have a crowd once a week on Sunday invading a beach, or a fleadh ceoil about to take place in a particular area, and it is sought to reinforce the powers exercisable by the Garda, I suggest the local authority should be warned, either statutorily or by regulation, or even by circular, that such persons should bear an exterior mark of their authority. So surely as you do not do that, or so surely as the local authority fails to do it, you will have trouble under this section.
I do not fear the local authorities will be remiss at all.
Perhaps the Minister would say that local authorities will be reminded.
I have said by way of circular, but not by specific regulation. I will leave it to the good sense of local authorities. I think we can depend on them.
I move amendment No. 233:
Before Section 80 to insert a new section as follows:
Where the Minister gives any decision or determination in proceedings on an appeal or on any matter referred to him under this Act any party to such proceedings may, accordingly as rules of Court may prescribe, either appeal therefrom to the Circuit Court or require the Minister to state and sign a case for the opinion of such Court and on any such appeal to the Court the Court shall have power to make such decision, direction or order as it thinks fit and any such decision, direction or order shall be binding on the Minister and on the parties to the proceedings.
The purpose of this amendment is to provide for contingencies where there is no appeal to the High Court except by way of the Minister referring the matter to the High Court. Except for the provisions of Section 5, there is no provision in this Bill for the correction of a ministerial misinterpretation of the provisions of the Bill. Subsection (3) of this section entitles the Minister, and only the Minister, to refer a matter in which a question of law arises for decision by the High Court. The terms of the amendment are common in modern legislation and the intention is to reduce the cost of legislation by having appeal to the circuit court.
This amendment is in line with a number of other amendments which have already been discussed. As I have said, planning and planning policy should be a matter for the Minister responsible to this House, not a matter for the courts.
This principle has been raised in a variety of other sections and canvassed pretty exhaustively. There is not much use in continuing a discussion indefinitely when manifest agreement between us cannot be reached. We take the view quite definitely that in matters such as are here set out in the amendment, there ought to be appeal from the decision of the Minister to a court of appropriate jurisdiction. We believe that if such appeal is not provided, a great many persons will feel a sense of grievance and will have the conviction that they are being denied rights which they had every reason to believe were held sacrosanct by the Constitution.
We are not at all satisfied that the denial of such right of appeal in this Bill may not give rise to constitutional proceedings for the vindication of the people's right to approach the courts under certain contingencies specifically set out in the Constitution. We believe the safe and prudent course would be to provide for such appeals where aggrieved parties wanted them and none of the arguments adduced in the course of this discussion has altered our view that the existence of such appeals should be provided for and that it is a serious interference with the constitutional right of citizens to attempt to exclude the courts from the determination of such matters as are provided for in this legislation. We are convinced that sooner or later this right will be vindicated and restored. We would prefer to see it done in the body of this legislation. If it is not done here, we believe it will be done elsewhere.
In matters of law, the courts; in matters of planning and planning policy, the Minister, answerable to this House. I am not suggesting the courts should be taken out of the normal determination of matters legal and the interpretation of our laws. All I do say is that planning and planning policy is for the Minister answerable to this House and to the country for his actions while matters of law are for the courts.
We feel very keenly about this. As the Leader of the main Opposition said, if provision is not made in the body of this legislation, then the position is bound to be tested constitutionally. In matters of planning, the Minister seems to regard the planning authority as sacrosanct. Under the various schedules of the Bill, regulations can be made controlling the citizen in relation to a great many things. I referred the Minister to a situation which arose outside this country when it was sought, under town planning, to control people. The individual concerned was an architect. He erected a structure to his own design and the planning authority ordered him to desist. The case was tested in the courts and evidence was taken from some of the most eminent architects. They disagreed entirely with the views expressed by the planning authority.
There should be a right of appeal to the courts in matters like this. To deny any individual the right to challenge the planning authority is surely a very serious infringement of the liberty of the individual. As the Leader of the main Opposition has said, there is no purpose in pursuing this matter further. It seems to be useless. It is regrettable that the provision should not be included. That decision is bound to be challenged.
I do not at all subscribe to the idea that because the courts are not included in matters of planning policy, we are in any way taking from the citizens of the country any right, constitutional or otherwise, they now enjoy. They have recourse to the courts on matters of law in respect of this or any other Bill. Naturally, that is being continued. With regard to their rights being trampled upon, let us look at the paraphernalia for their protection in regard to the matters we are now discussing. There is, first, the local authority decision determined by the manager on the advice of his technical officers. If they are dissatisfied, they have recourse to the elected body which controls the manager. If they are still dissatisfied, they have the right of appeal to the Minister and an oral hearing takes place.
If they are not satisfied after that, they have recourse to the members of the House to put the screws on the Minister, or put the skids under him. If they are still dissatisfied, and some will be, because no matter what is done, there will still be some people who will be dissatisfied, and if they feel they are being denied some right in law, or that the law is being misconstrued or misinterpreted, they are as free as the air to have recourse to the courts. I cannot see where trampling on the rights of the citizens can arise in a matter such as this. If I did, I would be wholeheartedly with those who are now making this case from the Opposition benches.
I am sorry Deputy T. Lynch is not here because, as a matter of interest, speaking on Section 30 of the Road Traffic Act, 1961, and the operation of the disqualification order, as reported in the Official Report of 10th May, 1961, at volume 189, column 206, he said:
With all due respect to the Bench and the courts, we should leave as little as possible to the discretion of the judges and the justices. It would be better, when this Bill is passed, that the section were definite and gave proper guidance to the justices. I appeal to the Minister not as a lawyer but as a layman.
I merely quote that as a sideline on this attitude of mind. I am trying to distinguish between matters of law and matters of planning. I think the safeguards that exist on matters of planning are such that no one can reasonably feel they have been done down. They are given an opportunity in every possible way to get the best of what is going. I also assert that it is much more the job of the Minister with his advisers, and the local authorities with their advisers, to determine the merits of planning, and that we should not expect the courts, the judges and justices to determine matters relating to planning policy.
I move amendment No. 234:
In subsection (1), page 55, line 8, to add to the end of the subsection "to the Minister".
The section says that regulations may provide for any matters of procedure in relation to references or appeals. We are seeking to ensure that these references and appeals are to the Minister, and that appeals to the courts will be governed by the Rules Committees of the appropriate courts.
I put it to the Deputy that this amendment is unnecessary. He may not have taken cognisance of the fact that "appeal" is defined on page 56, lines 33, 34 and 35.
Is it agreed that the matter is covered?
The Minister says it is.
Is it not strange that two definitions are buried in Section 80, and there is no reference to them in the definition section?
They are there.
They are buried in this section. Ordinarily, when you are looking for a definition, you turn to the definition section.
The appeals in question refer to the section.
The Minister does not think it appropriate to include these definitions in the definition section?
These definitions do not apply——
To the Bill in general, but only to this section.
That is right.
I move amendment No. 235:
In subsection (2), page 55, between lines 17 and 18, to insert a new paragraph as follows:
"(d) that the person hearing any reference or appeal in whole or in part on oral evidence shall not be an officer of the Minister's Department who has served in that Department within five years next preceding his appointment to hear a reference or an appeal".
The object of this amendment is to ensure that the person hearing this appeal will not be an officer of the Department "within five years". Since, during the progress of the discussions on this Bill, any appeals to the courts in the ordinary way have been ruled out, we think this is an essential amendment. The person delegated by the Minister to hear these appeals should be absolutely free to exercise his discretion as an appeals officer. He should be removed from what I might call the influence of the official mind in any matters relating to town planning. Therefore, the amendment suggests he should not be an officer of the Department of Local Government or, if such an officer, should not have served in the Department for a period of five years preceding his appointment.
On many occasions during this debate, we have been dealing with what we believed to be the individual type of review that should take place. We have not got the Minister to accept that. We pointed out that the success of this Act will depend on the measure of confidence the citizens have in it. If they are to feel that somebody in the Department, serving at the time of the appeal, somebody dealing with town planning, is to hear the appeal, then ordinary citizens will feel that the dice is loaded against them. In justice to the official hearing the appeal, there should be no imputation so far as that individual was concerned. He should be quite free and detached, while having the necessary experience to provide the type of information the Minister would require. This is something which we feel is very necessary.
The wrong stand that is being taken, and I deliberately say "wrong," is the assumption that the inspector hearing the appeal on behalf of the Minister is in fact anti-appellant before he starts. That in turn would indicate that the Department, the Minister, the local authority and the inspector would be in a line-up on one side and the poor appellant all on his own on the other. Nothing could be further from the truth. Neither I nor any other Minister would condone injustice being done by a Departmental official—even if the official wished to do it—to any individual of the State. That is the first thing I want to make clear. The Minister is the person to whom the appeal lies; the inspector is appointed by him and on his behalf to hear the evidence submitted and he is not asked for nor does he make any decision on what he has heard but is expected to report back to the Minister a factual record of both sides of the case. It is arising from that factual record of the two sides of the story that a decision is taken which the Minister must stand over and defend. He is not going to defend a decision taken unjustly by an official against anybody in the country.
That is one aspect. The other is that there may be 400, 500, 600, 700 or 800 such appeals—and I think there are likely to be some 600 or 700 appeals in the not too distant future. If this amendment were accepted, we would place ourselves in the position that we would immediately rule out as unavailable the people best qualified to do the job on behalf of the Minister. We are not over-blessed with a large number of this type of person with this type of qualification, and that fact related to the volume of appeals which is expected could leave us in the position — if we were debarred from appointing those whom we have at the moment — that we might not be able to get, and probably would not be able to get, as many people as required.
Then we would be forced to do one of two things. We would be forced to slow down and delay appeals until the number of people we were able to get could get around to the appeals, or we could appoint people who were inferior in knowledge and who could not be regarded as being very competent and therefore a greater injustice could arise, because of the incompetence of people on whom we forced these jobs since we were debarred from appointing the best we would have available in our Department.
As the House appreciates, as the Bill stands, we may go outside and we might get somebody from outside and I am asking that the Bill should not be changed so that we may not appoint those who have been employed in the Department in the past five years. It does not mean that the Minister may appoint only those, but the amendment would require that the Minister should not appoint those and must go outside. That could be a distinct hindrance and could bring about the very injustice which Deputy Jones feels might arise under the Bill as it stands.
I move amendment No. 236:
In subsection (6), page 55, line 40, to add to the subsection "and a person giving evidence at any such hearing or appeal shall have all such immunities and privileges as if he were a witness in the High Court".
This subsection deals with the hearing of oral evidence and provides for the taking of evidence under oath and so on. We think that the provision in this amendment is very necessary for the protection of the ordinary relations which exist between the client and the solicitor. It is natural that a person appearing at such a hearing should be assisted by a solicitor. These transactions between client and solicitor have always been regarded as confidential and could not be disclosed to any tribunal or court without the client's consent. Paragraph (b) (iv) of subsection (7) of Section 80 makes it an offence to refuse to give evidence or produce documents. That would mean that the position that has existed in regard to confidential information between solicitor and client would cease and could be brushed aside. The failure to produce confidential documents passing between them could be regarded as an offence. I would urge the Minister to accept this amendment as we feel it is a matter of principle. I hope, without any further pressing, the Minister will be prepared to accept it.
Quite honestly, I do not think this amendment is really necessary. Section 80 provides merely that these must give evidence——
On oath.
——and there is nothing to say that they will have to answer anything which they would refuse to answer in a court of law. The provisions are pretty standard—they are recognised as operating in various types of inquiry. I appreciate what Deputy Jones is seeking, but it is already there, though not necessarily stated.
The issue here is quite simple. If you require a man by statute to give evidence on oath, you place upon him a very peculiar responsibility. If the statute requires him to give evidence on oath, he can claim absolute privilege, but if you have an inquiry where nobody is on oath, then it is only proper you should apply the prudent restriction that he enjoys only qualified privilege. It is then open to anybody to say: "That man got up and maliciously sought to defame me at the inquiry. He did it maliciously to injure me and not for the purpose of the inquiry at all. He did it because he was not bound by oath. He rendered himself liable to no penalty, though, and therefore used the occasion solely for the purpose of defaming me."
On the other hand, if you call a witness and oblige him to testify under oath, he feels bound to reproduce the truth as he knows it. If he departs from the truth, he is liable to criminal prosecution for the criminal offence of perjury. But he cannot then be made amenable to all sorts of civil actions for slander and libel and defamation. The distinction is, to my mind, clear and simple: if the witness is not obliged to give evidence under oath, he should enjoy only qualified privilege; if he is required by statute to give evidence under oath, he ought to enjoy the same privilege as he enjoys in the High Court, or in any other court of competent jurisdiction, because the appropriate sanction against the person giving evidence under oath is to prosecute him for perjury if what he says is not true—it is not to sue him for slander or the like. I suggest that on this principle the amendment is sensible and should be accepted.
My advice is that witnesses are protected against claims for defamation, their statements having been made in all good faith and honesty. That is what we anticipate as being the right of any person called to give evidence under this section. Protection also will be given so that persons may not be forced to answer certain questions. They could not, for instance, be forced to answer questions that might incriminate them. What I am wondering is whether the reference in this amendment might not, in some unforeseen way, tend to restrict the protection of witnesses to some degree more than does the section without this amendment. With a view to having a further look at it, I would suggest leaving it over to Report Stage. If Deputies want this—it does not make any difference as far as I can now see —and it does not minimise the protection witnesses have now without the amendment, I should be inclined to accept it. Without having a further look at it, however, I would not be prepared to do so because it might have the effect of restricting the protection already available to witnesses.
On the section, I should like to draw the Minister's attention to subsection (2) (c):
for the furnishing to the Minister, by any person so appointed, of a report on the oral hearing and for the consideration by the Minister of the report before he gives his decision.
Does the Minister see any reason why a copy of such a report, made to him by the official who has conducted the oral hearing, should not be made available to the parties joined in the hearing before the official concerned? If either party is to have a fair opportunity of raising before a court his rights in respect of some legal matter in which he might think the Minister has gone wrong, would it not be reasonable to provide that he should have made available to him a copy of the report made by the person who conducted the oral hearing?
While some of these reports might be published, I am afraid I could not undertake that all of them would be so published, for the reason that their contents could in fact be confidential to the Minister.
That is what I am not clear on, though I would not press it unduly. The relationship between an official and the Minister is strictly confidential, but these persons may on occasion be acting in a dual capacity, that is, when they are acting as arbitrators. There is a queer duality here on the question of appeal. Does the inspector act as the agent of the Minister or has he a kind of quasi-judicial position? If he is simply collecting information for the Minister, then the relationship between Minister and Departmental official is preserved. If, on the other hand, he is simply chosen from the staff of the Department or from any other source, that special relationship does not exist and it does not seem unreasonable that parties desiring to appeal to the High Court on a matter of law should have access to a copy of the inspector's report. Perhaps the Minister would consider it.
I feel that these inspectors reporting back—being civil servants or not does not really matter but particularly if they are civil servants— would be inhibited to a great degree if they felt their reports to the Minister would be given the full broad light of day. They probably would feel constrained not to give the full picture in all its colour which, for various reasons, might not please everybody. A slight little shift in the Government of the day, for instance, might be to an inspector's disadvantage in this respect. There are all sorts of things that could affect the true reporting, as it were, of these inspectors back to the Minister if it were certain the report would be published in full.
In order to conform to an earlier agreement which we reached to extend six weeks in section 5 to three months, it is the intention to extend the period in this section to a like time. That would be by way of amendment on Report Stage.
I move amendment No. 237:
Before subsection (6) to insert the following new subsection:
"(6) Subsections (3), (4) and (5) of this section shall not apply to entry for the purposes of Part IV of this Act and, in a case in which any such entry is proposed, if the occupier (in the case of occupied land) or the owner (in the case of unoccupied land) refuses to permit the entry—
(a) the entry shall not be effected unless it has been authorised by an order of the justice of the District Court having jurisdiction in the district court district in which the land or part of the land is situate and, in the case of occupied land, save after at least twenty-four hours' notice of the intended entry, and of the object thereof, has been given to the occupier,
(b) an application for such an order shall be made on notice (in the case of occupied land) to the occupier or (in the case of unoccupied land) to the owner."
We feel the section as it stands is much too restrictive in the sense that, where the planning authority seek to enter upon the lands of a person for the purpose of surveying and finding out what is going on, the requirement to give 15 days' notice is too long.
I already raised on previous sections what I could describe as exemptions which are being given to the State in this matter. All that is required of the State in these matters is to consult with the Minister if there are objections. The planning authority has not any power in so far as the operations of various organs of State are concerned. I have in mind, for instance, the Office of Public Works or the Land Commission. These bodies are being exempted, perhaps not in full but certainly in part, from compliance here, as I read it. Before they construct or extend a building, they shall consult with the planning authority to such extent as may be determined by the Minister but if any objections are raised by the planning authority and are not resolved they will then consult, on the objections, with the Minister.
Will the planning authorities find themselves in the position that these bodies may move in and not comply with the reasonable requirements of the planning authority? Will the Minister inform the planning authority of the objects these bodies might seek to carry out in the area of the planning authority? What rights will the planning authority have if they disagree with the type of development which, say, the Land Commission or the Office of Public Works propose to carry out? I have already mentioned a building erected by the Office of Public Works in a town in the West of Ireland. It is erected on the edge of the street in such a fashion that if any development is to take place in that street the private citizen will suffer.
There is the other side of the street.
I suggest the Office of Public Works would not have to appear before the planning authority to justify what they are doing. Are they being placed on a much higher plane than the ordinary citizen? I suggest they need not appear before the planning authority but before the Minister, if there is objection.
Far from being objectionable in its terms, this section is a very new departure in this country and, I would say, in most other democratic countries in Europe in that no laws apply to State operations except where specifically stated. Up to the present, the State were entirely free to do as Deputy Jones said. We say: "they shall consult". They have no option: they must consult with the planning authority. The degree of consultation will be determined by the Minister. If objections raised by the planning authority, after consultation, are not resolved, the matter is brought to the notice of the respective Ministers of the Department of Local Government and of the other Department concerned. They will then consider the matter at issue. If they fail to resolve their difficulties and objections as between the points of view of the two Departments and the planning authority then, like any other difference of opinion between two members of the Government, the matter will go to the Government for decision.
When objection is raised by the planning authority then the Department of State, at that stage, makes its further appeal or argues its case with the Minister. I take it that that is the Minister for Local Government.
Yes. The Minister here in all these cases is the Minister for Local Government.
At that stage, will the planning authority be informed why the Minister allowed, say, the Department to go ahead?
The least we could say about it would be that it would be the height of bad manners if we did not. They would have made their objection. We would be taking their side and, as it were, fighting with the others. If we finally decide the view of the other Department is reasonable and let them go ahead, we would have to inform the planning authority.
They may have been left high and dry.
No. The first thing is consultation. There would be no such thing as an application and decision. The representative of the Department proposing to do certain development would go along to the appropriate man in the local authority. They would have a general discussion of what was proposed. The local authority man might say: "We do not think that is right" and the Department's man might feel they had to have this. That unresolved situation is referred to the Minister for Local Government, who has consultations with the Minister of the other Department concerned to try to resolve it. The last step would be reference of the dispute to the Cabinet for final decision, and that decision would be communicated back to the planning authority.
I move amendment No. 238:
In subsection (4), to delete paragraph (b) and substitute the following paragraph:
"(b) if the planning authority consider that such a consent has been unreasonably withheld, they may appeal to the Minister,".
This is widening the terms of the existing subsection in order to put it beyond doubt that oral hearings will be available to people aggrieved by pipes being laid on their lands, overhead cables, and such matters. They are being put on the same basis as people aggrieved in other ways.
With the acceptance of amendment No. 238, amendments Nos. 239 and 240 fall.
I move amendment No. 241:
In subsection (6), page 59, lines 24 to 26, to delete ", subject to the substitution of references to two months for the references to one month".
This is merely a provision whereby the period for the making of bye-laws may be extended from one month to two months.
I move amendment No. 242:
In page 62, line 35, to delete "1956" and substitute "1954".
This is purely a drafting amendment.
I move amendment No. 243:
Before section 89 to insert the following new section:
"Section 42 of the Public Health (Ireland) Act, 1878, is hereby amended by the substitution of `two months' for `one month' and `such two months' for `such month'."
This is consequential on amendment No. 241.
I move amendment No. 244:
In page 66, line 19, to insert ", tunnels and subways" before "and".
The Third Schedule sets out the purposes for which objectives may be indicated in development plans. These include matters relating to the erection of bridges, and it has been represented that provision should be made in relation to tunnels and subways.
I move amendment No. 245:
In page 67, line 22, to delete "any structures or."
This is purely a drafting amendment.
I move amendment No. 246:
In page 67, line 31, to delete "open space" and substitute "reasonable open space in relation to the number, class and character of structures in any particular development proposal."
We felt, on reconsideration of this particular provision, that the developer might be called upon to contribute too much by way of open space and that unreasonable demands might be made on him. The amendment, therefore, is an effort to restrict the demands that may be made on him.
In assessing "reasonable open space," regard would be had to the amount of building provided for?
Yes, it would be related to the amount.
I move amendment No. 247:
In page 67, line 46, to delete "shops,".
This is a drafting amendment. We feel the word "shops" is unnecessary.
I move amendment No. 248:
In page 69, lines 2 to 4, to delete "due allowance being deducted from such estimated cost for any structural depreciation in the buildings compulsorily acquired" and substitute "having regard to any structural depreciation in those buildings."
This is a drafting amendment to clarify paragraph (7) of the Fourth Schedule.
I move amendment No. 249:
To insert before Rule (9) the following new Rule:
"(9) Regard shall be had to any restriction on the development of the land in respect of which compensation has been paid under the Local Government (Planning and Development) Act, 1963."
This proposes to insert a new Rule, the purpose of which is to provide that, in assessing compensation for land acquisition, regard shall be had to any restriction on the development of the land in respect of which compensation has been claimed under the Act.
I move amendment No. 250:
To insert before Rule (9) the following new Rule:
"(9) Regard shall be had to any restriction on the development of the land which could, without conferring a right to compensation, be imposed under any Act or under any order, regulation, rule or bye-law made under any Act."
This is much the same idea. This is a new Rule to provide that regard shall be had to any restriction on the development of land which could interfere with the right to compensation being imposed under any Act or Order.
I move amendment No. 251:
In Rule (9), page 69, lines 8, 9, and 10, to delete:
"Regard shall be had to considerations related to proper planning and development, including the preservation and improvement of amenities, subject to the proviso that".
This amendment is consequential on previous amendments.
I move amendment No. 252:
In page 69, line 12 and 13, to delete "indicated for any particular use or" and substitute "reserved for any particular".
This is purely a drafting amendment.
I move amendment No. 253:
To delete Rule (12) and substitute the following Rule:
"(12) Regard shall be had to any contribution which a planning authority would have required as a condition precedent to the development of the land."
This amendment proposes to insert a new Rule for the assessment of compensation. It is somewhat similar to those we have disposed of previously.
