Amendment No. 48 has already been discussed with an earlier amendment and we are now debating the amendment to that amendment in the name of Deputy Molloy.
Local Government (Planning and Development) Bill, 1973: Committee Stage (Resumed).
Before I reported progress on 7th May last, the House had been discussing an amendment tabled by Deputy Molloy to amendment No. 48. It is, I think, fair to say the House had accepted my amendment to look outside the area of the planning authority in question and have regard to the probable effect a particular decision by it would have on an area outside. Deputy Molloy's point was that this approach should be adopted in all cases and I resisted his amendment because it would have the effect of replacing a flexible enabling power by an inflexible mandatory provision in all cases.
The only point I want to make is that, if the Minister considered it important to add the proposed new section after the original Bill was published, he might think it might not be sufficient just to leave it to the discretion of the board.
There could be many cases where it would not be necessary to do this and what I am doing is giving the power to do this, if it is found necessary. It would be a mistake, in my opinion, to say that, whether it is necessary or not, it must be done in all cases. That would cause delay and it would also cause expense.
I agree with the Minister's proposal, but where he says "they may, if they so think fit" I think it would be better if we stated they shall always have regard to these matters and would always take into consideration the adjoining local authority area in deciding planning in their own particular area. It should be a condition that they should always do so. It could happen that they might ignore this and say they were not obliged to have regard under the Act. I think they should always take into consideration the adjoining area in planning for their own area and I believe this change would strengthen the legislation.
I see the Deputy's point and I am sure he sees mine. The Deputy wants to say that in every case they must take into consideration the adjoining area. There could be cases where that would not be necessary and they should not, therefore, have to do it. Deputy Molloy's amendment would make it mandatory on the planning authority to go through the motion in every case. That would be a mistake.
I move amendment No. 49:
In subsection (8), page 12, between lines 32 and 33, to insert a new paragraph as follows:
"(c) the planning authority shall have power to charge the developer in respect of any costs incurred by it in respect of development."
Builders go in on sites and promise they will do this, that and the other. When the houses are finished they leave, and open spaces are left undeveloped and in a very unsightly condition. I believe the local authority should be able to move in quickly, clear up the open space and surcharge the builders. This would ensure that the builder would live up to his responsibility. I have heard numerous complaints from residents' associations around Dublin about the state in which these estates are left when the builder has finished building the houses. A surcharge on the builder would help to solve this problem though there might be difficulty sometimes in tracing the builder. We should ensure that the builder at all times lives up to his obligations.
I am not quite sure what Deputy O'Brien means. The section is intended to ensure that where the builder has recovered the full cost, and more, of the land, whatever open space is there should be acquired by the local authority, without having to make any payment. If the builder did not recover, for one reason or another, and the local authority wanted to acquire the land it would not be possible under our present Constitution to confiscate the land. Perhaps I misunderstand Deputy O'Brien's amendment.
All I am saying is that where a builder leaves an open site undeveloped the local authority will take over the site and develop it. The builder will be only too delighted because he will be relieved of the cost of developing the open space. When the local authority move in and develop it, they should charge the builder for that development. It is a question of making the builder live up to his responsibility. We are not taking anything from him. He does not want that square of ground. He had to provide it in the original plans. He is not developing it. He is leaving it to the local authorities to develop it at the expense of the ratepayer. It is wrong that the builder should be allowed to get away with that.
I know what Deputy O'Brien is talking about now. There is power in the 1963 Act to have this done. The trouble is not so much that the builder is getting away with it, but that local authorities are not taking the necessary steps to ensure that their powers are being operated. I suggest that is the way to deal with this. Unfortunately, it would not be relevant to this section.
We are in favour of this section because it ensures that those who occupy new houses in a housing scheme will have the necessary amenities to which they are entitled. Where the developer could disappear without trace or where he is clearly unable to carry out the development of the open space, for financial or other reasons, it is understandable that provision should be made. Where a developer neglects to carry out the work and the local authority takes over and develops the property, then the ratepayers suffer if there is no way in which the development money can be recouped by the local authority. We have had harrowing experiences of schemes in which open spaces were left undeveloped after the developers had left the area. Families suffer because of this particularly in large estates because there is a considerable need for this type of amenity, especially in present-day circumstances.
Where the local authority takes over an open space about which the developer is not very concerned, is the developer relieved of his responsibility? Of course, to develop this space would cost him a certain amount of money——
Unless he is tied up in a bond beforehand. Under the 1963 Act the local authority has the right to make him, by deposit or security before development commences, ensure that if necessary they can go in and complete the development of roads, footpaths, sewers and so on themselves. That is when it should be dealt with.
Have they the authority?
Would the Minister give a further explanation of section 21 (8) (a) which deals with an application for compensation if the developer has not recovered the cost of this open space, that he can be awarded a sum which the local authority may have to pay. In what type of situation can the Minister see this happening?
The onus will be on the developer to show that he has not recovered the amount of money it cost him to acquire the site. If he can do that then the situation about which Deputy Molloy spoke could arise. If he could not do that, then it would be assumed that he was not entitled to any kind of compensation. Does that answer the Deputy's query?
I would like an example of what the Minister has in mind. If a person buys land for £30,000 and builds ten houses, and in the application stated that with those houses he was providing X as open space, but did not do that and the local authority came after him, is the Minister asking him to show that he did not recover the cost of purchasing the site, even though he had built ten houses?
Only if he claims that he has not made the cost of the site. If he buys——
How does the Minister determine the cost of the sites?
The cost of the site I assume would be what he paid for it and what he got out of it in profit. Subsection (8) sets out the position in relation to the payment of compensation for lands vested under this section. In default of agreement as to compensation, the amount is to be determined by arbitration under the Acquisition of Land (Assessment of Compensation) Act, 1919. Subparagraph (a) provides that a nil award shall be made, unless it is shown by the owner that he did not, or will not, recover the value of the land at the time of application for planning permission as a result of carrying out the development, or semi-development of other parts of the land. The total cost of the lands of the housing estate, including the portion reserved for open space, is recovered in the sale price of the houses or sites. Subparagraph (b) provides, in the event of the value of the land being assessed for compensation purposes, that it shall be valued on the basis that it cannot be used for any other purpose than open space and that a deduction shall be made of the cost of carrying out the necessary works. Does that answer the Deputy's question?
No. If a person buys a site for £30,000 and builds three houses which he sells for £10,000 each, and in the planning permission he stated that the houses were to be situated in such a place and an area of the land was for open space which he did not provide or properly develop and when the acquisition notice was served he claimed compensation, in such a situation would the Minister deem that he had recovered the cost of acquiring the site?
The Deputy is giving a very unreal example. Nobody would pay £30,000 for a site and build three houses for £10,000 each. How would he recover the cost of building of the houses, which would have to be taken into account?
Suppose somebody pays £100,000 for a site and builds a housing estate but when he has sold all his houses he has only recovered £90,000. He would be £10,000 short of cost of the site. If that happened, I assume he would be entitled to compensation. If, however, he made the price of the site, plus a profit, I assume he would not be entitled to compensation, because the original planning permission contained a stipulation that this was an open space. Therefore he knew before he started to build on that portion of the site that he could not recover any of his money and would have to recover on the portion which he got to build on. I think it is right that we should operate section 21 to ensure that everybody will know what exactly his position is.
Does the Minister not see great difficulty in trying to operate this section? What machinery is there for making this assessment?
No Bill of this kind is easy to operate but I do not see any difficulty which would prevent its operating. The onus is on him to show the arbitrator that he has not recovered his money, so I believe it will work and that it is necessary to have it. This brings us back to Deputy O'Brien's comments, which even though the amendment was not relevant, were relevant.
How are you going to determine exactly what it cost a man to build a house?
As Deputy Molloy knows, there is the certificate of reasonable value and that in effect is one of the ways in which the cost of the house could be established.
If the houses in question were 1,500 square feet, a certificate of value would not apply.
I am only giving an example of where the certificate of reasonable value system can operate. If we can estimate what the certificate of reasonable value is, surely the same evidence can be produced in a case like this.
Is the Minister in a position to issue a certificate of value for houses constructed four years ago.
We are not talking about houses constructed four years ago; we are talking about houses which will be constructed under a new Bill which will become an Act.
This Bill then will not apply retrospectively in the case of acquisition notices?
Only where the section would be operative. I agree that there could be portion of an estate which would not be fully developed and it might be necessary there, but even in that case I am quite sure there would be a way of assessing the value.
The Minister knows that there is no way you can assess the cost of constructing houses four years ago.
It is not easy but you can do it.
There were no valuation procedures in the Department and the information was not kept there. What type of machinery is the Minister setting up to make the section operative?
The builder would have his accounts and if he wants to prove it, he would have to give evidence which would be acceptable to the arbitrator.
The Minister knows builders——
I do not.
They are the very people who do not keep accounts in this highly organised fashion. Many of the smaller builders produce the bulk of the houses built and they do not work on a very highly documented system. They get the house up and to ask such a man to produce documents relating to timber, nails and cement from four years ago, what he paid the men and how many men were there and how many hours they worked, is just not on.
We are talking about housing estates and to suggest that any builder does not know what it cost to build a house is not correct. It is amazing how they can produce them straight out of the hat without referring to books and refer back and say what it cost them to build a single house or a scheme of houses a good many years back. There is a standard number of men and it is easy enough to assess that, and in relation to the nails, they will have a schedule of the materials used and that is not a problem. As far as I can see, this is a section which can be operated and a section which it is essential to have in the Bill if it is to do the job for which it is intended.
Would the Minister not consider it much simpler to insist that local authorities should operate the system of bond deposits with the local authority as a condition of planning permission, where the money is accessible to the local authority if the conditions of the permission are not complied with? That facility is there under the existing Act, and that area should be strengthened rather than involving the local authority in having to acquire the land which was originally proposed as an open space in a development and subsequently was not developed—the local authority then having to buy that land from the developer.
Only if the developer lost money on the scheme.
But you have no procedure by which you are able to tell us that an accurate assessment can be made as to whether he did or did not make a profit.
It is a question of whether Deputy Molloy is right or I am right. If he is right, it is not possible to assess the cost of the scheme and if I am right, it is. In so far as the question of the council having to acquire is concerned, the situation at the moment is that even though the 1963 Act allows them to do this, they have not done it and we have this unholy mess all over the city and areas around the city and in other cities and towns.
If we had strengthened that part of the 1963 Act relating to a bond——
We do not need to strengthen it, if the local authorities would have the good sense to see that this is necessary. What Deputy Molloy is overlooking is that the open space as such is of no value to the builder. If he gets planning permission, that open space is of no value to him.
Certain builders have found that lands which at the time could be deemed not to have any value, when a change in the Ministry and its personnel came about, permissions were granted subsequently where originally it was known that permission would not be allowed and land acquired value over-night with the change of Minister. That has happened and land has been zoned as open space for the development of which you have granted permission.
The only thing I found was that land zoned for an open space in Galway was being switched, or an attempt was being made to switch it, to a school and this was not allowed. I have not granted and will not grant permission for land which has been zoned for open space, but I will tell you what I did find happening, and Deputies sitting across from me may have found it also—builders claiming as an open space land which they did not own and having accepted as open space. This is one thing which I have stopped, but it did happen. In this case the open space is of no value to the builder and therefore what has been happening up to now is that where local authorities do not take the necessary steps to ensure that the 1963 Act provision is complied with, builders have left the areas in a shambles. It did not matter a whole lot whether they had the provision made or not because many of them did not have the wherewithal to complete the job and many of them were just chasing from one place to another. I know that a number of builders throughout the country took on jobs and guaranteed to do certain jobs but did not complete them, leaving everything in a mess.
What I am trying to do here, and I cannot swear any more than anybody else can that it will work out exactly as I want it to work out, is to put into this Bill safeguards which will allow the local authority to be able to develop an open space and have it properly looked after rather than have the heaps of rubble about which Deputy O'Brien talked earlier.
I cannot allow the Minister's statement to pass without comment. He has said he would never grant permission for development on land that was zoned to be kept as open space. I would refer him to land zoned to be kept as open space in the Circular Road area in Galway. Permission had been refused on a number of occasions until he came into office. Permission was granted by him for development in this area although the Galway city development plan stated quite specifically that no development was to take place. The value of that land increased enormously because of the Minister's decision. I cannot let pass the Minister's statement that he would not allow any development on open space when there has been such a case. I could quote many others in the past two years.
However, we have made our point about bonds. We have accepted the section as it stands. We agree with the intention of the section but I am querying its workability. There may be problems later.
I am not aware of the area in Galway to which the Deputy has referred. I cannot recollect the incident but the Deputy, perhaps unintentionally, is confusing the House with regard to open space. We are talking about open space attached to a housing development. There is open space which does not come into housing but which may be regarded as zoned for open space. If the authority to change the zoning is wrong that should have been put into the Bill but it did not happen. The Bill that Deputy Molloy, myself and others have operated gave authority to the Minister to change zoning. I should hate anyone to get the impression that I gave permission to someone to build on an open space attached to a housing estate.
It is a well-known scandal in Galway.
I could list well-known scandals in Galway until the cows come home. I have many files of well-known scandals in Galway and perhaps the Deputy would like me to discuss them at some other time. I do not remember the incident he has described. I do not know of it and I do not believe it is as the Deputy described. I think the Deputy is talking about a change of zoning which may have happened. However, that is an entirely different matter.
The Minister has very conveniently forgotten.
The Minister stated the open space was of no value to the builder and, generally speaking, we accept that. I should like to know why there is permission to appeal against the acquisition notice in subsection (4). I am wondering why a developer should appeal against a decision to carry out the work he contracted to do.
In the event of a builder purchasing land and getting planning permission to develop it in such a way that because of the specification for open space he could not recover the money he paid, he would have the right of appeal. That is the only case in which I could see an appeal occurring. If the amount of open space stipulated meant a net loss to the builder, that would be a reason for an appeal.
With reference to the Minister's statement about granting planning permission on appeal for an open space, there is the famous case that was published in all the newspapers a few months ago. Despite a previous refusal by a Minister on appeal for housing development in a housing estate where there was an open space, the present Minister gave planning permission on appeal.
Will the Deputy state where this happened?
In Waterford. It was published in all the newspapers.
The Deputy is miles out.
Everyone is miles out so far as the Minister is concerned.
The Deputy has the nasty habit of coming into this House with half-truths which he tries to put across as facts.
The Minister has a hard neck.
On two occasions in the last few days the Deputy spoke about certain matters, about which he knew a little, and he gave the impression they were different to the reality. In the Waterford case it was a supermarket appeal, which the Sinn Féin member of Waterford Corporation proposed would be rejected, with the support of Fianna Fáil——
And of the local residents.
The local residents did not enter into it. It was not an open space. It was zoned by Waterford Corporation at that time for industry or for shopping purposes. It was subsequent to the decision given by me that the Waterford Corporation decided to rezone it. Deputy Cunningham is aware of this; if he does not know the facts he should not talk about the case. The facts are that it was not zoned for open space but was zoned for industry or for commercial purposes. After the decision was given an application was made to have it rezoned and it was carried by a majority of the corporation. I have no complaint about the matter. The decision I gave was quite in order. There was no open space attached to the housing estate involved in this matter. It is unfair that Deputies should tell half-truths in this House, although this is much nearer to a complete untruth.
The Minister knows that case stinks. It was exposed on a TV programme.
I do not believe many of the things seen on television or anywhere else.
The Minister has a bloody hard neck.
The bloody hard neck applies much more to Members such as Deputy Cunningham. He has been caught out for the third or the fourth time this week in telling lies.
When the Minister is caught out he says he forgets.
That is not so. I have a fairly good memory but I cannot recollect the case to which Deputy Molloy referred. I will look it up and perhaps Deputy Molloy and I can discuss it later.
Is there any way we can ensure that open-space areas will be in one piece rather than in a number of small, unusable pieces throughout an estate?
This is a matter for the planning authorities. However, I have sent them a circular suggesting that using little bits of land in corners for open-space purposes is not the proper way to establish open spaces. I hope they will ensure that open spaces will be in one piece where this is possible.
I move amendment No. 50:
In subsection (1), page 13, line 1, to delete "may" and substitute "shall".
As the Minister is aware, the purpose of the section is to discourage unauthorised development at an early stage. It enables warning notices to be served to stop such unauthorised development, to protect trees and other features. This is praiseworthy and there is no reason why any risk should be taken in relation to it. If the word "may" is used in the section it is possible that in some instances the planning authority will not issue a warning notice and quite possibly damage may result from the fact that they have not issued the notice. It would be better to ensure by legislation that the notice is issued. The extra work involved would not be great. When the conditions are laid down relative to the section, and when the information is being sent to the person concerned, there would not be any great difficulty in sending a warning notice. Therefore, I recommend that the Minister should favourably consider the change suggested in Deputy Haughey's amendment.
I am sorry, but the amendment is not acceptable. It would make it mandatory on the planning authority to serve a warning notice in every case where it appears to them that the land is being or is about to be developed without permission. Is seems to be based on a misconception of the purpose of the section. If Deputy Faulkner or Deputy Haughey wanted to increase the penalties for all unauthorised development, whether the development itself is objectionable or not, the more appropriate way to do this would be to amend section 24 of the 1963 Act.
Section 22 of the Bill has been provided in response to requests from planning authorities for power to serve a notice to stop a developer from commencing or continuing development. Section 24 of the 1963 Act can continue to serve its original purpose, that is, to ensure compliance with the requirement that no development be commenced without permission. Where unauthorised development takes place and there is no serious objection to it, the position can usually be regularised by an application for permission. To ensure that is done, it is necessary that some penalty should be provided. Planning authorities have hesitated to use the enforcement power under section 31 of the Act to deal with unauthorised development which is seriously objectionable and would prefer in such cases to be able to discourage the person responsible from proceeding by serving a notice which would impose a liability for increased penalties.
I think the amendment should be withdrawn. It is well intentioned but it does not serve the purpose for which it was put down. Its effect would be to impose the same liability for penalties in respect of all unauthorised development. This, if desirable, could be better done by an amendment of section 24 of the Act.
I move amendment No. 51:
In subsection (4), page 13, line 34, to delete "knowingly".
I should like the Minister to define what exactly he means by "knowingly", or alternatively will he state how a person could unknowingly fail to comply with the requirements of the warning notice if he had already got it?
That is a very good question. I would imagine that anyone who was doing a job would know what he was doing. I am assured by my advisers that it is necessary to put in "knowingly". Subsection (4) provides that any person who knowingly fails to comply with the requirements of the warning notice shall be guilty of an offence and liable to a fine of £100. I assume that the person would have received the warning notice. That is where "knowingly" would come in. If he did not know about it I assume the liability would not arise. This is the advice I have got and there must be good reason for it. The notice would be served on the owner of the land.
Is it a legal matter?
The legal advisers have told me that this legal phraseology is necessary. Notice may be served on the owner of the land and the planning authority may give copies to any other person they think may be concerned. It is always possible that some further person may be unaware of the notice and contravene it in some way. That is why the word "knowingly" is a pre-condition to an offence. That is the legal advice.
You could have some job proving it was knowingly.
If it was served on the owner of the land, the owner of the land would be the person who had get permission. I am quite sure the lawyers will have fun with this one. This is the advice I have got and I feel the amendment should not be made. The purpose of the amendment is probably to remove the difficulty in proving that there was a contravention knowingly. It is not likely to arise in regard to construction works or continuous or unauthorised use. The owner of the land will have been served with a notice. Possibly it could arise where the preservation of a tree or other feature or thing is required.
What would be the position where an agent acting on behalf of a developer was served with a notice and it has not been brought to the attention of the developer?
It is assumed that the agent would inform the owner. Subsection (7) puts the onus of proof on the owner.
The owner of the land would have the permission in the first place.
The owner of the land might not have the planning permission.
Who would have it?
The land may be leased. The lessor of the land is not the owner. A person could have the use of land by letting for a period of 99 years.
That would be tantamount to being the owner. You would refer to him as the owner.
He is not the owner.
The permission applies to land.
I know that. It applies to the site being developed.
It applies to the land for which the application has been made for permission to do certain things. If somebody has leased it for 99 years. I do not think he could be referred to as anything other than the owner of the land. Nobody would accept the argument that he only had it leased for 99 years. Anybody involved in development would be served with notice and in particular the person responsible would be the person who was operating it as the owner. In relation to land the owner means a person, other than a mortgagee not in possession, who, whether in his own right or as trustee or agent for any other person, is entitled to receive the rack rent of the land or, where the land is not let at rack rent, would be so entitled if it were so let. That is provided in section 2 of the Local Government (Planning and Development) Act, 1963.
Would not subsection 7 (b) cover what Deputy Cunningham is saying?
Subsection (7) shifts the onus of proof. Subsection (7) (b) deals with a tree or other feature.
Subsection (7) (a) refers to trees as well.
Where action is taken against the owner of the land it is sufficient for the prosecution to prove that the removal or damage took place. However, the owner will have a good defence if he can prove that he took or caused to be taken reasonable steps to secure compliance with the warning notice and that he at all times acted in good faith. This is legal phraseology which I am assured is necessary in order to make the Bill operable.
I move amendment No. 52:
In page 13, subsection (4), lines 37 to 39, to substitute the following subparagraphs for subparagraph (i):
"(i) the carrying out by another of any development required by a warning notice not to be commenced or to be discontinued, or
(ii) the continuance by another of a use required by a warning notice to be discontinued, or".
This is a drafting amendment. The text as it stands is inaccurate in referring to the carrying out of a use instead of the continuance of a use.
Amendment No. 54 is an alternative to amendment No. 53. Amendment No. 55 is cognate. Amendment No. 56 is an alternative to amendment No. 55. Perhaps we could discuss amendments Nos. 53, 54, 55 and 56 together.
I move amendment No. 53:
In subsection (4), page 13, line 45, to delete "one hundred" and substitute "five hundred".
Judging by today's standards a fine of £100 is ludicrous. It might pay people to violate planning laws. They might well make money on that basis, particularly if it is the demolition of a building that he would not have a right to demolish. What would he be fined? There is something further on than that. Somebody moves in and demolishes a building which he has no permission to demolish. Do you fine him £100? It is an offence. Particularly now in city areas where housing is involved, developers can move in to develop offices; they can well afford to pay at the rate of £100 a day on a continuing offence because at the end of the time in view of the cost of office accommodation they are still well within their profit margin. It pays them to break the law. Whether it is £500 or £1,000 the penalty must be seen to be a deterrent. If people do not feel it, it is no longer a deterrent and this encourages people to break the law.
My reason for putting down the amendment is something similar. Where there are penalties in sections of the Bill they should be realistic. These figures were put in in 1962 and 1963 when this Bill was being debated which finally became the 1963 Act and the figures then were somewhat similar to those the Minister proposes now in this new section bringing in a conviction under section 22 about warning notices. We should try to ensure that the sums included in the Bill are not restricted to small amounts. These matters have to be decided subsequently in the courts and I think the person making the judicial decision should have the option of imposing a severe fine in some cases or a mild fine in others. If he is confined to a maximum of £100, I do not see how, in many cases, the judge can impose a severe fine. I should like to see the limits raised.
In effect, section 22 enables higher penalties to be imposed for offences coming within section 24 of the 1963 Act, i.e., unauthorised development. The increases are from £20 to £100 for the basic offence and from £10 per day to £100 per day and/or six months' imprisonment for a continuing offence. Amendments 53-56 seek to increase the penalties still further—£500 or £1,000 initially and £500 or £1,000 per day for a continuing offence.
Article 38 of the Constitution authorises the trying of minor offences in a summary manner while all other criminal offences are required to be tried before a jury.
Since 1960, there have been a number of court decisions on the meaning of the words "minor offence". In effect, the courts have held that in distinguishing "minor" and "non-minor" offences, the primary consideration is the punishment which the offence may attract. In 1965, a penalty of up to £100 or up to six months' imprisonment, or both, was held not to take the offence out of the "minor" category. Since that decision, the general practice has been to provide for maximum penalties of £100 where new summary offences are being created. This practice was followed in drafting the present Bill. I have, however, consulted the Attorney General's Office in the matter and I understand that a higher penalty would now be acceptable having regard to the fall in the value of money over the last ten years. A figure of the order of £250 could be considered.
Accordingly, I will be prepared, on Report Stage, to put down amendments providing for appropriate increases in the penalties for the more serious offences under the Bill and under the 1963 Act. I presume that the proposers of amendments 53-56 will be prepared to withdraw their amendments in view of this undertaking.
If very high penalties are fixed, offences will have to be tried on indictment and before a jury. This could give rise to delays, extra costs and, perhaps, fewer convictions. I do not consider, therefore, that we should specify penalties which would have the effect of taking the offences in question out of the "minor" category. If it is acceptable we can have it still treated as a "minor offence" with a penalty of up to £250. I would suggest that we make the figure £250. I am prepared to put that in on Report Stage.
What is meant by a continuing fine?
After conviction, if a person continues to ignore or defy an order, the court can deal with it.
The trouble I see is that one individual might do more damage in one day than another person might do by continuing to defy the order.
The Deputy may be thinking of tree-felling. It would mean having to provide for a fine for tree-felling apart from anything else, and with a fine of £250 a person would be very careful about the number of trees he would cut.
I had in mind a case where a notice was sent to a developer not to fell a certain number of trees but he might find that by felling the trees he would save himself considerable expense in developing the area. In those circumstances he might feel that it was worth his while to do it and pay the penalty.
I can see the point. This is not likely, but it could happen.
We did have a case not too far from here where developers moved in over the weekend and felled trees because the trees were obstructing a proposed development. They had not got permission for the development but to make it easier for them to get permission they moved in. It is the people who move in over the weekend that I am scared of in regard to a tree that would obstruct planning permission. The Minister should consider this. As regards demolishing a house or building when permission has not been granted, is that subject to a single fine? Suppose it is a case where a developer wants to demolish it so that he can develop a greater area—is there only a single fine for that or is there a continuing fine?
There could only be a single fine if a number of trees were knocked at one fell swoop. You could not have a continuing fine; you could not ask him to make the trees grow again and he would not be knocking any more trees. I can see the point made by Deputy Faulkner and Deputy O'Brien. If the trees were very important, a tree preservation order could be made. That would bring them into a different category. It does not seem that it will be possible to make this legislation perfect as we would wish. Perfectly valid arguments have been made to show that there is a loophole where somebody comes in suddenly, provided he is prepared to pay £250 fine and/or six months' imprisonment. If somebody can suggest another way I would consider it.
In a case where a fine is imposed and subsequently on appeal to the Minister retention permission is granted, is the fine refunded?
If fines are imposed they must be paid.
Would imprisonment for the maximum term of six months purge the person's guilt?
The £250 per day would continue.
Not necessarily: it is a fine or a prison sentence.
Supposing there was not a fine and that the person was simply put in prison, when he comes out that person has an illegal building.
If the local authority went so far as to have a prison sentence imposed, the other provisions of the Act would be operated. I do not think Deputy Faulkner's point is valid. The local authority can still take enforcement proceedings.
I am concerned about when a person might come in over the weekend and level a building. How can there be a continuing fine when there is no building? Without that fine would such a person not be encouraged to go in overnight and knock a building down?
If a person is imprisoned for a breach of the Act he is not in a position to demolish the structure.
The 1969 Housing Act would deal with the question of demolishing buildings.
Only dwelling houses.
We will withdraw our set of amendments.
I move amendment No. 57:
In subsection (5), page 13, line 51, after "imprisonment" to add:
"and the irreversible destruction or removal or irreparable damage to any tree, other feature or thing shall be deemed to be equivalent to a continuing offence of not more than 12 months, and planning permission in respect of that site shall be refused to the offender or persons associated with him."
I am gravely concerned about people who come in and knock down buildings, whether they are habitable houses or not. They do it without permission and they are getting away with murder. Their system is to let a habitable building run down or to have it vandalised and then the local authority will give permission to have it demolished. The purpose of my amendment is to ensure that planning permission will be delayed in respect of the redevelopment of such a site. We must take every means possible by legislation to prevent these cowboys coming in doing this. In urban areas like Dublin there is a lot of money to be made by acting in this fashion by speculators who ignore the law. We should ensure that they obey the law and that they will disregard it at their peril.
There is a snag in the amendment. Such an offence would have to be tried on indictment before a jury. I am sure when Deputy O'Brien refers to a year he is talking about 365 days and if you multiply that by £250 you will get an enormous figure in respect of felling a tree, for instance. If all of this amendment were accepted the last situation would be worse than the first. I am all in favour of Deputy O'Brien's point that every effort should be made to prevent people getting away with this, but I do not understand the second part of his amendment.
It would not be possible to prevent planning permission in a case such as that. Even if they had broken the law and were sent to prison, if they were entitled to planning permission it could not be refused. It would be the legal right even of a criminal to get planning permission. I was hoping Deputy O'Brien would say he intended to withdraw the amendment because the first part of it would be inoperable.
As I have said, I am greatly concerned about people who come in in the night and demolish houses which they have either allowed to run down or which they have vandalised. I am talking about cases where permission to demolish has not been granted. I am not so concerned about the felling of trees.
I had thought Deputy O'Brien was concerned about buildings other than houses. If a house were in reasonably good repair the local authority could serve notice on the person and action could be taken under the 1969 Act. It does not constitute an offence under our planning legislation, which is something entirely different. If we are talking about a house it is one that is habitable or not habitable; it could be a house which was listed or which was not listed or habitable, and in that case there is no question of the Planning Act coming into force.
I am reluctant to withdraw the amendment and I would ask the Minister to have a look at the whole area of buildings being demolished. I know it is covered by the 1969 Act, but it is still happening. The important thing is, whichever Act is responsible for it, it should be made very stringent and the people who do it should be made pay for the offence they have committed.
I am all with Deputy O'Brien on this point. We will all have to be more careful with regard to buildings being allowed to go derelict. I appeal to local authority members to be a lot more vigilant than they are in regard to houses, not alone in the city but throughout the country, which are allowed to become run down. This is a matter which could be dealt with by them. It is not one for the Planning Bill. I will be glad to do anything I can to have it straightened out but we cannot deal with it in this Bill.
Is there any form of penalty where this sort of activity which Deputy O'Brien refers to is carried out?
Under the 1969 Act if a house which is habitable is allowed go derelict the owner can be prosecuted for allowing that.
By the local authorities.
Have we had any cases of it?
Yes, but not nearly enough. Section 5 of the Housing Act, 1969, states:
(1) Where a housing authority are of opinion that a person has, for the purpose of avoiding the provisions of this Act, caused or permitted a house to deteriorate to the extent that it ceases to be a habitable house, the authority if they think fit may, notwithstanding the condition of the house or the cost of repairs, serve on the owner of the house and, in so far as it is reasonably practicable to ascertain such person, on any other person having an interest in the house whether as mortgagee, tenant or otherwise, a notice in writing (in this Act referred to as a reinstatement notice) requiring the owner to execute, within a period specified in the notice being not less than 28 days beginning on the date of service of the notice, such works as may be necessary to make the house fit for human habitation and in particular, a reinstatement notice shall specify the period within which an appeal may be made under section 72 of the Act of 1966 against the notice and may, if the authority think fit, specify the works which are, in the opinion of the authority, necessary to make the house fit for human habitation, and such owner, his servants or agents shall carry out the works necessary to comply with the requirements of the notice and may, for that purpose, enter on any land.
(2) A reinstatement notice shall become operative:
(a) in case an appeal is made by virtue of section 8 against the notice and the court, on such appeal, confirms the notice with or without modifications, alterations or additions—on the determination of the appeal by the court or on such other date as the court may decide;
(b) in any other case—on the expiration of the period ending 21 days after the date of the service of the notice.
Section 5 of the 1969 Housing Act solves the problem if it is properly attended to.
I move amendment No. 58:
In page 14, subsection (8), line 29, to delete "after the appointed day" and to substitute "before the appointed day".
This is simply a drafting amendment to correct an error.
I move amendment No. 59:
To add to the section a new subsection as follows:
"(10) Any use of land in breach of the conditions attached to the planning permission shall be deemed to be unauthorised use of the land."
People get permission to make use of land for a certain purpose but then they use it for a different type of structure. Sometimes they put a structure on the land in a way contrary to the conditions under which they were given planning permission. This is to deal with unauthorised use of the land.
It is so simple it fools me. I am not clear what is the purpose of the amendment. Section 2 (1) of the 1963 Act provides that:
"Unauthorised use" means, in relation to land, use commenced on or after the appointment day (1/10/64), the change in use being a material change and being development other than development the subject of a permission granted under section 26 of this Act or exempted development.
Whether any use of land is an "unauthorised use" is, therefore, a question of fact and dependent on whether there has been a material change and whether permission was obtained for it. The position is complicated further by the fact that certain uses of land, such as for agricultural purposes, are exempted.
Perhaps the Deputy might give me some examples of what he has in mind so that I could consider the matter. If he is thinking, say, of the use of open space as a builder's yard while a housing scheme was being built, the amendment would hardly be acceptable. On the other hand, if he is thinking of the use for further building of land required by a condition to be preserved as open space, the amendment would be inappropriate. For technical reasons "use" in relation to land, does not include the use of the land by the carrying out of any works thereon. The future building, in question, would itself be unauthorised development or else the subject of a separate permission. Maybe I am missing a point and perhaps Deputy O'Brien might be able to give me some further information.
It is purely on the basis of where land is designated and, like the open space situation, where there is development for something other than an open space. We have seen this happen to quite an extent around Dublin. It is the question of the unauthorised use of the land which causes concern. People apparently get away with this quite a lot without any action being taken. I believe there is always a temptation to encroach on an open space. People who have got permission for development could very well decide, now that they have got permission to develop, that they could take some extra space nearby for further development. We should do what we can to eliminate that type of encroachment.
That is automatically unauthorised and is covered under the section we have just discussed. Any person who does other than what he gets permission to do is carrying out an unauthorised development and is liable to the fine of £250 and the six months.
This amendment is superfluous.
It is not necessary.
When the Minister spoke about the £250 he said the Attorney General mentioned to him that he would be raising the limit to £250 for minor offences.
It is deemed by his office to be acceptable that £250 should cover minor offences.
What is the procedure for deciding on this limit?
It could be questioned in the Supreme Court?
It is the statutory limit at the moment for minor offences.
No. It was a decision of the High Court in 1965. It was decided that the limit must not be any more than a fixed sum.
Who fixes the sum?
It was £100 and in 1965 they said: "We will allow up to £100 to be treated in this way". My advice from the Attorney General's office is that a fine of £250 would be treated as being a fine for a minor offence.
Who is the deciding authority?
Is it dependent on a judgment, which will create a precedent, which will be followed afterwards by other judgments so that the figure could be £1,000 tomorrow depending on the humour of the judge?
It could be £1,000 or £100.
It seems to be a very loose arrangement.
That is the way it has operated up to now.
There is a final matter which I would like to clarify. We have already been discussing who the person might be to whom the warrant notice is sent and was generally accepted to be the owner. The owner then is bound to inform others about this notice. It is possible that the owner would live a considerable distance from the property to be developed and if he informed the developer and the developer ignored the warning who would be responsible?
The owner, no matter how far he lived from the land in question, or the person who was to do the work. That is to ensure that the person who is to do the work is notified.
In a case where a developer left a site shortly after starting the work and in his absence somebody else, for example, removed trees, has he to prove that he did not remove them?
The owner is the person who is responsible at all times because planning permission rests with the owner at all times.
What happens if somebody who is not involved in any way comes in, neither the owner nor the developer?
How would he, because he would not have been given permission by the owner? The owner would have to give him permission to go on the lands to do certain things. I quoted the section of the Act which described owner.