Amendments Nos. 36, 37 and 37 (a) are being discussed together.
Private Members' Business. - Local Government (Planning and Development) Bill, 1973: Committee Stage (Resumed).
When I reported progress last Wednesday the House had spent a considerable time debating section 17. I devoted considerable time explaining the purpose of the section and its effect and I think I succeeded in allaying the fears Deputies may have had about it. I mentioned that the then Minister for Local Government, Deputy Blaney, in dealing with the corresponding provision in the 1963 Act, indicated that the provision would not be used except in exceptional circumstances. I think I made it clear that has been the position since that time.
I also said I would be prepared to make it clear to the new planning board that in my view the new provision should be used in the same way. In addition I moved amendment No. 36 which would enable me to make regulations setting out matters which should be taken into account by the board before directing that expenses be paid. When the debate was adjourned it was my feeling that we had reached a certain amount of agreement on it. I trust that, on the basis of the assurances and explanations I have already given, the House will now formally agree to the section and it will not be necessary to go back over the ground we have covered.
What would the Minister see as an exceptional case? He might see something as an exceptional case but the board might not see it in the same light.
For that reason it is not worth talking about what I would think is an exceptional case.
This is precisely why I am still worried about this. The Minister might decide something is an exceptional case but the board might decide it is not. They will have to interpret this Bill when it becomes an Act and, as they see it, they would have to give costs against the third party appellant, which could amount to a very considerable sum and would have a deterrent effect on people pursuing genuine appeals. As regards paragraph (b) (iii)—"to the Board, such sum as the Board in its absolute discretion..." can award itself—I do not think that would stand up in court, and there would still be the fear in people's minds about costs which would prevent them from lodging appeals. I agree the section does not alter the 1963 Act in substance, but it does indicate that there might be a different attitude in the future than there was in the past. Section 16 deals with vexatious and frivolous appeals, and therefore section 17 is not required. The figures show that the number of third party appeals coming in were not of any great consequence.
Is Deputy O'Brien saying that the number of third party appeals coming in were not of any great consequence? What exactly does he mean?
Out of 3,520 over an 11-month period, 216 were third party appeals. 29 of those were upheld, 86 were unsuccessful and 101 had conditions attached. In the light of that information, I would think this section is superfluous and it is causing fear.
Two hundred and sixteen is a substantial figure.
Out of 3,520?
Do not mind the top number. Just take the figure 216.
Out of 216, 86 were unsuccessful. It is the figure of 86 we are talking about. The others had some substance in that 29 were upheld and 101 had conditions attached. These 86 could well have been frivolous or vexatious and could have been dealt with before coming to this stage at all. It is important that third-party appeals should not be inhibited in any way. They are the platform for the man-in-the-street who feels he has a genuine grievance. I know the Minister is concerned for the man-in-the-street, as he has shown since he came into Government.
This Bill as a whole is very good and will close a number of loopholes. When we talk about planning we talk about environment and about people. In talking about people we consider the greater good for them. Anything we might do to restrict their rights would be contrary to the spirit of this Bill. The Minister has given assurances here, and I accept that is what he intends, but when this Bill is enacted it is the intrepretation of the Act that will be important. There could be a different Minister there tomorrow or in five years' time. While the present Minister will see that the provision will not be used in the way it is feared it might be used, another Minister could see it differently. As the section stands, the board can award costs against the Department and, after all, it is largely against third parties that the vast sums of money will be awarded. It is the developer and other such people who will employ the expertise. If you go to oral hearings you will see that residents' associations and individuals are generally represented by, at best, a junior counsel, sometimes a solicitor, and in this way, their costs would not be anything like those of the others. Therefore I would ask the Minister to look sympathetically at section 17 between now and Report Stage.
Is the Minister giving any indication to Deputy O'Brien that he will reconsider this?
I am in a slight difficulty here. The last day we went over this very fully and I said that the draftsman used the words "costs or other expenses", and that, since there was no ulterior motive behind it as far as I was concerned, I was prepared to delete the reference to costs. That brings us back to the 1963 Act. With reference to what the Deputy says about Ministers changing, Ministers did change since the 1963 Act and, to their credit, all of them honoured the word given by the then Minister, Deputy Blaney, and there has been no difficulty about this.
Deputy O'Brien talks about the new board being in a different category, that they will be administering the law. That is so, but if it was pointed out to the new board in reference to this —and I am taking the necessary authority to do this sort of thing—that there was no intention that it should be administered any more stringently or any more widely I believe things could go quite smoothly. I have no reason to believe there will be any difficulty about it.
We have almost reached agreement, and if we could stay on this point without going back over the whole discussion of the last day, I am most certainly prepared to alter this on Report Stage, and to have a look at the section, even though I do not see there is much I can do to improve the rest of the section.
We have had many representations on this matter, too. There seems to be a substantial amount of disquiet about the provisions of this section and as to how they might apply to a person making a third party appeal. We would not like to see the fears that have been expressed to us become a reality. The Minister is probably in a difficult enough position in trying to give us sufficient guarantees here to accept the section as it stands, but, on the face of it, on an ordinary reading of the section there does seem to be justification for the fears we have heard expressed. It is a big change. The only change from the 1963 Act is that the board can now direct that the expenses of the developer be met in certain circumstances by the person who has brought the third party appeal. That could be interpreted as inserted there to frighten off third party appeals altogether.
I know there has been a certain amount of annoyance and frustration expressed by developers against those who have brought such appeals and they have tried to justify their frustration and annoyance by saying that many of these appeals were vexatious, ill-founded and mischievous. Section 16 would seem to cover the situation adequately. Why then insert this provision which could prove an obstacle to persons making a third party appeal?
I have had representations quite recently again, probably because the matter has been highlighted, though I have not seen much coverage of this debate in the Press, on this particular point; this seems to be a vindictive section aimed at trying to frighten off those who might bring third party appeals. In view of the way appeals are being dealt with under section 16 why is there any real need for this provision? Deputy O'Brien expressed the views of many people in this and we have reason to believe these people are making valid points. I accept that the Minister is not anxious to be vindictive and not anxious to frighten off appellants or deny people the right of appeal, on the one hand, and then effectively he is doing exactly that by facing them with the prospect of very heavy costs and expenses. I would strongly urge the Minister to rethink this provision. I refer to section 17 (1) (b) (ii) in particular.
I do not want to hold up the Bill on this point but we would like a definite indication from the Minister that he will satisfy the House that this will not be used unnecessarily or in a vindictive fashion. Safeguards will have to be written in to ensure this. Past experience does not provide us with any precedent because we have not had experience of a board operating the Planning Act. We must safeguard against any excessive use of this section. When the Minister was introducing the original 1963 Planning Act he gave an assurance that Ministers would not operate their powers under section 16 of that Act in a vindictive or unnecessary way, that it was intended only to use the powers in extreme cases, cases in which the Minister was fully satisfied that the appellant had no grounds except delaying the development for petty and mischievous reasons. The Board, if they are of that opinion, can stop an appeal under section 16. Why then include these penal provisions which will act as a severe deterrent to organisations and residents' associations interested in the proper development and planning of the areas in which they reside? Up to this these people have taken on the job of appealing against planning permission by the local authority in certain cases and they have undertaken a heavy enough expenditure in presenting their cases at oral hearings. They have had to collect funds on a voluntary basis. If they are faced in future with a bill possibly running into thousands of pounds that will act as a serious deterrent to community organisations bringing third party appeals against large developers. It is a question of the small manvis-à-vis big business and capitalism. The Minister, professing to be a socialist, must have some doubt, even if it is only at the back of his mind, about this whole section. He has gone quite a long way in section 16 to meet any difficulties and I would appeal to him to rethink that part of section 17 which introduces this new aspect of costs and expenses being charged against third parties.
I thought I made it clear the last day but, if I failed to do so, I shall now try to make it clear again. If the House will be any happier about it I am prepared to delete the reference to costs. This will bring us back practically to the 1963 Act. The only difference will be that it will not be the Minister interpreting, it will be the board. If we are going to appoint a board then we will tell the board that the 1963 Act is not to be used in a certain way. That assurance was given by the Minister at the time and I am prepared to assure the House that I will advise the board in the same way.
The board will not be bound by that advice.
The Minister was not bound by it.
The Minister was speaking for the Minister. Now the Minister says he will ask the board. The Minister cannot give the House any assurance that the board will act in the manner he suggests.
Does anybody suggest that I should do something which Deputy Blaney, who was Minister for Local Government at the time, promised this House he would not do?
The Minister could speak for the Minister.
Deputy Blaney was speaking for the Minister.
To Members of this House.
I do not want to go into the question of Ministers saying things and afterwards finding out that their successors did or said something else. This has been honoured in a certain way and the board we appoint should be trusted to honour something they are asked to honour. Deputy Molloy referred to representations made by certain bodies.
I did not mention them specifically.
The Deputy said residents' associations and so on. The Deputy also said he accepted I was not trying to be punitive in order to prevent people bringing appeals. I am grateful to him for making that point, but there is no ground whatever for suggesting this is being done. For some extraordinary reason this has been spearheaded by certain people who kept saying that this was put in for the purpose of preventing those who want to make third party appeals from making them. I do not think anybody believes that.
Deputy Molloy referred to section 16. Section 16 simply provides for the forfeiture of the deposit of £10 for frivolous objections. That is a different thing altogether. With the exception of "the costs" what we are providing here is almost word for word what is in the 1963 Act. If it would make anybody any happier, I do not see why we should not put in the whole section and take out "Minister" and put in "board".
Would the Minister do that?
We seem to be making a very large mountain out of a small molehill. There is no reason why we should not do it.
Would the Minister put in section 18 of the 1963 Act instead of this section 17?
If Deputy Molloy reads the two sections he will find that section 17 in the Bill has good points. I am prepared to consider changing it completely if that would make the House any happier. This comes off the top of my head and I would like to have a look at it. If it covers the problem which I think is there, that might be the simplest way to do it. In any case, I will take out the objectionable words, the reference to costs. I could put in a reference to frivolous or vexatious objections in paragraph (b) if that would tie it up any better.
We are all trying to get a form of words which will do what we think should be done. We should be able to settle on a form of words. Can we agree to the deletion of the words "the costs" and let the section go, or do the Opposition want the words "frivolous and vexatious" to be included in paragraph (b), or would they prefer to wait until Report Stage and consider whether we should substitute section 18 of the 1963 Act in its entirety, with whatever alterations would be needed to make it fit into this Bill?
The one which would appeal to me would be something along the lines of section 18 of the 1963 Act.
This is very close to it.
To put it another way, what would appeal to me would be if the Minister dropped subsection (1) (b) (ii) of section 17.
Not in its entirely because then it would not be section 18 of the 1963 Act.
It would be more in line with section 18 because the main difference between section 17 of this Bill and section 18 of the 1963 Act is the one I have listed.
Would it not be sufficient to take out "the costs or"?
It is a matter of words if the Minister is leaving in the word "expenses".
Expenses are included earlier on.
For planning authorities.
Expenses for planning authorities are referred to here.
And for the board. I am dealing with the possibility of a third party being asked to bear the expenses or the costs incurred by a developer against whom they had made an appeal.
If I take out "costs"?
Whether we use the word "costs" or the word "expenses" there is still a possibility that they will be faced with a very great bill.
As I pointed out on the last occasion, there are expenses in relation to the hearing only.
Which can be very elaborate, as the Minister knows. Experts could be flown in from all over the world and that could be deemed to be the expenses of presenting their case at the oral hearing. This could run into thousands of pounds. I know the Minister would not agree that money should be able to influence or frighten off somebody with a legitimate reason for appealing. That is why we are on the same ground. We must find a formula of words which will ensure that what we fear cannot happen or will not be allowed to happen.
We come back again to the discretion of the board.
During my time in dealing with planning we took serious cognisance of appeals by bodies such as tenants' associations, farming organisations, An Taisce and other voluntary bodies. Some of these are well established bodies but others are not. They aread hoc groups who got together to deal with a particular planning case because they wished to make a third party appeal. They have a meeting and they appoint a secretary. They discuss their problem and it is left to the secretary and chairman, or somebody like that, to draft the appeal. The committee may never meet again. They have no finances. They have no assets or resources.
Somebody may get in touch with the secretary who is the signatory to the appeal and say: "The law is different now from what it used to be. Previously the Minister could be got at. He could be contacted and he was answerable in Dáil Éireann, for appeal matters. Now a board have absolute discretion as provided in section 17 (1) (a) (ii)." If the appeal has not gone in, this may mean that the person who is acting voluntarily and in good faith on behalf of the group when he is told: "You are dealing now with a different situation; you are dealing with a board not answerable to Dáil Éireann or to anyone except the Minister"—and even the Minister admits he has no say in this matter and that he cannot direct the board in ordinary day to day matters—may very well say : "Hump this. I will not stick my neck out" and that is the end of what may be a very genuine appeal.
Apparently the whole thing hinges on whether or not we can trust the board. We are simply saying that "in its absolute discretion the board may". Part of section 18 of the 1963 Act provides :
(a) the Minister, if he so thinks proper and irrespective of the result of an 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 expense 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 expense 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 hearing of the appeal.
Under the law as it stands at present, any third party appellant could be asked to pay very substantial sums and this has not prevented third party appeals. I have not seen any appeals from the tenants' associations but residents' associations and boards such as An Taisce and people like that have made appeals. This has not prevented them from making appeals.
How does the Minister know?
Why add in the new section then?
Even under the old Act there may have been fears and the Minister did not get appeals because of those fears.
Only God can tell that. We cannot decide anything on that argument. I am not sure whether the section as it now stands will do what is suggested by the Opposition and by Deputy O'Brien. I am not sure of that, but I am sure that there appears to be an unreasoning fear of a board which we were all terribly anxious to set up. I hope and think the board will be very reasonable. To save any further discussion, we appear to have gone away from the agreement I thought we had reached on the last occasion—we were within seconds of it when time ran out. I suggest that if the Opposition would let me look at this again on Report Stage I would consider whether this section completely covers what I want to do regarding section 18 of the 1963 Act or whether some alteration in the Act, such as is suggested by Deputy Molloy, might be a better way of dealing with it. I am anxious to reach agreement. I want the Bill when it goes through to have the confidence of the House but I do not want to have an emasculated Bill that will not be worth the paper it is printed on.
We shall more than likely agree to that suggestion. I do not want to delay any longer but I should like to put on record the type of representations that have been made about this section. The Association of Combined Residents' Associations—I am sure they have also sent these recommendations to the Minister—stated that subsection 1 (b) (ii), the one to which I have referred, was unfair to the ordinary citizen because the parties are of unequal financial standing. That is more or less what we have been saying.
There were representations from the Royal Institute of Architects of Ireland about section 17 and they said there was concern that the board might appear to impose costs on the appellant punitively and they suggested that for this reason the words "or other expenses" in subsection 1 (b) (ii) should be struck out and that consideration be given to requiring the board to advise in advance parties to an appeal as to whether there is the possibility of costs being awarded against them, and that, in any case, parties against whom costs have been awarded should have the right of appeal to the courts.
The National Association of Independent Retailers—I am quoting from a varied group of people—said regarding section 17 that it dealt with expenses of appeals and gave extraordinarily wide powers to the board, the effect of which would be to frighten off persons who wanted to appeal planning authority decisions. They said the section should be deleted, which would leave matters as they are under the Act and statutory instruments. That is their view. The Royal Town Planning Institute submitted representations to the effect that this section gives power to the board whereby the board may direct one party to pay such a sum as the board in its absolute discretion specifies as compensation for the expenses of another party in relation to the appeal and this was not considered by the institute to be an appropriate and effective method of dealing with unwarranted use of the appeal machinery.
I want to give a contrasting view by a group that are in favour of the section. This group are very great friends of the Minister, the Construction Industry Federation. They say that, in the light of experience, the Construction Industry Federation fully supports this provision but requests that all third party objectors be obliged to publish notice of their intention to object in a newspaper circulating in the area in the same manner as a developer has to advertise his intention to apply for planning permission.
Of the few groups making representations which I have chosen at random the only one in favour is the organisation one could expect to speak for the developer. The ordinary reaction is against the section and the only persons to my knowledge seeking it are the developers. They may have had just cause to require such a section in the Bill because of what they may have regarded as ill-founded appeals against them by third parties in the past. I do not think the record says that this practice was engaged in to any great extent by third-party objectors and the Minister has not brought forward any great list of practical cases to justify the inclusion of such sweeping power. We accept what the Minister has said, that he will have a serious look at this and will attempt to meet the wishes expressed here.
I also accept the Minister's assurance that he will consider this on the Report Stage. I have had the same sort of representations from all these groups. They are groups that have done quite an amount of good work in the past by way of preserving amenities and ensuring good planning and they should get what support we can give them. That is important. I am happy that the Minister will reconsider this and come up with something that will be generally acceptable. Over the past couple of years there has been fairly subtle propaganda by the confederation and other interested parties aimed at eliminating third party appeals. I can see their reason, but this is a democratic institution and we must protect the rights of the individual. By having a further look at section 17 we are showing our concern for the rights of the individual and I look forward to its reconsideration on the Report Stage.
I am grateful to Deputies for the line they are taking but it is only right to point out that, while what Deputy Molloy says is correct, quite a number of people made representations to us—as was their right— and most of them seemed to have the idea that there was something very wrong with section 17. The Construction Industry Federation, as they were entitled to do, supported it because they felt it would at least ensure that they would not suffer long delays.
I saw, as I am sure Deputy Molloy and Deputy Cunningham saw, people coming into the Custom House, business competitors putting in appeals with no connection with an area for the purpose of holding up one business so that they could get started ahead of it. I am aware of this happening. In fact, we had no provision made to punish the person who did that. The strange thing is that those who claim to know everything about this Bill did, as I pointed out on the last occasion, completely misinterpret the whole thing. I have here a cutting fromThe Irish Times under the heading “Planning Bill `Erosion Of Rights' To Be Looked At: Plea to Law Society by An Taisce Chief”— by Michael Viney, Environment Correspondent. He proceeds to give the statement made by Mr. John O'Loughlin Kennedy, director of An Taisce—Deputy Molloy asked who it was and I am giving the name. In the course of his discussion this is what Mr. O'Loughlin Kennedy said:
This last could include the loss of profits suffered by a developer during the period taken by the Appeal Board to consider the matter.
He was talking to the Law Society and their reaction was that they would not make any comment, in view of a statement like that which is absolutely ludicrous since this is not included in the Bill and could not by any means be accepted, if one went to the trouble of reading the Bill, as being included in it. It is easy enough to get up the hackles of a group of people who might be involved or who were involved in third party objections previously when they read a statement made by somebody who should know better.
Nobody here is making that argument.
I know the Deputy is not, but the Deputy did make the argument that there were a number of organisations who were complaining that this was what was likely to happen. I am trying to point out that the reason they were saying this was because somebody who should know better told them publicly, and the Law Society, that this was so. It is not so and anybody who read the Bill will appreciate that. The Opposition, having read the Bill, were well aware that it was not so and stated this. Those who have complained about this section, if they read the debate of the last day and tonight will be perfectly satisfied that there was no question of the loss of profits suffered by a developer during the period taken by the appeal board to consider the matter being involved in any way. I am prepared to agree to have another look at the matter in an effort to get something which will be completely acceptable and I am grateful to the Opposition and Deputy O'Brien for the way in which they have dealt with this matter.
The last few words of the Minister might convey the impression that what the man from An Taisce was saying was that third-party people could be involved in heavy expense under this section if compensation was levied against them. The Minister has now said that this is not so, but he is dealing only with one aspect of it. A third party will not be obliged to carry as costs loss of profits; he will only be obliged to carry costs or expenses involved in relation to the appeal itself. Our point is that, even there, the amount can be quite substantial and run to thousands of pounds if the person whom the appeal is being made against decides to bring in elaborate arguments and costly experts to present his case.
Without getting involved in the loss of profits field and expenses other than those legitimately arising out of the holding of the appeal itself the point must still be made that third party people can find themselves faced with the possibility of heavy expenses to be met by them.
I should like to repeat that Mr. O'Loughlin Kennedy in his position as director of An Taisce addressed the Law Society and urged them to consider this section. He said that An Taisce was urging the Law Society to consider the section in question and to make representations to the Ministers involved to have it omitted or drastically amended. He was speaking to a paper on "Public Participation in Planning" by Mr. Gordon Hyde. The Incorporated Law Society have informed us that they do not propose to make any such representations. The reason so many organisations made representations on the particular point was because somebody who is an authority on planning in fact said this, as reported in theIrish Independent of 16th January, 1975:
"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 of the legal costs of other parties but of any figure the Appeals Board chooses to state as its own costs plus any other expenses in relation to the appeal."
He told the Incorporated Law Society that the inclusion of the right of the board as its absolute discretion to award itself costs was contrary to the best traditions of Irish law and almost certainly would give rise to unnecessary and costly litigation.
We are wasting a lot of time on this.
We are not wasting time because I want to have it on the record of the House why certain organisations, in my opinion, made representations which when they understand what the position is will know that their fears were ill-founded. I should like to continue with the quotation from theIrish Independent:
This section, he added, as drafted was loaded heavily against the community and its environment. While the conservationist could only hope to claim his costs, the developer could claim his costs "or other expenses occasioned to him in relation to the appeal".
InThe Irish Times the same gentleman is reported as saying:
This last could include the loss of profits suffered by a developer during the period taken by the appeal board to consider the matter.
That is not inThe Irish Independent.
I have gone to the trouble of giving the version in both newspapers.
Has the Minister any objection to any of the costs related inThe Irish Independent?
I have objection to anybody stating that the cost——
That is not what asked the Minister.
I am not interested in what the Deputy is asking me. I am making a statement to the House.
This is free debate and the Minister is not interested in the question I put to him.
The Minister has made this point three or four times.
I have and I should like to state once again that there is no section in the Bill which will entitle the board to charge for loss of profits or anything like that against a third party appellant. The people who would be making third party appeals would be quite satisfied with that statement and that is why I am making it so often.
I do not know why the Minister wants to labour this point because we are not making that argument. It was the Minister who introduced the speech of Mr. O'Loughlin Kennedy before and again tonight. The speech was made quite recently but all the representations I have quoted were sent to me during 1974 and not following the speech by Mr. O'Loughlin Kennedy.
This sort of statement was sent around to all voluntary bodies by An Taisce early in 1974.
Is the Minister stating that this gentleman was able to influence the views of the long list of organisations which I intend reading out? Swords Progressive Preservation Society; Husbands' Bridge Association; Grange Woodbine Residents' Association; South Shankill Residents' Association; Hollybrook Grove Householders' Association; Allen Park Residents' Association; Rathgar Residents' Association; Churchtown West Residents' Association; All Hallows Area Residents' Association; Wyckham Park Estate Residents' Association; Frascati and Blackrock Protection Society; Mount Prospect Grove Association; Sandymount Residents' Association; Mount Pleasant Residents' Association; Living City Group; Clontarf Residents' Association; Irish Georgian Society; Soroptomists; Bayside Village Development Society. These are groups of concerned citizens who have approved the comments on section 17 which I have already read. They agreed that subsection (b) (ii) of section 17 was unfair to the ordinary citizen because the parties were of an equal financial standing. They had objections to it.
Could Deputy Molloy tell us the source of this thing—it is a circular of some kind? Can he say who was responsible for circularising these people and asking them if they approved of something they obviously did not understand?
The Association of Combined Residents' Associations forwarded it to me. The letter to me is signed by Lorna M. Kelly, Rosemary Mulcahy and Carmencita Hederman.
The Combined Residents' Associations?
Yes. They are the three signatories to the letter. They represented a group of concerned associations. I am just giving the names of the persons who signed the letter. They represented a group—the Dublin Civic Group, the Dublin Bay Preservation Association, the Upper Leeson Street Area Residents' Association, the Living City Group and the Dublin Association of An Taisce.
Might I say to the Minister also it is not just these groups. They have not merely been influenced by the view of one organisation.
I had a letter from a retired sergeant of the Garda Síochána who resides in County Limerick, who procured for himself a copy of the Minister's Bill and his amendments and, having studied them, wrote a letter to one of our Fianna Fáil Deputies asking him to pass it on to me. In that letter he expressed concern about section 17. It was the one section on which that individual thought strong objections should be voiced. Therefore, it is not merely Mr. O'Loughlin Kennedy who has influenced people's minds on this. That individual I mentioned from County Limerick was not in any way involved with the Dublin organisations I mentioned. Anyway, we accept the Minister's agreement to review it fully.
Deputy Molloy can be assured that I will do that. Incidentally, with regard to the list he read out—if it was the ACRA—it contained a lot of new members. So far as the Garda sergeant was concerned, he might be a very intelligent man and he might not. I have received dozens of letters from people who genuinely felt it was wrong and a lot of letters also from people who thought that the whole Bill was very necessary as it stood. I am not condemning anybody; people are entitled to make representations. I am sorry to keep coming back to this but I believe that when somebody who leads in planning in the country, who knows an awful lot about it and who makes a mistake—as evidently was made in this case—and circularises a lot of organisations saying that a certain thing is so, I will not blame such people for accepting that it is so and now trying to prove that it is not.
The Minister referred to a circular.
Yes, a circular sent round to all the organisations by An Taisce.
Was there something objectionable in the circular?
It was not objectionable, except that it was not correct.
In what respect? Is the Minister prepared to quote where it was incorrect?
I have quoted it four times and Deputy Molloy and Deputy Cunningham were objecting to it.
The Minister quoted from a Press report. He did not quote from a circular.
Will we adjourn the discussion until next week and get the circular for the Deputy?
I am only asking what was objectionable in the circular.
I object to somebody mis-stating facts and obviously this has been done. I will agree it was done in error, by people who just did not understand, but that should not affect legislation in this House.
Would the Minister quote the error?
The error was that he felt that the costs could include the loss of profits by a developer during the period taken by the appeal board to consider the matter, and that is not correct.
That was in the circular?
That was in the circular.
Or is that a Press report?
I am telling Deputy Cunningham it was the circular.
The Minister is quoting from a Press report. Is exactly the same thing in the circular?
The same wording exactly.
That is all I wanted to establish.
May I ask how the amendment stands? Is amendment No. 36 by the Minister being withdrawn?
Consequential on the Minister's amendment No. 38 is amendment No. 47. Therefore, it is proposed that they be discussed together.
I move amendment No. 38:
In page 9, lines 26 to 33, to substitute the following subsection for subsection (1):
"(1) The Minister shall make regulations providing for any oral hearing by the Board of a reference or appeal being conducted by a person appointed for that purpose by the Board."
The amendment is purely a drafting one. The provision under section 18 (1) (b) will be covered by a new section in the Bill and this amendment is to tidy up a subsection. The new section is proposed to be added before section 21.
Shall I elucidate amendment No. 47 along with it, Sir? I think it might be as well to do so.
The Minister is on amendment No. 38 now?
Yes, amendments Nos. 38 and 47 are being discussed together. Amendment No. 47 makes more specific provision for the matter which, under section 18 (1) (b) would have been dealt with by regulations now altered by amendment No. 38. The purpose of the new section is to provide that not only should reports on the oral hearings be submitted to and considered by the board, or the Minister as appropriate, but to make it clear that such reports may include a recommendation and that such recommendation shall also be considered. The Minister is included because there may still be occasional oral hearings in connection with closure of public rights of way and, when the Bill and regulations come into operation, there may be appeals where the planning authority refuses to dispense with or relax requirements. See section 33 (f) of the Bill. I think it is understood that those are the appeal functions that are not going to the board. The planning appeals are going to the board but the same Bill covers a number of other functions.
We have no basic objection to it. I have an amendment down to amendment No. 47. Perhaps the Minister would indicate whether he is going to accept that, which states as follows——
I thought that was to be taken separately.
We are now discussing amendment No. 47, are we not? And I have an amendment to it.
I do not want this to become too complicated. I think we are not taking the amendment to amendment No. 47. It does appear a little complicated but I do not want it to become too confused.
Would the Minister care to explain again what he is at? We are on section 18; we are taking the amendment to it and the Minister said he was taking amendment No. 47 with it.
The contents of amendments No. 38 and 47, even if passed, will not alter the meaning of the amendment about which Deputy Molloy is talking. What I am suggesting is that we should clear amendments Nos. 38 and 47 first and then go on to amendment No. 39. Amendments Nos. 38 and 47 will have no bearing on Deputy Molloy's amendment.
Fair enough, I will accept that.
I move amendment No. 39:
Before subsection (2) to insert a new subsection as follows:
"(2) The transcript of evidence submitted with the full report of the person conducting the hearing shall be available as a document of public record."
Would the Minister care to comment on that?
Before the Minister comments, I trust it is agreed that this substitute amendment in the name of Deputy Molloy, No. 39, and the amendment to amendment No. 47 be discussed together now?
The Minister's amendment No. 47 was tabled after I had put down this amendment. Subsequently I put in an amendment to his amendment and this leaves me in the position of being able to withdraw amendment No. 39 and confining my remarks to amendment No. 47.
Should we deal with amendment No. 47 now or leave it until we come to the relevant section?
I think we should leave it until we reach section 31 since we are discussing section 18 now.
I move amendment No. 40:
Before subsection (3) to insert a new subsection as follows:
"(3) In case revised plans, drawings or particulars mentioned in subsection (2) of this section are submitted to the Board by virtue of regulations made under that subsection, the applicant shall furnish copies of such revised plans, drawings or particulars to all of the other parties to the appeal at least seven days before the appeal is considered by the Board."
What is involved here is important because people have built cases on drawings they have, only to find at a hearing that they had been changed. Consequently, they were not prepared to comment on the changes. Therefore, any substantial change made in drawings before any hearing should be notified to all parties involved at least seven days before the hearing. This should be done as a matter of courtesy, if nothing else, but also to ensure that justice is seen to be done. A delay of seven days would not hold up any appeal to any extent but it would give the appellant time to examine the changes and seek the necessary advice on which line to take. I ask the Minister to consider this amendment.
The amendment is not acceptable because section 18 (2) provides for regulations which will allow more flexibility in dealing with proposals on appeal. It is not always possible to devise satisfactory conditions when dealing with appeals particularly in relation to designs but the board will be enabled to invite the applicant to submit the revised plans showing how his proposals can be modified to meet their requirements. The degree of flexibility must necessarily be limited. The proposals must remain substantially the same or the board would virtually have decided the case.
Instead of trying to spell out in detail conditions relating to matters such as design, the board may indicate their requirements in general terms and allow the architect to suggest how these can be met. If the drawing is acceptable the board may incorporate it in their decisions. Therefore, the amendment is not acceptable. The implications of the whole question could be reopened and the board would have to take into account the views of all parties but the scope of section 83 does not warrant this. Such a situation would cause delay.
I am hoping that the board will minimise delays because there is nothing more frustrating than having to wait for decisions. Looking at the situation from one angle, Deputy O'Brien's proposal might help but viewing it on a board basis it would be almost certain to cause not only short delays but very substantial delays. It is not clear as to what would be the effect of failure to comply with the requirements. If the failure occurred inadvertently would a decision by the board be invalidated with resulting considerable cost? There are a large number of parties involved in many appeals. Technically, also, the amendment is defective. How, for instance, would the applicant know when the decision of the board would be given or how would the board know when every party had received a document?
If Deputy O'Brien looks at the matter again I am sure he will realise that this is not the best way to deal with this matter and that the section as it is is a better instrument in this regard.
Possibly this places the appellant at a disadvantage in that when he goes to a hearing with a certain set of ideas on which he has based his case he may find that the design, for instance, has been changed without his knowledge. When the board are requesting alterations before oral hearings, surely they should request from the interested parties what they might regard as changes. In that way the parties concerned would be conversant with the changes. I am talking in terms of a seven days' delay but in the case of drawings being changed there would be a greater time lag.
Regarding the technical aspect of the matter, I cannot see any problem. If the board request changes, these changes cannot be put forward on the spot because after the changes are made they are submitted to the board and if the board are of the opinion that there is some substance in them they should submit them to the interested parties and allow for seven days at least elapsing before the oral hearing.
I support Deputy O'Brien's amendment because, as I see it, if the parties concerned are aware of the changes suggested, the oral hearing can be shortened by reason of the people being prepared for what would arise. This might also change the opinion of the parties concerned as well as the opinion of the board. It is only fair that all parties concerned should know what is to take place at an oral hearing. I agree with the Minister regarding cutting down on delays but I cannot see that a delay of seven days would make much difference one way or the other.
Both Deputies are mistaken here. They are talking of a situation in which if, at the oral hearing there is a change, somebody should know in advance. This is not what is suggested. What is suggested is that the oral hearing having taken place and the board having made up their minds, the officer may say: "There is a slight change which will make this building a better one. Could the architect submit the necessary drawings to show whether this could be done?" At present appeals may be refused whereas if they had been put in a different way they might have been accepted. The suggestion is that the slight alteration which might make an appeal acceptable should be included but to suggest that everybody should be given copies of plans so that they could come back for another oral hearing is not acceptable. I do not think that either of the Deputies who spoke would be prepared to accept that because that would mean we would have the whole rigmarole all over again. The point that is being lost is that this would occur at the end of the oral hearing, and not during the oral hearing. I ask, therefore, that the amendment be withdrawn on that basis.
I admit that I misinterpreted this section. If the Minister is satisfied that it would be in the best interests of planning. I will go along with it. I hold that the local authorities should do this more often. They should send for the client and say they are agreeable to the plan. In view of what the Minister says and the fact that I misinterpreted, I withdraw the amendment.
I did not say that the local authorities should do it but it would be a good idea if they did.
The Minister should and could instruct them.
In the Minister's explanation he says that where the word "modify" appears in subsection (2) of section 18, it refers to slight changes in the design of the application which might be required by the board in deciding the appeal after the oral hearing has taken place. Reading the section, as worded, one could not come to the conclusion that this would only apply where minor modifications were involved. The wording refers to any modification of the design. That could be a substantial or a slight change. Will this refer to only minor changes and not changes which will affect the overall development of the proposals? Under this section the board could decide to change the whole facade of a building. Can the Minister satisfy me on this point?
I agree that this section is open to the interpretation which Deputy Molloy puts on it. It reads:
(2) The Minister may make regulations enabling the Board when considering an appeal under section 26 or 27 of the Principal Act to invite an applicant and to enable an applicant so invited to submit to the Board revised plans or other drawings modifying, or other particular providing for the modification of, the development to which the appeal relates.
We felt that the use of the word "modify" and "modification" did not mean a major change. Possibly some qualifying word might be inserted to ensure that the modification will be of a minor nature. I take the Deputy's point.
This is a matter for interpretation.
Under the 1963 Act where a development plan has been on public view for three months, the local authority must then consider the observations received following that public viewing before they can finally adopt the plan.
Does the Deputy know what that means?
If they made substantial changes they were obliged up to now to put the development plan on public view for another three months. I know there are proposals in this Bill to deal with that but we have not reached them yet. Provision is made in the measure for certain things to happen if major changes are made. The word "modify" does not indicate only minor changes. It could mean minor or major changes. That is not very satisfactory.
Again, it depends on what you mean by modify.
We seem to be discussing the section now.
Yes, I am talking about the section.
We are still on amendment No. 40.
Unlike Deputy Molloy, I like the word "modification". Section 18 will be a very important section and will do a great deal to facilitate the whole planning process. Instead of the board having turned down an application and, perhaps, inviting an applicant to go through the whole process of submitting a new application, they can invite him to submit a modified plan. The importance of the word "modification" is that it must be basically the same application, but modified in some way. I like the word "modification" in this context.
The reason I did not allow Deputy O'Brien's amendment to go forward before I raised this point was that unless we are satisfied on the issue I have just raised, his amendment is very important. If the changes to be considered are substantial, then the other parties to the appeal are entitled to receive notification of those changes before the board make a decision. Therefore, his amendment is very important if major changes are involved.
I am informed that the legal interpretation of "modification" is that it cannot be a major change. It must be the same proposal.
It must be fundamentally the same proposal.
I had experience of the Hume Street planning appeal. There was a great deal of agitation in Dublin arising out of the proposal of the Green Development Company. That happened about the time I was appointed Minister. The issue was settled by changing the facade of the development. One could argue if that was a modification. Some persons were quite concerned about the outward appearance of the completed building. This was an issue of great public importance at that time. On the Minister's definition of the word "modification", that change might be deemed merely a modification although it was a major change. So I am still not satisfied.
I agree. For too long applications have been turned down. This is a fresh approach with which I am very happy. The design would be modified so long as there was not a major structural alteration. It would be a modification if it was changed to ensure good planning.
Does "modification" necessarily mean something reduced? I do not think if you add something that that is a modification.
My advice is that it means a minor change. There cannot be an addition because then you would be increasing it.
I would not accept that.
I know the Deputy would not because I listened to him a few minutes ago and he may be right. I am inclined to agree with Deputy Haughey that the wording is, perhaps, correct. I do not want to hamstring the Bill by adding words here and there, but this is one point which may require improvement.
Would lopping 19 feet off the top of a building be a modification?
It might. According to Deputy Haughey it would.
Could I give an example of something we might expect? Suppose someone had an oral hearing for a single house in a rural area. After consideration of the oral evidence, the board might decide that if the house were moved ten feet to the left they would be happy. Is that considered a modification or is it considered a major change? I think what the Minister is trying is to allow the board make the suggestion of shifting the house five or six feet without putting the applicant to the bother of going back to the county council for a new application. I really think that is what the Minister is trying to get at and it is very praiseworthy.
No. At present, by conditions, the house could be moved. What I am talking about is a change in the design. Here is where we need the wording. Section 18 (2) reads:
The Minister may make regulations enabling the Board to invite an applicant and to enable an applicant so invited to submit to the Board revised plans or other drawings modifying,
Leave it with me and let me have another look at it. Personally I think it is all right but when I have had a discussion with my advisers it may turn out that we can put something in which will meet Deputy Molloy's view. I do not want to make it awkward. I agree with Deputy O'Brien it is rather a pity that the local authorities when they are considering appeals do not do something like this. Possibly we may get around to it because it would save a lot of trouble if they could refer back and have another proposal put in rather than having somebody go all around the house again before they can consider it.
The Minister has hit it on the nail. This is the legislative Assembly. Since that view has been expressed by all sides, surely we should ensure that that happens at local authority level? Though this Bill deals only with appeals, I would suggest that the Minister should consider putting in another amendment which will oblige local authorities to give this facility to applicants instead of requiring them to go back with the notice on the paper and go through the whole rigmarole again. They write out to applicants and ask them for further information. That meets the difficulty in some cases, but in others they say it is a substantial change. In many cases it is not a substantial change at all, but this is a delaying tactic or a frustration machine that councils seem to apply in the planning sections. It is the view of this House that we would expect local planning officers to be very flexible in dealing with planning applications and, in the interests of saving time, allow applicants consultation and the opportunity to adjust their designs and plans after they have been lodged.
I should like the Minister to give some kind of order to the local authorities along those lines. When I first went on Galway County Council I looked for the files when a particular planning application was turned down and was told that I was not entitled to look at them. The planning officers never notified a person when they were going out or asked them to meet them on the site. One's only hope was to try to get an oral hearing from the Minister, which we got on various occasions. This is the type of thing that has put everybody up against planners. They would not meet the people at all. Now we have a change, in my county anyway. We have made arrangements that they must notify the applicant when they are coming. The local authorities should be told that there should be consultation and people should not have to make new applications. We are fed up with officials taking it upon themselves to turn down applications and the procedure has to be gone through all over again. I should like to support very strongly what Deputy Molloy has said.
This will mean a new section.
I should like to see it in.
If it can be done I will be glad to do it. I should like to thank Deputy Molloy and quite a number of people who agreed with my proposal to relax the planning laws. I am glad to see I got a new recruit here tonight.
I am not a new recruit.
No. Deputy Callanan all along approved of the fact that people were getting a fairer deal under the law. I am not blaming Deputy Molloy for it. He did not draw it up, he did not interpret it down there. The only difference is that I found I was not satisfied with the way it was being interpreted. I agree that, if we can, we should endeavour to have the process of considering planning applications at local level simplified so that if somebody applies for permission to do something and if there is a slight alteration the local authority should endeavour to have that slight alteration made before it is decided or definitely before it is refused. We will be doing everyone a good turn if we can have that included. I will consider it for Report Stage and I hope it will be possible to do it.
It would minimise the work.
The Minister is very good at creating impressions and it is the man who creates the impression that he is doing something who gets the credit even though he may not be doing anything at all. I would suggest that the Minister read some of the circulars, particularly the main circular, which I sent to planning authorities when I was in the Department. He will see whether I was in favour of flexibility in planning or not. He will see that I gave advice very similar to the advice he gave afterwards to deal in a more flexible manner with applications. I spelled out that I was of the opinion that quite a number of planning authorities were turning down applications which could and should have been decided locally and sending them on to the Minister. I differed with the Minister on the question of national primary roads. At present, unfortunately, if one wants to get a planning appeal through the most effective way of doing it is to approach a member of the Fine Gael or Labour Parties. We have a Senator in our own area canvassing support on this basis. It is regrettable. Cases that are being passed have had political representations made and very similar cases that have been refused have had no political representations made. I would ask the Minister to have a closer look at what is going on and at what Deputy Begley is doing in the planning section and the political influence that is operating within the planning section of the Department of Local Government at present. It is undeniably going on.
If Deputy Molloy says he advised local authorities to relax the conditions on which permission is granted, I accept that. The only difference is that when I told them to do it they did it. With regard to political pull in regard to planning appeals, I want to emphatically deny that this has happened. In fact, it can be checked by anybody who wants to check it that as far as I am concerned——
Not the Minister.
——anybody who makes an application for anything to the Custom House, whether he is Fianna Fáil, Fine Gael, Sinn Féin or anything else, if he is entitled to it I will guarantee he gets the same treatment as somebody actively associated with one of the political parties in government. It is only fair that this should be said. I do not want to make a political row about it here tonight. This applies to my Parliamentary Secretary the same as to myself. I know we are out of order in discussing this.
I am pointing the accusing finger at the Parliamentary Secretary.
I am responsible for the Parliamentary Secretary and, as far as I am concerned, I am satisfied that the allegation made is not correct. The suggestion that we should insert a new section on Report Stage is perhaps the best way of dealing with it and we should be able to pass on.
I move amendment No. 41:
To add to the section a new subsection as follows:
"( ) A draft of any regulation which it is proposed to make under this section shall be laid before each House of the Oireachtas and the regulation shall not be made until a resolution approving of the draft has been passed by each House."
The inclusion of section 18 in the Bill is desirable and beneficial. It will greatly facilitate the whole process of planning and it will make life much easier for those who have occasion to seek planning permission for developments of one kind or another. It will simplify the procedure considerably. I am concerned that section 18 should work efficiently because of the importance I attach to it. It is in that context that I put down my amendment.
As the House will note, section 18 deals with the question of the Minister making regulations. He will make regulations that will lay down the procedure to be followed at oral hearings, with regard to the furnishing of reports and so on. By this section he will be empowered to make regulations covering this important new proposal in regard to the applicant; that, instead of having his appeal rejected and being forced to go through the whole machinery from the start again, he will be able to submit a modified proposal.
In view of the importance of this, it is necessary that the regulations be fully scrutinised by this House. They will be important regulations, particularly in that they will lay down the machinery for oral hearings and so on. My amendment proposes that the regulations will come before the House in draft and that the House will have an opportunity of considering them. They will become effective only when there is a resolution of the House approving of the draft. In other words, I want the House to have an opportunity of examining at some stage the detailed machinery that will be provided for in the operation of section 18. My main reason for that is that this section is an important one and it will be of great significance in smoothing the operation of the planning machinery throughout the country. Therefore I should like the regulations to have the benefit of the experience of Members of this House before they become effective. There is probably a larger collection of people in this House who know the workings of the planning machinery intimately than anywhere else and it is important that the practical experience of Members in the operation of the planning laws be brought to bear on the regulations. It is to enable that to be done that I put down this amendment.
I am sorry I have to oppose this amendment. It is inconsistent with the general provision governing regulations. Deputy Haughey has not mentioned section 10 of the 1963 Act, which is to be construed with this legislation. It provides that all regulations be laid before both Houses and for amendment by either House within the next 21 sitting days. So far as I am aware there has not been a single complaint or any criticism of the appeals and reference regulations made under the 1963 Act. The new regulations will be in similar terms, except for subsection (2) which includes a new provision. This is on very specific terms. It is difficult to see how regulations to give effect to legislation would require approval of the Oireachtas. If the House thinks it could be done, the simplest thing is to put subsections (2) and (3) in the Bill as separate sections. There is nothing extraordinary about it. The provisions which have been placed before the Houses of the Oireachtas are in the parent legislation. The new section I am putting in cannot be twisted in any way. It is quite plain and specific. Perhaps Deputy Haughey would consider it for a moment.
I am not clear on what the Minister is suggesting.
I am saying that section 10 of the 1963 Act specifies that the regulations must be laid before both Houses of the Oireachtas. There is only one addition and that is in specific terms. There is no way in which there could be any opposition to what is proposed to be put into it. If the House prefers, I have no objection to putting subsections (2) and (3) as separate sections. Deputies opposite know that I do not like legislation by regulation. It has been the practice. It has been suggested in this case and therefore I included it. It is in the Bill now and I should prefer it to be left like that, but if there is an objection I do not mind putting them down as new sections in the Bill.
Putting what down?
Perhaps the Deputy wants to put it before the House any time a regulation is made. I am not trying to pull a fast one.
Subsections (2) and (3) are in the Bill.
Subsections (2) and (3) could be enacted directly as new sections and there would be no requirement to make regulations. I am simply adding this to section 10.
Is the Minister saying he could reword subsections (2) and (3) and have them give these powers specifically to the board rather than have an enabling subsection which enables the Minister to give the powers?
That is so.
I think that would be going too far. I am happy with whichever suits the Minister best.
I should prefer to leave it as it is.
That is all right by me, although there might be some advantage in spelling out in subsections (2) and (3) that the board have these powers without leaving it to regulations to confer the powers on the board, which is the way it is phrased at present. However we are still left with subsection (1), paragraphs (a) and (b). The regulations there will be covering the whole procedure for oral hearings. Am I correct? Subsection (1) (a) states:
for any oral hearing by the Board of a reference or appeal being conducted by a person appointed for that purpose by the Board,
I do not think Deputy Haughey was present, but amendment No. 38 has replaced that. Are the Opposition saying they do not want the Minister to have the right to make regulations?
We are not saying that. I am not going to make a federal case out of this. The Minister quite rightly has said that section 10 of the Principal Act governs the making of regulations, that they must be laid before the House and that if there is not a resolution annulling them within 21 days they become law. My amendment is different because it requires the positive approval of the House. There is a significant difference.
I do not think it is a good idea.
The procedure laid down in section 10 is that the Minister makes a regulation, puts it before the House and, unless somebody does something positive about annulling it, it stands. My amendment is that a draft be laid before the House and the Minister must come in and move for the approval of that draft before it becomes effective. There is that difference between what I am proposing and section 10 of the Principal Act.
I agree with the Minister that if anybody is alerted to the situation he can have a debate here on the regulations by moving for their annullment. It is quite possible that the regulation could be made, laid before the House and become law before anybody is alerted to it.
That does not happen.
It does. It is difficult enough to keep track of everything happening around here.
I can remember an occasion when the Minister was in Opposition and they let a very major regulation slip through the House. It was in the Library and they never looked it up. We were on tenterhooks for 21 days to see if it would be noticed.
I was the only person who ever put in a motion to nullify a regulation.
I am not going to press this very hard. I want to indicate to the Minister what I am at. These provisions in regard to oral hearings are vitally important. The public attach great importance to oral hearings, which are an important democratic function in regard to planning matters. It is important that the regulations the Minister will make in regard to oral hearings be as perfect as possible. I thought that, if there was an onus on the House, to positively look at these regulations and approve of them before they become law, it would be advantageous. I put it to the Minister in that fashion and, as I say, I do not press him if he does not wish to accept the amendment.
I do not think this would be a good idea. I quite accept what Deputy Molloy said about something passing through and nobody noticing it. If Deputy Haughey is now saying that a matter which his party feel is important could be laid before the House and not be noticed I do not think they would let that happen. Surely a super party like Fianna Fáil would not let it happen.
I do not agree it should be necessary to have all the regulations debated. If it is put in the way Deputy Haughey suggests it would simply mean that time would have to be allocated for debate on it. As we all know, if something comes before the House people find things to say about it. We seem to be running very short of time in this House to debate things. Therefore I suggest that we leave it as it is. I think I am the only person who introduced a motion to prevent a certain regulation becoming law. I did not win.
Will the Minister undertake, as long as he is in office, when any of these regulations come up to send them to the Fianna Fáil spokesman on Local Government as a matter of courtesy?
There is no reason why it should not be done. I give the undertaking to the House that all parties will be notified about these regulations.
I move amendment No. 42:
In page 10, between lines 30 and 31, to add to the section the following subsection:
"(3) For the purpose of enabling the Board to perform its functions on and from the appropriate day, the Board may, as an interim measure, make arrangements for the supply to the Board by the Minister of any services required by the Board pending the making by the Board of sufficient appointments pursuant to section 10 of this Act and the Minister may supply and the Board may avail of services for which arrangements are made under this subsection."
Deputy Haughey put down amendment No. 1 to section 2 seeking to have the board established not later than the 31st December, 1974. There is general agreement that the transfer of appeal functions should be carried out as soon as possible. There will be some unavoidable delay due to the necessity to revise and amend the various sets of regulations made under the 1963 Act. This delay would be greatly lengthened if the board had to recruit their full complement of staff before they could commence operations. The difficulty would be overcome by the type of regulation proposed in the amendment which could cover staff and accounting services. It would also facilitate a smooth changeover and involve minimal disruption of the work of dealing with appeals. There is also a consequential amendment to Article 24 of the Schedule, that is amendment No. 117.
The "person" there would cover people supplied by the Minister.
Yes, that is the idea.
Does the Minister mean that he could go and work for the board for a while?
It might not be a bad idea. When all the appeals are gone I do not know what I would do over there.
It says: "for the supply to the Board by the Minister of any services required by the Board". The Minister could go over and help out.
I am getting through the appeals so quickly, it might be an idea.
Is there a drop in the number of appeals?
No, but they are being dealt with a lot faster.
There is one point about this which could cause some apprehension: this amendment could, in effect, allow the Minister to retain a large area of influence in the work undertaken and carried out and also the decisions made by the board. I say that because the amendment would allow the board to employ officers and servants of the Minister to perform the administrative duties of the board and to assist them in carrying out their functions. If the planning staff in the Department of Local Government are to be transferred to the board and they are to remain as civil servants to the Minister, then his influence over his servants could be seen to directly affect decisions of the board.
I would not object to this facility being accorded under the Bill for a period of time, but as it is stated here it could remain for all time so that at all times the board could be serviced by the Minister's personal staff. I do not mean personal in the sense of personal secretaries. I mean the staff directly responsible to the Minister. That would be a most unsatisfactory situation. We realise the difficulty of ensuring an efficient and smooth start to the work of the board and that there must be a transitional period. I hope this amendment is put down to facilitate the transition from the Minister to the board. There is no termination of the power granted under this amendment. Would the Minister not consider seeking the power in this amendment for a stated period of time only, not for an indefinite period?
I am touched by Deputy Molloy's comments. He seems to think that every evening the officials of the Department on the board will come to me to tell me their little tales, tell me what happened, what they are doing and look for instructions for the next day. I am quite sure he realises something like that does not happen in the civil service. The amendment says:
For the purpose of enabling the Board to perform its functions on and from the appropriate day, the Board may, as an interim measure...
I think Deputy Haughey will probably be on my side this time. An interim measure does not mean for ever and a day, as Deputy Molloy says.
How long is an interim measure?
It could be like a temporary civil servant.
No, it could not. A temporary civil servant is not employed——
Did the Minister not use the word "temporary"?
It is not temporary. If it was a temporary measure it would be a different matter.
He could be employed all his life as a temporary civil servant.
We are not talking about temporary civil servants. We are talking about an interim measure. If this was a temporary arrangement possibly there might be a comment. It is an interim measure. I have no objection to putting down "as soon as may be". What is the official wording in these things?
That is the one the Minister uses at Question Time.
It is a pretty good one as I get away with a lot.
The power still remains in the amendment. I would be concerned to get an assurance that this power would terminate at some point. We are grateful to the Minister for accepting our amendment No. 1 which sets a date on which this Act shall come into operation.
If you keep on delaying in this way we shall never be able to set the second date.
If it was only for the purpose of delaying, the Minister may well know there are many other things I could be doing, too, other than going through this Bill tediously line by line. But as long as I am spokesman for local government I have the responsibility to do the best I can.
Is that careful wording, the way the Deputy said that?
Very. Could the Minister give us an assurance that he will consider terminating the powers of the section?
If I had my way the board would recruit their own staff very quickly, and I hope this will be so. As the Deputy knows, we can use the civil servants who are tied up with this, but the initiative must come from the board themselves. The board must be set up. The reason this suggestion is there is that I do not want a vaccum: to-day the Minister is dealing with appeals and tomorrow nobody is dealing with appeals until such time as the board recruit staff. I think the Deputy can take it in the spirit that this is an interim measure. I do not want it to continue, and I would prefer if we did not fiddle around any more with this. We shall try to have it terminated as quickly as we can.
Has the Minister any idea where the board will get the qualified staff if they cannot get them from Local Government?
I would not have a clue. I am quite sure there are many people who will claim to be qualified enough, and I hope they will do a good job.
That section 19, as amended, stand part of the Bill?
My amendment says : "Section opposed".
The amendment is agreed. Deputy Haughey opposes the section. I am putting the question : "That section 19, as amended, stand part".
I just want to be correct in regard to my amendment.
It is not an amendment. If the Deputy wishes to oppose the section he may do so now.
On reflection, I have decided not to oppose it.
I move amendment No. 43:
In page 10, lines 34 and 43, to delete "third day" and substitute "fifth day".
I made a case for this on the Second Stage debate. We are all very conscious of the deplorable postal delivery service.
May I point out here that it is getting worse every day? It is only equalled in total inefficiency by the telephone service.
Due to the absence of the Minister for Posts and Telegraphs.
I can explain the telephone service—the failure of the Fianna Fáil Government to order any parts for years and to provide money for it.
It has deteriorated.
Let us keep to the amendment before the House.
I am sure the Post Office workers will be delighted to hear the comments here tonight by the Fianna Fáil Party.
The Post Office does not enter into this discussion. We are dealing with the Planning Bill, amendment No. 43.
It is very relevant.
Amendment No. 42 in the name of Deputy Molloy.
Regrettable as it may be the postal service is not 100 per cent reliable and I am suggesting here that the time scale of three days should be extended to five. Subsection (1) of section 20 states:
Where a provision of this Act authorising an appeal (other than an appeal to a court) enables the appeal only to be made within a specified period, the appeal, if sent by post, shall be received not later than the third day after that period and any appeal so sent which is not so received shall be invalid as not being made in time.
I quoted cases of persons living on islands and in remote areas. The island case cannot be refuted by the Minister where the postal service is dependent on the arrival of steamships. Take the case of the Aran Islands where the Naomh Éanna will not travel the 30 miles across Galway Bay if the weather forecast and the weather conditions are not favourable. The postal service in such conditions is very haphazard and cannot be relied upon. I have had cases of persons making application for certain things: in one case a man applied for a salmon licence; there was a statutory time limit and because of the week-end and the non-sailing of a boat on a certain day that man was denied his salmon licence for a whole fishing season. I am against these very rigid time limits laid down in statutes. I would appeal to the Minister for greater flexibility, and the only contribution I can make in the course of this debate towards that desirable aim is to suggest extending that period to the fifth day rather than the third day. In that way we would at least be making some attempt to provide for those who are hard done by because of the uncertainty of the postal service. I do not think the Minister will dig in his heels, because of the islanders and those in remote areas——
——and because of the grave deterioration in the postal service due to the derelection of duty on the part of the Minister for Posts and Telegraphs who has absented himself from the Department more often than he has been there.
I cannot understand why people who want to make an appeal should wait until the last three, four or five days before the time runs out. If they get a decision from the local authority and the decision is something they do not agree with and they want to appeal, there is no reason in the world why, if they live in the Aran Islands or in Dublin city, they should not, as soon as they get the notification, make an appeal. All they have to do is send a post card or a note, any communication, to the Custom House to say: "We wish to appeal. We shall send on the grounds later." If you provide for five days, that is an extra week added on to the time already allowed. I do not find anything wrong at present with the postal service. The Post Office people are doing their job very well. The suggestion is that the Post Office are getting letters, holding on to them for a long time and not delivering them. In fact, a letter that is posted in Galway this evening will be in Dublin tomorrow. There may be exceptions.
Le cúnamh Dé.
I had a question down to the Minister for Posts and Telegraphs some months ago in which I gave him the date on which the letter was posted and the date it was delivered. There were weeks in between, and it happened on more than one occasion. All the Minister could do was offer an apology here. Delivery the next day is not always on.
In the glorious and immortal time of the last Fianna Fáil Government there was a question in this House by Deputy Oliver Flanagan about a goose that one of his constituents had posted to Newry and he said it could have walked there quicker than it was delivered. These things have happened and will happen again. You can pick out a particular case of a letter not arriving, but what I am saying is that, if somebody gets a notification and he wants to make a third party appeal, he gets 24 days to send in that appeal and if it is a first party appeal he gets 33 days. I do not know what more people could want. Why should there be special consideration given?
May I make a point in support of Deputy Molloy? It is not a question of 24 days or 33 days, or any number of days like that. The Minister by putting this section into the Bill is admitting the principle that in so far as the time allowed for an appeal is concerned the posting of the letter on the last day of the specified period will legitimate the appeal. The Minister is accepting that principle. If an appeal is posted on the last day——
No. The Minister has admitted that one can add the postal time on to the statutory number of days—that is, the time taken for the letter to be delivered. The Minister is accepting that principle in this section. Deputy Molloy argues that, once the Minister accepts that principle, he should add the time taken for the delivery of the letter on to the statutory number of days allowed for the appeal and make it five days instead of three days. Under the present régime it may take at least five days before a letter is delivered and once the principle of posting on the last permissible day is accepted then it should be five days instead of three days.
It is the easiest thing in the world to say it should be five days. On the Opposition argument delivery could take a month. Why then say five days? Why not make it a month ahead?
We are not being unreasonable.
The three days would represent the normal extra time it might take for delivery from one end of the country to the other.
What about the weekend?
Nobody is required to wait until the 21 days are up.
The point is that by putting in this provision the Minister is giving a licence to people to wait until the last day.
I will meet Deputy Haughey's argument and take the 21 days out.
I have personal experience of receiving post from Dublin and every second week it will arrive but in the intervening weeks it will not. It will be Tuesdays sometimes when I get it.
Did the Deputy look at the postmark?
A letter posted in Galway this morning I expect to receive tomorrow morning; sometimes it comes and sometimes it does not come. Sometimes it may not come for three days.
The Deputy never had to wait more than three days.
No. I always understood that the date on the postmark should appear clearly on any application and the final date should be the date on which the postmark appears. No matter what length of time it took, if it was postmarked on a certain date, it was accepted even if it took five days for delivery.
Let me explore this a little more. This situation arises as a result of a High Court decision. Suppose Deputy Callanan wanted to build a house and someone intended to object. Suppose the objector posted a letter within the specified period and through some error, like Deputy Oliver Flanagan's goose, it was not delivered for six months, and the house was built in the meantime, does the late receipt of the objector's letter at the end of the six months constitute a valid appeal?
What does Deputy Callanan do then? Does he demolish the house if the appeal is successful?
He accepts the decision in the appeal.
Of course he does not demolish it. The application is the date on the postmark. The financial year for rating used be 31st March and ratepayers who posted rates on 31st March were accepted as being within the statutory period.
Let us get away from that.
Because a certain amount of trouble can be caused we believe there should be a specified date and 21 days plus three days means 24 days.
It is not asking a great deal to make it five days. That could be a worthwhile facility. The debate is being conducted in a very pleasant spirit and we expect the Minister to accept this slight amendment without all this long argument about it. Consider the position where the Aran Islands are concerned. Sometimes, because of bad weather, there is no sailing. This amendment would cover that position. We are not now asking for special treatment in exceptional cases.
Some of us live on islands.
I was hoping the Minister would accept this. I am not asking for an exception to be made in the case of islands. I am merely asking for an extra two days to facilitate those dependent on island postal services. I have known of applications which were not delivered until the day after the closing date and people told me that great inconvenience could be caused because they would be unable to appeal against the decision and, if they were late, they would have to go through the whole process of putting in an advertisement in the papers, a new application and then waiting two months for a decision.
They had 30 days.
It seemed rather silly that the regulations were being applied in such a rigid fashion in order to facilitate administration. I agree that there has to be some limitation, but it should be flexible. Allowing the five days would meet the type of cases which have arisen from time to time. I cannot see what great problem this will cause for the Minister, but I see the facility it would afford to persons who in the past have found themselves in this position. It is very frustrating.
It may be hard to identify the reasons why people leave their appeals until the last moment. Human nature being what it is, the Minister will find that people do not appeal on the day they get their decision. They like to consider it very fully. They like to discuss it with their family, or with their friends, or with their business associates. They like to consider what the prospects are if an appeal is made, and whether they would be able to make a case which would justify their going to the bother and the expense of making the appeal.
All of this involves a certain delay. This pushes people towards the end of the specified period before they finally make a decision and post off the application. Therefore, the Minister can forget about the first two-thirds of the statutory period which he is granting, the month or the three weeks, whichever the case may be. Usually these decisions to lodge an appeal are made in the last third of the statutory period because of the preparatory work which must go into them and because of the time which would normally and naturally elapse before people made their decisions.
The Minister can say to me that all they have to do is to write a simple letter to the Department within the month or the three week period stating their intention to appeal and that they will forward the grounds for that appeal later on. The Minister may make that point, but I do not think that in itself it would invalidate my argument. The person making the appeal is not obliged within the statutory period to present his full case, to go into great detail and to produce maps and designs to justify his appeal. A simple letter stating that he intends to do it is sufficient to justify the holding of the appeal and he can come forward afterwards with the details. Before a person decides to make an appeal he will go into this detail, especially if a lot of expense will be involved for him in presenting the appeal. Of necessity time must be consumed before people arrive at the stage where the decision is made.
In effect, the practical application of this means that the time within which people make these decisions is roughly about a week. Therefore, they have about a week to post off their decisions. The Minister is saying that, if their application does not arrive within three days of the last statutory day, it will not be accepted. I am suggesting that it should be let go to the fifth day to allow for postal delivery, to allow for mishaps, and to allow for the fact that these statutory time limits are necessary evils. They are an incumbrance. We would all love to do without rules and regulations. They are accepted only for the sake of orderly living. We would much rather if we did not have to have them, but we accept that we must lay down some procedures. It is only on balance that society allows itself to be governed by so many rules. I would be inclined to bend this one a little bit and I would ask the Minister to accept my suggestion.
We will have to ensure that a good Deputy is elected for West Galway who will be able to improve the service to the islands so that their postal deliveries will be better than they have been for some time.
The captain of the ship decides when the ship will sail. The Minister is a landlubber.
Deputy Molloy has been quoting hard cases. There is an old saying that hard cases make bad law. Deputy Molloy and Deputy Haughey are forgetting that if five days are added to the period suggested, if you add a weekend you have a month and the notification of the granting of permission may be sent out.
Why add a weekend?
Because 21 and five make 26 and if you add a weekend that makes it a full month.
Why add the weekend?
Exceptions can occur and weekends occur at each end of the week as Deputy Haughey may have noticed. People may want to appeal but the confirmation of the notice may have been sent out by the local authorities before the third party had the opportunity of making their appeal, and further complications will arise. Deputy Molloy is saying, in effect, that we should alter the whole schedule of dates and that we should add on two days at least at the end of the period. If he stops to think he will realise——
I am saying no such thing. I am talking about five days for receiving it after it is posted.
——that there is a lot of merit in what is being suggested. There has been a High Court ruling and the law is that the date of posting must be accepted even if it is the last day. If a third party is so interested in making an appeal that he is prepared to make an appeal to the Minister for Local Government, no matter who he is, it is unreasonable to suggest that he would require the full three weeks to do what he intended to at first. He objected to it at local authority level and he now wants to appeal to the Minister or to the planning board but he will then wait until the last day. Deputy Molloy says that in order to ensure that it is in time we should allow two days apart from what is suggested here. I am not arguing this for the purpose of being awkward. We have had quite a reasonable discussion and we want to approach this in a reasonable way.
That is Deputy Molloy's ambition.
The little encouragement Deputy Haughey is giving Deputy Molloy is helping him. They are both reasonable people.
This affects my constituency in a particular way.
Will the Minister give way for a moment?
There are islands off the coast of Cork too. Deputy Haughey might want to build something down there and if there was a third party appeal I am quite sure it would be made in time. It must be in the Custom House within a specific number of days.
Is that not the common law?
We are making the law here.
You can notify the Department by letter, by card, or by telegram. People can send a telegram to the Department saying they are objecting against a decision and that the details will be forwarded. I cannot see why it should be considered that with all those facilities available to them two extra days should be provided.
There is one big flaw in what the Minister is saying. By putting in this section the Minister is admitting, in principle, that the man has a right to the full 21 days to consider the matter and 21 days is the statutory number of days in which he can——
I have answered that already.
The Minister's amendment means that a man can wait until the 21st day before coming to a final decision to appeal. The only difference between the Minister and Deputy Molloy is that the Minister says he can wait until the 21st day but then he must do something within three days and Deputy Molloy says three days are not enough and that if the Minister is allowing him to wait until the 21st day, as he is, he must allow five days postage.
Why not leave it open-ended and let him decide on any time he likes? If he is interested there is no reason why he should not get his application in in time by telegram, by postcard or by letter. If he does not want to do that, I think he is not entitled to get the facilities available.