Dáil Éireann debate -
Wednesday, 22 Jan 1975

Vol. 277 No. 5

Local Government (Planning and Development) Bill, 1973: - Committee Stage (Resumed).

Debate resumed on amendment No. 27:

Before section 14 to insert a new section as follows:

"Where the Board is of opinion that a request for an oral hearing of any reference or appeal to the Board is ill-founded or vexatious, but not otherwise, the Board may refuse such oral hearing."

—(Deputy Molloy.)

Mr. Molloy

Section 14 reads:

The Board shall have an absolute discretion to hold an oral hearing of any reference or appeal to the Board.

I have been pointing out to the House that the explanatory memorandum circulated by the Minister quite clearly indicates the reason for section 14, and I quote:

This will help the Board to deal expeditiously with cases, particularly where an appeal appears to be ill-founded or vexatious.... The Act of 1963 required the Minister to accede to the request of any party to an appeal for an oral hearing and it seems clear that the provision was being used in certain cases.

We would agree with that explanation if we were satisfied that the wording of section 14 in the Bill did, in fact, carry out the intention expressed in the explanatory memorandum, but we submit that it does not. We also submit that the amendment in my name does cover the point made by the Minister in explaining what he wanted in section 14. I am sure the Minister must have seen this anomaly by now and realised the importance of having the words we are suggesting included. They are the very words which he uses himself in explaining the need for such powers to be given to the board. We have already stated the reasons why we feel this section giving sweeping and unrestricted powers to the board to withhold the right to the holding of an oral hearing should not be allowed to stand without amendment and there has been a good deal of discussion on this section already.

One point which has occurred to me is that the use to be made of this by the board could result in a drastic reduction—and it is the intention that it will result in such a reduction—in the number of oral hearings. Up to the present the Press have been admitted to oral meetings, and the public at large have been informed of developments and the intentions of developments by the reporting of happenings at oral hearings. If the right to hold an oral hearing is to be restricted in this way, and to be restricted very severely, I would submit, you will then have a situation in which a very important planning appeal could be lodged, possibly by a very active residents' association, a tenants' association, a community council or a group of concerned citizens objecting to a proposed development in their particular area and, to highlight their case, they would naturally demand an oral hearing at which they would present their views in order to convey their objections to the proposed development. Up to now the newspapers have been able to report the happenings and the submissions made at such oral hearings. In this way the community at large have been kept informed of the intentions of developers and they have had at their disposal this weapon by which to expose any undesirable developments.

The newspapers have done a very great public service in reporting, sometimes in great detail, what has gone on at these oral hearings. I submit that in many cases the only way in which the public at large were informed of developments was through the reporting of oral hearings. Many important appeals have been held and have been reported in the newspapers and the only real knowledge of the intentions of developers the community has been able to glean has been from such newspaper reports. If, as is the expressed intention in section 14, the board shall have the right to refuse an oral hearing without stating why, without giving any reason, without having any conditions attaching to their right to refuse, we shall have a situation in which oral hearings will be greatly restricted. There will be no guarantee in cases like the Central Bank building, where an oral hearing was held and citizens were able to give their views as well as official bodies, of any public awareness of the intentions of developers. The Minister will plead that it is unreasonable to suggest that in an appeal of such importance an oral hearing would be refused. I counter that by saying that if he is satisfied that the board should withhold the right to an oral hearing only in frivolous and vexatious cases and should grant the right in such cases as the Central Bank building and other controversial issues like that, then he should ensure that that is clearly written into the legislation. But the power being given to the board is not restricted. That is our great objection.

We have given many sound and valid reasons why our amendment should be accepted. I make one last appeal to the Minister to accept our amendment. It incorporates the Minister's own words and, if he accepts it, we will then be able to move on to another section of the Bill.

Mr. Cunningham

I would also appeal to the Minister to accept this amendment. It is just not good enough for him to say that he will consider it between now and Report Stage. These words are important. If the Minister does not accept our amendment then, under the Bill when passed, the Minister will be replaced by a board. If the Minister continues into the new Act we could table questions here or put down motions in cases in which an appellant was aggrieved and had no recourse to an oral hearing. We could seek to have the particular case dealt with in this House. The case would be fully publicised.

The board will not be responsible to this House. They will be responsible to the Minister. The pattern will continue: when Deputies seek information they will be told that the matter is the responsibility of the board and the Ceann Comhairle will rule out questions designed to elicit information from the Minister. How is one to know on what basis this board may refuse a request for an oral hearing? The Press will be excluded. Excluding the Press is a retrograde step. Up to now oral hearings have been the method adopted by people who could not afford any other method to have their case debated across the table in an appeal. The Minister should seriously reconsider his attitude and accept this amendment. If the Minister were not being replaced we might not push this amendment so strenuously because we would have the alternative method of bringing the matter out here into the open by way of question or motion. The Minister will have no control over the board and we simply cannot agree to what the Minister proposes.

Mr. Callanan

I would not press this amendment if the Minister were to decide whether or not there should be an oral hearing. The people the Minister and I represent have their public representative to come to and they know that they will be listened to; boards are a different matter. Boards have been set up and given different powers and no public representative dare make representations where these boards are concerned. Human nature being what it is, we know that bad decisions can be made. I am not accusing anybody of doing a dishonest turn but, if you are in a certain social group, you can make representations. The small man cannot make representations once this has gone out of the hands of the public representatives.

If the Minister sets up a board with discretionary powers in relation to oral hearings, he is doing away with representation for the small man, and I want to see that he gets a fair crack of the whip. Various boards have been set up and public representatives cannot make representations to them. If they do, the person is disqualified. I make the statement categorically that representations can be made by people in the proper social group. That is my greatest objection to this. It is handing over power to people who are not responsible to this House and representations cannot be made on behalf of the ordinary Joe Soap. On principle I am against this, and I am in favour of the amendments.

Mr. Timmons

I should like to support this amendment. There is considerable public uneasiness over the fact that there should be any form of restriction on oral hearings. As one who has been involved in oral hearings I know the value of them. Representative organisations, and particularly community associations who take an interest in planning in their districts, and who at times have to formulate their appeals to the Minister, should not be denied this right. There should be no suggestion in our legislation that they should be excluded in relation to planning appeals.

Some people in this city have gone to considerable expense in furthering their objections to certain planning proposals. They had the goodwill and the help of the community in their efforts. I make a strong appeal to the Minister to reconsider his attitude. I support the system as it exists whereby any request for an oral hearing can be made and granted. The parties can come together and put forward their case. I would ask the Minister to consider that.

Mr. Tully

I wonder who first thought of the idea of this horrible board because, apparently, we are to have an awful crowd of chancers on the board and everybody is afraid that they will be dishonest and do all sorts of queer things. Let us face up to it. The object of this Bill is to set up a board, and this was suggested by practically everybody in this House except Deputy Callanan——

Mr. Callanan

Thank you.

Mr. Tully

——to deal with the question of appeals. Apparently it was the desire of everybody to have this taken away from the Minister. This is my fifth time to repeat that I am prepared to listen to reasoned argument in this House on any of the matters in the Bill. If it can be improved, of course I will be glad to try to meet the wishes of Members of both sides of the House.

As I explained earlier, the section was included to prevent two things. One was to prevent appeals put in by cranks which were made just for the purpose of holding up planning matters. Apparently Deputy Molloy and other Fianna Fáil speakers agree that this sort of appeal should not be allowed an oral hearing. If the volume of appeals, and particularly the volume of requests for oral hearings, continues to grow, can we deal with them? All sorts of arguments were put up here this evening as to why we should attempt to deal with all oral hearings requested. Deputy Molloy was reasonable enough when he said he did not feel that we should try to do that and that, in fact, there were certain types of appeal which could be dealt with in another way, but that this was not spelled out in the section.

This brings us back to the board. We will have a board which will have the confidence, I hope, of the House and of the country. Can we rely on that board to decide in their wisdom whether or not an appeal is important enough to have an oral hearing or whether it could be dealt with simply by written evidence? Deputy Cunningham made a comment and I should like to take him up on it. He said that if the responsibility for deciding what appeals were to be oral hearings was the Minister's, this would meet his wishes. Did I take him up correctly?

Mr. Cunningham

I said that we might not push this amendment so hard.

Mr. Tully

Would the Fianna Fáil group be prepared to accept a proviso that on oral hearings the final decision would rest, on appeal, with the Minister for Local Government? Would that meet the wishes of the Fianna Fáil Party? Deputy Cunningham said it. Deputy Molloy may have a comment and I will sit down to give him an opportunity of commenting.

Mr. Molloy

Would the Minister say that again?

Mr. Tully

Deputy Cunningham suggested that if the decision was being taken by the Minister for Local Government as to whether or not there should be an oral hearing the Minister would be answerable here in the House and therefore there would be a safeguard and that would meet their wishes. Supposing we write into the section a proviso that, if somebody is aggrieved by not being allowed an oral hearing by the board, he is entitled to ask the Minister for Local Government for a ruling on it, as is the case in many other matters which are decided on appeal, would that be acceptable to Fianna Fáil?

Mr. Molloy

It certainly overcomes the problem to which we have been lodging our main objection, which is that the board are a completely different animal from the Minister, and completely inaccessible to the public, and will be making decisions in an arbitrary way. If the Minister is now suggesting that there would be some form of appeal for anybody refused an oral hearing, we are interested in listening to him. Is the Minister suggesting that the person would be given an opportunity of appealing to the Minister? If he is refused an oral hearing by the board, he can write to the Minister and let him decide it? That certainly meets our primary objection. We are prepared to accept that. The Minister will introduce an amendment to this effect on Report Stage?

Mr. Tully

Yes.

Mr. Molloy

At this stage it looks as if it meets our point. We will reserve our right to comment on it on Report Stage.

Mr. Tully

I would never take away that right.

Mr. Molloy

The Minister cannot. Maybe at Question Time he can exercise other rights in an arbitrary fashion, but he cannot deny us the right to comment here when various Stages of a Bill are going through. I should like to express our appreciation to the Minister for having seen the point we were making and trying to meet the point. We think this does so, but we will have another look at it on the Minister's amendment on Report Stage.

Mr. Callanan

We can question the Minister in the Dáil.

Mr. Tully

Yes, on why he did or did not allow an oral hearing. Could I make one final point with regard to what Deputy Callanan has said? Of course the local representative or anybody can make representations. The fact that there is a board does not mean that they cannot make representations.

Mr. Callanan

You cannot go near them at all.

Mr. Tully

Deputy Callanan is a very decent man——

Mr. Cunningham

We are all the same over here.

Mr. Tully

I am glad to see that occasionally there are flashes——

Mr. Cunningham

Of intelligence.

Mr. Tully

——of intelligence.

Mr. Cunningham

It is not all over there.

Mr. Tully

No, it is not. I think Deputy Callanan has a chip on his shoulder about this new board.

Mr. Callanan

About all boards.

Mr. Tully

I should hate to see Deputy Callanan misunderstanding the functions of the new board. He can rest assured that it will be a decently and well-run board.

Mr. Molloy

We are grateful to the Minister.

Amendment, by leave, withdrawn.

Mr. O'Brien

I move amendment No. 28:

To add to the section the following:

":provided that in the event of a refusal to hold an oral hearing the Board shall state the grounds for its decision in writing."

Despite the fact that people may go to the Minister, it is still important that when people write for an oral hearing and are refused, they should be given the grounds for that refusal in writing. If a board tend to feel they have no responsibility to the appellants to let them know the reason, they tend to become over-bureaucratic. They tend to make the public cynical about boards. It should not even be necessary to have an amendment down to this effect. It is only a matter of common courtesty, where an oral hearing is requested and the request turned down, that the grounds should be stated. This would help to make up people's minds and would make the Minister's job easier in that he might not have so many representations seeking oral hearings if a proper explanation were given to the appellant why his application was turned down. I think this is a reasonable amendment and I ask the Minister to accept it.

Mr. Tully

I had hoped the Deputy would withdraw the amendment in view of the discussion on the previous amendment. If the board were to give an explanation in writing it presupposes that the explanation would be subject to query from the person receiving it and correspondence could arise which could eventually result in the full time of board officials being occupied in correspondence. When the amendment is put down by me for the Report Stage the situation will be that anybody asking for an oral hearing, instead of getting a reply saying "We are terribly sorry but we do not think you are entitled to an oral hearing because ..." will have the right to appeal to me or to my successor in years to come. If they are not then satisfied they can get a Deputy to raise the matter by question in the House. I should not like to see this become a matter of correspondence between the board and an applicant and I ask the Deputy to withdraw his amendment. If the previous amendment had not been dealt with as it was, there might be something in this amendment but I think the Deputy will agree that the situation has been adequately met.

Mr. O'Brien

We have heard a good deal about the independence of this board and we have now reached the stage that people can contact the Minister who can contact the board. Personally I do not like the amendment the Minister is bringing in because I favour as much independence as possible for the board. We are setting up a responsible board. Listening to the Opposition one would feel we were getting nit wits—and corrupt ones at that—on this board.

Mr. Molloy

We do not know who we are getting yet.

Mr. O'Brien

No, but it is reasonable to assume the Minister would select responsible people.

Mr. Haughey

That is not the track record.

Mr. O'Brien

It is, as far as we are concerned. It may not be yours.

Mr. Tully

If we go back on the track record it has been very good for the last two years but——

Mr. Haughey

It is Fine Gael I am talking about, not you.

Mr. O'Brien

Perhaps the Deputy's side of the House have problems but we are happy here. The Opposition would give the impression that oral hearings were being barred. That is wrong. What was said was that the board would have absolute discretion as to whether they would grant an oral hearing or not. This was reasonable although I think the word "absolute" should be omitted because it is a bad word.

In my view people should get the reasons for a decision of the board in writing. I think the Minister is rather unwise to put down such an amendment involving himself in the board in that way but, seeing that people have a right to go back and appeal to the Minister in that way, I presume people have a recourse and will not feel "done down". On the basis of what the Minister is doing, even though I think it is unwise and is making it a harder job for himself and his successors to deal with this double-edged weapon, I will withdraw my amendment.

Mr. Molloy

We agreed with the amendment put down by Deputy O'Brien and we intended to support him. There is a good principle in the amendment in that it requires the board to give reasons for certain decisions they take. We think it is a good principle that the board be required to put in writing their reasons for refusing to grant an oral hearing. The fact that the Minister has conceded on the previous amendment that a person so refused has the right to appeal to the Minister for Local Government does not alter the general principle involved here. I can envisage a person seeking an oral hearing and applying to the board. They refuse, and he gets a note so informing him. That is all he knows. When and if the Minister's amendment is passed that person can appeal to the Minister against this decision. But I think the board should state why they have refused an oral hearing.

If the reasons are good and logical and if the person requesting the oral hearing accepts those reasons as valid, he could possibly anticipate the Minister's decision on appeal and not waste his time and the Minister's in proceeding with the appeal to the Minister. It might be a help and an improvement of the whole appeal process if the board were required to explain their refusal. In that way there would be more open legislation and greater communication between the bureaucratic arm and the community resulting in an improvement in the image of planning in general. That is an attractive proposition and something we would support and I would ask Deputy O'Brien to allow his amendment to stand. He should reconsider his decision to withdraw it. We would like to see it included in the Bill.

Mr. Moore

As a local authority will give reasons for rejecting any application and as I believe 90 per cent of those who make appeals are reasonable people, I think they should be given the courtesy of having the reasons for refusal explained to them.

Mr. Tully

I think the Deputy and Deputy Molloy are missing the point. This is not a decision on an appeal——

Mr. Molloy

It is a decision on the oral hearing.

Mr. Tully

Do the House and Deputy Moore want a decision given by the planning board before the case is heard at all?

Mr. Molloy

No, but on why they will not grant an oral hearing.

Mr. Moore

I am making a comparison with what happens at local authority level. As a matter of courtesy a person who writes to the Department or to the board should get the courtesy of having that body's views explained to them. It is not a planning application. The reason why the board say the oral hearing cannot be held should be explained. We should try to bring the people along with us on these things all the time. I have the utmost confidence in the Civil Service to adopt a brief reply setting out the reasons for the refusal. We may not accept the reasons for the refusal but we can accept that they would be courteous in their reply.

Deputy O'Brien and I represent postal areas Nos. 4 and 6 in Dublin and, as the Minister is aware, appeals abound from that area. That is why we are so sensitive about this matter.

Mr. Tully

They do not. The Deputy must be thinking about another area but they are not pouring in from his area at all.

Mr. Moore

I have it on record that district No. 4 is the most active on the appeal business. I am sure the Minister is aware that it is an important area.

Mr. Tully

We all represent important areas.

Mr. Moore

Deputy O'Brien might consider the merits of his amendment and suggest to the Minister that he incorporate the principle of it in this section.

An Leas-Cheann Comhairle

Deputy O'Brien has asked leave of the House to withdraw his amendment.

Mr. Haughey

The Deputy must get our leave to withdraw his amendment.

An Leas-Cheann Comhairle

That is the question.

Mr. Callanan

In my view it would be in the Minister's interest to incorporate this amendment in the section. If an applicant received no explanation for a refusal he will almost certainly appeal in every case. If the board outlines to him the reasons why his application was turned down, in my view he will not appeal. People are cute enough and they consult a lot of people before they lodge an appeal and if they are not given a reason for a refusal of an application they will appeal every case. Deputy O'Brien's amendment would be an addition to this Bill and it would stop appeals going to the Minister unless the applicant had genuine grounds for appeal.

Mr. Tully

In my view Deputies are making a mountain out of a molehill. We discussed the original amendment and reached agreement on it. We are talking about appeals which are mischievous and so on but I suggest that there is a certain amount of mischief involved in the attitude being adopted by some Fianna Fáil members in this regard. I do not think we are doing ourselves or the House any good by attempting to go back on what I consider to be an agreement made across the floor of this House in relation to section 14. We agreed what should be done but now the suggestion is being put forward that we accept an amendment which the proposer is anxious to withdraw. We are now being asked that the board be expected to give an explanation if they refuse to give an oral hearing. In my view we are going further than I would be prepared to go on this matter. We are either giving the person who has been refused an oral hearing the right to appeal to the Minister on that and all that entails——

Mr. Haughey

It seems that this would really follow logically form our decision to give the appellant the right to appeal to the Minister because if the board decide not to grant an oral hearing and give a reason for their decision then the appellant knows whether or not that reason is overwhelming and compulsive and he has no grounds. The fact that the board would give reasons for not granting an oral hearing would give the appellant grounds to appeal to the Minister or deciding he had no case.

Mr. Tully

The suggestion that the board should spend time giving reasons why they decided an oral hearing was not necessary would mean that a lot of paperwork would be involved. Deputy Molloy, and others, talked about the difficulty of having hearing involving big industries and of the right of local organisations to appear. In my view there is some kind of a doublethink in this on the part of some of the Fianna Fáil members. We are talking about something that most of us are prepared to accept. I assume that the board, being a reasonable board, would decide that an oral hearing was not necessary on a relatively simple case.

It is difficult to persuade some people who make an application for an oral hearing that what they were told was the real reason for refusing an oral hearing and they would send letters backwards and forwards as long as they would be answered by the appeal board. We have already accepted that such people have the right to appeal to the Minister for Local Government against the refusal of the board to grant them an oral hearing and he would then decide whether such people were entitled to one or not. In this way the appeal board would not be cluttered up with correspondence over something which was not of much concern. Otherwise, it would finish up that the appeal board would be better off granting oral hearings in every case, because it would prove less time-wasting and would require less paperwork.

I appeal to the Opposition, having reached what they appear to have considered to be a reasonable compromise on section 14, to allow the amendment to be withdrawn as suggested by the mover.

Mr. Molloy

Would the Minister be prepared to have written into the Bill that the Minister for Local Government shall give his reasons for either granting or refusing an appeal for an oral hearing?

Mr. Tully

As the Deputy knows if somebody appeals to me against a refusal for an oral hearing and I reply that I consider that that person is not entitled to an oral hearing because it is only an addition to a house which can be dealt with locally without a hearing then in nine cases out of ten the appellant will write back pointing out how important his case is. That would mean that correspondence would mount up or I would have to stop answering when I would be worse off than I was in the first place.

Would Deputy Molloy not agree that the simple way to do it is to say that we have decided now that an appeal to the Minister for Local Government is possible, or will be written into it and, if the person is not satisfied, he is entitled to have it raised by a public representative—if the public representative considers it important enough to have it raised on the floor of this House? What better guarantee do we want?

Mr. Molloy

We do not want to waste too much time on this, I suppose if the matter can be raised on the floor of the House at least there is some place in which the person finally has to explain himself. That is the principle which we have been seeking in the discussion on the recent amendments here. I suppose, if a person is refused an oral hearing by the Minister having appealed the board's decision, if a parliamentary question is put down asking the Minister for Local Government to state his reasons for refusing to grant an oral hearing, if the House will accept it as being in order, the Minister gives an assurance that such questions will, in fact, be answered adequately here by the Minister for Local Government and the House will accept that as traditional. then we would agree to it.

But the Minister will be aware that Ministers can use a device in replying which allows them sometimes to avoid giving information which is sought by way of parliamentary question. Only today, and, indeed, yesterday, we had the classic example of a Minister using the device and a formula of words which enabled him to refuse to impart to this House information to which the House, and, indeed, the country, rightly felt they were entitled. We, for our part, would be prepared to accept it as traditional that such questions would be properly answerable by the Minister for Local Government, at parliamentary questions and, if the Minister gives us that assurance, we can move on.

Mr. Tully

I agree that if a question came to me about an appeal on which I was asked to decide about whether or not a person was entitled to an oral hearing, I would be entitled to give my reasons for refusing, if I so refused. But I can tell Deputy Molloy that if he, or the people representing the party on the far side of the House, adopted the tactics they did today, they would not get very much change out of me no more than they did out of Dick Burke.

Mr. Molloy

The Minister should not stoop so low because we have had one Minister already today go so low, lower than any Minister or person we have ever seen in this House.

An Ceann Comhairle

Let us adhere to the amendment.

Mr. Tully

Despite what the former Taoiseach asked Deputies there to do, they were not prepared to do what he asked.

An Ceann Comhairle

Let us confine our remarks to the amendment under discussion. I take it, then, that Amendment No. 28 is withdrawn by agreement.

Amendment, by leave, withdrawn.

Section 14, as amended, agreed to.

SECTION 15.

Mr. Molloy

I move amendment No. 29:

In page 8, line 16, to delete "may" and substitute "shall".

Could the Minister let us know whether or not he is accepting that amendment?

Mr. Haughey

Of course he is.

Mr. Tully

No, I am not accepting it because the section has to do with the particular nature of planning appeals and the board will not be arbitrating between parties but will be dealing with each appeal as if the application had been made to the board in the first instance. That can be seen if one refers to section 26 (5) (f) of the 1963 Act. Accordingly, the board may take into account any matter which seems relevant, provided it is a matter relating to the proper planning and development of the area. At present, Article 9 of the Appeals and References Regulations, 1964, provide the safeguard that such matters must be brought to the attention of the parties and they must be given an opportunity to comment. Section 15 incorporates this safeguard in the Bill instead of having it in regulations. The effect of the amendment would be to require the board, in every case, to take into account matters other than those raised by the parties. Obviously, (the amendment is a mistake. If Deputy Molloy takes a look at it, I think he will realise it is a mistake. Therefore, I would ask that it be withdrawn.

Mr. Haughey

The point is that Deputy Molloy's amendment was put down before the Minister's amendment No. 30. We have got to read Deputy Molloy's amendment now, having regard to the section as it will be amended by the Minister's amendment No. 30. Is that not so?

Mr. Tully

I do not know what Deputy Molloy wants to relate it to.

Mr. Haughey

If we are going to accept the Minister's amendment No. 30, then the words: "matters relating to the proper planning and development of the area" will be deleted.

Mr. Tully

How could we compare it with amendment No. 30, when, in fact, amendment No. 30 has not been taken?

Mr. Haughey

If we do accept amendment No. 30, whether it be the word "may" or the word "shall", it will apply to a different set of words in the section than the section now reads. Is that not so?

Mr. Molloy

We can take them together if the Minister likes.

Mr. Tully

That has not been suggested.

Mr. Molloy

The Chair might suggest it.

An Ceann Comhairle

It has not been suggested.

Mr. Haughey

At this stage Deputy Molloy would propose to put in the proviso that the board shall take into account matters relating to the proper planning and development of the area. If we accept Deputy Molloy's amendment at this stage that is what the effect of it would be. But, when the Minister comes along with his amendment No. 30, those provisions will be taken out and the word "shall" will apply then only to matters other than those raised by the parties to the reference or appeal.

The point I am making is that, taking Deputy Molloy's amendment at this stage, by itself—without reference to amendment No. 30 and the changes that amendment No. 30 would make— is quite meaningless.

Mr. Tully

It is quite meaningless to take it now.

Mr. Molloy

Could we take the two of them together?

Mr. Tully

I have no objection at all. Incidentally, I hope to take amendment No. 48 as well as amendment No. 30.

An Ceann Comhairle

If the House wishes to take the amendments together that will be satisfactory; Nos. 29, 30 and 48 together.

Mr. Tully

The amendments which have been listed together are relevant. Amendment No. 30 is to be taken with amendment No. 48. Deputy Molloy did not suggest until now that amendment No. 30 should be taken. I am prepared to be agreeable but not that agreeable.

An Ceann Comhairle

If amendment No. 30 is being taken, amendment No. 48 would be very definitely related.

Mr. Haughey

I think it must then read "may". It cannot read "shall" if amendment No. 30 is adopted.

Mr. Tully

Amendment No. 30 says "may". But if Deputy Molloy could withdraw his amendment, then we have it right.

Mr. Molloy

The only confusion in my mind now is the Minister's reference to amendment No. 48. Could the Minister tell us why he wants that taken with amendment No. 30?

Mr. Haughey

Because section 22, subsection (2) which is referred to in the Minister's amendment, can only come in if we adopt amendment No. 48.

Mr. Tully

Might I be allowed to explain it?

An Ceann Comhairle

May I ask if amendment No. 29 is withdrawn?

Mr. Molloy

I think so, because the amendments of the Minister change the meaning of it. The point I was getting at was that it would be imperative that the proper planning and development of an area should be taken into account in deciding. That is why I felt it was a mistake to state that it "may". I felt it would be more positive to have the word "shall", but the strength of my amendment has been weakened by the Minister subsequently changing the words which followed. Therefore, at this stage, it might be as well to withdraw that one and proceed to the other two.

Amendment, by leave, withdrawn.

Mr. Tully

I move amendment No. 30:

In page 8, lines 17 to 19, to delete "relating to the proper planning and development of the area of the relevant planning authority other than those raised by the parties to the reference or appeal" and to substitute "other than those raised by the parties to the reference or appeal if the matters either relate to the proper planning and development of the area of the relevant planning authority or are matters to which by virtue of section 22 (2) of this Act the Board may have regard.

amendment No. 48, which proposes a This amendment is consequential on new section enabling a planning authority when considering an application for permission, or the board when considering an appeal, to have regard to matters arising outside the planning district immediately concerned. Perhaps if I read the note dealing with amendment No. 48 it will be understood more easily.

Mr. Haughey

That is not necessary.

Mr. Tully

The board are required by section 26, subsection (5) (b) of the 1963 Act to deal with an appeal as if the application had been made to them in the first instance. Accordingly the board are not confined to the issues raised by the appellant. The purpose of section 15 is to ensure that if any other matter is being taken into account it must be brought to the notice of the parties and they must be given an opportunity to put forward their view.

This amendment here is necessary to ensure that that safeguard is extended to matters of the kind being provided for in the new section proposed by amendment No. 48. This is a new section enabling a planning authority, when considering an application for permission or other matter, to look outside the boundary of their own district and to take into account matters which might be relevant to the proper planning and development of their own area—for example, the effect on an urban housing scheme adjoining their boundary if the county council were to permit the building of a factory on land in their area. That sort of situation arises from time to time in the area in which I live because the town of Drogheda is close to County Meath. There is also the question of the polluting effect of effluent from a proposed development if such effluent were allowed to be discharged into a river a short distance upstream from the intake for a water supply for another area, and there is also the question of the recreational and amenity needs of the population of another area. Subsection (2) extends the provision of the board in relation to any relevant needs. The need for an amendment of this kind has been suggested by An Taisce.

The matter has not given rise previously to any problem. Perhaps this is because planning authorities assumed that in considering the proper planning and development of their areas they could take other matters into account. If a case were appealed there would have been no difficulty involved because under the 1963 Act the Minister has a specific co-ordinating function. This will not apply to the board, but as the question has been raised it is better that the position be clarified. What we are doing is ensuring that the board will have the authority to take these matters into consideration; otherwise there would be the possibility of somebody endeavouring to have a ruling whereby the board would deal only with the matters before them.

Mr. Haughey

I suggest that by using the words "other than" in section 15 the Minister does not achieve what he wishes to achieve. If the amendment is accepted the words "relating to the proper planning and development of the area of the relevant planning authority other than those raised by the parties to the reference or appeal" will be deleted and the section will then read: "the board in deciding a reference or appeal may take into account matters other than those raised by the parties to the reference or appeal...." Would it not be better if, instead of "other than" there were inserted the words "in addition to"? The use of the words "other than" would exclude the matters that the Minister desires to bring in, namely, those raised by the parties to the reference or the appeal.

Mr. Tully

The board may take into account matters which are part of the appeal and also matters other than those.

Mr. Haughey

The section will read now: "...may take into account matters other than those raised by the parties to the appeal...". My suggestion is that the section should read "...may take into account matters in addition to those raised by the parties...".

Mr. Tully

This is merely a question of a play on words and in my opinion my wording is correct.

Mr. Haughey

I assure the Minister that on first reading the words "other than" conveyed to me that the board could take into account matters except those raised by the parties to the appeal.

Mr. Tully

If it were a case of our wanting to give the impression that we were appointing a crowd of morons who in hearing appeals would take into account only those matters which did not relate to the appeal, what the Deputy is saying would make sense.

Mr. Haughey

We are not appointing anybody. We are framing an Act of Parliament and I want that Act to express precisely what is intended. The Minister and I are in agreement as to what should be done. We agree that the board may take into account other matters in addition to those raised by the parties to an appeal. In all sincerity I suggest that the way the section will now read will convey the impression that the board may only take into account matters other than those raised by the parties to an appeal.

Mr. Molloy

It could be read that way.

Mr. Tully

Perhaps it could but the argument is ridiculous. I do not think anybody would suggest that to be the meaning of the section.

Mr. Haughey

I have made my point.

Amendment agreed to.

Mr. Molloy

I move amendment No. 31 in the name of Deputy Haughey:

In page 8, line 22, before "the person" to insert "to".

I move this amendment in the absence of Deputy Haughey who has had to withdraw in order to attend a meeting. We are not unduly worried about this amendment.

Mr. Tully

Is it being withdrawn?

Mr. Molloy

I intend listening further to the Minister's comments and then, perhaps, withdrawing the amendment.

Mr. Tully

I do not see any merit in this amendment and, consequently, I have been wondering why it was inserted.

Amendment, by leave, withdrawn.

Section 15, as amended, agreed to.

SECTION 16.

Mr. Molloy

I move amendment No. 32 in the name of Deputy Haughey:

In subsection (1), page 8, line 33, after "appeal" to add "but any party may within the stated time after the service of the notice make written submissions to the Board who shall consider such submissions before determining the reference or appeal."

Is the Minister accepting that?

Mr. Tully

No. As it stands, the section enables the board to make a decision at any time after the seven days allowed by the notice. It does not enable them to make that decision without considering any submission received from a party either before the notice issued or before expiry of the time allowed in the notice. If a submission is received from a party after the time, the board will still consider it, if they have not already made a decision. Subsection (2) is permissive and not mandatory. While there is no great objection to the amendment, it is mandatory in the terms that it might preclude or discourage consideration of a submission which arrived a few days later but not before a decision was made. It would be more appropriate to have something of the kind contained in subsection (2).

This is complicating matters. We are trying to work within a time limit. This appears to be an attempt to widen the limit. We would have the old story about the appeal that comes to the Custom House which was received the day on which it was supposed to have been posted, if the postmark is blurred. This sort of thing will blow up again. I have no objection to it or we might succeed in wording it some other way. Frankly, I do not see any great merit in it because, in my view, it merely complicates matters.

Mr. Molloy

Section 16 (1) reads:

Where the Board is of opinion that a reference or appeal is vexatious or is being unnecessarily delayed by any party, the Board may serve a notice on the party stating that it will, at a time after the day specified in the notice (being a day which is not less than seven days after the service of the notice) without further notice to the party, determine the reference or appeal...

Is the Minister satisfied that posting and delivery are adequately covered in other places because they are not covered here.

Mr. Tully

They are covered in other places. As it stands, it is not mandatory. If they receive it after the date and they have not made the decision, they can still consider it. If Deputy Haughey's amendment were accepted, it would mean that they could not consider it, and this would worsen the situation.

Amendment, by leave, withdrawn.

An Ceann Comhairle

Amendment No. 33. Amendment No. 34 in the name of Deputy Molloy is an alternative. I suggest we take the two amendments together.

Mr. O'Brien

I move amendment No. 33:

To add to this section a new subsection as follows:

"(3) The Board may withdraw a notice served under this section."

The purpose of this amendment is to tidy up the section. It says that the board may serve notice and then there is a time limit. I believe that when this notice is served there is no indication it may be withdrawn. If the necessary evidence is presented to help them make a normal decision, they would withdraw the notice served. If this provision were included, as I said, this would tidy up the section and make the board's job easier. When a notice is served can it be withdrawn or, if they receive the information within the allotted time, can they carry on with the normal appeals situation?

Mr. Molloy

I put down my amendment for the same reason. There does not seem to be any provision in the Bill for the withdrawal of the notice. I went further than Deputy O'Brien in stating that:

The Board may withdraw a notice served under this section, provided:

(i) that it is satisfied that, as a result of evidence submitted by any party, there is no unnecessary delay, or that a reference or appeal is not vexatious, and

(ii) that the notice of withdrawal is sent in writing to all parties to the appeal.

We are both covering the same point, but my amendment lays down more conditions. Has the Minister any comment?

Mr. Tully

Neither of the amendments, in my view, is necessary. The section enables the board to serve a notice where it is of the opinion that an appeal is vexatious or is being unnecessarily delayed by any party, and empowers the board to make a decision after the period specified even if the party concerned has made no submission. Therefore, there is no necessity for the amendment. The section does not impose any obligation on the board to make a decision after the seven days or whatever period is specified.

A party to an appeal can hold up progress by delays of submission, grounds of appeal or particulars which he wishes to submit in support of such grounds. Reasonable facilities must be given to him to satisfy the requirements of natural justice. It is difficult to draw the line. If information comes to hand within the period specified, the appeal will proceed in the normal way. That will also apply if the submission is late but arrives before a decision has been made. The board could hardly refuse to consider it simply because it did not arrive within the time specified. As it stands, the matter is fully covered. When I looked at this first I thought I could see something in it, but when I went through it I realised that this might possibly worsen the situation, not improve it. If I were on the other side of the House or where Deputy O'Brien is, I would have rushed in immediately to put down an amendment because on a first reading it looked like that. I am satisfied it adequately covers what we want and, I am sure, the House want. I, therefore, ask that the amendment be withdrawn.

An Ceann Comhairle

Are the amendments withdrawn?

Mr. O'Brien

Yes, if I am assured that the appeal can go on if the appellant sends in the evidence within seven days. If a notice is served do the board make this decision without recourse to the information supplied by the appellant within the time limit?

Mr. Tully

They would be obliged to go ahead.

Mr. O'Brien

They would be obliged?

Mr. Tully

If they send in information——

Mr. O'Brien

There is a reason for this amendment. If the information is submitted within the period of time——

Mr. Tully

I am sorry to interrupt Deputy O'Brien. They would be obliged to consider the grounds of appeal. Even if the notice arrives late but before the decision is made, they must take cognisance of it. Therefore, it is fully covered.

Mr. O'Brien

That is what I wanted to know.

Mr. Tully

Sorry, Deputy, if I misled you.

Amendment, by leave, withdrawn.

Amendment No. 34 not moved.

An Ceann Comhairle

Amendment No. 35 relates to No. 26 which has been agreed.

Mr. Tully

I move amendment No. 35:

In page 8, between lines 40 and 41, to add to the section the following subsection:

(3) In case the Board in determining an appeal is of the opinion that the appeal is vexatious, the Board may direct that the deposit lodged in relation to the appeal shall be forfeited to the Boards.

Mr. Molloy

Would the Minister agree that the board should state the reasons they consider it vexatious or why they direct the forfeiture of the deposit?

Mr. Tully

Provided nobody gets the idea that this is the start of a long correspondence, I see no reason why they should not give the reasons they thought it vexatious. If we write that into the Act it means that the board will write and say: "Your deposit is lost because we consider the appeal is vexatious and the reasons are..." The person can then write back and say: "No, this is not what I want to do." Then that can go on for ever. That was never the intention. I am sure the Opposition would not be anxious to have that included in the Bill.

I think we had better leave it as it is. If it needs tidying up perhaps we could have a look at it later on. I would not be anxious to have this long correspondence entered into.

Mr. Molloy

On the Minister's part there is reluctance to oblige this board to explain themselves.

Mr. Tully

Yes.

Mr. Molloy

There is a reluctance to oblige them to give reasons for their decisions. On our side there is a desire to ensure that where the board have been given the power to make decisions they are obliged to state the reasons why they made such decisions. That difference has arisen section after section in our discussions, particularly today. We think the least the board might be expected to do is to state their reasons for a decision. I know, having sat in the Minister's seat, that there will be a tremendous reluctance on the part of those making decisions to have to put down on paper their reasons for those decisions. I am not sure that their reluctance will be for the right reasons. Where a member of the public is dealing with a State board, particularly in regard to planning, he is due the courtesy of an explanation when he is refused something which he is seeking. It is most unsatisfactory to get an arbitrary refusal and no explanation. The difference in thinking on this between Fianna Fáil and the Coalition has been quite evident today. This reluctance to write things in comes from being in office and the more liberal approach comes from those in Opposition. I would ask the Minister to try to cast off the burdens of office and the feeling of responsibility to protect the whole bureaucratic system and to write in a few good solid guarantees to the citizens by including a number of our suggestions.

Mr. Tully

Since I came to this side of the House I have been writing in good solid legislation for the benefit of the people.

Mr. Molloy

The Constituencies Act, which was sheer gerrymander.

Mr. Tully

I am sure Deputy Molloy remembers from his time that sometimes a person makes an appeal simply for the purpose of annoying somebody or the person making the appeal may not be right mentally. There have been occasions when people have sent in an absolutely ridiculous appeal and asked for an oral hearing. Some cases caused a lot of trouble. For that reason, they would not be entitled to be told more than that they were considered frivolous. In fact, the person who would get the reply would almost certainly dispute it and unless there was to be written into the Bill, and I do not propose to do it, some other type of appeal from a decision of the appeal board on matters of this kind it would be ridiculous to start what I described as a long correspondence between the person who made the appeal and lost the deposit and those who were deciding the appeal. If a frivolous appeal is made and a decision is made by the board I do not know what Deputy Molloy wants me to do. Does he want me to get the board to sit down and write: "Your deposit has been lost because we consider that you had no right to make this appeal since you have no connection whatever with the proposed development and it does not affect you in any way and it was simply done for the purpose of causing trouble?" If that were done what would be the next step? Does it mean that the person then starts challenging the board to prove he had no connection with the development? Is it not likely, that cases would go on for a long time? If somebody is dissatisfied I am sure he would finish up in the courts. Perhaps that is the best way to do it. Deputy Molloy suggests that a safeguard should be written in so that those who submit frivolous appeals can cause even more upset and should be protected in some way. I would not be prepared to co-operate in that at all, even if it is considered by Deputy Molloy to be a democratic way of doing it. I do not believe it is.

Mr. Molloy

We are giving the board power and I think they should be obliged to explain their actions. The Minister is given the board carte blanche in this and a number of other sections. We have no idea how this board will operate, whether this House will be satisfied, after they have been operating for 12 months, that they are performing their duties and functions in the manner expected. This board could become a great monster. They could disrupt development. They will wield a tremendous power in relation to future development. They will be removed from this Parliament. They will be an independent body. We are attempting to create an independent board for the purpose of avoiding the situation where a political figure is placed in the difficult, frustrating and embarrassing position of being the person who decides appeals. He is open to all sorts of charges, Rightly, and wrongly in many cases, charges have been made in the past. It will not be possible for members of the public to understand decisions given by this board. This is not the most important area of decision making in which they will be involved but it is one of the areas and they should be obliged to give some explanation. All a person will get in the post is a letter saying they are not returning the £10 deposit so not to expect it. He will not have a clue——

Mr. Tully

He will and if the Deputy sits down I will explain it.

Mr. Molloy

If he reads the section he will see that they have done it because in their opinion the appeal is vexatious but there will be no explanation as to why they believe it to be vexatious.

Mr. Tully

The reply will be the decision of the appeal and it will be obvious that it was a vexatious one and, therefore, it will be easy enough to understand it. Deputy Molloy may have been aware of the person who appealed against every development in his area, asked for an oral hearing and did not turn up. I do not suppose such a person will now make an appeal because if there is £10 at risk he will not do it. Because of the phraseology in the 1973 Act he was entitled to look for an oral hearing for every appeal he submitted, whether it had anything to do with them or not. If they did that under the new legislation, it would be quite obvious if they did not turn up at the hearing. If they applied for an oral hearing, or even an ordinary hearing, and gave flimsy evidence which showed they had no interest in the matter and wished merely to be awkward, that would be a matter on which the board would have to make up their mind. I am aware that practically all Deputies and many people outside were anxious that a board would be set up, but now that we are getting nearer to that it appears the desire to have a board is waning.

Mr. Molloy

How does the Minister come to that conclusion?

Mr. Tully

We must be prepared to allow them to do the job and to trust them. Deputy Molloy said we did not know what kind of a board would be set up——

Mr. Molloy

That is so and it is the reason we should build in some safeguards.

Mr. Tully

The safeguards we build in are the type of board that will be set up and the job they will do. I do not think the decision on this matter is the most important. As a matter of fact, I do not think it is very important at all. I do not think that the appeals we are talking about where £10 will be forfeited are the ones that will really matter. In fact, I do not think there will be many, because people will be careful about submitting appeals when there is a risk of losing. The mere fact that they submitted them will be evidence to the board that, to a certain extent, they must have an interest in the appeal. I think that Deputy Molloy is perhaps making a mountain out of a molehill. It is a minor matter and we should not waste time on it. In fact, I thought we had already dealt with it and I am surprised to find that, having agreed to it earlier, we should now attempt to discuss it again as though it had not been dealt with.

An Ceann Comhairle

It was discussed with amendment No. 26.

Mr. Molloy

I have no objection to what is in amendment No. 35 as worded, but I am adding something to it. I am asking the Minister if he will agree to add words. We did not have an opportunity to discuss it previously. I accept that the Minister, being the Minister, would be reluctant to agree to the point I am making even though it is a legitimate point. However if the Minister cannot see his way to accepting it, I have no amendment down in that form of words and there is no way I can press it any harder. I can only ask the Minister to reconsider the entire matter of allowing the board away with making decisions they do not have to explain. This is one of the weaknesses in the way we are establishing the board.

On a number of occasions the Minister has resorted to the ploy that, because we are arguing the nitty-gritty of this planning Bill, in some way we are weakening in our resolve to establish the board. The Minister knows that kind of comment is not logical or fair. Our responsibility here, having agreed to the general principle of establishing the board, is to lay down the rules and regulations under which the board will operate. If we say we consider certain things should apply that will ensure the board operates more to our satisfaction than it might otherwise do, it is unfair to say we are against the board. I do not think anyone would pay much attention to that kind of comment, but the Minister has said it more than once. Presumably, he must believe it. It is a silly comment from the Minister and one he knows is not true. I have asked the Minister to consider the matter. He has not stated he would and I cannot withdraw anything.

Mr. Tully

I am sorry I cannot do so. I believe we discussed this matter and reached agreement on it and, in any case, I do not think it is necessary. However, with regard to the question whether Fianna Fáil are as enthusiastic as they were about the board, there has been the comment from the Fianna Fáil benches on a number of occasions tonight that we do not know what kind of board it will be——

Mr. Molloy

We do not know what kind of board it will be.

Mr. Tully

This appears to be a slight on the board—something we did not have in the earlier stages when everyone wanted a board. We are doing our best to get as good a board as we can, but we are not doing the House or the board any good by suggesting that maybe the board will not be any good. I think it will be a good board. I do not care who is on the board. We are laying down the foundations for a good board and we should not keep repeating that perhaps they will not do what we want them to do.

Mr. Molloy

We must proceed with caution.

Amendment agreed to.

Section 16, as amended, agreed to.

SECTION 17.

Mr. Tully

I move amendment No. 36:

In page 9, between lines 22 and 23, to insert the following subsection:

"(2) The Minister may by regulations specify matters which are to be taken into account by the Board before giving a direction under this section and any matters which are for the time being so specified shall, where they are relevant to a particular appeal and the Board considers exercising in relation to the appeal a power conferred on it by subsection (1) of this section, be so taken into account by the Board."

The regulations envisaged in this amendment are primarily for the purpose of allaying any fears that the board would act unreasonably in requiring any third party appellant to contribute to expenses incurred in relation to an appeal. However, they would also give guidance to the board in relation to cases where they might be considering a direction to any other party.

Section 17 is a re-enactment of the provisions of section 18 of the 1963 Act, which was little used. The purpose of that section was, first, to deter a planning authority from unreasonable use of their powers so that applicants for permission would not have to incur expense in making an appeal and, secondly, to deter persons from making unreasonable use of the right of appeal, which the 1963 Act gave to everybody, regardless of whether or not they held any interest in the property.

Under the law as it stands a third party appellant can, if his appeal fails, be required to pay compensation to the Minister and the planning authority for expenses occasioned in relation to his appeal. This power has never been exercised. There have however been cases where third parties have availed of the appeals procedure solely to obstruct a neighbour or business competitor or to delay development on frivolous grounds. Because of an oversight in the 1963 Act, it is not possible in such cases to require the appellant to make any contribution to expenses incurred in relation to his appeal. Section 17 would remedy that position.

Despite the campaign that has been carried on by various organisations, there is no valid reason to suspect that any change of policy is intended. All parties are agreed that vexatious appeals should be discouraged. Accordingly, the House might agree to accept my assurance that no change of policy is intended and I would make that clear to the board when the board is finally set up. It could be accepted that the board will act in a reasonable manner, as I have pointed out. If however the House considers that some guidelines are necessary, it has two alternatives. First, Deputy Haughey's amendment enables me to make regulations but it does not specify what they should contain. If the Deputy were present perhaps he would develop the case for his amendment; maybe Deputy Molloy will do so. Secondly, my amendment is more specific. My amendment has been put down to assist the House, but I should greatly prefer to have no amendment and to rely on the good sense of the board. However I await the outcome of the discussion that will take place on the two amendments.

An Ceann Comhairle

At this stage may I say that amendment No. 36 appears to meet amendment No. 37 in the name of Deputy Haughey and is related to amendment No. 37A in the name of Deputy Molloy. Therefore, I suggest we take amendments Nos. 36, 37 and 37A together.

Mr. O'Brien

Earlier I heard there was a strong body of opinion against section 14, but we found in fact that opinion was against section 17. There are great fears in many responsible bodies that this section was built in because of pressure over the years against third party appeals. They usually come from the ordinary man-in-the-street. As this section is at the moment it would put quite a number of people off making genuine appeals because they would be afraid of the cost.

The chairman of the board is to be a judge. We all know judges take rather strict views of things. Section 17 states what is to be done. Subsection (1) (b) states:

in case the decision of the planning authority is confirmed on appeal, or where the decision is varied on appeal, if the Board in determining the appeal does not accede in substance to the appellant's grounds of appeal, the Board, if it so thinks, may direct the appellant to pay—

(i) to the planning authority, such sum as the Board, in its absolute discretion, specifies as compensation to the planning authority for the expense occasioned to them in relation to the appeal,

As we know, planning authorities bring senior counsel and various experts along and this could be very costly in the case of the appellant. Paragraphs (ii) and (iii) of this subsection state:

(ii) to any of the other parties to the appeal, such sum as the Board, in its absolute discretion, specifies as compensation to the party for the costs or other expenses occasioned to him in relation to the appeal,

(iii) to the Board, such sum as the Board, in its absolute discretion, specifies as compensation to the Board towards the expense incurred by the Board in relation to the hearing of the appeal.

The judges do not make awards to themselves but this board can award money to themselves. I do not think this section as it is will stand up in any court. It is immoral to allow any board to award sums of money to themselves. During an 11-month period there were 3,520 appeals. Out of that 260 were third party appeals, 29 of which were upheld, 86 were unsuccessful and 101 had conditions attached. All the propaganda we have heard in relation to third party appeals does not hold water.

It is stated in the explanatory memorandum that sums of money can be awarded to a developer where he is held up. The fact that this is written in law deters people from pursuing genuine grievances in court. Somebody once said about the courts that they were like the Gresham Hotel, that anybody could go in but it was only people with money who could afford to stay. If a man hears that a factory or some other obstruction is to be put beside his residence and he feels he should appeal he is afraid to do so because of the cost involved. Residents' associations and private individuals are not very well represented legally at oral hearings. If they win and get costs they are of little relevance to the people who will be paying. However, the appellant's costs could reach a very high sum and when he thinks of this he might decide not to appeal.

Under subsection (i) (b) of this section the board could decide to award themselves £3,000 for their trouble. The Minister says it was in the 1963 Act but we are now shifting the emphasis from the political arena to a board so we should be careful about sums of money which can be awarded. If the Minister decided to do something like this he would be subject to political pressure. If he decided that in the case of a third party award £x should be awarded the pressure would be on but this board will be divorced from such a situation. In the case of the board the judge can decide that the third party held up a contract and that he is awarding a certain sum of money.

I believe section 16 is a very good one. Everybody is concerned about frivolous appeals. Some of them cost a lot of money but section 16 can deal very quickly with these frivolous appeals. In this section we are now pointing the finger at the man-in-the-street and saying that he can be charged £x if he brings his case to an appeal. Deputy Callanan said that this matter will drift out of the political arena and when it does we will not have much say in it. I believe we should ensure that the man-in-the-street is not victimised in any way because of this. Planning authorities usually do what they consider is in the best interest of planning. They have helped to hold back destruction in a lot of areas around the country. We should look very seriously at anything which would deter a third party appellant from making an appeal. Section 17 is a very important section, although it is a section I fear.

An Leas-Cheann Comhairle

We will come to the section, Deputy, when we dispose of the amendments.

Mr. O'Brien

I realise that but I wanted to make this point. I appeal to the Minister to look at this matter very seriously. This is the one section where the man-in-the-street has a chance to go and make an appeal against the big man. When he wants to make an appeal we should ensure that he is not afraid to do so. The fear is there if one reads the explanatory memorandum and this section. I would not be surprised if there were no more third-party appeals. It would be a sad day not to have third-party appeals. We must encourage them, but if they are frivolous section 16 will deal with them very quickly. There is a genuine fear not on the part of any one group but on the part of NATO, An Taisce, people who are concerned with the man-in-the-street. I appeal to the Minister to look at the section again. I may be out of order, and I thank you, Sir, for giving me the time to make my point.

Mr. Molloy

As the Minister says, section 17 is similar to section 18 of the 1963 Act except for the change in relation to requiring appellants to pay to parties other than the planning authority or the board—Minister then and now the board. Many people have queried this question of the board being authorised to levy expenses on appellants to be paid back to the board.

I accept that the provision in the 1963 Act enabled the Minister to levy expenses to be paid to the Minister, but again there is the subtle distinction in that the Minister, being who he is and a Member of this Parliament and answerable to it, is in a different position when it comes to responsibility for his actions. There is a good deal of disquiet about this question of giving the board power to levy expenses to be paid to themselves. Some people think it is unique. It possibly is. Maybe the Minister could quote precedents where boards have been empowered previously to do this. It would be a help.

Deputy Haughey's amendment is ...covered by the Minister's one, and the amendment I have down—the three are being taken together— merely elaborates on this question of regulations and asks that: "As soon as may be the Minister shall cause a copy of the regulations to be laid before each House of the Oireachtas and to be published in Iris Oifigiúil, and a copy to be sent to each Planning Authority.”

I would hope that the operation of section 17 will not act as a deterrent against legitimate planning appeals in particular coming from third parties, the people the Minister is trying to get at. It has been expressed by a number of bodies that quite a large number of vexatious appeals have been lodged in the past by third parties which have delayed for many months, sometimes longer, very substantial developments with the consequent cost in interest rates on capital borrowed for these projects, the loss of employment, the general delay in development and the overall effect it would have on the economy if this device were being used excessively.

However, the situation has changed, because we have passed a new section, section 16, which, the Minister must agree, deals fairly adequately with vexatious appeals. This was not provided for in the earlier Act and possibly he would consider that the changes already agreed upon by the House may be adequate to act as a deterrent to vexatious appeals which have caused so much difficulty in the past. There may not have been that many of them but certainly those who were affected by them were dealt with very unfairly and have a legitimate complaint about the Planning Act that it did not provide at that time against such a happening.

We are hoping to cover that now in what we have done, and many people wonder if there is need for this elaborate section. I would go along with the Minister in thinking that that power should be given, but I would like further explanation concerning the right of the board under subsection (3) (b) which reads:

(b) in case the decision of the planning authority is confirmed on appeal, or where the decision is varied on appeal, if the Board in determining the appeal does not accede in substance to the appellant's grounds of appeal, the Board, if it so thinks proper, may direct the appellant to pay —

and then subparagraph (iii) reads:

(iii) to the Board, such sum as the Board, in its absolute discretion, specifies as compensation to the Board towards the expense incurred by the Board in relation to the hearing of the appeal.

This may frighten a lot of people away but the board has that absolute discretion to levy compensation to themselves on appellants. I think we can withdraw amendment No. 37 in Deputy Haughey's name, and I should like to hear from the Minister if he intends accepting amendment No. 37 (a) which, I think, is a logical enough follow-on to his own amendment No. 36.

Mr. Tully

The discussion so far has been reasonable enough and represented what appears to be the views of certain people outside of this House. It will be noted that they do not seem to have made much impression on the Members of the House, because I have not had a very big lobby from the Parliamentarians about this. I did notice Press reports. I have always held that bodies set up have the right to express views on any matters they feel they are competent to express views on. One thing I dislike is when people express views on matters in relation to which they do not take the trouble to check the facts. It is amazing how often even national bodies fall into the trap of holding forth on matters and misstating facts which it would be quite simple to check but they do not take the trouble to do so. Worse still, an officer of a national body will make a statement as representing the views of that body, and it may turn out afterwards the body did not know he was making the statement and many of them may be aware of the real situation and may not hold the same views.

Therefore, while I agree entirely with the right of people—maybe they do not want to be called pressure groups—to express these views, particularly when legislation is going through, it is odd that people who dash into the public Press do not take the trouble of sending a letter to the Minister for Local Government or to some of the representatives in this House.

Deputy O'Brien and Deputy Molloy referred to the situation under the existing legislation. Here there seems to be a complete ignorance of the facts on the part of some people outside this House. I hope you will bear with me, Sir, because I should like to quote section 18, which is a little bit lengthy, as I want to make points on it. Subsection (1) of section 18 says:

Where an appeal is made to the Minister under this Act or under any order under this Act against a decision of a planning authority—

(a) the Minister, if he so thinks proper and irrespective of the result of the appeal, may direct the planning authority to pay—

(i) to the appellant, such sum as the Minister, in his absolute discretion specifies as compensation to the appellant for the expense occasioned to him in relation to the appeal,

(ii) to the Minister, such sum as, in his absolute discretion, he specifies as compensation to him towards the expenses incurred by him in relation to the hearing of the appeal;

(b) if, but only if, the appeal fails, the Minister, if he so thinks proper, may direct the appellant to pay—

(i) to the planning authority, such sum as the Minister, in his absolute discretion, specifies as compensation to the planning authority for the expenses occasioned to them in relation to the appeal,

(ii) to the Minister, such sum as, in his absolute discretion, he specifies as compensation to him towards the expense incurred by him in relation to the appeal

(2) Any sum directed under this section to be paid shall, in default of being paid, be recoverable as a simple contract debt in any court of competent jurisdiction.

That is the 1963 Act. The number of people and organisations who were not aware of the fact that that provision was there has amazed me. At the time the Minister for Local Government promised the House this would not be used except in very exceptional circumstances and that promise was honoured.

Mr. Molloy

That is correct.

Mr. Tully

There is really very little difference except on what Deputy Molloy might regard as two major points: No. 1, it is a planning board and (2) the question of compensation. Instead of the Minister awarding it to himself it is a planning board. On the question of compensation Deputy Fergus O'Brien fell into the trap set for him and, indeed, for many like him who are interested in this matter, by those outside who should know the facts but have not gone to the trouble of checking them. I do not blame Deputy O'Brien at all for taking up the point made publicly by very learned legal people as if it were a fact and, apparently, it has not been contradicted. I want to contradict it now. The claim is that, if section 17 is adopted in its present form, every appellant will be faced with the possibility of an open-ended award against him, not alone with the legal costs of other parties but with any figure the appeal board choose to state as their own costs, plus any other expenses occasioned to any other party in relation to the appeal. The point is this could include the loss of profits suffered by a developer during the period taken by the appeals board to consider the matter. This, of course, is entirely wrong.

Mr. Molloy

Who made that statement? Usually when Ministers quote they give the reference.

Mr. Tully

If Deputy Molloy asks I will be glad to give him the reference.

Mr. Molloy

I think the Minister should.

Mr. Tully

I am quoting from The Irish Times of 17th January. It is an article by Michael Viney, environment correspondent, and it is claimed by Mr. John O'Loughlin, director of An Taisce, that section 17 of the Planning Bill involves a serious erosion of individual rights and an obvious divergence from past traditions of Irish law. It was examined by the parliamentary committee and the Incorporated Law Society and let me say that the parliamentary committee and the Incorporated Law Society have made no protest to the Department on this. I mention the fact because I think it is wrong that anybody should represent something as being a fact when it is not a fact. There is no question of loss of profits suffered by a developer during the period taken, as it is put here.

It has been contended that section 17 (1) (b) (ii) would enable the board to direct a third party appellant to pay a developer for loss of profits during the period taken by the appeal or other interest charges on land which could not be developed during that period. The provision, as drafted. will not enable the board to award such payments. It relates to costs or other expenses of an appeal. It does not cover costs arising because of or by reason of the appeal. It was never envisaged that the section should cover such costs. The legal advice available to us—it is fairly high legal advice—confirms that it does not, in fact, do so. Here we have a section of one Bill which, apart from the fact that we have changed it from giving costs to the Minister, gives costs to the board and we have, in fact, added this section that the expenses of the board, if they so think proper, and irrespective of the results of the appeal, may direct the planning authority to pay:

(i) to the appellant, such sum as the Board, in its absolute discretion, specifies as compensation to the appellant for the expenses occasioned to him in relation to the appeal,

(ii) to the Board, such sum as the Board, in its absolute discretion, specifies as compensation to the Board towards the expense incurred by the Board in relation to the hearing of the appeal;

(b) in case the decision of the planning authority is confirmed on appeal, or where the decision is varied on appeal, if the Board in determining the appeal does not accede in substance to the appellant's grounds of appeal, the Board, if it so thinks proper, may direct the appellant to pay—

(i) to the planning authority, such sum as the Board, in its absolute discretion, specifies as compensation to the planning authority for the expense occasioned to them in relation to the appeal,

(ii) to any of the other parties to the appeal, such sum as the Board, in its absolute discretion, specifies as compensation to the party for the costs or other expenses occasioned to him in relation to the appeal,

(iii) to the Board, such sum as the Board, in its absolute discretion specifies as compensation to the Board towards the expense incurred by the Board in relation to the hearing of the appeal.

(2) Any sum directed under this section to be paid shall, in default of being paid, be recoverable as a simple contract debt in any court of competent jurisdiction.

I have an amendment to this and the amendment is as follows:

In page 9, between lines 22 and 23, to insert the following subsection:

"(2) The Minister may by regulations specify matters which are to be taken into account by the board before giving a direction under this section and any matters which are for the time being so specified shall, where they are relevant to a particular appeal and the board considers exercising in relation to the appeal a power conferred on it by subsection (1) of this section, be so taken into account by the board."

The situation is that we are making a slight change, not a Draconian one, as has been suggested, in the existing legislation. The amendment is put in for the purpose of improving the existing legislation. Yet, we have this furore outside the House about it. Within the House we did not appear to have the same approach. I do not object, I repeat, to interested parties having an appeal. I think it would be a pity if individuals and groups interested in these matters did not have the right of appeal and I shall do everything I possibly can to ensure that that right is maintained. On the other hand, they should at least accept the fact that this House is not out to try to make them pay through the nose for exercising that right. They must know that and it is wrong that a cry should go up that we are doing things we simply are not doing. For that reason, I feel that my amendment should be accepted.

Mr. O'Brien

The Minister said I may have fallen into a trap. If one reads the last portion of the explanatory memorandum one finds the following:

This section is similar to section 18 of the Act of 1963 except that provision is now made for payment by appellants to parties other than those previously covered e.g. to a developer who, having obtained permission, is being held up or obstructed by unwarranted use of the appeals machinery.

The ordinary layman reading that, if a developer is held up and obstructed by unwarranted use of the appeals machinery and an award is made against a third party, will conclude that the developer will be looking for some compensation for an overdraft on which he is paying interest, or because of the fact that he is paying workmen on an unproductive site. It is easy for people to fall into that trap reading that.

Furthermore, an order was never made against a third party appellant since 1963 awarding costs against him. I do not see the need for this because from 1963 to 1975 no award has been made. Not only are we now using the 1963 Act, but we are bringing in additional people who may claim. There may be a furore and there may be misunderstandings, but the bottom portion of the explanatory memorandum to section 17 causes me concern. It could be construed to suggest that this would be possible.

Mr. Tully

May I explain it to Deputy O'Brien? One of the reasons why this mistake appears to have been made is that some people have been reading the two parts of the explanatory memorandum to section 17 separately. If Deputy O'Brien will go through it with me, I am quite sure he will agree that, while it may appear to say one thing if it is read in one way, if it is read in its entirety it means exactly what I have been saying. It says:

This section enables the Board to direct a planning authority to pay appeal expenses to the appellant or to the Board. Where an appellant is unsuccessful, he may be directed by the Board to pay appeal expenses to the planning authority, to any other party to the appeal or to the Board itself.

"Appeal expenses" are the words. It goes on:

Sums payable are recoverable as a simple contract debt. The section is similar to section 18 of the Act of 1963 except that provision is now made for payment by appellants to parties other than those previously covered e.g. to a developer who, having obtained permission, is being held up or obstructed by unwarranted use of the appeals machinery.

The error is being caused by the fact that appeal expenses are not carried from the first part of the explanation of the section to the second part. In fact, it refers only to appeal expenses and no other expenses are involved. Deputy O'Brien would be the first to agree that that being so it is not the type of section which some people have tried to put it across as being.

Mr. O'Brien

The local authority or any large developer can muster the best legal advice and the third party appellant generally comes in with at best a solicitor or maybe a junior counsel. He is up against it from the word "go" because of the expertise mustered against him. If the case goes against him, the third party appellant has much more expenses to pay by virtue of the guns used against him than he would get in the event of winning his case.

This section is loaded against the small man and not against the big man. That is my objection to it. I hold strong views about the fact that if the person who can afford to get the best legal advice loses it does not cost him all that much, but if he wins the third party appellant may have to pay. I realise that it has never happened before but things are changing. It is going into a new arena now. The chairman may look at it differently. I am certainly unhappy about the situation.

Mr. Molloy

In giving an explanation to Deputy O'Brien on the point he made, the Minister quoted from the explanatory memorandum the words "appeal expenses" which appear in the second line of the explanation of section 17. The explanatory memorandum is not the law. The law is the words contained in the Bill itself.

Mr. Tully

Eventually, yes.

Mr. Molloy

Section 17 (1) (b) (ii) states:

to any of the other parties to the appeal, such sum as the Board, in its absolute discretion, specifies as compensation to the party for the costs or other expenses occasioned to him in relation to the appeal,

Mr. Tully

"In relation to the appeal".

Mr. Molloy

The Minister is stating that he is fully satisfied that the only interpretation that can be put on those words is that they are appeal expenses and that they cannot include any expenses or losses suffered by the applicant, the person who is being appealed against, such as in the case in that article. I know that is the Minister's intention, but I wonder if the wording is absolutely adequate to ensure that later on in a court of law some judge does not interpret it differently.

Mr. Tully

"In relation to the appeal"—possibly it might be necessary to put in that wording somewhere else. There is no ulterior motive.

Mr. Molloy

Agreed, only the wording.

Mr. O'Brien

The important thing is that we must protect the third party even if this causes a little delay. We must protect the ordinary man in the street. It is important that we should thresh and tease this out. This is in the 1963 Act and it was never used. It is superfluous. I agree that there were frivolous appeals and scandalous hold ups and people lost considerable sums of money. The third party should be allowed to have a free rein. He is not concerned with frivolous appeals. An Taisce are a responsible organisation and they may have made that statement without checking certain facts. They do a lot of good work. The residents associations and these groups are the backbone of our society and anything which would deter them would be bad legislation. We must ensure that the third party appellant will not be harassed and surcharged considerable sums of money.

Mr. Molloy

Earlier on the Minister was not quite fair to Deputy O'Brien because this is a new area which is being covered now. It was not covered in the 1963 Act that a third party, a person, can be obliged to pay expenses to parties other than the planning authority or the Minister. This is what is new in the section and the Minister's explanation stated that. This is where the fear has arisen. It is easy for a third group to understand the type of expenses which a planning authority or the Minister's officials may run up but what they baulk at is the type of expenses which a developer may run up if this is the person against whom they lodge a third party objection. I, as well as Deputy O'Brien, would be happier if the Minister would write in, in greater detail, that the expenses would be confined to appeal machinery expenses, that there would be no question of the developer afterwards claiming compensation for loss of profits or for high interest paid over a long period awaiting an appeal decision on a third party plea against him. I should like to see that clearly written in—not now, but I would like an indication that he would agree to include it on Report Stage. We merely need a record of it—there are so many things to be included on Report Stage. It will be a very long Stage when we get to it, and it will be like going through Committee Stage again but the Minister will have the advantage that we shall be confined to one speech and unless we have all our thoughts assimilated beforehand we shall not be able to make long contributions. This is not really our intention which is to get the best deal we can for the community we serve.

There is this fear of something new. The guarantee should be given in words and given clearly. I think it was Deputy Blaney who, as Minister, brought the 1963 Planning Act before the House and during the discussion then, as the present Minister has already said, a guarantee was given that section 18 of that Act would not be used except in very exceptional circumstances. Can the Minister now give a guarantee that the board will only use these powers in very exceptional circumstances and can continue that tradition? The Minister's word was honoured on the previous occasion. I do not think the Minister was able to quote any case where compensation had been charged.

Mr. Tully

Nor would I wish to.

Mr. Molloy

There was no case. In fact, it was never used. If we had the assurance that a similar approach would be adopted by the board it would be of great help. We are asking the Minister to speak now for a group which when appointed may become quite independent and like to speak for themselves and interpret the Act as it is laid down here. So, we are asking that the black and white should include this prohibition on any expenses otherwise. Expenses can be high even as it stands if a lot of foreign specialists on whom the Minister was very keen the other night are brought in.

Mr. Tully

I was not keen on them.

Mr. Molloy

The Minister was asking for special exemption for foreign specialists so that they would not have to go through any competition to get the job of acting as consultant to the board. If a developer decides to bring in persons he and the Minister considers are specialists, with greater expert knowledge, their fees can be quite substantial and you could frighten off third party appellants.

Very strong views have been expressed to the Minister, as they were expressed to me when I was there, by developers against groups lodging appeals against them when they had got permission from the local authority. Once the local authority granted permission they felt free to go ahead and were annoyed if some other group outside the planning authority or the Minister appealed the decision and caused them delay, expense and the inconvenience of having to present a case to justify a development about which they had already convinced the local authority. There may be an over-reaction against the few vexatious and frivolous appeals but I am sure that a proper survey of third party appeals would show that some of them served the community well. Even if the percentage is small it is an important aspect of planning that the ordinary citizen is entitled to have his views taken into account despite what the official view may be and that he should be able to argue his case cogently, logically and, perhaps, bring about a change in the official stance. There have been cases where the local authority decision has been reversed following a third party appeal. I accept that was not the norm. Even if the percentage is small, still a service was being provided there.

In order to balance things out the Minister has been asked to put down in a form of words in the Bill something that will meet everybody's point of view. That is what we are trying to do. While I am satisfied generally, I would ask that some additional words be included to give that greater guarantee and also if he could give some assurance that the board on appointment would give the undertaking that this section would be used only in very exceptional cases.

Is there to be any procedure for claims for compensation? If a developer who is granted permission has a third party appeal against him and wins and that costs him a good deal of money and he is entitled to compensation, is there any procedure by which he can lodge a claim? Or, is this to be a matter that will be solely the prerogative of the planning board and for them to decide? I know the developer could write a letter asking the board to consider granting compensation but we should have all these things tidied up while we are dealing with the Bill. Perhaps in the regulations proposed in amendment No. 36 a line or two laying down some procedure might be of assistance.

In arriving at this compensation could the Minister give some examples of how the amount would be assessed? Could he give some more details on the regulations he proposes under amendment No. 36? What type of consideration is it expected or proposed should be taken into account by the board in arriving at compensation?

Mr. Tully

Both sides of the House seem to be agreed on something I have repeated at least a half dozen times, that the whole object of this debate is to ensure that we get a planning Bill that will work properly. I am glad it appears to be accepted that the planning board will behave reasonably. As regards my comment about foreign experts, I was not very anxious to bring them in but I wanted to ensure that if it were necessary, particularly in regard to atomic energy or some matter like that about which we may not know very much here, and we required experts from outside, we should not preclude them from being brought in. I should not like to be misinterpreted on this point.

Deputy Blaney gave an assurance when he introduced the previous measure that this provision would not be used except in very exceptional circumstances and, of course, I am prepared to agree that I should make clear to the planning board that that is the proposal, that this is what we want done. I do not believe anybody thinks we are trying to prevent third party appeals from being processed in the normal way.

When the question of introducing this Bill in its present form was being considered a number of matters were under discussion. For instance, when we talk about expenditure the question of the cost to local authorities and, therefore, to the ratepayers of the country arises. Huge expenses are incurred when some firms make a planning appeal bringing experts from all over the place and the cost has to be borne by the ratepayers. I seriously considered attempting to ensure that this cost be put on the back of the people who would benefit by the planning appeal, but, perhaps, wiser council persuaded me that it was not the proper way to do it and that is the reason it is not included in the Bill.

Everybody will have sympathy with the idea that people who want to have these things done should pay a certain amount towards their cost. I would hate to think that a third party objector, no matter who he might be, should be prevented from making his objection because he was afraid of the expense at a later stage, providing the objection was on a reasonable basis. We know of objections which have been raised by people who have no connection with the development and this is dealt with under another section of the Bill.

I want to ensure that if the necessity arises, if there are exceptional circumstances as was intended in the 1963 Act for such an appeal, we should have it included here. Deputy Molloy posed a number of questions and talked about the developer who, having obtained planning permission from the local authority, felt he was put to a lot of expense because of a long delay over an appeal. That has nothing to do with this at all. Such a person cannot claim any loss has occurred because of a long delay. All that can be taken into consideration is the expense of the appeal and this is spelled out in the section. The expense incurred by holding lands or paying a high rate of interest does not arise and is not included. I am sure some people may feel aggrieved by this.

Mr. Molloy

I accept the Minister's intention on this but is he satisfied that the words are adequate to ensure that no judge later would interpret it differently. The words are not very strong.

Mr. Tully

In my view they are. The section states:

to any of the other parties to the appeal, such sum as the Board, in its absolute discretion, specifies as compensation to the party for the costs or other expenses occasioned to him in relation to the appeal.

Mr. Molloy

It is weak enough.

Mr. Tully

I do not think so. We are talking about expenses relating to an appeal and nothing else. In my view it is clear, if we want to see what is in it. Deputy Haughey was of the opinion that we should have it dealt with in a different way. When I was in Opposition I always objected to legislation by regulations—as has been suggested by Deputy Haughey here—because I felt there was a danger that the House might not know what was intended. Having come over here I am still satisfied that it is not the best way to do it but in view of the proposals being made here I have put in an amendment which suggests something on the lines of what Deputy Haughey put forward.

If the Opposition are prepared, particularly Deputy Molloy, to accept either my amendment or my assurance that I will tell the new board what is intended with regard to this section we have reached the necessary agreement because this is exactly how it was handled when the 1963 Bill was going through the House. It would be unfair to hold this section much longer. I agree there appears to be a lot of emotion from certain organisations outside about this but I can assure them, and the House, that there is no intention of preventing them appealing. Even if there was they have the right of appeal. One of the groups who felt this would prevent them taking an appeal because they might have to pay certain costs have taken two High Court actions against me as a result of a decision I gave. I do not think it is reasonable to assume that this will deter them. They are entitled to do this and they will continue to make their appeals. I would hate to think that anyone would be prevented from making an appeal because of a fear of something like this, a fear which they should not have because this was not intended in the Bill and the Bill does not read as if this was intended.

Mr. Molloy

What about claims for compensation?

Mr. Tully

That is a difficult question. The only reply I can give to the Deputy is that I assume that it would relate to the cost of taking certain evidence at the appeal. I do not see how anything else could be included. The board would have the absolute discretion to decide how much of the legal advice and expert evidence was necessary. I understand that on some occasions people brought in a battalion of experts to give evidence when one or two people would have done the job just as well.

Mr. Molloy

In the case of the Cork smelter, for instance, there were third party applicants. Cork County Council granted planning permission for the smelter and the company appealed some of the conditions but there were many third party appeals from organisations in the Cork area. The array of experts presented by the company and the expense that would have caused would amount to an astronomical figure. What Deputy O'Brien, and the House, are anxious to avoid is a situation where residents objecting to something of a large scale which would be supported by large sums of foreign money would be frightened away because of the possibility of being landed with a bill for the expenses involved later.

Mr. Tully

That sort of thing could have happened under the 1963 Act.

Mr. Molloy

We have a board now and not the Minister. The Minister is forgetting that.

Mr. Tully

Again, my confidence in the board is unshakeable.

Mr. Molloy

We did not have third parties in the 1963 Act.

Mr. Tully

Under the 1963 Act the Minister, if he thought proper and irrespective of the result of an appeal, could direct a planning authority to pay to the appellant such sum as the Minister in his absolute discretion specifies as compensation to the appellant for the expense occasioned to him in relation to the appeal; to the Minister, such sum as, in his absolute discretion, he specifies as compensation to him towards the expense incurred by him in relation to the hearing of the appeal. Deputy Molloy has referred to a case where there was enormous expense and where an order could have been made against that firm. It was not made then and it was not made on previous occasions when there were expensive appeals. Why should the Deputy presuppose it is likely to occur under this legislation?

Mr. Molloy

It is being changed from the Minister to the board.

Mr. Tully

I do not know. If we have confidence in the board—and we must have; otherwise we are damned fools for allowing a board to be appointed—they will have to be responsible people. We expect that if they are told by the Minister for Local Government "This is not something you can use lightly. You are not entitled to use this, or you should not use this except in very exceptional circumstances" they will carry that through. Surely wording to that effect should ensure that there would be no danger of something occurring. As I have said, it has not occurred with a Minister. Perhaps the Minister might be quicker to do that sort of thing than the board. In most cases probably the Minister would get more kudos for doing it than the board.

Mr. O'Brien

The Minister seems to be doubting Deputies' attitude to the board. I have the height of confidence in this board. The board will be an independent body, judging and investigating cases. The Minister says this will be done in exceptional cases only. I believe that exceptional cases will have been dealt with before they ever get to the board—that is, under section 16. But, assuming they go to the board, if I am representing a client, as a Senior Counsel—the hearing is over and, at a later stage, a decision is made—I would be writing, on behalf of my client seeking expenses and quoting the relevant sections of the Act, stating that under the Act it is my view that I am entitled to expenses for my client.

Mr. Tully

Why has that not been done up to now?

Mr. O'Brien

Because, I believe, it has been the general opinion that, it was for political reasons. This is one of the reasons it is moving out of the political arena.

Mr. Tully

But that does not stop the Deputy, as a Senior Counsel, from making his claim. The senior counsel would not be involved in the political aspect of it at all.

Mr. Molloy

A claim against the developer under the 1963 Act?

Mr. Tully

A claim for compensation.

Mr. O'Brien

A claim against the appellant. But he is now, say, dealing with a cold, calculating board. I would have the height of confidence in this board. Were I on that board and a request was made by a Senior Counsel, the fact that he quoted the relevant Act would impel me to look at it and say "Yes, there are indeed reasons why—and it is written into the Act—I should award moneys against the third party appellant because in the view of the board his case was not good. It may not have been frivolous but it was not very strongly put and it was the view of the board that it delayed development for an undue period of time. Therefore we feel that at least the expenses of the appeal should be levied." I could well foresee a board doing this as their duty. As I have said, this board will be an impartial body; there will be no outside influences whatsoever on it.

Mr. Callanan

None whatever?

Mr. O'Brien

No.

Mr. Callanan

It will be above that. One cannot even talk about it; no discussion whatsoever.

Mr. O'Brien

I know Deputy Callanan's view of the board. Had he a hatchet he would split it down the middle. Because of the impartiality of the board they would see it as their duty under the Act to award costs. I would be very much surprised if a responsible board did not award costs.

Mr. Tully

Is there any hope of agreement here? I thought we were very close to agreement some time ago. In my opinion there is very little difference: it is simply whether or not we can persuade the board to do exactly as was being done by the Minister under the appeal machinery up to now. I assume that is what is intended. If Deputy Blaney's assurance was accepted and honoured, I see no reason why the same procedure should not be adopted now. If that is so, then we have disposed of the matter without amending the section at all. If that is not acceptable, would Deputy Molloy and Deputy O'Brien consider either my amendment or Deputy Haughey's—the question of making regulations—though, as I have said, I am not one in favour of legislation by regulations. If it can be spelt out, I should much prefer that that be done; or there is the third alternative, which is not a good one, the suggestion that we might go back and see if we could change the wording. I do not see any way of improving the wording of this that would effect the difference we want. I should prefer that we leave the section as it stands and insist that the board carry out the same procedure as is being done under existing legislation. If that were acceptable and we could dispose of it this evening, we should have made some progress.

Mr. Molloy

We are dealing with three amendments and the discussion has gone into the section as well, I think. The Minister's amendment, Deputy Haughey's amendment, which we are prepared to withdraw because it is met to a certain extent by the Minister's amendment, and the amendment down in my own name.

Mr. Tully

I assume Deputy Molloy is withdrawing his amendment in favour of mine?

Mr. Molloy

No, I am not, because the Minister does not include any provisions in his amendment to ensure that they would be published.

Mr. Tully

It is covered by section 10 of the 1963 Act. I am sorry at this stage to have to go back but it is not necessary to have that amendment at all. Section 10 of the 1963 Act covers it adequately. Perhaps I should have mentioned that earlier.

Mr. Molloy

That is the kind of information I was seeking.

Mr. Callanan

Who does the Minister think he is laying down the rules for those poor men?

Mr. Tully

In case Deputy Callanan might be misunderstood—those are the words that will appear in the Official Report—I am quite sure he will assure us all he is speaking in jest.

Mr. Molloy

The Minister's amendment No. 36 says:

The Minister may by regulations specify matters which are to be taken into account by the Board before giving a direction under this section and any matters which are for the time being so specified shall, where they are relevant to a particular appeal and the Board considers exercising in relation to the appeal a power conferred on it by subsection (1) of this section, be so taken into account by the Board.

Could the Minister give some indication of the type of regulations he is proposing there? Could the Minister elaborate on what he has put in the amendment itself?

Mr. Tully

It would be very difficult to do so. To deal with Deputy Molloy's proposed amendment, I was pointing out that section 10 of the 1963 Act governs the making of all regulations under the Planning Act.

Mr. Molloy

I am speaking about the Minister's amendment No. 36.

Mr. Tully

Deputy Molloy is not taking his own amendment No. 37A as being discussed along with it?

Mr. Molloy

My question related to the Minister's amendment No. 36. Could the Minister give us some idea of the type of regulations he has in mind there?

Mr. Tully

I tried to spell it out earlier but it is extremely difficult. I would imagine that the regulations would have to deal with the particular way in which the whole question of expenses would be handled. I am not too happy about this way of dealing with it at all. I would much prefer that it was done in the way in which it was dealt with previously. However, I think the whole question of bringing it back and putting it through this House is nonsensical. I would much prefer to have it written into the Bill itself rather than try to bring things as a separate entity into the House. I do not think that is the proper way to do it. What I propose doing in the regulations, as far as I can, is to specify matters which the board must take into consideration before directing a person to pay a sum under section 17, which is what Deputy Molloy was talking about. I should like to be able to say to the board: "Except in very extreme circumstances you are not to deal with it in this way at all."

Progress reported; Committee to sit again.

The Dáil adjourned at 10.30 p.m. until 10.30 a.m. on Thursday, 23rd January, 1975.