Dáil Éireann debate -
Wednesday, 7 May 1975

Vol. 280 No. 8

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

Debate resumed on amendment No. 43:

In page 10, lines 34 and 43, to delete "third day" and substitute "fifth day".

—(Deputy Molloy.)

Minister for Local Government (Mr. Tully)

When I reported progress on 29th January last the House was debating this amendment by Deputy Molloy on section 20. Section 20 is necessary to take account of a High Court decision to the effect that an appeal, if posted within the appropriate period or even on the last day of that period, would be valid irrespective of when it was received. The section is designed to clarify the position and remove difficulties which could arise by reason of that decision. It is necessary obviously to have some definite time limit for the receipt of an appeal. The section allows three extra days for the receipt of an appeal sent by post.

I believe this is a reasonable allowance to make. I see no reason to allow a longer period. If the periods for the receipt of appeals are to be further extended, the time set out in section 26 of the 1963 Act for the actual grant of permissions would probably also have to be extended. Thus we would have a situation in which, to cater for an exceptional and, I would suggest, hypothetical type of case, the issue of actual permissions would have to be delayed in every case. From everybody's point of view that would be undesirable.

Mr. Faulkner

If I might comment very briefly. Deputy Molloy's amendment asks that the "fifth day" be substituted for the "third day". There has been considerable discussion on this. From the Minister's point of view it would not seem to make much difference to change from the third day to the fifth day. The Minister has stated that the change has been made as a result of a High Court decision. In making the change there is an admission of a principle that it is possible to have a certain number of days over and above the actual number of days laid down. Nobody would be any the worse off if the Minister were to extend the time limit from three days to five days. On the other hand it would help considerably the type of citizen Deputy Molloy has in mind, those who live on islands where, on occasions, the post might be disrupted for some reason or another. In relation to the Civil Service generally in most cases proof of posting is sufficient. I recognise that it would not be possible to deal with cases of this sort in that way. Deputy Molloy is not asking that it should be dealt with in this way. He is simply asking for an extension of the time limit. He has made a reasonable case. The principle is admitted and we are disappointed the Minister will not meet us on this. He did point out that a change might be necessary in the Principal Act. If that is not positive, perhaps the Minister would meet us on it.

Mr. Tully

I think this is a question of change for change's sake. I do not know whether Deputy Faulkner heard what I said when I commenced this evening. The High Court decision is to the effect that an appeal, if posted within the appropriate period, or even on the last day of that period, would be valid irrespective of when it is actually received. In view of that, what case is there for the amendment?

Mr. Faulkner

The point made by Deputy Molloy was that it could happen on islands that it might, for one reason or another, take longer to reach the islands than three days. In those circumstances, it might take longer to leave the island.

Mr. Tully

It makes no difference provided it is posted on the island and postmarked. Then it does not make any difference when it is received.

Mr. Faulkner

Is the Minister accepting the date of postage as the acceptable date?

Mr. Tully

We are limiting the time to three days.

Mr. Faulkner

The Minister said a moment ago that it did not matter as long as the postmark was on it.

Mr. Tully

I misunderstood what Deputy Faulkner was talking about. The real difficulty would occur with third party appeals. The period allowed was 21 days so that if an appeal was made there was time to bring it to the notice of the planning authority before permission was issued. Deputy Faulkner is aware of what I mean.

The Bill proposes to allow three extra days—that is 24 in all—for third party appeals sent by post. If five additional days were allowed—26 in all—it would be difficult, having regard to five-day weeks, holiday week-ends and so on to avoid cases where permissions issued are invalidated, unless we change that also. What is being suggested is that, in the middle of this Bill—just because somebody thought of something at the last minute—a change should be made. In fact we are improving the position. I do not take Deputy Molloy's case at all because I do not see why the people on the islands should decide not to send an appeal until the time had almost elapsed. I am sure they would react the same as everybody else; when they would get the decision they would send the appeal immediately. We are granting them three extra days for that purpose. Deputy Molloy's amendment of adding a couple of days to that is simply for the purpose of making a change for change's sake. I cannot see any case for it at all.

Mr. Molloy

If the court had not made its decision and if we were arguing for three days I suspect the Minister would even be against that. The amendment is not put down for any frivolous reason, as the Minister seems to suggest. This is the only opportunity we will have to amend the regulations governing the making of appeals. The court decision was very valuable because a certain amount of hardship had been caused up to the time of the court decisions due to the Department not accepting appeals which had been made near the end of the statutory period. There are quite a number of cases where this happened. I do not think any of us want to see the legislation used in a penal way. We would like to facilitate the public in making appeals and we would like to see the most reasonable provisions provided to enable them to do so.

I am quite satisfied that the case for the five days is legitimate and the request is a valid one. I mentioned the difficulty in remoter areas. I gave the example of the larger islands where there are large communities and a great deal of development going on requiring planning permission. I have found on a number of occasions that where legislation lays down a specific time limit within which appeals should be made this has operated to the detriment of individuals living on islands off our coast. As a matter of principle, I am proposing that, where the opportunity presents itself, provision should be made to make such regulations less stringent and to facilitate the individual and the community rather than bureaucracy in these matters.

This question of rigid time limits within which appeals should be made applies not just in planning matters. It applies throughout many of the activities of other Departments. It just happens that on this occasion we have an opportunity in dealing with this section of making adequate provision in planning matters and I am suggesting that the five days would be going some way towards making the legislation more acceptable to people. I should like to give an example, take the case of a person posting a letter on Saturday, the 1st day of the month, on Kilronan in the Aran Islands, an island with a very big population and a great deal of development going on. The boat sails normally. except during July and August, on Saturday and Wednesday. If the boat leaves Kilronan at five o'clock on Saturday afternoon to go back to Galway city and an appeal is posted at six o'clock at the post office in Kilronan it cannot be collected for delivery to the GPO in Galway until the following Wednesday, which would be the 6th of the month, As often happens, if gale force winds are forecast the boat does not sail. The captain does not take any chances. He is carrying passengers and a large quantity of goods. The goods have to be unloaded into currachs for delivery to the small islands. He does not sail if there is a possibility of bad weather. This happens regularly. If the weather is bad, it is not usually a one-day gale; it usually lasts a few days before it blows itself out. The possibility of the boat not arriving back at Kilronan to collect that letter until the following Saturday is a real one and then it is delayed until the 8th day of the month. If the letters are delivered in Galway that night they will not arrive in Dublin until Monday and it will possibly be Tuesday before they arrive in the Department, which is the 11th day of the month. The Minister is smiling. Maybe the Minister does not care.

Mr. Tully

The Deputy appears to have as much objection to my smiling as some of the newspaper correspondents. What difference does this make to the matter under discussion?

Mr. Molloy

It is quite a serious matter for the people involved.

Mr. Tully

If it is a serious matter, I am surprised the Deputy did not make some effort to do something about it before now.

Mr. Molloy

I did not get the opportunity to question why something was not done about it. This is the time to do it while we are discussing an amendment to the Planning Act. The court decision making an appeal lodged on the final day of the period mentioned in the Act brings to light the fact that neither the month nor the 21st day makes any appeal that is posted on that day a legitimate appeal. The Minister says it is legitimate only if it is delivered within three days. All I am asking is that we insert "only if it is delivered in five days". We would be prepared to accept an amendment along the Minister's own suggestions some minutes ago that the postmark on the letter of appeal be accepted as being a legitimate indication of the time in which the appeal was lodged. If the Minister is prepared to make such an amendment?

Mr. Tully

No, I am not. I misunderstood what Deputy Faulkner was saying and I was wrong. I was trying to point out the reason why the amendment had to be introduced because the postmark was effected beforehand. It could be a month, not a week.

Mr. Molloy

Now the Minister is confining it to three days.

Mr. Tully

I am afraid I cannot follow the Deputy's line of argument because there is no line of argument.

Mr. Molloy

I think it is very regrettable that the Minister is so un-bending in this matter. It is not costing him anything other than to agree to a minor change which would have major consequences for certain individuals residing in certain areas. I do not think it is in any way going to upset the administration of the Planning Act and the appeals system in the Department. It will make no difference whatsoever. I think the Minister is unfair in his reference to section 26 and the possibility, if this amendment were accepted, of the need to extend those time limits. I cannot see how that arises at all. On behalf of those persons, I am asking the Minister again if he will accept the amendment. It is clear and simple. It is a minor concession being asked from him but one that will have important consequences for those placed in the situation where they are dependent on unreliable postal services, not in this instance directly the fault of the postal system but the fault of the weather conditions which obtain along the Atlantic coast quite regularly. There postal services are very erratic. I would not be making the case so strongly and so determinedly if I had not experience of people who had lost out because of the effect of the weather on the postal deliveries. They have been denied things which, had they mainland postal facilities, they would have got. Livelihoods were affected in the case. A man lost a salmon drift net licence because of delay in delivery due to the non-sailing of the boat on a particular day. We would be unreasonable if we were to ask for an unlimited length of time, or if we were to ask for the length of time the Minister spoke of a few minutes ago, a month or four weeks. We have to have some limit, but I suggest that the Minister is far too narrow in this limit. Five days would be more reasonable. Along the west coast storms usually blow themselves out within three days so that would give two days for delivery of the letter.

Mr. Tully

I said at the start that I would accept any reasonable amendment. I meant that. This is not a reasonable amendment. It is, in my opinion, something which was put in either for the purpose of attempting to change the Bill, for change's sake or of causing obstructions. Even the cases Deputy Molloy quoted will not stand up to examination. He spoke of the boat going on Saturday an hour before the letter is posted and the next one not until Wednesday. Even if that is correct and even if five days were allowed, he was still late because they could not get it. There was no way in which it could reach its destination if it were posted on Wednesday.

Deputy Molloy then spoke about the storm being on for a week. In effect what he is saying is, that there are certain areas in which there should not be a limit at all. I do not know where he got the two days. We decided to add on three days. Deputy Molloy says, out of the sky, we will add on an extra two days. Why two days? Why should the people in the Aran Islands or anywhere else decide to wait until the last few days before they make their appeal? Are they the type of people who put everything on the long finger? I do not think they are. They are perhaps more anxious than anybody else to ensure that they are on time and therefore they would send in their appeals in good time.

Deputy Molloy said he had experience of this happening to people. Unless it happened before the High Court case it could not happen at all because until this Bill becomes law, that could not happen because the postmark is what operates. We are hearing massive contradictions from Deputy Molloy about a simple matter. The simple matter is, that we have a situation where a third-party is appealing— this is not somebody appealing for something he wants to do himself— against something which somebody else wants to do and trying to stop it.

Deputy Molloy suggests that it is not enough to give these people the normal three weeks which they were getting plus three days, that they should, for some extraordinary reason, get two days as well. This would mean changing other sections of the 1963 Act and of the Bill which is before the House. I am not prepared to do that. It is ridiculous that we should have this type of situation. If there was a good case being made for it, I would most certainly be prepared to have a look at it, but the more I hear of it the more I realise that there is no merit in the suggestion. In fact, it would help those who for one reason or another might want to obstruct because it would give them an extra two days and prevent the confirmation of the planning decision. If the planning decision was made it would completely upset the decision made if the appeal was sent in after the requisite number of days or alternatively we must change the 1963 Act and portion of this Bill. In view of that there is no point at all in Deputy Molloy's argument.

Mr. Molloy

I should like to point out that the Minister is not correct in alleging that my statement is contradictory. The example I gave the Minister did not state that the appeal was lodged on the last day. In fact, the appeal could have been lodged on the 23rd day of the 30-day period and it would still have been late. It would have been late by one day. I should like the Minister to correct his statement of now, where he states that under section 20 we are dealing only with third-party appeals. I am not of the opinion that that is so. The Minister is contradicting himself now.

Mr. Tully

We are dealing with all appeals.

Mr. Molloy

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...

It refers to an appeal other than an appeal to a court. It does not refer specifically to a third-party appeal.

Mr. Haughey

The marginal note says time for appeals generally.

Mr. Tully

If the appeal is made by a person on his own behalf it does not matter, but if he is making a third-party appeal he is preventing the confirmation of a given decision or alternatively the section of the 1963 Act must be changed.

Mr. Molloy

Will the Minister state that this is confined to third-party appeals?

Mr. Tully

We are talking about something which has the effect of causing extra trouble. It was in that context that I said it affects third-party appeals.

Mr. Molloy

What happens if a person appeals against a decision of the planning authority to him?

Mr. Tully

Then Deputy Molloy's case is completely gone because he has more than Deputy Molloy is asking for when he is appealing against a consent.

Mr. Molloy

That is not so. In the case of a person appealing against a decision to himself he has the 30 days' period. If he lodged the appeal on the 23rd day of that 30-day period and if the circumstances, as outlined by me were to happen as would be quite likely in certain locations along the west coast, his appeal would be late by one day.

Mr. Tully

Why should he wait for a whole month before he sends in his appeal?

Mr. Molloy

If the Minister was to be fair he must accept that if a person receives a decision from a planning authority which he does not agree with—usually it is a refusal—and he has to examine it and decide whether it is worth his while appealing it, he may have to consult some professional person as to the case he could make for an appeal which might succeed. These things do not happen overnight. For a period of three weeks to pass within which he would have his new plans prepared for appeal, his case presented, his arguments gathered and ready for presentation, putting down on paper and for posting, is not a long time. It is unfair of the Minister to suggest that when a person receives a decision from a local authority that he does not agree with that he can then go and lodge an appeal the next day.

Mr. Tully

He does not have to do that.

Mr. Molloy

Normally the person would like to know if he has any chance of winning the appeal if he has a reasonable case. In the case of an hotel the person would certainly consult again with his architect and engineers, discuss the decision, the reasons for refusal, see if there was any way they could be resolved or whether the professional advice was that the officials in the local authority had dealt rather harshly with him and that he might have a chance of succeeding on appeal. Certainly, the preparation of such a case could be done in one day. If the person is living on an island and must travel to the mainland to consult these professional people or if they must go out to the island, it will take some time. To do all this in three weeks would mean a rapid preparation of an appeal case. The case is a legitimate one.

Mr. Faulkner

Would the Minister repeat what the exact effect of the judgment in the court case was?

Mr. Tully

The court case judgment was that the date on the postmark applied. This might be all right except that it has been known that letters have gone astray. For one reason or another they arrived in the Custom House quite a lengthy time after the postmark was put on. This caused a lot of upset, not least of which was the one which Deputy Molloy could create by what he is suggesting here when the third-party appeal is involved. As Deputy Faulkner knows there is a notification given of the intention to grant permission. The number of days were fixed in order to make this possible within a certain period. If what Deputy Molloy suggests was done it would mean that somebody could not alone get intention to grant permission but they could get a grant of permission and then find that an appeal had been sent in against the decision. This would naturally cause a considerable amount of upset.

In order to avoid this a date has been selected in a certain way and we went as far as we possibly could. There are not many third-party appeals coming in but in the other case there is more time given, and Deputy Molloy made a case against himself when he talked about the question of persons appealing themselves and said that although they had a longer period, he still felt they should get two days longer. What is magical about those two extra days? I am not convinced that there is any merit at all in that. We are doing it very fairly and we should let this section go without this amendment.

Mr. Faulkner

Suppose the section is passed in the form in which it is here and somebody decides to take a case to court again on the basis that the postmark should be the accepted date, where would the three days stand then?

Mr. Tully

We are specifying the actual time and we believe this is legally binding. Of course, if the court decides to reverse that decision it would have to be accepted but I do not think a court would do that.

Mr. Faulkner

Was the time not specified in the 1963 Act in the sense that a certain number of days were allowed?

Mr. Tully

It was but the section as we are putting it in now will stand up in court. Maybe I am wrong. Nobody knows what decision the court will give on anything but pending this——

Mr. Faulkner

If it did not stand up of course the postmark would still be the valid date.

Mr. Tully

We would be back where we started. It would again cause a lot of trouble.

Mr. Molloy

I take it the Minister is not conceding our case?

Mr. Tully

No. This time we are specifying the number of days. It was ruled by the court that an appeal posted within a certain time was an appeal made. This time we are giving a date by which the appeal is to be received.

Mr. Molloy

We can take it then from what the Minister said that he is not going to concede the extra two days. There is no sympathy for people who live on the remoter islands off our coast.

Amendment, by leave, withdrawn.

Mr. Tully

I move amendment No. 43a:

In page, 10, subsection (2), to delete lines 40 to 45 and substitute:

"before a specified day, that provision shall be construed as including—

(a) a requirement that the appeal is, if sent by post, to be received not later than the third day after that period or day, and

(b) a provision that any appeal so sent which is not so received shall be invalid as not being made in time."

This is simply a drafting amendment.

Mr. Haughey

Where is this amendment?

Mr. Tully

It is on the Order Paper. The intention of section 20 is to allow three extra days for the receipt of an appeal sent by post in order to have regard to the High Court decision. Subsection (2) of the section as drafted would, however, have replaced the provision of the 1963 Act in relation to the time limits thereby leaving no time provision for appeals sent other than by post. The new provision for appeals sent by post is additional to and not in substitution for the 1963 Act provision. It is simply a drafting amendment.

Amendment agreed to.

Mr. Haughey

I move amendment No. 44:

To add to the section a new sub section as follows:

"( ) If at any time while the provisions of this section are in operation normal postal deliveries have been disrupted for any reason the references in the foregoing subsections to the third day shall be construed as referring to such period of disruption."

Amendment No. 44 in my name relates to the same sort of situation as amendment No. 43 attempted to deal with, that is, the question of the time allowed for the arrival of notices of appeal. Deputy Molloy was concerned with extending the time as a matter of general application from three days to five days. My amendment is related to that but along somewhat different lines. My amendment is concerned with the situation where there is a disruption of the normal postal services. I want to ensure that in a situation where the normal postal services are disrupted a citizen will not be put at a disadvantage in relation to a planning appeal because of that disruption. This seems to me to be a fairly sensible suggestion. A person may wish to appeal against a planning decision. He carries out the provisions of the Act in so far as that appeal is concerned but the notification of his appeal is prevented from arriving because of a disruption of the postal services. What I am suggesting is that if the normal postal deliveries are disrupted, instead of stipulating that the appeal must arrive within three days, the Act would provide that instead of the third day the relevant day would be the day on which the disruption ceases. This is a reasonable precaution for us to write into the Bill and could in certain circumstances be of very considerable importance to individuals.

Mr. Tully

The position is that the purpose of section 20 is to provide some certainty as to the latest date for acceptance of an appeal sent by post. This is necessary for a number of reasons. For instance, to protect the board against litigation, to prevent a situation arising where, as I said earlier on Deputy Molloy's amendment, where commitments entered into on foot of what was believed to be a valid permission, are rendered abortive. In other words, if the notification of permission had been sent out and subsequently there was an appeal, it could, as Deputy Haughey will readily agree, cause considerable trouble. We are anxious not to hold up development and we must accept that a period of two months for the decision on a planning application and a further month before an issue of permission is a considerable delay. That is three months. To suggest that it should be extended even further because of certain things happening to the postal service, for instance I do not think would be acceptable to the general public. If the period for acceptance of an appeal is extended, one must also extend the period before the permission issues so this causes a longer delay and unless that is done there is a danger that the permission which has been issued bona fide can be cancelled out. The purpose of the section is to remove doubts and not to have a position of uncertainty which would add to the delay of developers of the construction industry. They have been pressing about the fact that they consider that even the present system unduly delays them. Exceptional circumstances could be the cause of an even longer delay. The one thing which Deputy Haughey and Deputy Molloy have forgotten is that there are more ways of putting in an appeal than sending it by post. An appeal by telegram would be acceptable.

Mr. Haughey

By carrier pigeon?

Mr. Tully

If the pigeon arrives in the right place it is acceptable provided it is in writing and has been made within the time allowed.

Mr. Molloy

How many days?

Mr. Tully

If it arrives within the 24 days for a third party it will be accepted. For that reason there is no necessity to do what Deputy Haughey has suggested, and he knows this. I think he accepts this.

Mr. Haughey

I do not.

Mr. Tully

You used the Mercedes to the full length. It makes me laugh to hear Deputy Molloy talking about the use of a Mercedes. He should grow up. If the time is running out, there is nothing to stop a person making an appeal by telegram. This has been done and will be accepted. I do not see why this should not meet the requirements.

Mr. Haughey

In my circumstances, the telegrams would be out too. In the case of the disruption of the postal services the telegrams would not be sent.

Mr. Tully

Deputy Haughey is pulling the long bow now.

Mr. Haughey

I am not. I am dealing with a very important point. I am quite in earnest about this amendment. I will put my case to the Minister and I will not waste a lot of time on it. It is a valid case and if he does not accept it the legislation will be all that more ineffective.

The Minister keeps talking about the time allowed for appeals. On Deputy Molloy's motion I made the distinction that there is a statutory time allowed in which to enable the citizen to make up his mind. It is either 21 days or 30 days. That is if you like, the gestation period. The citizen has that time to make up his mind. We are not talking in Deputy Molloy's motion about extending the time for appeal. All we are talking about is the mechanics of making the appeal. The Minister and the Statute grant a certain period and we are all accepting that. We are saying that when that time has elapsed we are concerned about what happens then. Deputy Molloy has put his case and the Minister refused to accept it. I put this different sort of situation to the Minister and ask him to consider it.

If the postal services are completely disrupted, is it fair that a citizen should be disadvantaged by that in respect of planning? The Minister based his case on the instances where people are appealing against permissions which have been granted. That is not fair of the Minister. By far the greater number of appeals are made in situations where planning permission has been refused. We are dealing with a situation where a citizen's application for planning permission has been turned down and he wants to appeal against that decision. In all fairness, he should be granted every possible facility to make that justifiable appeal to the Minister or the board. I am dealing with the situation where the time has elapsed in which he is allowed to consider the matter; he has come to a decision to make an appeal; he does everything that can be expected of him; he makes out his appeal and posts it and through the fault of the State because of a disruption of postal services, not the fault of the citizen, that appeal does not arrive within the three-day or the five-day period allowed for posting. As the Bill is now framed, if there is such a disruption of the postal services and the appeal does not arrive, through no fault of the appellant, I am suggesting that the period should be extended from three days to whatever time the disruption lasts. If he has done his duty, posted the appeal within the period allowed he should not be penalised because the State fails to provide an adequate postal service to enable that appeal to be delivered. That is a perfectly valid point and I suggest that the Minister should accept it. If he does not accept it in the words I have put before him, perhaps he could devise better words himself. It is a very reasonable proposition. It is allied to Deputy Molloy's idea of extending the three days to five days but it deals with a different sort of situation. With the Minister for Posts and Telegraphs we have at the moment anything can happen to our postal services at any moment. I do not want to be tendentious in this regard——

Mr. Tully

The Deputy is tempting me.

Mr. Haughey

There is no love lost between you and him, and we know that.

Mr. Tully

At least they will arrive. They will not be held up on the road.

Mr. Haughey

It is a very simple matter. Either you allow the individual citizen the benefit of the doubt in a case where the State fails to provide an adequate postal service or you do not. He could be penalised. The Minister must admit that through no fault of his own, a citizen who wishes to make an appeal to the Minister or to the board, does all that can be expected of him, his appeal does not arrive because of a postal strike, his appeal will go by the board as the Bill stands. That is not fair.

Mr. Callanan

I am surprised at the Minister for not agreeing to the amendment without delay. Take a man who appeals against the decision of a local authority and does all that is required of him and posts the appeal and through no fault of his own there is a postal strike. Why should he suffer? I would be surprised at the Minister if he does not accept it without any debate. This is the fairest amendment I have seen for a long time. I would be surprised if the Minister contended that there would be justification for penalising him because of some disruption of the postal services. I will be surprised if the Minister does not accept the amendment.

Mr. R.P. Burke

I am surprised that the Minister would even consider rejecting this very reasonable amendment. It is not a contentious matter. It is a simple constructive proposal by Deputy Haughey. He has argued the case in a very reasonable manner. The point made by Deputy Callanan is a very reasonable one. I can appreciate the Minister's concern for the over-delay in appeals and the amount of time an appeal takes—two months for a decision and a further month for the appeal. He is afraid that this will extend it further by days and maybe weeks. Any further delay involved in Deputy Haughey's amendment would be as a result of some disruption within the State service which is, in this case, the Department of Posts and Telegraphs.

I would appeal to the Minister to accept, even at this late stage, this very reasonable amendment. Deputy Haughey has suggested that if the Minister does not accept the exact wording he has proposed the Minister can rephrase it and bring it back and we will accept it. The principle involved, of a man having decided to appeal, having posted the appeal within the regulation time, and then having found that through no fault of his own, but because of some disruption within the State services, to which he is paying when he purchases his stamp or his telegram, this is not delivered to the appropriate authorities. How can one penalise a man due to the failure of some State service? If the Minister does not accept the wording, that is fair enough, I can appreciate he may not agree with the exact wording. His parliamentary draftsmen might say that the wording is not the way they would like it, that it might be too loose or too tight. But I would ask him to accept the principle involved—that a citizen should not be penalised because of a failure of a State agency to provide the service for which they are appointed and set up.

Mr. Faulkner

I shall be very brief. I assumed that the Minister would have had no hesitation in accepting this amendment. The Minister mentioned that part of the reasons why the section is as stated was to endeavour to remove uncertainty. I would take that point. But there is something which overrides this objective and that is the right of the individual. In these circumstances, as outlined by Deputy Haughey, we could be taking away the right of the individual to make an appeal. Because, if postal services are disrupted and an appeal does not reach the Department, a right is taken from the citizen. On that basis I would suggest that the Minister reconsider the proposal put forward. It is useful to try to remove uncertainty from the Bill where possible but nevertheless in circumstances where the rights of the individual are being infringed on, the Minister should reconsider the proposal.

Mr. Tully

There were a number of reasonable comments made but also some which were a little off the mark. Deputy Haughey's reference to a gestation period is entirely wrong. It is nothing of the sort. People are notified of the decision of a local authority. Then they get either 24 days, if they are those who are objecting, or a month and three days if they are the people who make the application. It is not a gestation period. They get that period to send in an appeal if they require to do so. It does not take very long for the people I meet to decide whether they should send in an appeal. If they intend sending in an appeal they, as Deputy Molloy suggested, seek expert advice as to how they should frame their appeal and it can be sent in within a reasonable time. But it is wrong to suggest that in any circumstances there should be an open-ended period.

Deputy Haughey talked about the disruption of postal services as indeed did Deputy Callanan. But what does he mean by disruption of normal postal services?

Mr. Callanan

A strike.

Mr. Tully

What about a mailbag robbery? What about a post office being held up and the stuff taken away—money, letters, everything? It has happened. Does that mean that if somebody says "I posted an appeal but it must have been in that robbery"——

Mr. Haughey

My motion is specific. It says "a disruption of normal postal services".

Mr. Tully

What is a disruption of normal postal services? Does the Deputy mean a strike covering the whole country? Because one can post a letter in more than one area. One could send a telegram. Does that mean that the telegram staff must be on strike also?

Mr. Haughey

I am referring to deliveries of normal postal services being disrupted.

Mr. Tully

But there is, as I told the House earlier, the right to make an appeal by telegram. So in respect of normal delivery, unless it includes what is in Deputy Haughey's mind— the disruption also of the telegram service—a disruption does not take place.

Mr. Haughey

But they would not deliver a telegram.

Mr. Callanan

There could be a strike.

Mr. Tully

Deputy Callanan is going back to a post office strike but would he tell me—he is nearly as old as I am—when a general strike in the Post Office took place last?

Mr. Callanan

A long time ago.

Mr. Molloy

Deliveries were disrupted on Monday last.

Mr. Tully

That would not come under disruption——

Mr. Haughey

I did not get my post.

Mr. Tully

That has nothing to do with normal delivery. The trains were disrupted. That would not come under Deputy Haughey's amendment at all.

Mr. Molloy

But the Department issued a statement about it.

Mr. Tully

They said they could not deliver parcels. Letters were delivered. Deputy Haughey's mail from the country is obviously very heavy and, therefore, as the train did not come in, he did not get his mail.

Mr. Haughey

I never get my Order Paper on time.

Mr. Tully

I am in the nice habit of going down to the desk and collecting mine. They are always waiting for me. Already I have got at least three different versions of what people think is a disruption of normal services, none of which would be covered by Deputy Haughey's amendment. Therefore, I suggest that we are being asked to do something which would leave the Bill wide open. Deputy Faulkner made a reasonable comment but he over-looked one point. The 1963 Act, which we are now amending, contains, though not as specific, the same intention as is in this, and there was just as much danger of a postal strike or of various types of disruption then as there is now. We have 12 years' experience of that Act.

Mr. Haughey

Does the Minister realise there was a High Court case about it?

Mr. Tully

It was because of the High Court case that I have inserted a specific provision. Every effort is being made by people in this House now to try to make it loose again so that there will be another High Court case out of it.

Mr. Callanan

We are trying to guard the citizen.

Mr. Faulkner

If everything in the 1963 Act were satisfactory, we would not be dealing now with amending legislation.

Mr. Tully

It was not satisfactory and that is why I have altered it and made it specific. What you are suggesting now is that I should not make it specific. Deputy Haughey says he will accept the wording if we will put in wording. If there is a disruption of postal services does that disruption give those people, who want to put in an appeal, an extra day or an extra week, or an extra month or does it give them the whole year. What does it give them?

Mr. Haughey

My amendment is specific. It says that the three days will be extended to cover the period of disruption. When disruption ends that is the last day. The 1963 Act was framed very carefully by first-class officials, parliamentary draftsmen and so on, but nevertheless it did result in a High Court action. So we are not dealing with trivialities here, we are dealing with very important issues which could end up in the High Court. Cannot you see that if you leave the section the way you have drafted it now you could have another High Court case over exactly this very point? Is it not as well to put it down in writing now? I do not wish to take up too much time on the amendment.

Mr. Tully

The purpose of this House is to discuss matters such as this. What is now in this Bill ties up the loose ends which were left out in the 1963 Act which resulted in a High Court case. I think Deputy Haughey will not deny that that is so. Deputy Haughey's amendment reads: "If at any time while the provisions of this section are in operation normal postal deliveries have been disrupted for any reason the references to the foregoing subsections to the third day shall be construed as referring to such period of disruption." Supposing the strike which Deputy Callanan refers to takes place at different periods. It is on in Dublin for a week and then it spreads down the country. This would not be specific enough to cover that. If there was a storm or a snow drift such as we have had before and the roads were disrupted and the lines were down and there was no postal delivery, is that the type of disruption which Deputy Haughey has in mind?

Mr. Callanan

Certainly.

Mr. Tully

There may be parts of the country where there will not be snow drifts. There may be parts of the country in which people do not send in their appeal but would try to take advantage of something like this for the purpose of qualifying them as an after-thought. We are trying to get a workable Bill through this House. I would suggest that what Deputy Haughey is suggesting is not workable. If I thought it was I would accept it, as I did accept a number of previous amendments.

Mr. Faulkner

The Minister's argument is based on the unworkability of the amendments put forward by Deputy Haughey and not against the principle involved in what he is putting forward.

Mr. Tully

The principle I am trying to stand on is that we must be specific in this Bill and the Bill is specific on those points. That being so, I do not want to loosen it out so that somebody can come along and in some guise or other take a case to the High Court.

Mr. Haughey

I will make one final point. If the Minister does not accept my amendment, I will withdraw it. There is other important business to do in connection with this Bill and we will not spend all night on this point. If the Minister does not even undertake to consider it and see if he can make some workable proposal, I will withdraw it. I would be inclined to wager that there will be a High Court case on this very point.

Mr. Callanan

Can I say one word? It is to the credit of the democracy of this State that an ordinary citizen can take a High Court action and win it. This is the type of state we want to maintain and not to have legislation tied-up so that a citizen cannot take a High Court action. I am proud that any John Citizen is able to defeat the State. The Minister said that if there was disruption in one place the person could go and post it at another. Because the State does not provide a service for me in my own area, am I supposed to go to Athlone to post my appeal?

Mr. Tully

Yes.

Mr. Callanan

I do not think so because the service is supposed to be at my door. If there is disruption for some reason, I believe I should be entitled to be allowed that length of time for my appeal for the duration of the strike. That is fair and reasonable. I am sorry Deputy Haughey is withdrawing the amendment. I feel very strongly on the rights of John Citizen.

Mr. Tully

Deputy Callanan is so strong on the rights of John Citizen that he is appealing to me to prevent the poor man he wants to take the case to court from winning that case.

Mr. Callanan

It is probably the planning authority the Minister wants to get at. I have a right to appeal against the planning authority.

Mr. Calleary

I can understand the Minister's concern that, by reason of something like this, an appeal could come in after planning permission had been issued. Deputy Haughey raised a very pertinent point when he said that most of the actual appeals are against refusals. Could there not be a compromise in this case? Would the Minister not accept that, in the case of a refusal and where either the train services or the postal services are disrupted that——

Mr. Tully

What did Deputy Calleary say?

Mr. Calleary

Where the train services or the postal services are disrupted, in the case of a refusal, the time of receipt of the appeal would be when normal services would be resumed. We do not have to go back too far. If I posted a letter last Saturday night in Ballina containing an appeal against a decision either refusing me or my client planning permission and if the train strike had gone on two or three days instead of one day, my appeal would not have been delivered. What my client and I would have to have done would be either of two things: let the business drop or else put in a new application, putting a lot of extra expense on both the county council and on the client. I can see the Minister's concern that there would be duplication. In the case of an appeal, would he not consider, as a compromise, extending the date if there is disruption of the normal services?

Mr. Tully

Deputy Haughey's amendment refers specifically to the postal services. What Deputy Calleary has said would not come under Deputy Haughey's amendment.

Mr. Calleary

I am not worried about technicalities.

Mr. Haughey

The point is that Deputy Calleary wants to confine it to refusals which is a very valid point.

Mr. Tully

This Bill deals with technicalities. Do not let us try to cod ourselves. What we want to get at——

(Interruptions.)

An Ceann-Comhairle

Can we have orderly debate, please?

Mr. Tully

I do not think I could accept the amendment, but, because of the fact that such strong views have been expressed on it, I will have another look at it. I will not guarantee that I will put in an amendment. I want to make that very clear.

Mr. Callanan

Good man.

Amendment, by leave, withdrawn.

An Ceann Comhairle

We might debate amendments Nos. 45 and 46 together and have separate decisions if necessary.

Mr. O'Brien

I move amendment No. 45:

To add to the section a new subsection as follows:

"(3) Appeals shall be decided within 4 months except where the Board certifies within the four-months' period that special circumstances exist."

Mr. Molloy

Are we discussing amendments Nos. 45 and 46 together?

An Ceann Comhairle

I should have said No. 46 (A).

Mr. O'Brien

It is better to have some time element in this because if we do not put this in for one reason or another it may hold up appeals. I understand that there must be special circumstances. We may have appeals which would affect public concerns such as oil refineries or smelters where further technical knowledge might be required before a decision could be made, and this may not be available in this country and we may have to go outside it. The day-to-day appeals which normally are not very technical would be dealt with within the four months. Earlier when we were talking about vexatious appeals one thing which was highlighted was that they should not be held up. Where appeals are held up people can be at a great loss in regard to money and development. It does not necessarily mean that we have to wait four months to get an appeal out but where there is a backlog and they might be slow to take on additional staff this will urge them to do so because they will have to have the appeal out within a time limit. I ask the Minister to accept this amendment.

Mr. Molloy

In dealing with the Bill it is important to remember that we are setting up an appeals board and the experience of this House and of the public of the appeal system to date is one where the Minister or his Parliamentary Secretary decides the appeal. My amendment is put in as a safeguard to ensure that when this semi-autonomous body—the planning appeals board—is established they will not because of tardiness on their part hold up development. It has been mentioned before that the Minister, being a political figure is subject to political pressures and he can be questioned about appeals. There will be no such facility available when the planning board is established. It is important that we have some lever over this board to ensure that they perform their duties expeditiously. I suggest that having had the appeal for a period of two months, and not having decided it, any party to the appeal shall be entitled to demand that the board show cause why the appeal should not be heard. The public would then have some right to demand an explanation from the board as to why a particular case had not been decided. My amendment states that:

...Should the cause shown be trivial or otherwise deemed by the High Court, on application, to be insufficient, the High Court shall have power to direct the Board to determine such appeal forthwith.

A safeguard would exist that appeals would not be held up for trivial reasons by the board. This safeguard is necessary and the wording is specific. I ask the Minister to accept it.

Mr. P. Belton

I agree with what Deputy O'Brien says. I think a date should be put on it to ensure that an appeal is not lying in the Minister's office for more than four months. I have found that an architect when he submits an appeal would not follow up with the information required although he may have said he did. In such cases the architect is holding up the appeal and not the Minister. What date would apply—the date the appeal is lodged or the date the last information goes into the Minister? I agree with Deputy O'Brien that it is necessary to have a date specified. I smile when I see an ex-Fianna Fáil Minister for Local Government looking for a period of four months. I was two-and-a-half years waiting for a reply to an appeal. I might add that Deputy Molloy was not the Minister responsible then. He is now looking for a period of four months.

Mr. Molloy

Talk to Deputy O'Brien about it.

Mr. P. Belton

I was waiting for two-and-a-half years.

Mr. Molloy

It was the Deputy's architect who was at fault.

Mr. R.P. Burke

The principle involved in both the amendments is basically the same. Deputy Molloy has tightened the proposal to suggest a two-month period and brings into account the legal process which is the protection of the High Court. The appellant can bring his case before the High Court. The irrelevant argument of Deputy Belton is not worthy of comment.

Mr. P. Belton

It is relevant; it happened.

Mr. R.P. Burke

What happened to Deputy Belton is the very point we are trying to sort out here. His comment should have been referred to supporting the amendment proposed by Deputy Molloy. The necessity for some time limit on appeals is vital even when the appeal is before the Minister. It is more vital when the appeal is before a board such as we are setting up. At present we have democratic control under the Minister, he being the politically appointed person. Now we are handing over a certain amount of this democratic control to a board.

We are familiar with semi-State bodies and their activities. While they are in name democratically controlled by this House, in practice they are outside our control. I can see the same thing happening to this board. We should have built into this Bill some restriction on this board. After receiving the appeal, the board should make the decision. If they do not make a decision, it is up to them, in the High Court, to show cause. Deputy Belton's point about the architect not submitting the details of the appeal is a problem between the appellant and his architect. It has nothing to do with the board or the Minister. If authority is to be handed over to a board, I am afraid we shall reach a situation as has occurred in semi-State bodies that the Oireachtas shall not have control. We should have the necessary protection as is suggested in the amendment. The Minister, who has tremendous respect for the democratic process and for democratic control, and as a Minister of a Government who are suggesting the setting up of select committees of the Oireachtas to control the existing activities of semi-State bodies, will accept that we should not under any new legislation be setting up boards under the supposed control of the Oireachtas but which in practice will be completely independent.

Mr. Faulkner

The amendments submitted by Deputies O'Brien and Molloy are alike. I think they do what the Minister was anxious about in other amendments, that is that they introduce something specific and take away uncertainty in relation to the time allowed to the board to make decisions. The only problem I would see in Deputy O'Brien's amendment is that the maximum time of four months might become the minimum time and would frustrate the purpose he has in mind. For that reason I would be inclined to be more favourable towards the amendment put down by Deputy Molloy. It is vitally important that decisions should be made as quickly as possible. The Minister is aware that in these times of very rapid inflation and escalating costs, it is essential that decisions be made as quickly as possible. Otherwise it can involve the appellant in very considerable expense.

The Minister, in a reply to me yesterday, pointed out that in relation to certain types of houses the average cost had increased by 37 per cent since May, 1973. If my reckoning is correct that would mean that the percentage increase since 1st January this year would be approximately 6 per cent. It is quite obvious that any kind of lengthy delay in decisions by the board could result in very serious financial problems and, for that reason, the Minister should accept one of these amendments, preferably Deputy Molloy's. If he thinks he can put forward a more suitable amendment himself which would combine the ideas involved in both these amendments, he would be doing a worthwhile day's work. The problem I see in Deputy O'Brien's amendment is simply that the maximum time could become the minimum. Nevertheless, the original idea is roughly the same in both amendments and I commend them to the Minister.

Mr. Callanan

As one who was odd man out when this board was being appointed, although I always bow to majority rule, I still say I would prefer to go to the man sitting across from us to inquire about a planning appeal than to try to search for faceless men to find out what is going to happen to it.

Mr. Tully

The Deputy is praising me now.

Mr. Callanan

The Minister is not too bad. If a person comes to a public representative and tells him he sent an appeal to the board on a certain date and asks the public representative to inquire about it, where does he go? The minimum may become the maximum or vice versa if we agree to four months and that is what I am afraid of. If a person who has an ordinary appeal about the site of a house makes an appeal to the Minister a Deputy can go to the Minister or the Parliamentary Secretary and inquire about it. He may be told it was not properly lodged and he can then go to that man and tell him he did not appeal in the proper way. Now it will go to the board. How are we going to see the board? Is the board compelled to write back immediately and tell this man his appeal is not in order? This is what I am worried about. We are moving away from democracy. However, that is done now and it is in the Bill.

Deputy Molloy's amendment making provision for two months, is agreeable to me. I am not going back on what has happened in the past, I am discussing the Bill before us now because what happened in the past is not relevant. We are discussing a new board, a board with which I did not agree. The majority of this House agreed to it. I bow to that decision but I claim that we should have some rights to guard the appellant against his appeal lying aside because it is not in order. How is that man to find out it is not in order unless the board are compelled to write to him to tell him so? I do not know how any public representative can inquire about such an appeal. I should like to know about this because people ask their public representatives to make inquiries about many matters. I do not know whether a public representative has any right to make inquiries from this board. I support this amendment and I would ask the Minister to accept it.

Mr. J. O'Leary

I would urge the Minister to accept these amendments in principle. We must remember that appeals are not made without good grounds. It often happens that an appeal is lodged and the grounds for the appeal are not stated. It may require two or three reminders on the part of the Minister or the Department to get the basis for the appeal from the appellant. We also must bear in mind the fact that sometimes third party appeals can be lodged for a mischievous purpose, primarily for the purpose of holding up some development or a person may request an oral hearing of a planning appeal for the sole purpose of delaying a decision on the appeal or for holding up a certain development.

If a time limit is imposed on the board for deciding these appeals a system must, naturally be devised whereby appeals will be decided within a stated time limit. I know that the Minister and indeed any planning board will be in an invidious position in trying to decide an appeal when they cannot get information particularly of a technical and scientific nature. If the board know they have a time limit within which to decide the appeal they will then set out ways and means of getting the necessary scientific and technical information within the required time limit. As well as that, there will be finality in relation to an appeal. At present neither an appellant nor an applicant for permission nor a third party can ever say when there will be finality reached in relation to their appeal.

I am firmly convinced that there should be a time limit. After all the planning authorities must by law decide a planning application within a time limit of two months. They must get all the technical and expert information necessary to decide a planning application. It is very desirable that there should be a time limit placed on the board for deciding planning appeals.

Mr. Tully

How nice it would be to say we will put a time limit of two months on appeals and everybody will have his appeal decided within that time. I forgive everybody in the House for making the argument except one person, Deputy Molloy, who knows quite well that what he is asking is impossible. He knows well that when he was Minister for Local Government it was not a question of people worrying about waiting for two months; in fact, they had to wait two years and more. This is the extraordinary situation we have in this House. We talk about having a reasonable debate on a Bill which is supposed to amend the planning law. Then we have something like this being brought in. The amendments are absolutely unworkable. The board are being set up as the authority to deal with appeals. Of course, the board will realise that they will be judged by their performance. They will be doing their best to get it done as quickly as possible. Let us take the two countries, Britain and the Republic of Ireland. In Britain, in appeals decided, in 1974, it took eight to nine months for cases decided by inspectors on written representations; 13 months for cases decided by inspectors after a hearing; 15 months for cases decided by the Secretary of State on written representations and 18 months for cases decided by the Secretary of State after a hearing. Our own figures compare very favourably—about six months for cases dealt with by written representation and about eight months for cases dealt with by oral hearings.

Mr. Calleary

That is the best of them.

Mr. Faulkner

What would be the average?

Mr. Tully

I am giving the average. There were some cases which took much longer. There were some cases which could not possibly be dealt with in that period of time. If it can be pointed out that there is at least one case in which over 12 letters have been written to the people making the appeal, asking them—as they are entitled to be asked—to make their case, and so far it has not been made. One local authority had eight letters written before they submitted the information for which they were asked. It will be realised that what is requested here is absolutely out the window. Of course, we would all love it if there could be a decision made in a short time. I believe many people who applied for permission, on appeal—particularly those who, after a lot of trouble, get a site to build a house—would nearly prefer to be refused within a few months, if it were possible, than wait for six, seven or eight months and eventually perhaps get permission. The plain facts are that we cannot do it; we cannot do it now. It is unreal and unfair to suggest that it can be done by a board.

Deputy Molloy suggests that there should be a High Court judge. "Should the cause shown be trivial or otherwise deemed by the High Court on application, to be insufficient the High Court shall have power to direct the board to determine such appeal forthwith." And the chairman of the board—about which the Deputy speaks—will be a High Court judge, or an ex-High Court judge. Therefore, we will have one High Court judge directing another High Court judge to do something he considers should be done. Apparently, the Deputies who have been making the case are not aware that, under present legislation, there is the right of an appellant to have an order of mandamus and it has been applied for. Naturally, the people dealing with appeals will make sure to get them out before the order is made. But that right exists for anybody who wants to avail of it. Therefore, to suggest that all we have to do is write it into the Bill that the decision shall be given within four months, or two months is ridiculous. I am surprised it has been suggested.

The intake of appeals is about 4,000 per annum and we have got on top of them. They were coming in faster than they were being dealt with, through nobody's fault but because it was physically impossible to deal with the volume of appeals. When a case is trivial they are being dealt with fairly quickly, where there is not a very big issue at stake.

Mr. Calleary

An ordinary septic tank?

Mr. Tully

We are trying to do something with the septic tank too. I do not think it should be a cause for appeal at all or for planning permission. I believe there is another way in which that can be dealt with. The Deputy will be glad to hear that I am endeavouring to do that.

Mr. Calleary

There were a few of them in the Department for 12 months.

Mr. Tully

Where there is a big industry involved and specialists required, we try to get it done quickly. I do not make any apology for saying that where there is a question of a lot of employment involved, we attempt to get as early a decision as possible. But with the best will in the world it has been found that cases like this take ten, 12 months. Deputy O'Leary is quite correct when he says these things happen through no fault of ours. It would be unfair if we decided that simply by appointing a board we could expect them to do something which we cannot do ourselves, no matter how we try.

Therefore, I would ask the two Deputies concerned to withdraw their amendments because I think they realise that the suggestion they have made is just not workable. The simplest way is that we must give the board an opportunity of dealing with these cases. Naturally, they will not want to be sitting waiting around. I do not know how it will work; nobody here can say how it will work eventually. We hope it will work fairly well but, to suggest that we should put a short time limit on it and then, automatically, give a decision in favour, if the case was not dealt with within the specified time is just not reasonable.

Mr. Molloy

The point I wanted to make and made in putting down the amendment is that there is a time limit placed on the planning authority at local level to which the Minister sees no objection and which he intends retaining under the existing legislation. The Minister is siding with the bureaucrats in refusing to put any time limit on the officials and himself, in the Department of Local Government, or on the planning board and their officials when they come into being. It is a very valid point that there should have been a similar time restriction placed in the appeal process as there is on the local authority. The fine argument the Minister made, pleading the case for those in Local Government—that they could not possibly be expected to be able to decide planning appeals within a two-or four-month period—that often it would take them at least 12 months—while, at the same time, the Minister is satisfied, in view of our experience and everything else, to continue the two-month restriction on local authorities. There is an obvious anomaly there. We have made our case. I have put my amendment. We have heard the Minister's arguments. He has indicated he is not prepared to see reason, so I withdraw my amendment.

Mr. O'Brien

I would take up this point because the Minister has not accepted my amendment. I believe it to be a reasonable one. I realise there has been quite a back-log of work and as was said earlier this was because local authorities were refusing planning permissions for frivolous reasons. The Minister indicated that he would have a look at this matter to ensure that there would be greater flexibility. He has allowed flexibility in his period of office. But more flexibility should be allowed. If local authorities are diligent in their duty in not granting appeals where they should they should be so informed, and instructed as to what to do and how to do it. I feel that would limit the number of appeals coming before the board. In that way, the number would be reduced drastically and allow the board get down to work and operate within a period of time. I feel that where there is a time limit it keeps people on their toes. I realise the board may be taking over a back-log of work and that it would not be possible to bring this into operation at the beginning. But after a period of time—if it is not written in initially —such an amendment should be inserted to insure that the board, for one reason or another, keep up-to-date and apace with the work.

If the Minister does not accept this amendment now I would ask him to have a look at it at a future date because I still think it is necessary and I believe it has merit. Indeed, I would not put it down if I thought it had not. As Deputy Molloy pointed out, the local authority has a time limit and there is no reason why a board should not and I have in my amendment a proviso that this time limit could be extended for one reason or another and that would keep them on their toes. I would ask the Minister, if he does not accept the amendment now, to look at it again to see if it would be desirable to put it in to ensure that this board will operate in an expeditious way. In view of the fact that he is not accepting it now, I will withdraw it but I ask him to review the situation at an early date.

Mr. Haughey

I want to make a very brief contribution. I appreciate the reasons why the proposers of both these amendments are withdrawing. I think it is a reasonable approach on both our parts now that we have raised this principle. For the Minister's consideration I want to make two very brief points. First, I think in the complex of a new board, a board doing a job as distinct from a political Minister doing a job, a time limit is most desirable. The situation is that, if you have a political head of a Department entrusted with the job of deciding these appeals, you have the whole democratic process mobilised to ensure that he does his job within some reasonable period of time. First of all, as a political person himself he will be anxious to equip himself well and perform his duties with, if you like, political honour. Secondly, he will have his own colleagues making sure, as far as they can, that there is no undue delay in any particular matter in which they or their constituents may be interested.

Mr. Tully

What about political opponents?

Mr. Haughey

Political opponents also. Ministers in Government are subject to pressure and criticism in this House. There is an inbuilt mechanism, where a political figure is concerned, in having matters reasonably quickly and expeditiously decided. There have been some regrettable experiences in the past in this respect but these are unavoidable in any administrative machinery. The Minister is now shedding this responsibility and handing it over to a board; there is, therefore, greater need for a time limit, because boards can become faceless bureaucracies. There will not be the same political urgency where a board is concerned in getting on with the job. We all know plenty of State boards and semi-State boards who can get into a nice easy-going way of doing things. They do not have the political pressure of this House breathing down the backs of their necks. I just make that point. Whatever the need for a time limit where a political person is concerned, there seems to me to be a need for some time limit where a board is concerned or some machinery available to the individual citizen who cannot get at the political head and criticise him politically for not giving a decision. In the case of a board there should be some machinery available to the individual to make the board come to a decision. I do not agree with putting too limited a time because that would involve, or perhaps precipitate, unfair decisions being taken. If a board has an inadequate time limit, which confines them unduly, the simple thing for the board to do is just issue a refusal and let it go at that. I do not think we want that. We do not want to force a board into that position. There is a need in the case of a board, as distinct from a Minister, to have a time limit and I would certainly have that time limit adequate and flexible. I hope the Minister will be able to devise some such system.

Mr. R.P. Burke

I would go further than Deputy Haughey. I support the points made by the two proposers of the amendment, both Deputy Molloy and Deputy O'Brien. I know the Minister is familiar with these kinds of cases and I know he has sympathy with the applicants. We all admit third party appeals can be mischievous. A number of such appeals are unrelated to fact. The Minister is familiar with these. Surely in these days of rising costs, whether one accepts the rising costs are outside the control of the Government or within the control of the Government, it is still a fact that costs are going up and, if you have not got a limit on time, you will see a situation where, because of mischievous third-party appeals, an applicant who is entitled in law and everything else to proceed with a particular development may be held up unduly in that development. It might be an extension to a private house, and the next-door neighbour or a neighbour two or three doors away may lodge an appeal for some purely mischievous reason. You could have somebody in Donegal appealing against some development in Cork under the present legislation. Surely some time limit must be put on because otherwise you will have a situation, which I do not think anybody in this House wants to see, where costs will become prohibitive because of delays in planning appeals. While the Minister has the control, as he has at the moment, it is possible to make representations. One can put down a question or put some other political pressure on. In the case of a board, as is suggested here, that control is gone as we have seen happen with the semi-State bodies. I would like to see some limit, be it four months, five months or any number of months.

Deputy Molloy wants to provide for bringing the board to the High Court and the Court saying: "Give us fair reason why you have not given a decision." The Minister has a reasonable approach to this particular problem. I know that of my own personal knowledge of decisions he has made over the past two years. I know he is sympathetic. I would ask the Minister to accept the principle of what is suggested and I would ask him to bring in his own amendment incorporating the ideas put forward by his colleague, Deputy O'Brien, and also Deputy Molloy. I know from personal experience the Minister is acutely aware of the problem because he has spoken about it and said: "For God's sake, do not be sending me appeals. Make decisions in the local authorities." I know he has been churning appeals out rapidly. We can talk to him but we cannot talk to a board. That is why we want this amendment.

Mr. McMahon

I support Deputy Haughey and Deputy Burke. I believe there should be a time limit on appeals before the board. I accept the Minister's reasoning for not accepting the two amendments before the House. Both of them are being withdrawn because both were looking for too much. They were a bit unreasonable in asking for the time limit.

Mr. Molloy

On a point of information could I inform the House that I have withdrawn my amendment.

An Ceann Comhairle

We are aware of that, Deputy.

Mr. McMahon

I appeal to the Minister to have another look at it and put some time limit on the appeals before the board. The reason that so many appeals are coming to the Department of Local Government is because the time limit for the local authorities——

Mr. Molloy

Which amendment are we dealing with, or are we on the section? If we are on an amendment which is it? Mine is withdrawn.

An Ceann Comhairle

Members are entitled to ventilate their views. The Minister is perhaps expected to make a comment at the end.

Mr. McMahon

The reason I believe why so many appeals are now coming before the Department of Local Government is because the time limit for the planning authorities at local level is too short. This may seem a strange thing for a county councillor to say. We are under pressure all the time to have planning applications dealt with. If a short period was put on this board to deal with appeals, if the amendments were acceptable or if the Minister decided to lengthen that period to, say, six months or even a year, then we would put pressure on the board to make the decision. As Deputy Haughey says, when they could not make up their minds they would refuse it. I believe some local authorities are now doing this because of the two-month period which they have to decide on planning applications. The Minister should consider lengthening this period to local authorities to make it a three-month period. He may then lighten the burden of this in-coming board. Most local authorities and people who are used to making applications would welcome such a decision to lengthen the time for deciding such decisions at local level. I would like to see the Minister put a limit on the decisions by the board. If they cannot come to a decision within a period they should issue a very sound reason as to why they cannot make a decision.

It is unfortunate that many applicants, particularly those making application for single houses or small developments—there have been many cases in the past where the person wishing to build a house has gone to the trouble and expense of securing a site and put a substantial deposit on a site—but by the time that the application is heard, is refused by the local authority, then judged on by the Department of Local Government, costs have gone up so much that many applicants cannot go ahead with their developments. I know a person who has his house half built but has to sell the property because he is unable to meet the costs. This application was first made over three years ago. I appeal to the Minister to have another look at this.

Mr. Tully

There are a couple of points. One is that Deputy Molloy tried to compare the local authority applicants for planning permission with the ones which come to the State. I am sure he will agree that the number of applications which come to a local authority could be from ten or 12 up to 20 or 30 in a month, except in the very ones where they may go up to 100, whereas the figure for the Department of Local Government is running at between 3,000 and 4,000.

Mr. Haughey

A month?

Mr. Tully

A year. There was a backlog of 3,000 when I took over.

Mr. Haughey

What is the outstanding figure?

Mr. Tully

Even with the fact that there are still a big number of appeals coming in it is down a lot. We are doing pretty well.

Mr. Haughey

Does the Minister expect a productivity bonus?

Mr. Tully

I might suggest my Parliamentary Secretary who deals with most of these problems. If the Deputy considers a productivity bonus for him I am sure he would not object. I was interested in Deputy Burke's comments about the frivolous appeals. In this Bill I attempted to do something very definite with what I considered to be frivolous appeals. Deputies on the opposite benches were very noisy about the fact that I was trying to take away people's rights. It was the pre-Faulkner period. Deputy Faulkner is not to blame for it but the Dáil Debate will show there was a lot about taking away the rights of the individual who wanted to make the appeal. Some organisations outside this House joined in the noise and said that I was trying to do something which was undemocratic, as if I would.

The position is that I was not able to do what I would like to do. Deputy Burke is right when he says that a lot of third party appeals which come before the Department of Local Government and the new board are sent in by people who simply do it to spite the neighbour. There are a number of genuine appeals. There have been cases of genuine appeals where people were imposed on by the neighbours attempting to build structures which should not have been allowed. A number of appeals are sent in by people who have no connection with the area in which they live and one wonders what kind of mentality is behind the person who sets out an appeal and may ask for an oral hearing. There is on record a person who asked for four oral hearings over a couple of years and did not even have the courtesy to turn up and could not be refused the right to have an oral hearing.

Mr. R.P. Burke

He asked for the oral hearing after the three months, having sent in the notice for appeal in the first place?

Mr. Tully

Deputy Burke knows a lot about this particular one so I will not go any further. The facts are that I would like to do something with the people who sent in frivolous appeals. The House would not allow me to do what I wanted to do with them so we will have to leave them to the mercy of the board. I would like to see a quick decision given by the board. I had a legal friend who was for a period a member of the House. He is dead now. Anytime he asked for something to be done and I asked: "When do you want it done?" his reply was always "yesterday". People putting in planning appeals always want the decision out before the appeal is in properly, and that is only natural.

Mr. Haughey

They want the right appeal rather than the time.

Mr. Tully

I do not know what the of them would prefer to get a quick reasonable decision. Even though I have sympathy with those who feel that there should be some way of ensuring a decision is given fairly quickly I do not think it is possible to put a time limit on the new board. It would be unfair to them. The board will be a pretty high powered one. Very eminent people, I hope, will constitute the board. I hope there will be an early decision obtained. I believe we will get what we are looking for, and that is fairly quick decisions from them. For that reason I could not accept the amendments. I am glad that the Deputies have agreed to withdraw them.

Amendment, by leave, withdrawn.

Mr. Molloy

I move amendment No. 46.

To add to the section a new subsection as follows:

"(3) The Board shall have an absolute discretion to extend the time for making an appeal under this Act (other than an appeal to a court)."

Some time ago we were discussing Deputy's Haughey's amendment No. 44. He said that if there was disruption in the postal deliveries services an extension of the appeal time should be allowed. The Minister argued against that on the ground that the amendment put down by Deputy Haughey was not specific. I would suggest to the Minister that amendment No. 46 in my name is very specific. It specifically gives discretion to the members of the board to decide to extend an appeal time. I think the Minister will agree with me that a person making a third party appeal does not receive notification of the grant of decision. It is only the applicant who is given that information. There is the possibility that this information regarding the decision may not filter back to third party interests as quickly as it does to an applicant who receives a notification by post directly from the planning authority, and he, having only 21 days within which to make an appeal, quite a number of those days may have passed before he discovers that the decision had been made. Cases of hardship or cases of very great importance could arise where an appeal should have been allowed. I would have sufficient faith and trust in this board to allow them that much power and discretion, that where a case could be justified for an extension that they would have the right to grant that extension.

Mr. Tully

I am not sure whether I heard Deputy Molloy correctly. Did he say that a person making a third party appeal is not given——

Mr. Molloy

I said a third party interest to an application with a local authority. The applicant is given the information immediately on the grant of decision.

Mr. Tully

And so is anybody who records in writing their objection to the granting of permission following the publication in the newspapers of the intention to apply for permission.

Mr. Molloy

He is given full information where he appeals.

Mr. Tully

He is given the information if he puts in writing an objection to the permission being granted. He is given notice at the same time as anybody else.

Mr. Molloy

Is the Minister satisfied that that happens in all cases?

Mr. Tully

Quite frankly I would not be able to say whether that is so or not. All I can say is that that is the law. I have never got a complaint that this was not done.

Mr. Molloy

Can the Minister quote the section of the law?

Mr. Tully

This is the practice. This is the way it is done.

Mr. Molloy

Are we talking about law or are we talking about practice? Am I right or am I wrong in what I have said?

Mr. Tully

I do not know what the Deputy is talking about and I am not quite sure he knows himself what he is talking about. He started off originally by talking about extending the time for appeal and he talked about the islands. Then he went in on Deputy Haughey's amendment with a different one. Then he proceeded along to this one. If I read this amendment correctly it is: The board shall have an absolute discretion to extend the time for making an appeal under this Act (other than an appeal to a court)." This would appear to me to be a suggestion that despite the fact that it was agreed to withdraw the other amendments and, therefore, the House have agreed that they should not be put in and I have agreed to have a look at a particular section which Deputy Haughey and other members mentioned. What Deputy Molloy suggests now is that irrespective of that, for any reason at all the board can in spite of the fact that a grant of permission may have been given, at any time decide that they will hear an appeal, let it be a week after, a month after, any time. Somebody then who has got permission to build a house or to build a factory and has started to do the work and is in the process of doing it suddenly finds that the board has decided to grant an appeal against that after the grant of permission has been confirmed. Deputy Molloy does not see one thing wrong with it. I wonder does he know himself what exactly he is arguing about.

Mr. Molloy

The Minister is the last person who should ask me whether I know what I am arguing about, because several times during the course of this debate the paucity of the Minister's knowledge of the Planning Act has been exposed here. The Minister has just now made another statement which I contend is not accurate, that a third party interested in a decision of a local authority on a planning application is entitled, under the law, to notification of that decision at the same time as the applicant himself is notified under the law by the local authority. The Minister knows that that is not so. When I asked him just now to state the law he changed his footing and said that it was the practice, and then the Minister went on to talk about other things which we were not dealing with and which he was not questioned on here. If what I said originally is, in fact, not true, and if the Minister can quote the law which proves that what I say is wrong then I will withdraw the amendment straight away. Although even excluding that particular example of a third party interest I think that the argument to grant the discretion to the board to extend the appeal time is meeting the type of argument which we have been making on previous amendments which the Minister has not accepted so far and where I with-drew it but expressing my disappointment that the Minister was not accepting it. It was not withdrawn on the basis that the House did not agree, it was withdrawn on the basis that the Minister would not accept it. Let us not twist words——

Mr. Tully

The way to prove whether the House agrees or not is to call a vote. Then we will see. As far as I am concerned the Deputy with-drew his amendment because of the fact that he could not carry it in this House. Those are the facts. Therefore the House did not agree with the amendment. Do not let us try to cod ourselves.

Mr. Molloy

We are not children. We can all count. We all know that when put to the pinch the Minister has more votes than we have. If he had not he would not be where he is. So there is no point in arguing on that toss. We, by the weight of our arguments and through the weight of common sense, are appealing here in debate for the Minister to see reason and to accept amendments that we have put forward. In fairness, I would say the majority of the amendments that Deputy Haughey and myself have put down on this Bill have been accepted or we have been promised that they will be seriously reviewed by the Minister and that he will consider bringing forward similar type amendments on Report Stage. That is the position. So the Minister has been agreeing with most of the arguments that we have been making, and if we get that type of assurance that he will consider it again before Report Stage we will not press it to a vote. There is not much point in our pressing every amendment to a vote when we know that we are going to rattle out a majority for the Minister's side. We are here to argue it and to deal with it in an adult fashion. The Minister did not seem to be aware, until I brought it up, that third party interests are not notified under the law, and possibly if the Minister would agree to put in a section giving them the right to information at the same time as the applicant from a planning authority it might meet part of the argument that I am making. I would ask the Minister to say whether I am right or wrong. So far he has shown very little knowledge in his Bill.

Mr. Faulkner

The Minister agreed earlier on to think about the amendment that was put forward. Admittedly he stated that this was not to suggest that he was going to accept it or that he was going to put forward anything to replace it. Nevertheless, he did feel that the arguments put forward were of the calibre which would induce him to agree to reconsider the situation.

The various amendments, the ones which were withdrawn and the one he has agreed to reconsider and this one, are basically to try to ensure that the rights of the citizens well be protected in relation to the planning laws. I think the Minister will find himself in a bit of a quandary in relation to the case he made earlier when he said that the board might do certain things. It might decide after a number of months to agree to an appeal and so on. The Minister did say, and I would accept it, that it was hoped and intended that the board would be comprised of responsible people. I would assume that a board of this kind would not agree to extend the time for appeals which were quite obviously vexatious. In those circumstances, and taking it that the board would be a responsible board and would deal responsibly with the matters that came before it, surely we could accept that they would use the powers conferred on them by this particular subsection in a responsible way and that they would simply use this discretion when they felt that the rights of a citizen were not safeguarded, and that it would be only in these circumstances that they would take a decision under this amendment.

I would suggest to the Minister that perhaps in considering the amendment put down by Deputy Haughey he would consider this in conjunction with it. Perhaps in relation to both he might come up with something which would cover the points made on this side of the House.

Mr. Tully

On 7th April, 1971, a circular was sent to all the planning authorities and also to each city and county engineer. It contained two paragraphs dealing with the question of notification. The Minister at that time was Deputy Molloy. The first one is that:

The Minister considers it only equitable that objectors to applications before the planning authority should also be given the opportunity, if they so desire, of objecting to him if the decision of the planning authority is appealed to him.

The last paragraph states:

The Minister also requests any planning authority which does not at present do so to inform the objectors of the nature of the decision made by the planning authority at the time it is made and also to inform them of the statutory time limit for appeals. This information should in accordance with the Commission regulations be included as a standard part of the notification of the decision of the planning authority.

I think Deputy Molloy will agree that that should have ensured that what he thinks should now be done is at present being done and has been done since 1971.

Mr. Molloy

Is the Minister saying that that circular is law, that it gives an absolute right?

Mr. Tully

This circular was sent out under Deputy Molloy's instructions in April, 1971. If I sent out an instruction to a city or county manager now I would expect it to be obeyed and if Deputy Molloy did not take steps to see that his circular was obeyed that was his hard luck. Deputy Faulkner has been talking about the right of people to appeal and that having decided to consider Deputy Haughey's amendment, although I did not say I was going to bring one in, I was accepting that there was some merit in it. In fact, this amendment, if accepted, throws the whole question of appeals right open. What Deputy Molloy's amendment is trying to do is to give the board at any time the right to accept an appeal. As I said before and as Deputy Faulkner says, the people on the planning board will be of the highest calibre but if we include a section like this in an Act of Parliament we are inviting them to do something which they are legally entitled to do.

I do not believe that they should be legally entitled to accept an appeal after the statutory period with reservation on the particular item with which Deputy Haughey's amendment deals. Apart from that, if we do this we are leaving the whole situation wide open. I think that it would be desperately unfair to people who, having applied for planning permission, have been notified by the local authority that it is intended to give them that planning permission at the end of two months and at the end of a further month they are notified that planning permission has been given, that then at a later stage after they have involved themselves in a considerable amount of expense, somebody should appeal and for some reason or other it was decided that it was right that their appeal be accepted and they would have to go through the whole process. I do not think it would be right and I am not prepared to accept it.

There was a reference made by Deputy Haughey to the amount of time which should be given. He suggested that local authorities should have a longer period than two months. I do not think they should. In a case where a decision is being given, I do not think it is right that a local authority should wait until the last couple of days of the two months to write an innocuous letter to the applicant in order to extend the period, which they can do and which, unfortunately, some of them do. I do not think there should be any extension on that. I could not in conscience accept the amendment. It would undo the whole point we are raising in the Bill.

Mr. Molloy

I would like to clarify one point. The circular referred to by the Minister which was issued by me in 1971 established a practice that a person other than an applicant for planning permission would be given notification of the decision at the same time as the applicant. It does not give such a person an entitlement in law to that notification. If by some chance a local authority planning office does not notify a person other than an applicant of a decision to grant permission that is just that person's hard luck. He cannot challenge in court the non-compliance with the law of the planning authority in that instance because the law does not require him to do it. The Minister cannot cover that up. It was an omission from the original Act which it was tried to amend through that circular.

The circular attempted to amend it by establishing a practice but not granting legal entitlement to such notification. If the local authority is dilatory in complying with that request from the Minister—because that is all it is—the person other than the applicant can be deprived of his right to make an appeal because the 21-day period can elapse. To give an example of the type of situation where my amendment might apply: where a local authority had not complied with the request in the circular from the Minister to notify a person of a decision, and if the three-weeks' period elapsed and the person became aware that development was beginning but that he was not notified and that a decision had been made, his right to appeal would be lost. The fault would lie with the local authority because it was due to their omission in sending a notice. That person has no entitlement in law to prosecute any person against the failure to comply with the law because it was not provided for. In such a case, where due to a lapse on the part of the planning authority a person found himself in this position, I would suggest that the board should have the discretion to grant an extension to enable that person to lodge his appeal. It is another form of granting an extension to the period of time for an appeal. I ask the Minister to give an assurance that he would provide in an amendment on Report Stage which would give a legal entitlement to a person other than an applicant to information from a planning authority at the time a decision was issuing on an application. Similar notification should be sent as is sent to the applicant himself. If the Minister would give such an assurance it would meet the point I am arguing here but as he does not intend to accept this amendment, I withdraw it but would ask him to consider, rather than relying on this circular and this established practice, incorporating it into this Bill now.

Mr. Tully

The trouble with Deputy Molloy is as an old colleague of his said to me some time ago that he will never learn. I quoted the circular which had issued under his direction. I shall now quote portion of the Act which might surprise him. Section 25 (2) (f) of the 1963 Act states that the Minister shall by regulation provide for requiring planning authorities to furnish to the Minister and to any other specified person any specified information with respect to any application and the manner in which they have been dealt with. It would be possible for the then Minister if he was as interested then as he is now to safeguard these persons' rights to have made a regulation which would require the planning authorities to supply the information. He did not do so. He now waxes eloquent at my failure to include in the new Bill something which is already contained in the parent Act and which will cover this. When I am making regulations on this particular Bill I will ensure that there will be no slip up.

Mr. Molloy

It will be done?

Mr. Tully

No, because you did not do it and I did not realise it was necessary to do it. I will always look after the interests of the people of this country.

(Interruptions.)

Mr. Tully

If the Deputy were as good at looking at these things a few years ago as he is now, things would have been better.

Mr. Faulkner

Does the Minister propose doing it now?

Mr. Tully

Not now. We shall include it in the new regulations. If there is an undue delay in passing the Bill then I will take the necessary steps to make the regulation.

Mr. Molloy

We have that promise?

Mr. Tully

It is merely a normal promise to the House.

Mr. Faulkner

Is not the Minister happy that Deputy Molloy brought the matter to his attention.

Mr. Tully

As the old man said, Deputy Molloy will never learn. He did not take a look at the section. Had he done so, I would have spared him the indignity of having to read it to him.

Mr. Molloy

We have taught the Minister something.

Mr. Haughey

The Minister will keep in mind the whole question of putting a time limit on the board?

Mr. Tully

We have already been talking about this but I do not think it is feasible.

Mr. Faulkner

The Minister will think about it?

Mr. Tully

I am thinking about it.

Mr. Haughey

Even if not this specific time limit, perhaps there could be some machinery whereby a person aggrieved could make the board decide within some time limit.

Mr. Tully

They could ask for a mandamus order.

Mr. Haughey

An application for mandamus to the High Court is a fairly expensive procedure.

Mr. Tully

Deputy Molloy wanted to bring them to the High Court straight off the reel for other reasons. Deputy Haughey does not agree with him.

Mr. Haughey

I did not say that I did not agree with him. An application for mandamus from an ordinary citizen who erects a garage or porch is very expensive. Secondly, the very question of moving for mandamus might just compel the board to issue a refusal straight away.

Mr. Tully

They are not the type of people we will have on the board.

Mr. Haughey

If the Minister thinks that a time limit on the board, whatever length it might be, would be too restrictive, perhaps he would devise some procedure whereby a person who could not get a decision from the board, could do something reasonably inexpensive about it.

Mr. Tully

Possibly there might be something in that. But to impose a time limit of two or four months would be a cod. If we grant eight months, ten months or 12 months, people would object to such a length of time. We are caught between the two. We are establishing a norm with the higher one rather than the lower one. I agree that we should make every effort to ensure that there is no delay. If the board are not doing their work they can be suspended.

Mr. Haughey

That is a very remote remedy.

Mr. Faulkner

Surely the Minister could find some system even without specifying a period so that at least there would be some inexpensive way a person could claim his rights.

Mr. Haughey

Or make them explain why they were not coming to a decision.

Mr. Tully

I will endeavour to ensure that the board will come to a decision as quickly as possible. This has been the whole idea. A method that was too simple might be worse than having no provision at all. We are dealing with a very important board taking very important decisions. That is why I assume the right of order mandamus was included in the 1963 Act. It was realised how important it was. Deputy Haughey is correct in saying that this is an expensive procedure. I will endeavour to ensure that there will be no undue delay.

Amendment, by leave, withdrawn.

Mr. Molloy

I move amendment No. 46a:

To add to the section a new subsection as follows:

"( ) Appeals shall be decided as soon as may be and any party to an appeal shall upon the expiry of two months be entitled to demand that the Board should show cause why the appeal should not be heard and the Board's decision given. Should the cause shown be trivial or otherwise deemed by the High Court, on application, to be insufficient, the High Court shall have power to direct the Board to determine such appeal forthwith."

Amendment, by leave, withdrawn.

Section 20, as amended, agreed to.

NEW SECTION.

An Leas-Cheann Comhairle

Amendment No. 47 in the name of the Minister. There is also an amendment to the amendment in the name of Deputy Molloy. We will take the Minister's amendment first.

Mr. Molloy

I would like to propose that we add a new section.

An Leas-Cheann Comhairle

After the Minister has dealt with his amendment. The Minister on amendment No. 47.

Mr. Tully

I move amendment No. 47:

In page 10, between lines 45 and 46, before section 21, to insert the following new section:

"21.—Where in connection with either the performance by the Minister of any of the functions assigned to him under the Local Government (Planning and Development) Acts, 1963 and 1974, or the performance by the Board of its functions an inspection is carried out or an oral hearing is conducted on behalf of the Minister or the Board, as the case may be, by a person appointed for the purpose by the Minister or the Board, the person so appointed shall make to the Minister or the Board, as may be appropriate, a report on the inspection or hearing, as the case may be, and shall include in his report a recommendation relating to the matter with which the inspection or hearing was concerned, and the Minister or the Board as may be appropriate, shall, before determining the matter in relation to which the inspection was carried out or the hearing was conducted, consider the report (including any recommendation contained therein)."

This amendment makes more specific provision for the matter which, under section 18 (1) (b) of the Bill, would have been dealt with by regulations. Section 18 (1) (b) has already been altered by amendment No. 38. The purpose of the new section is to provide that, not only should reports on 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 may also be considered.

The Minister is referred to in the new section because there may still be occasional oral hearings in connection with the closure of public rights of way and, when the building regulations come into operation, there may be appeals where a planning authority refuses to dispense with or relax requirements. That is section 33 (f) of the Bill. It appears complicated but it is not.

Mr. Haughey

Does the report necessarily mean a report in writing? Could it be verbal because of the way it is phrased?

Mr. Tully

I suppose it could but a report in writing is intended.

Mr. Haughey

Then stick in "in writing".

Mr. Tully

No. Perhaps it might be as well to leave it because the board may decide to have certain of the hearings orally or they may have the reports orally if they want to speed up small cases.

Mr. Haughey

We will have to fight you on that.

Mr. Molloy

I move the amendment to amendment No. 47:

To add to the proposed new section the following:

"Such report and recommendation together with the transcript of evidence at any ordinary hearing, which may have been held, shall become as soon as may be a matter of public record at the headquarters of the Board. Copies of same shall be available upon 14 days' written notice at a charge of 50p."

The intention behind that amendment is that the public and the appellant and any other interested party should have from this board a statement which would indicate the reasons why they arrived at a certain decision. One part of my amendment suggests that this report, which is referred to and which is a necessary document before the board or the Minister can make a decision, is an absolutely essential requirement. Before the Minister at present—or the board in the future— can arrive at a decision on a planning appeal he must take into consideration the report of the inspector who attended the hearing, or who wrote the report, or who dealt with the application if it was not an oral hearing.

I am suggesting that when the board is established that report should be made available, and the recommendations contained in it should be made available, and also that the transcript of any evidence taken at an oral hearing should be made available. This has been an area of great contention. There have been court cases querying the transcripts of evidence which the Minister has taken into consideration in arriving at appeal decisions. The courts have directed, in certain cases, that the files in the planning section of the Department should be made available to those who brought the case before the court for their perusal so that they could satisfy themselves whether, in fact, the evidence given at the hearing was properly considered in the report put before the Minister and properly considered by him before arriving at a decision.

This will be an autonomous board. It has been called a faceless persons board. Anyway its accessibility to the public is nil. I should like the Minister to let us know whether he would favour this board being obliged to make these reports and recommendations and the transcripts of evidence available. If my amendment is going too far, if the Minister feels it is going too far and requiring too much, then I would put it to the Minister that the main point I am getting at is that we should have statements giving the reasons why the board arrived at certain decisions. At present the Minister makes decisions and he gives reasons. They are short, concise and fairly traditional now.

There is a set pattern of words used to meet groups of situations and they do not, in the main, relate to any specifics which were taken into consideration in the cases. They do in some cases but, generally speaking, a kind of formula of words has now been latched on to which is not very meaningful to any person trying to find out the real thinking behind the decision to grant or to refuse.

The court's decision which gives the public the right of access to these documents is establishing a new principle—possibly not a new principle as such, but it certainly is establishing a new precedent, in as much as this has only happened in recent years. These documents are not generally available otherwise. If the public are to obtain access to them, they must go to the expense of a court case and all that that involves. Rather than placing that obligation on the community, and its expense, if these documents are available, I believe the public are entitled to them. I do not see why they should be secret.

I believe—I have not any great evidence of this; I have not any knowledge of it—that the planning appeals system in Britain gives much greater background information regarding the decision arrived at than is given here. I would be anxious to achieve something better than what we have put up with up to now. We operated it. The Minister is operating it. I am suggesting that when this is handed over to a board we will be looking for reasons which will satisfy us to a much greater extent because of the facelessness of the board and the non-accessibility to them. If the board are to gain acceptance, I think they should be obliged to report to the community on the decisions they are arriving at.

Mr. Tully

Can I take it that amendment No. 47 is acceptable? This is a bit complicated now. While the amendments are related, two different principles are involved.

Mr. Haughey

Two separate decisions.

Mr. Tully

Yes. We could clear amendment No. 47, if the Chair has no objection, before I reply to Deputy Molloy.

An Leas-Cheann Comhairle

The position is that the amendment to the amendment must be disposed of first.

Mr. Tully

I must reply to Deputy Molloy before Deputy Haughey contributes. Deputy Molloy has made certain remarks and I should like to comment on them because it will shorten the proceedings.

Mr. Haughey

I want to make a point on the Minister's amendment.

Mr. Tully

That is what I am afraid of. The amendment to the amendment must be disposed of first?

Mr. Molloy

Are we taking them together?

Mr. Tully

I want to know if everybody is sure of what they are dealing with and the decisions they are taking.

Mr. Haughey

We are all for the Minister's amendment.

Mr. Tully

Good.

An Leas-Cheann Comhairle

Does the House rule to have a net discussion on the business and then dispose of Deputy Molloy's amendment which must be disposed of?

Mr. Faulkner

Acceptance of the Minister's amendment would not automatically dispose of Deputy Molloy's amendment.

An Leas-Cheann Comhairle

Deputy Molloy's amendment is to amendment 47.

Mr. Tully

If my amendment is accepted Deputy Molloy's amendment is out.

An Leas-Cheann Comhairle

Deputy Molloy's amendment must be dealt with first.

Mr. Tully

Deputy Molloy is a reasonable man and will withdraw his amendment when I explain the position to him.

Mr. Haughey

Both amendments have been put before the House and I wish to speak on the Minister's amendment. I shall be brief. The Minister has assured me that this textural change will be made in the third line which will now read:

Government Planning and Development Act, 1963 and 1975.

I am satisfied with that but the Minister's amendment must include the words "in writing" after "a report" where it occurs. It would be ludicrous if the inspector, or whoever is involved, could satisfy the terms of this section by making a verbal report. Would the Minister accept that?

Mr. Tully

No. There is a slight complication and I think Deputy Haughey will be prepared to accept the explanation I shall give.

Mr. Haughey

There has been so much discussion, argument and litigation about the question of these reports, that it would be futile to have this section at all. It is a very good section but the reports must be in writing. It would be useless to insist on these inspectors making reports if they can be made verbally. We all know what confusion and chaos can arise over verbal reports.

Mr. Tully

As far as that particular point is concerned, I agree with Deputy Haughey, in principle, but there is a slight complication which may possibly alter the situation and I would prefer not to commit myself to changing it. I shall look at the matter and if I can I will put in what Deputy Haughey suggests for Report Stage.

Mr. Haughey

I reluctantly accept the Minister's point but I cannot understand why he cannot accept, across the floor, the words "in writing".

Mr. Tully

The reason why it is not necessary is explained in section 30 (c)—which states:

(8) A decision given under this section and the notification of such decision shall—

(a) in case the decision is made by a planning authority and is one by which any permission or approval is refused or is granted subject to conditions, comprise of statement specifying the reasons for the refusal or the imposition of conditions, and

(d) in case the decision is made on appeal, comprise a statement specifying the reasons for the decision,

Every decision must have an explanation given in writing.

Mr. Haughey

That is not what we are talking about; we are talking about reports by inspectors.

Mr. Tully

Yes, but the people who are making the decision must give, in writing, their reason for making that decision and, therefore, if there is a report, even orally, they would have to refer to what the report was.

Mr. Faulkner

To the actual content of the report?

Mr. Tully

They could not give the decision. If an inspector made a report that a decision should be to refuse or to grant, and specified why this should be done, even if he did it orally; if those who are making the decision must give in writing their reasons for doing it, they must write in what the inspector told them.

Mr. Haughey

That is a tangled argument. We will not make a fuss about it but I think the Minister, on reflection, will agree that in this day and age, if he is going to compel inspectors to make a report to a board, he obviously has some very good reason for compelling that report to be made and is insisting that the board must consider that report before they come to the decision. It is a very good point that is enshrined in the new section but it will not have any effect whatsoever unless the Minister insists that it be in writing.

Mr. Tully

I shall consider this matter but the whole point is that it must be considered by the people who are making the decision and they must write——

Mr. Haughey

All the more reason why it should be in writing.

Mr. Tully

They must give it in writing because it is not the inspector who will be the responsible person. It is the board who will be the responsible body. If they give a decision, and state in writing why they gave it, what the inspector reports does not matter so much. It is how they gave their decision.

Mr. Haughey

The Minister has no case.

Mr. Faulkner

What case has the Minister for suggestion that it should not be in writing?

Mr. Haughey

Just a bureaucratic reluctance to accept something we put forward——

Mr. Tully

I did not suggest that there should not be but I felt it might not be necessary. We tend to write so many things into legislation which, on reflection, are sometimes not necessary. However, I have agreed to have a look at the matter. If it is considered necessary it shall be done and if not there will be lá eile.

With regard to Deputy Molloy's amendment, I should like to point out that section 18 (1) as amended by amendment 38 enables regulations to be made providing for an oral hearing to be conducted by a person appointed for that purpose by the board. The new section inserted by amendment No. 47 provides that the person so appointed shall make a report to the board. That is what Deputy Haughey is talking about. The Deputy wants this report and the transcript of evidence to be available publicly. So far as the report is concerned, the fact is that if it were to be available publicly this would be bound to influence persons making such a report. They would be looking over their shoulder when they were making it as to what they should put into it.

Mr. Haughey

Put into it?

Mr. Tully

The fee paid to them covers only the presentation of a single copy to the Minister. There are complications here. The practice has been to refer a person who wished to have a copy of the transcript to the note-taker and suggest that he might make arrangements to get a copy at a fee to be arranged. The Department have been prepared to make copies available at a suitable charge relating to the cost of producing the copies. Some of the cases have had over 700 pages. Some of the public who talk so much about the fact that the transcript should be available do not seem to understand what is involved.

I suggest there is no need for any change in the position about transcripts. The Deputy's proposal would create difficulty in engaging and in paying note takers and would mean that increased costs would fall on public funds. A fee of 50p was suggested as the price that should be paid but this would not cover even the cost of the paper and I am sure Deputy Molloy is aware of that.

Mr. Haughey

Not at the rate inflation is going under this Government.

Mr. Tully

There are a lot of things which I could say to that but out of charity I will refrain. However, transcripts are very rare cases and I would ask Deputy Molloy not to press his amendment. I think he will understand that there is no need for it.

Mr. Faulkner

What kind of information would be available in the final report of the board in relation to the decisions available?

Mr. Tully

The report which would be made on a case?

Mr. Faulkner

Yes.

Mr. Tully

All relevant factors would be included in the report. This is why I say it is not the person who does the inquiry, it is the board who make out the report and who should give all relevant factors in the report.

Mr. Faulkner

To some extent it would be a summary of the verbatim report?

Mr. Tully

I would imagine it would have to be a fairly brief summary if there were 700 or 800 pages.

Mr. Haughey

A transcript is a different animal altogether. Even in the courts one has to pay for a transcript.

Mr. Tully

Deputy Molloy has mentioned a fee of 50p.

Mr. Molloy

We could amend that part to take care of inflation.

Mr. Faulkner

Would the report be available on request?

Mr. Tully

It would be available to everybody who is interested and I am quite sure it would be possible to have it available on request, at a reasonable fee.

Mr. Molloy

Will this report contain detailed information of the facts considered by the board before they arrived at their decision?

Mr. Tully

I would not say much detail. It will give details of the reason they arrived at their decision.

Mr. Molloy

At present you can get a decision and it is possible to condense the reports into two lines.

Mr. Tully

That is not the intention.

Mr. Molloy

If the Minister would elaborate more on it we could understand it better and we might settle this matter quickly.

Mr. Tully

It is proposed that when somebody gets a refusal, instead of saying he has been refused permission to erect a house because it would be a traffic hazard, it would say that permission was refused and they would give the reason why it was concerned with traffic.

Mr. Haughey

Will this arise under the new section 30? Section 30 now provides that they must give a report and give the reasons.

Mr. Tully

It is section 30 (c). Whether permission has been given or refused, the reasons will be given in either case.

Mr. Molloy

I think what the Minister was saying was that they will now say why they consider it is a traffic hazard.

Mr. Tully

Yes. They will give the reason why they made a decision.

Mr. Molloy

As long as they have to give a greater explanation than has been the practice up to now with ministerial decisions, I am satisfied and I withdraw the amendment.

Amendment to the amendment, by leave, withdrawn.

Amendment agreed to.

An Leas-Cheann Comhairle

Amendment No. 48 in the name of the Minister has already been discussed but there is an amendment to the amendment by Deputy Molloy. Perhaps the Minister would formally move amendment No. 48 and Deputy Molloy could move the amendment to deal with the amendment.

Mr. Tully

I move amendment No. 48:

In page 10, between lines 45 and 46, before section 21, to insert the following new section:

"22.—(1) Notwithstanding anything contained in the Principal Act, a planning authority in considering,

(a) an application for a permission under section 26 or 27 of that Act,

(b) whether or not it is expedient to serve a notice under section 30, 31, 32, 33 or 35 of that Act.

(c) whether or not to serve a notice under section 36 or 37 of that Act.

may, if they think fit, have regard to either or both of the following, namely,

(i) the probable effect which a particular decision by them on the matter would have on any place which is not within, or on any area which is outside, their area, and

(ii) any other consideration relating to development outside their area.

(2) Notwithstanding anything contained in the Principal Act, the Board in considering an appeal brought under section 26, 27, 30, 33, 36 or 37 of that Act may, if it thinks fit, have regard to either or both of the following namely,

(a) the probable effect which a particular decision by it on the matter would have on any place which is not within, or on any area which is outside, the area of the relevant planning authority, and

(b) any other consideration relating to development outside the area of that authority."

Mr. Molloy

I move the amendment to amendment No. 48:

In subsection (1), ninth line, to delete "may, if they think fit" and substitute "shall".

The Minister's amendment is suggesting that the planning authority take into consideration factors which they deem are appropriate even though they may not be within that planning authority's area. The words used are that they may do this if they think fit. I think they should do it in all cases. It may be just a play on words and may not be of very great significance but I put in this amendment to oblige planning authorities always to take into consideration relevant factors in an adjoining area. I think the obligation should always be on them to do so. It is not very important and perhaps the Minister will see no difference.

Mr. Tully

It would have the effect of replacing a flexible enabling power by an inflexible mandatory provision applying in all cases. Cases could arise where it would not be appropriate for a planning authority in considering an application to have regard to considerations relating to developments outside their own area. Under the amendment there are thousands of cases where, even though a particular decision would have no effect on a place outside their area, the planning authority would have to go through the motions of considering this aspect. Apart from this, the substitution of "shall" in subsection (1) would require consequential changes in other subsections. Leaving that aside, what is intended is that they will do it if necessary and will have an enabling power if they think fit to allow them to do it. It would be ridiculous to say that they must do it, which is what Deputy Molloy is suggesting.

Mr. Haughey

Surely the board has a responsibility here?

Mr. Tully

I do not think it is necessary. If we accept that the planning authority——

Mr. Haughey

Surely, different considerations apply?

Mr. Tully

No, it is solely the planning.

Mr. Faulkner

Would they not do it even if the Minister had not written them in?

Mr. Tully

I imagine they would but, just in case some local authority might say "that is our responsibility and you do not have to take it into consideration"—you wrote down that they should, if they consider it necessary.

Mr. Haughey

The fact that the Minister brought forward this provision at all means that he does regard it as important, that a planning authority should have regard to areas outside their own and perhaps to environment considerations. The mere fact that the Minister brought it forward at all indicates that he attributes significance and importance to it. Therefore, I think it should be "shall".

Mr. Tully

No. I could not agree.

Mr. Haughey

I think the Minister is hoist with his own petard, which is a situation I detest.

Mr. Tully

The Deputy's heart bleeds for me but I will sleep tonight all the same. The position which is brought about by saying: "If they think fit" means that, when a local authority is making a decision, knowing that they should do this, if it affects them: "if they think fit" they can do it. If it was not mentioned they could go on gaily.

Mr. Haughey

If the Minister had not mentioned it probably we would not have thought of it.

Mr. Tully

I accept that.

Mr. Faulkner

I doubt very much if that would happen.

Mr. Tully

At the moment, the position, under subsection (1) of section 26 of the Local Government (Planning and Development) Act, 1963, is:

(b) any requirements relating to the application of or made under such regulations are complied with, the authority may decide to grant permission or approval subject to or without conditions or to refuse it: and in dealing with any such application the planning authority shall be restricted to considering the proper planning and development of the area of the authority (including the preservation and improvement of the amenities thereof).

Mr. Haughey

The Minister wants to get out of that straitjacket.

Mr. Tully

Yes.

Mr. Haughey

Does not the very fact that the Minister wants to get out of that straitjacket mean that it is important that a planning authority should not just decide this within the limits in relation to their own area; they should have a broader view.

Mr. Tully

Where they think fit, yes.

Mr. Haughey

The fact that the Minister brought it forward means that it is an important and relevant consideration and that they should be bound by it. They should not be allowed act without reference to their neighbour, their contiguous area, the environment, or whatever.

Mr. Tully

At present there is allowed a two-month period.

Progress reported; Committee to sit again.

The Dáil adjourned at 10.30 p.m. until 11.30 a.m. on Thursday, 8th May, 1975.