We had almost teased out the problem before the sos and for that reason I do not think there is much point in labouring it any more unless the Opposition Members have something to offer which they consider will make me change my mind.
Local Government (Planning and Development) Bill, 1973: Report Stage (Resumed).
Is that the transitional section?
It is. The extraordinary thing is, if I might remind the Deputies opposite, that this was an amendment which Deputy Haughey intended to oppose on Committee Stage but then having heard the argument he agreed not to do so. I was surprised to find it back again on Report Stage.
The Minister did not answer us about the measures he will take in the interim period regarding the staff in his Department and the staff on the board. Would he make a further statement with regard to what his intention will be? I presume there will be a quick change over.
The quicker the change over the better I will like it. It must be understood that there will have to be some slight delay in the transfer. I assume that the officers of my Department will be assisting in the change over and that possibly it might be a good idea if some of them, in order to give continuity to the whole thing, would become members of the new board. I do not know what will be involved but if something were to start entirely new it might make the matter complicated. I imagine something like what I have stated will have to happen.
The Minister mentioned that if a case were at the half-way stage, when he was dealing with it, it would be handed over to the board. Would the practicalities of it be that the same people would be dealing with it at official level?
Naturally, if there was an oral hearing, or indeed if there was an ordinary inspection and an inspector was making a report to me but before that report from either the oral hearing or normal inspection reached me the new board was constituted it would then report to the board in the normal way and not to me. The decision would be made by the board not by me.
I move amendment No. 34:
In page 10 to insert "subsection" before "(5)" in line 51.
This is a drafting amendment. Its purpose is to correct the wording in the existing section 22 (2) (b).
I move amendment No. 35:
In page 10, to delete "to" from line 56 where it secondly occurs.
This is also a drafting amendment. Its purpose is to correct the wording in the existing subsection 22 (2) (c).
I move amendment No. 36:
In page 11, between lines 22 and 23, to insert the following:
"( ) 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."
This is a matter which was discussed at quite considerable length during the Committee Stage. We believe it is of considerable importance. It relates to the problems which could possibly arise through the disruption of the postal services. There may be reasons why a person is unable to send an appeal until the final date permitted for such purposes. Even one day's disruption of the postal services could mean that the appeal would not even be considered. If the post disruption continued over a period this could have serious repercussions on those who desired to appeal. It is reasonable that we should request the Minister in these circumstances to ensure that a person who is entitled to appeal should have the opportunity of doing so and should not be prevented from doing so if something over which he had no control intervened.
It should be obvious that where a matter of great importance is involved, something which can have an effect on the future of an individual, we should ensure that wherever we have the power to control the situation we should do so. I feel that in those circumstances the appeal we are making again to the Minister in relating to this matter is reasonable. Nobody can be certain when a disruption in the postal service will take place. When it does it can seriously interfere with the individual's rights in the sense that if he does not send his appeal until the last day—many circumstances may enter into the situation which will prevent him doing so —then because this disruption took place it can mean that his case will not be considered at all by the board. We, therefore, appeal to the Minister to reconsider his position on this matter.
This is a repeat of a Committee Stage amendment put down by Deputy Haughey and withdrawn after considerable discussion. The Official Report of 7th May, 1975, Volume 280, No. 8, columns 1396-1408, carries the debate. The amendment proposes to add to section 23 a provision under which the period for receipt of an appeal would be extended for any period during which "normal postal deliveries have been disrupted for any reason". The amendment does not specify who is to determine when "normal deliveries" are disrupted, or how this is to be done, and it does not say whether the disruption must apply in the whole country or only in a part of it before the proposed provision would apply.
The amendment would frustrate the whole purpose of section 23 which aims at providing some certainty as to the latest date for acceptance of an appeal sent by post. This is necessary to protect the board against litigation and to prevent situations arising where expenditure or commitments entered into—on foot of what is believed to be a valid permission—are rendered abortive. We are all anxious not to hold up development but we must accept that a period of two months for a decision on a planning application and a further month before the issue of a permission is a considerable delay, however unavoidable.
If the period for acceptance of an appeal is extended, we must also extend the period before a permission issues.
Unless that is done, a permission which has been issuedbona fide and which appears to be valid, may be invalidated by an appeal received later. The purpose of the section is to remove such doubts and not to have a position of uncertainty which must add to the delays.
The effect of the amendment, which attempts to provide for exceptional circumstances, would be to cause even greater delay. There are ways of making an appeal other than transmission by post—telegram, personal delivery —and the considerations underlying the amendment do not outweigh the more general implications. Besides, the real test is whether our 11 years' experience of the operation of planning control has demonstrated a need for a provision to cover abnormal circumstances. I think the answer to this is very definitely "No"—even though we have had strikes of one kind or another at national or local level, floods, storms, blizzards, mail robberies, and so on during that 11 year period. In all the circumstances, I must ask that the amendment be withdrawn.
I can understand that no matter what period we give there are bound to be people who will be late. There will be people who will say, even after 30 days, or 60 days, they intended lodging the appeal the next day if they had had the time. The period allowed is reasonable. On Committee Stage I was asked to consider what would happen in the case of the islands off our coast but I believe the people on those islands will find the period laid down as reasonable. I understood the amendment was withdrawn on the last occasion.
On Committee Stage we were arguing for an extension in the number of days as well as this amendment. We decided to repeat this amendment because we felt it was reasonable. Since we put down the amendment we have experienced serious disruption in postal deliveries. We have since had practical experience of the disruptive effect of any industrial action within the postal delivery services. It is reasonable that we should ensure in legislation that innocent parties are not detrimentally affected by the industrial action of others who have no intention of interfering with the ordinary day-to-day business of the person we are making a case for.
Any type of example would illustrate this clearly. If some industrial action is taken within the postal services or there is some mechanical breakdown within that service resulting in the non delivery of an appeal letter within three days of the specified period, it is a severe penalty on the person making that appeal to deny him the right to have his appeal heard. The legislation is weakened that much in not making provision whereby the Minister or the board could determine such matters so that justice would be done and be seen to be done.
Our amendment reads:
In page 11, between lines 22 and 23, to insert the following:
"( ) 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."
I believe the Minister's argument is a civil service answer, that it is right to try to tie everything down exactly. We are dealing with persons and we should make the legislation as humane as possible. I do not think anybody would deny that a person who was inconvenienced by way of a disruption in the postal service and lost his right to appeal was suffering a serious hardship and, possibly, great additional expense. The Minister had indicated that up to now he was not prepared to accept such an amendment and if there is no possibility of his changing that attitude we can only express our disappointment. Our amendment is reasonable and if the Minister believes that our wording is not suitable from the point of view of the parliamentary draftsman or any other sections, we are open to any suggested changes in the wording provided provision is made to meet our situation. The Minister must bring this Bill to the Seanad and he may have second thoughts in the meantime on this matter.
It would not be fair to give any hope that I would change this. If everything else fails, a person has the right to apply again and while it would mean a slight delay it would be better than leaving it wide open as it would be if I accepted the amendment. I will have to stand firm on this issue.
I move amendment No. 37:
In page 11, in line 30, to insert "written" before "report".
During the Committee Stage debate on section 24 Deputy Haughey argued that the section should specify that the inspector's report should be in writing. I indicated that this was what was intended. While there is no necessity to include the provision, there is no great objection to meeting the Deputy's point.
Amendments Nos. 38 and 39 are cognate and, by agreement, may be taken together.
I move amendment No. 38:
In page 11, line 46, to delete "may, if they think fit" and substitute "shall, where they consider it appropriate".
Section 25 was inserted by an official amendment on Committee Stage to enable the planning authority to look outside their boundary and, where they thought fit, to have regard to the effects of their decisions on places outside their area. It also extended the provisions of the board in relation to any relevant appeals. Deputy Molloy proposed a Committee Stage amendment which would, in effect, have made this a mandatory provision rather than a flexible power. This I felt bound to oppose for the reason that it would have imposed an obligation in relation to many cases where it would be quite inappropriate. The Deputy's amendment was withdrawn without my undertaking to look at it again but I have since done so. In my view amendments Nos. 38 and 39 now proposed may help to make the position clearer.
I move amendment No. 39:
In page 12, line 1, to delete "may, if it thinks fit" and substitute "shall, where it considers it appropriate".
I move amendment No. 40:
In page 13, line 8, after "notice" to insert ", or, where appropriate, the acquisition notice as confirmed,".
This is a drafting amendment. The purpose is to correct an omission in the original section 26 (5).
I move amendment No. 41:
In page 13, line 31, after "authority" where it first occurs to insert "under the Registration of Title Act, 1964,".
This is also a drafting amendment to clarify the reference in the subsection to "registering authority". When the Bill is being reprinted the year and number of the 1964 Act—1964, No. 16—will be inserted in the margin.
I move amendment No. 42:
In page 14, lines 17 and 19, to delete "may" and substitute "shall".
This amendment relates to the serving of notice. I was wondering in what circumstances we could visualise a situation where all or any of the conditions were fulfilled and where the planning authority would decide not to serve the notice. In other words, in what circumstances would they decide to take a chance. I believe it is essential that notice should be served on the owner of the land. I do not think there is anything to be lost by it. In fact, quite the contrary. A great deal might be lost by not serving the notice. It is important that notice should be served on people who might be concerned with the matters to which the notice relates. Whereas the owner would know if he intended to try to circumvent the law, other people might find themselves in difficulties in relation to the same matter if they did not clearly understand their position. I can see nothing being lost by serving the notice. I do not think it would add much of a strain on the clerical situation of any planning authority or of the board. On that basis, I should like the Minister to consider the amendment favourably.
From time to time in this House we have all referred to unnecessary sections or words being put into Bills. They become Acts of Parliament and down through the years people wonder why they were put in. This is a case where we might do what Deputy Faulkner has suggested, but I do not think it is necessary. This amendment is a repeat of a Committee Stage amendment put down by Deputy Haughey and moved by Deputy Molloy, as reported at columns 1250 to 1252, Volume 282 of the Official Report of 19th June, 1975. I opposed that amendment and, when I had given my reasons for so doing, the amendment was withdrawn. I see no good reason for its reintroduction. This is one of the things which is holding up the Bill unnecessarily. We already debated it. The reason I gave was accepted and the amendment was withdrawn. Yet it appears here again.
As I already stated on Committee Stage, the amendment would make it mandatory on a planning authority to serve a warning notice in every case where it appears to them that land is being or is about to be developed without permission. If the intention of the Deputies is to increase the penalties for all unauthorised development, whether the development itself is seriously objectionable or not, the more appropriate way to do this would be to amend section 24 of the 1963 Act. Apart from this, it is obviously not desirable to introduce such an inflexible provision as is now proposed in the amendment.
Section 27 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 unauthorised development. 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 this is done, it is necessary that some penalty should be provided for and this is achieved by section 24 of the 1963 Act. However, planning authorities have hesitated to use the enforcement powers available under the 1963 Act to deal with unauthorised development which is seriously objectionable and would prefer in such cases to be able at an early stage to discourage the persons responsible from proceeding by serving a notice which would impose a liabilty for increased penalties.
The effect of this amendment would be to impose the same liability for penalties in respect of all unauthorised development and this is hardly desirable. Even if it were, it could be better done by amendment of section 24 of the 1963 Act. Accordingly, the amendment should be withdrawn. This amendment was debated at length before, and it was withdrawn. I feel we are, perhaps, wasting time in this case.
Deputy Haughey felt strongly about this point. He is not here at the moment. The amendment gave the Minister an opportunity to reconsider the matter. I know he gave his arguments on Committee Stage. I do not think we have been delaying the Bill unnecessarily on Report Stage. If the Minister has not found any reason to change his mind, the amendment can be withdrawn.
I move amendment No. 43:
In page 14, line 50, to delete "knowingly".
This is another amendment which was debated on Committee Stage. Where we reconsider the situation between Committee Stage and Report Stage, I am sure the Minister will agree we are entitled to raise the matter again if we so wish. In relation to an amendment to which he had apparently agreed, the Minister decided to change his mind which he was also entitled to do.
I said I would consider it. I was very careful to say I would consider it.
The only point I am making is that, if between Committee Stage and Report Stage we consider that it might be desirable to resubmit an amendment, I think the Minister would agree we are entitled to do that. I have already spoken on amendment No. 42 which the Minister decided not to accept, and we have withdrawn it. I would have felt that, in the circumstances, if he had accepted it, the word "knowingly" would not have been necessary. It would be obvious that anyone who was served with notice, if he contravened the law, would do so knowingly because he would have been informed through the serving of the notice.
One of the problems about this word is that I can foresee quite a considerable amount of legal wrangling over it to try to prove whether a person knowingly failed to comply with requirements. There could be instances where people did considerable damage by contravening the section and they would be able to avoid retribution by apparently proving they did not knowingly break the law. This would be a ridiculous situation. The inclusion of this word tends to weaken the Bill.
I am not objecting to the right of the Opposition to put down amendments. They are entitled to do that even though they were put down before on Committee Stage and withdrawn. Having discussed them at length, and having heard the case made for them, in any case where I thought they could be accepted I said so. In several cases here we have the same amendment put down again. Deputy Faulkner has made his case. The position is that the word "knowingly" would affect people who got the notice but there could be somebody who would not get the notice and would be affected. He would not knowingly commit an offence.
This is a repeat of a Committee Stage amendment put down by Deputy Haughey and moved by Deputy Faulkner. I opposed the amendment and indicated that the reason for including the word "knowingly" was that if the person being prosecuted was not aware of the existence of the warning notice, he should not be liable for non-compliance with it. The amendment was withdrawn. I see no good reason for its reintroduction, but the Opposition have the right to do it.
As I stated on Committee Stage, a warning notice will be served on the owner of the land and the planning authority may give copies of it to any other person they think may be concerned. It is always possible that some further person might be unaware of the notice and contravene it in some way. That is why the word "knowingly" is a precondition to an offence.
The purpose of the amendment may be to remove the difficulty in proving that a contravention was carried out "knowingly". This difficulty is not likely to arise in regard to construction works or continuance of unauthorised use since the owner of the land, and others concerned, will have been served with a notice. It could arise, however, where the preservation of a tree or other feature or thing is required. This problem is dealt with in subsection (7) by shifting the onus of proof to the defendent subject to the provisions of the subsection. That is as far as one can reasonably go. I think the amendment should be withdrawn. The provision is a protection for people who could, unknown to themselves, be involved in something which is fairly serious.
I can see it creating considerable trouble on the legal side. However, I withdraw it.
I move amendment No. 44:
In page 15, line 8, to delete "one hundred pounds" and substitute "two hundred and fifty pounds".
On Committee Stage, I undertook to introduce Report Stage amendments providing for increases in the penalties for the more serious offences under the Act and the Bill. Amendment No. 51 provides for a maximum penalty of £250 for the more serious offences under the 1963 Act while this amendment provides for a similar maximum penalty in relation to the offence under section 27 (4) of the Bill of non-compliance with a warning notice. The fines for offences under section 33 of failing to give a declaration of certain interests and the offence under section 34 of non-compliance with the requirements in relation to declarations of interests are being increased by amendment No. 49. The penalties for continuing offences under section 27 (5) of the Bill are not affected by the present amendment. They will remain £100 or six months' imprisonment or both the fine and the imprisonment.
Recommittal is necessary for amendment No. 45 as it involves new matter which does not arise out of the Committee proceedings.
I move amendment No. 45 :
In page 15, after line 52, to insert the following subsection:
"(10) Where a warning notice is served under this section by a planning authority, particulars of the notice shall be entered by the authority in the register.".
Enforcement notices under the 1963 Act are required to be entered in the register which, under section 8 of the 1963 Act, is kept at the offices of the planning authority and is open for inspection. It is desirable that a similar requirement should apply to a warning notice and this amendment provides accordingly.
I move amendment No. 46:
In page 16, line 7, after "other person" to insert "who can show reasonable cause".
Again this is a matter which was debated on Committee Stage and which we think should be given a further airing. We have already made provision for dealing with vexatious appeals. While we are anxious that the rights of citizens should be upheld, we are equally anxious to protect the citizen in the event of somebody else wishing to prevent his getting his rights, for example, through malice. I know the Minister can say to me that the citizen who is denied his rights in that way can go to the High Court, but a High Court case can be a costly affair. There are, however, two types who might possibly decide to go to the High Court, those who are wealthy enough to do so and those who would be unable to pay the costs in any case. Losing the case would not deter either of them from taking the case to court. Seeing that thebona fides of a person taking a case to the High Court so as to have certain development declared unauthorised or examined or investigated in no way inhibits the person who has a genuine case, I think it is reasonable to add the words we have asked to be added that is, to “show reasonable cause”.
I think there is a misunderstanding here somewhere. Deputy Faulkner talks about somebody having to go to the High Court. This, in effect, is dealing with a case which is in the High Court. It is a repeat of a Committee Stage amendment put down by Deputy Haughey and moved by Deputy Faulkner. I opposed the amendment; we discussed it, and it was withdrawn. My reasons for opposing the amendment still hold good. The amendment could be said to pre-empt the function of the court by confining "any other person" to one who can show reasonable cause. The court will surely not make an order unless the applicant can show reasonable cause. On the contrary, one would expect that, if reasonable cause is not shown, the application would be dismissed and costs awarded against the applicant. I thought the amendment was based on the idea that the High Court was likely to act in a frivolous or unreasonable manner, but apparently there is a misunderstanding that this was dealing with other than a High Court case.
The point I am concerned with is that a case could be taken to the High Court by a person who could not pay the costs or was wealthy enough to pay the costs, for example, to have certain developments declared unauthorised. I could not understand what harm would be done by having such a matter investigated and having the position considered in relation to whether the person involved could show reasonable cause as to why he did it.
While I can see Deputy Faulkner's point of view, how would it be decided whether reasonable cause could be shown or not? Would it mean there would have to be a court case taken to decide that? Would it not make the matter even more complicated? The people who want to do so have the right to go to the High Court, and the High Court, we assume, will deal with it appropriately. If the case is brought for a frivolous cause they will deal with it very quickly, and I do not see any reason——
We have decided the matter in which vexatious appeals can be dealt with and I think we could equally deal with this. However, I withdraw the amendment.
I move amendment No. 47:
In page 16, to delete lines 30 and 31 and substitute the following:
"(2) Where a notice is withdrawn pursuant to this section by a planning authority, the fact that the notice was withdrawn shall be recorded by the authority in the register.".
A Committee Stage amendment by Deputy O'Brien providing for the withdrawal of a notice being recorded in the register, rather than having the original entry cancelled, was not moved due to the Deputy's absence from the House at the time. This seems a more appropriate procedure and the Deputy's point is, therefore, being met by this amendment.
I move amendment No. 48:
To delete from line 48 in page 18 to line 9 in page 19 and substitute the following:
31.—(1) Subject to subsection (2) of this section, summary proceedings to which this section applies may be commenced—
(a) at any time within six months from the date on which the offence was committed, or
(b) at any time within three months from the date on which evidence sufficient, in the opinion of the person by whom the proceedings are instituted, to justify procedings comes to such person's knowledge,
whichever is the later.
(2) Summary proceedings mentioned in subsection (1) of this section shall not be instituted later than five years from the date on which the offence was committed.
(3) For the purposes of this section, a certificate signed by or on behalf of the person instituting the proceedings as to the date on which evidence described in subsection (1) of this section came to the knowledge of such person shall beprima facie evidence thereof and in any legal proceedings a document purporting to be a certificate issued for the purposes of this section and to be so signed shall be deemed to be so signed and shall be admitted as evidence without proof of the signature of the person purporting to sign the certificate, unless the contrary is shown.
(4) Subsection (1) of this section shall have effect notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851.
(5) This section applies to the following summary proceedings, namely:
(a) summary proceedings pursuant to section 27 of this Act or in respect of a contravention of section 24 (2) of the Principal Act and which are instituted by the planning authority in whose area the offence is alleged to have been committed,
(b) summary proceedings pursuant to section 33 or 34 of this Act."
This amendment arises from a point made by Deputy Haughey on Committee Stage. He argued that it was wrong that, under section 31 (1) (b), proceedings could be taken many years after the alleged offence was committed, and that any person, without qualification could avail of the certificate procedure in the existing subsection (2). I accepted that some limit on the period for initiating proceedings was desirable and indicated that I would put down a Report Stage amendment to provide for this. A five-year limit is now being provided for. In addition, the right to prosecute outside the normal six months' period and to avail of the certificate procedure is being severely restricted under the new subsection (5): it will apply only to planning authorities, the Director of Public Prosecutions, or a person prosecuting with the consent of the director.
This is what we were looking for.
I move amendment No. 49:
To delete from line 15 on page 19 to line 27 on page 22 and substitute the following:
"33.—(1) It shall be the duty of a person to whom this section applies to give to the relevant body a declaration in the prescribed form, signed by him and containing particulars of every interest of his which is an interest to which this section applies and for so long as he continues to be a person to whom this section applies it shall be his duty where there is a change regarding an interest particulars of which are contained in the declaration or where he acquires any other interest to which this section applies, to give to the relevant body a fresh such declaration.
(2) (a) This section applies to the following persons, namely:
(i) a member of the board,
(ii) a member of a planning authority,
(iii) an employee of the board or any other person,
(I) whose services are availed of by the board, and
(II) who is of a class, description or grade prescribed for the purposes of this section,
(iv) an officer of a planning authority who is the holder of an office which is of a class, description or grade so prescribed.
(b) This section applies to the following interests, namely:
(i) any estate or interest which a person to whom this section applies has, in case the person is a member or officer of a planning authority, in land situated in the area of the relevant authority, and in any other case, in any land,
(ii) any business of dealing in or developing land in which such a person is engaged or employed and any such business carried on by a company or other body of which he, or any nominee of his, is a member,
(iii) any profession, business or occupation in which such a person is engaged, whether on his own behalf or otherwise, and which relates to dealing in or developing land.
(3) A person to whom this section applies and who has an interest to which this section applies shall be regarded as complying with the requirements of subsection (1) of this section if, and only if, he gives to the relevant body a declaration mentioned in that subsection within the period of twenty-eight days beginning—
(a) in case the person is such a person on the commencement of this section, on such commencement,
(b) in case the person becomes such a person after the commencement of this section, on the day on which he becomes such a person,
(c) in case there is a change regarding an interest particulars of which are contained in a declaration already given by the person or where the person acquires any other interest to which this section applies, on the day on which the change occurs or the other such interest is acquired.
(4) For the purposes of this section, a person to whom this section applies shall be regarded as having an estate or interest in land if he, or any nominee of his, is a member of a company or other body which has an estate or interest in the land.
(5) For the purposes of this section, a person shall not be regarded as having an interest to which this section applies if the interest is so remote or insignificant that it cannot reasonably be regarded as likely to influence a person in considering or discussing, or in voting on, any question with respect to any matter arising or coming before the Board or authority, as may be appropriate, or in performing any function in relation to any such matter.
(6) Where a person to whom this section applies has an interest to which this section applies by reason only of the beneficial ownership of shares in a company or other body by him or by his nominee and the total nominal value of those shares does not exceed the lesser of—
(a) five hundred pounds, or
(b) one-hundredth part of the total nominal value of either the issued share capital of the company or body or, where that capital is issued in shares of more than one class, the issued share capital of the class or classes of shares in which he has an interest,
subsection (1) of this section shall not have effect in relation to that interest.
(7) The Board and each planning authority shall for the purposes of this section keep a register (which register is in this section referred to as the register of interests) and shall enter therein the particulars contained in declarations given to the Board or the authority, as the case may be, pursuant to this section. The register of interests shall be kept at the offices of the Board or the planning authority, as the case may be, and shall be available for public inspection during office hours.
(8) Where a person ceases to be a person to whom this section applies, any particulars entered in the register of interests as a result of a declaration being given by the person to the relevant body pursuant to this section shall be removed, as soon as may be after the expiration of the period of five years beginning on the day on which the person ceases to be such a person, from the said register by that body.
(9) Subject to subsection (10) of this section, a person who fails to comply with subsection (1) of this section or who, when purporting to comply with the requirements of the said subsection (1), gives particulars which are false or which to his knowledge are misleading in a material respect, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding two hundred and fifty pounds or at the discretion of the court, to imprisonment for a term not exceeding six months, or to both the fine and the imprisonment.
(10) In any proceedings for an offence under this section it shall be a defence for the defendant to prove that at the relevant time he believed, in good faith and upon reasonable grounds, that—
(a) the relevant particulars were true,
(b) there was no matter as regards which he was then required to make a declaration under subsection (1) of this section, or
(c) that the matter in relation to which the offence is alleged was not one as regards which he was so required to make such declaration.
(11) (a) For the purposes of this section and section 34 of this Act,
(i) a manager shall be deemed to be an officer of every planning authority for which he is manager,
(ii) an assistant county manager for a county shall be deemed to be an officer of every planning authority in the county, and
(iii) an officer of a planning authority who, by virtue of an arrangement or agreement entered into under any enactment, is performing duties under another planning authority, shall be deemed to be also an officer of the other authority.
(b) In this section the `relevant body' means,
(i) in case a person to whom this section applies is either a member or employee of the Board, or other person whose services are availed of by the Board, the Board, and
(ii) in case such a person is either a member or officer of a planning authority, the authority.
34.—(1) Where a member of the Board has a pecuniary or other beneficial interest in, or which is material to, any appeal, contribution, question or dispute which falls to be decided or determined by the Board, he shall comply with the following requirements:
(a) he shall disclose to the Board the nature of his interest,
(b) he shall take no part in the discussion or consideration of the matter,
(c) he shall not vote or otherwise act as a member of the Board in relation to the matter, and
(d) he shall neither influence nor seek to influence a decision of the Board as regards the matter.
(2) Where, at a meeting of a planning authority or of any committee of a planning authority, a resolution, motion, question or other matter is proposed or otherwise arises either pursuant to, or as regards the performance by the authority of a function under, the Local Government (Planning and Development) Acts, 1963 and 1976, or in relation to the acquisition or disposal by the authority of land under or for the purposes of those Acts or any other enactment, a member of the authority or committee present at the meeting shall, if he has a pecuniary or other beneficial interest in, or which is material to, the matter—
(a) at the meeting, and before discussion or consideration of the matter commences, disclose the nature of his interest,
(b) withdraw from the meeting for so long as the matter is being discussed or considered,
and accordingly, he shall take no part in the discussion or consideration of the matter and shall refrain from voting in relation to it.
(3) A member of a planning authority or of any committee of a planning authority who has a pecuniary or other beneficial interest in, or which is material to, a matter arising either pursuant to, or as regards the performance by the authority of a function under, the Local Government (Planning and Development) Acts, 1963 and 1976, or in relation to the acquisition or disposal by the authority of land under or for the purposes of those Acts or any other enactment, shall neither influence nor seek to influence a decision of the authority as regards the matter.
(4) Where the manager of a planning authority has a pecuniary or other beneficial interest in, or which is material to, any matter which arises or comes before the authority either pursuant to, or as regards the performance by the authority of a function under, the Local Government (Planning and Development) Acts, 1963 and 1976, or in relation to the acquisition or disposal by the authority of land under or for the purposes of those Acts or any other enactment, he shall, as soon as may be, disclose to the members of the planning authority the nature of his interest.
(5) (a) Where an employee of the Board or any other person whose services are availed of by the Board has a pecuniary or other beneficial interest in, or which is material to, any appeal, contribution, question or dispute which falls to be decided or determined by the Board, he shall comply with the following requirements:
(i) he shall neither influence nor seek to influence a decision of the Board as regards the matter, and
(ii) in case, as such employee or other person, he is concerned with the matter, he shall disclose to the Board the nature of his interest and comply with any directions the Board may give him in relation to the matter.
(b) Where an officer of a planning authority, not being the manager, has a pecuniary or other beneficial interest in, or which is material to, any matter which arises or comes before the authority, either pursuant to, or as regards the performance by the authority of a function under, the Local Government (Planning and Development) Acts, 1963 and 1976, or in relation to the acquisition or disposal of land by the authority under or for the purposes of those Acts or any other enactment, he shall comply with the following requirements:
(i) he shall neither influence nor seek to influence a decision of the authority as regards the matter, and
(ii) in case, as such officer, he is concerned with the matter, he shall disclose to the manager of the authority the nature of his interest and comply with any directions the manager may give him in relation to the matter.
(6) For the purposes of this section but without prejudice to the generality of any of the foregoing subsections thereof, a person shall be regarded as having a beneficial interest if—
(a) he or his spouse, or any nominee of his or of his spouse, is a member of a company or any other body which has a beneficial interest in, or which is material to, a resolution, motion, question or other matter mentioned in the foregoing subsections of this section,
(b) he or his spouse is in partnership with or is in the employment of a person who has a beneficial interest in, or which is material to, such a resolution, motion, question or other matter,
(c) he or his spouse is a party to any arrangement or agreement (whether or not enforceable) concerning land to which such a resolution, motion, question or other matter relates,
(d) his spouse has a beneficial interest in, or which is material to, such a resolution, motion, question or other matter.
(7) For the purposes of this section, a person shall not be regarded as having a beneficial interest in, or which is material to, any resolution, motion, question or other matter by reason only of an interest of his or of any company or of any other body or person mentioned in subsection (6) of this section which is so remote or insignificant that it cannot reasonably be regarded as likely to influence a person in considering or discussing, or in voting on, any question with respect to the matter, or in performing any function in relation to that matter.
(8) Where a person has a beneficial interest mentioned in subsection (1), (2), (3), (4) or (5) of this section by reason only of the beneficial ownership of shares in a company or other body by him or by his spouse and the total nominal value of those shares does not exceed the lesser of—
(a) five-hundred pounds, or
(b) one-hundredth part of the total nominal value of either the issued share capital of the company or body or, where that capital is issued in shares of more than one class, the issued share capital of the class of shares in which he has an interest,
none of those subsections shall have effect in relation to that beneficial interest.
(9) Where at a meeting described in subsection (2) of this section a disclosure is made under that subsection, particulars of the disclosure and of any subsequent withdrawal from the meeting pursuant to the said subsection shall be recorded in the minutes of the meeting.
(10) Subject to subsection (11) of this section, a person who contravenes or fails to comply with a requirement of this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding two hundred and fifty pounds or, at the discretion of the court, to imprisonment for a term not exceeding six months, or to both the fine and the imprisonment.
(11) In any proceedings for an offence under this section it shall be a defence for the defendant to prove that at the time of the alleged offence he did not know and had no reason to believe that a matter in which, or in relation to which, he had a beneficial interest had arisen or had come before, or was being considered by, the Board or the relevant planning authority or committee, as may be appropriate, or that the beneficial interest to which the alleged offence relates was one in relation to which a requirement of this section applied.
35.—(1) Proceedings for an offence under section 33 or 34 of this Act shall not be instituted except by or with the consent of the Director of Public Prosecutions.
(2) Where a person is convicted of an offence under section 33 or 34 of this Act, the following provisions shall have effect:
(a) the person shall be disqualified for being a member of the Board,
(b) in case the person is a member of the Board, he shall on such conviction accordingly cease to be a member of the Board,
(c) in case the person is a member of a planning authority or a member of any committee of a planning authority, he shall on such conviction cease to be a member of the authority or the committee, as may be appropriate,
(d) in case the person is a member of both a planning authority and any one or more such committees, he shall so cease to be a member of both the authority and every such committee, and
(e) in case the person by virtue of this subsection ceases to be a member of a planning authority or any such committee, he shall be disqualified for being a member of the Authority or committee during the period which, but for the cessation of his membership of the Authority or committee under this section, would be the remainder of his term.
(3) In case a person contravenes or fails to comply with a requirement of section 33 or 34 of this Act, or acts as a member of the Board, a planning authority or committee of a planning authority while disqualified for membership by virtue of this section, the fact of such contravention or failure or of his so acting, as the case may be, shall not invalidate any act or proceeding of the Board, Authority or committee.
(4) Where any body which is a company within the meaning of section 155 of the Companies Act, 1963, is deemed under that section to be a subsidiary of another or to be another such company's holding company, a person who is a member of the first-mentioned such company shall, for the purposes of sections 33 and 34 of this Act be deemed also to be a member of the other company."
I move amendment No. 51:
In page 23, between lines 46 and 47, to insert the following section:
"39.—(1) The maximum fine which may be imposed in respect of an offence under a section of the Principal Act which is mentioned in subsection (3) (a) of this section (other than an offence which is either a further offence under such a section or a continuing offence) is hereby increased to two hundred and fifty pounds, and accordingly—
(a) every reference to one hundred pounds in the sections of the Principal Act mentioned in paragraph (a) (i) of subsection (3) of this section shall be construed and have effect as if it were a reference to two hundred and fifty pounds, and
(b) both of the references to two hundred pounds in the sections of the Principal Act mentioned in paragraph (a) (ii) of the said subsection (3) shall be construed and have effect as if they were each a reference to two hundred and fifty pounds.
(2) Every reference to twenty pounds in the sections of the Principal Act mentioned in subsection (3) (b) of this section shall be construed and have effect as if it were a reference to fifty pounds.
(3) (a) The sections of the Principal Act referred to in subsection (1) of this section are,
(i) sections 31 (8), 34 (1), 34 (6), 35 (7), 37 (7), 49 (2) (b) and 86 (8), and
(ii) sections 45 (8) and 46 (8).
(b) The sections of the Principal Act referred to in subsection (2) of this section are sections 31 (8), 34 (5), 34 (6), 35 (8), 37 (7), 49 (2) (b) and 86 (8).".
On Committee Stage, I undertook to introduce Report Stage amendments providing for increases in the penalties for the more serious offences under the Bill and the 1963 Act. The main effect of this amendment is to increase to £250 the maximum penalty for offences under the Act which now attract fines of £100 and £200. The legal advice available is that £250 is the maximum penalty which can be prescribed while retaining the offences with the category of "minor offences" which can be dealt with by the courts in a summary manner. Amendment No. 44 provides for a corresponding increase in the penalty for the offence under section 27 of the Bill while amendment No. 49 provides for increased penalties under sections 33 and 34 of the Bill.
The penalties for further or continuing offences related to the main offences are being increasedpro rata, that is, from £20 to £50. The attached Schedule sets out the offences under the 1963 Act for which penalties are being increased:
Major offences under the 1963 Act.
Fine or Penalty
Failure to comply with an enforcement notice where development is being carried out without permission.
Not exceeding £100 and not exceeding £20 for each day of continuing non-compliance.
34 (1) 34 (5)
Failure of owner of land to comply with requirements of enforcement notice (other than discontinuance of use of land).
Not exceeding £100 and not exceeding £20 for each day of continuing non-compliance.
Obstruction of owner in attempt to comply with enforcement notice.
£100 and £20 for each day of continuing offence.
35 (7)35 (8)
Failure to comply with enforcement notice (development commenced and not carried out in conformity with permission).
Not exceeding £100 and not exceeding £20 for each day of continuing non-compliance.
Failure to comply with notice requiring discontinuance of use.
Not exceeding £100 and £20 for each day of continuance of use.
Contravention of tree preservation orders.
Not exceeding £200.
Contravention of conservation orders.
Not exceeding £200.
Obstruction or damage of public rights of way.
Not exceeding £100 and not exceeding £20 for continuing offence.
Contravention of building regulations.
Not exceeding £100 and not exceeding £20 per day for continuing contravention.
Are we to take it from this that the Minister's options were limited by other legislation?
Therefore, the limit was kept at £250. Could it be raised? This is probably a matter for the Attorney General or the Minister for Justice. Would the Minister not consult with his colleagues to see if they would agree to changes in the other legislation? I am still of the opinion that £250 is not an adequate fine for some of the breaches in the Planning Act which have come to light in recent years. In my view, a £250 fine would not act as a very great deterrent in some cases.
The Constitution restricts what is a "minor offence" and the courts are only entitled to interpret it. Their interpretation are the figures I quoted. It is not merely a question of the Attorney General altering other legislation.
Who determined the figure of £250?
Is that figure based on the maximum fine?
Yes. This is the figure which is interpreted by the courts as being the maximum which can be imposed for a minor offence.
The Supreme Court laid this down some time ago.
I move amendment No. 52:
In page 23, between lines 57 and 58, to insert the following paragraph:
"(b) the insertion in section 25 (2) of the following paragraph after paragraph (d):
`(dd) enabling planning authorities to invite an applicant to submit to them revised plans or other drawings modifying, or other particulars providing for the modification of, the development to which the application relates and, in case such plans, drawings, or particulars are submitted to a planning authority in response to such an invitation, enabling the authority in deciding the application to grant a permission or an approval for the relevant development as modified by all or any of such plans, drawings or particulars,';".
This amendment provides for an addition to section 25 of the 1963 Act so as to enable the Minister to make regulations enabling a planning authority, when considering an application for permission, to invite the applicant to submit revised plans or other drawings modifying, or other particulars providing for the modification of, the proposed development and enabling the planning authority to grant approval for the development as so modified. During the Committee Stage debate on section 21 which gives a similar power to the board in appeal cases, it was suggested that planning authorities should have this kind of power and I agreed to introduce a Report Stage amendment to this effect.
Amendment No. 53 and amendment No. 54 are consequential. By agreement, Nos. 53 and 54 will be taken together.
I move amendment No. 53:
In page 24, between lines 13 and 14, to insert the following paragraph:
"(c) the substitution of the following subsection for subsection (3) of section 26:
`(3) (a) In a case in which the development concerned would contravene materially the development plan or any special amenity area order, a planning authority may, notwithstanding any other provision of this Act, decide to grant permission under this section, provided that the following requirements are complied with before the decision is made, namely,
(i) notice in the prescribed form of the intention of the planning authority to consider deciding to grant the permission shall be published in at least one daily newspaper circulating in their area,
(ii) copies of the notice shall be given to the applicant and to any person who has submitted an objection in writing to the development to which the application relates,
(iii) any objection or representation as regards the making of a decision to grant permission and which is received by the planning authority not later than 21 days after the first publication of the notice shall be duly considered by the authority, and
(iv) a resolution shall be passed by the authority requiring that a decision to grant permission be made.
(b) It shall be necessary for the passing of a resolution referred to in paragraph (a) of this subsection that the number of the members of the planning authority voting in favour of the resolution exceeds one-third of the total number of the members of the planning authority, and the requirement of this paragraph is in addition to and not in substitution for any other requirement applying in relation to such a resolution.
(c) Where notice is given pursuant to section 4 of the City and County Management (Amendment) Act, 1955, of intention to propose a resolution which, if passed, would require the manager to decide to grant a permission under this section, then if the manager is of opinion that the development concerned would contravene materially the development plan of any special amenity area order, he shall within seven days of the receipt by him of the notice make an order (a copy of which shall be furnished by him to each of the signatories to the notice) requiring that the provisions of subparagraphs (i), (ii) and (iii) of paragraph (a) of this subsection shall be complied with in the particular case and the order, when made, shall operate to cause the relevant notice given pursuant to the said section 4 to be of no further effect.
(d) If a resolution referred to in paragraph (a) (iv) of this subsection is duly passed, the manager shall decide to grant the relevant permission.';".
On Committee Stage, an amendment providing that a planning authority, by exercising their powers under section 4 of the City and County Management (Amendment) Act, 1955, could decide to grant a permission or approval even if the proposed development contravened materially the development plan or any special amenity area order relating to the area of the planning authority, was debated at some length. I indicated that I was not opposed to the principle of the amendment, that I would consider substituting a new procedure for section 26 (3) of the Act and, if this were possible, I would bring in an amendment on Report Stage. The new section 26 (3) proposed by amendment No. 53 provides that a decision to grant permission for a development which would contravene materially a development plan or a special amenity area order shall, in effect, rest with the elected members, since it is their function to make a plan or any variation. The consent of the Minister will no longer be required. Provision is being made for public notice so that objections and representations can be made and considered before the decision is made.
Where a section 4 resolution is put down in relation to an application for a permission which would materially contravene the plan, the new subsection provides that the manager shall automatically initiate the relevant procedure and that if, after considering any objections or representations, the council pass the resolution, the manager shall decide to grant the relevant permission.
Amendment No. 54 is consequential. It provides that the appropriate period for deciding a planning application to which the new procedure applies shall be calculated from the day the notice required under the new section 26 (3) is first published.
I am very grateful to the Minister for having brought forward this amendment. He accepted the point I was making on Committee Stage and his amendment fully meets the situation I had been speaking about. At that time I was referring to a device which was being operated by county managers to circumvent the authority vested in the local authority members under section 4 of the City and County Management Act whereby, despite the fact that the majority of members may pass a section 4 directing that a planning permission be granted, subsequently the manager had been deeming the granting of such a permission in contravention of the council's development plans and under the Act he was, therefore, obliged to submit it to the Minister for a decision. This device was being used regularly in the Galway County Council planning meetings whenever section 4 was brought forward. I was very concerned because this was a way of dissipating the authority of local authority members.
This Bill is very important. The principal provision in it is the establishment of a new board. There are other important amendments to the original Bill contained in this. But since the Bill was published, of all the amendments which have come forward, this is probably the most significant. It proves the validity of Report Stage debate and the facility for Deputies and Minister to bring forward amendments even at this late stage. I consider this a major change in planning legislation. I consider this amendment of very great significance in as much as it increases substantially the power of elected members on local authorities. This is a very good step and I am grateful to the Minister for bringing it forward. The procedures he laid down for its operation seem reasonable. I cannot at this time see any great difficulty in operating it.
It is finally placing the proper authority in the hands of elected members. They were always told they had this authority. Since the Planning Act was passed in 1964 they were told they were the planning authority but when it came to the practical application, they discovered they had no authority whatsoever. The manager could overrule them on every issue if he wanted. He can no longer do that. I would like the Minister to give us an assurance that once the section 4 motion is placed and the Minister's procedure complied with, if the council vote in favour of granting a permission, this section will deem that it is now a permission. I know it is open to any member of the public, or the applicant to lodge an appeal against it, but I would like an assurance from the Minister for Local Government that managers will not adopt a technique of acting in their capacity as private citizens and lodging an appeal themselves and so find another loophole to frustrate the intentions behind this amendment and to frustrate the powers of elected local authority members.
Perhaps the Minister will say that he cannot speak for managers in their private capacity and maybe I am being over-suspicious in regard to some of them but where elected members come together at a properly-constituted local authority meeting and make a decision, no manager should attempt to frustrate that decision by lodging an appeal against it. This is the only loophole left and I would ask the Minister to ensure that in whatever circular is sent out explaining the Bill there is reference to the importance of placing the full authority in the hands of the elected members. The amendment is first class and I am very pleased about it. It will remove a lot of the frustration that was experienced in some local authority areas.
Deputy Molloy's Committee Stage amendment referred only to section 4 cases. What is now proposed covers these cases but goes even further. Under the new subsections (3) (a) and (b) a planning authority will, in future, as a reserved function, be empowered to authorise material contraventions. Accordingly, there will no longer be any need to obtain the consent of the Minister. Subsection (3) (c) deals with the section 4 situation. If the manager is given notice of a section 4 resolution, he must apply the new procedure if he thinks a material contravention is involved but the decision on the application will rest with the council and the manager will have to abide by that decision. If the manager does not apply the new procedure and a section 4 resolution is passed, it will not be open to him at that stage to raise the question of material contravention.
As a private individual he can do anything he wishes: engineers have done so in the past and, no doubt, will continue to do so but as manager, he will not be entitled to do so. This meets the point fully.
We are satisfied with the amendment.
I move amendment No. 54:
In page 24, between lines 13 and 14, to insert the following paragraph:
"(d) the substitution of the following subparagraph for subparagraph (ii) of section 26 (4) (b):
`(ii) in case a notice referred to in subsection (3) of this section is published in relation to the application, within the period of two months beginning on the day on which the notice is first published,';".
I move amendment No. 55:
In page 25, between lines 24 and 25, to insert the following:-
"(a) The insertion of the following new section before section 42:
41 A.—(1) In the performance of their functions under this Act it shall be the duty of each planning authority to protect and preserve the natural environment and in this regard the Minister shall have power to issue from time to time to a planning authority such directives as he considers necessary and the planning authority shall comply with such directives."
Members will recall that on Committee Stage I put down an amendment which sought that statutory responsibility for the protection of our natural environment be placed firmly on the Minister for Local Government. For some reason the Minister refused to accept the amendment, to accept that responsibility. This was a very serious and fundamental mistake on his behalf. Views differ on the current situation in regard to the relationship of mankind to his environment. There are some very able scientific people who say that the current situation is critical if not catastrophic while there are others who regard conservationists as cranks who constitute themselves into irresponsible lobbies and who have nothing more than a nuisance value. For my part I do not come down on either extreme but everybody must agree that in modern society and modern communities, environmental matters are becoming increasingly important. Some people see the industrial societies of the western world in a state of crisis and believe that the development of modern industrial technology will ultimately make for a world that will be a lot less pleasant to live in than anyone would desire.
It is clear that to an increasing extent governments will have to devote more attention to the protection of the natural environment. There arises an immediate conflict between what are regarded as the interests of industrial development and the need to preserve some sort of tolerable living environment for the ordinary citizen. We have not even begun to tackle this problem. A couple of recent instances illustrate clearly that we have no guidelines, no basic concepts and no developed thinking in this area. We have had the much-publicised attempt to locate an oil refinery in Dublin Bay and there was another instance in Tipperary which involved the question of siting a new industry but which incurred great local opposition on environmental grounds. Both these instances as well as many others seemed to find us totally unprepared.
We have no guidelines, no ground rules against which a project of this sort could be tested immediately so that the matter would be simply one of deciding whether it conformed with the guidelines. If a project of this sort has to be examined in isolation and on its own merits it is obvious that there is no pattern of thinking, no structure nor rules into which it can be fitted.
We cannot continue like this because our natural environment is much too important to all of us to be treated in this haphazard, casual,ad hoc fashion. We must tackle the problem of laying down guidelines which will enable us to move ahead, to reconcile the needs of economic development with the needs of environmental protection. Perhaps that is what planning should be all about. I have said here on a number of occasions that I am no great believer in the sort of planning we practice. When it is all added up I am not so sure that the planning of local authorities and the Minister's Department—I do not mean just this Minister, I mean former Ministers— ultimately really contributes to the welfare of the community.
If European Architectural Heritage Year illustrated anything in particular, it showed clearly that some of the most important, beautiful and valuable things that have been handed down to us from our forebears were unplanned—they were the unplanned villages and unplanned cities. The fact that they were unplanned and grew in a certain way gave them this marvellous attraction. I do not want to throw all planning out the window but, at its very best, it is relatively superficial and it can only tinker with the surface of the situation.
The central issue today is to try to ensure that economic development can take place without fundamentally damaging our natural environment. That is what real, meaningful planning must be concerned with today. The rest of this structure that we are creating in this and in previous pieces of legislation perhaps is useful and valuable as some form of control but until we grasp the central issue of the protection of the environment from the ravages of industrial development, I do not think we can consider ourselves as planning our community, our living conditions and our future.
There are conflicting views about this matter. The best view to take is that the situation is critical but, in the interests of employment, economic development and the urgent need to provide these things, we are forced from time to time to do things or to permit things to be done that we should not. This is because we have not straightened out the matter in our own minds and we have not come to grips with it philosophically or intellectually. Because we have not done this, we have not laid down the proper guidelines. I want to be quite clear that in this regard I am criticising myself, my party and anyone else just as much as I might appear to be criticising the Minister, his Department and local authorities. This is a current community problem that faces all of us.
I thought the Minister would accept my proposal on Committee Stage to assume responsibility as a central statutory authority for environmental matters. In asking him to assume that responsibility, I was not so much concerned with the immediate practical conservation of protection of the environment; I was more concerned with seeing that there was some central person or institution that would have responsibility for studying the whole situation, for investigating it, for seeing the extent of the problem and trying to discern along what lines solutions might evolve. That is the real need today, to try to study how this basic conflict in a modern community can be reconciled, to see the implications of different courses of action and to try to propound some philosophy or approach out of which planning procedures and structures could emerge. I do not think that as yet we have done the fundamental basic thinking that is necessary in this area.
The Minister refused to accept that responsibility and I think he has done himself a disservice by that refusal. I was not at all impressed by any of the arguments he put forward. He based his case mainly on the fact that other Ministers in other Departments had a responsibility in this area and, therefore, he could not be expected to assume overall responsibility. In other countries this overall responsibility has been delegated to certain Ministers. The very fact that many Departments are involved is in itself an argument in favour of making one Minister and one Department responsible for some overall authority and co-ordination. I am particularly concerned that nobody is doing the basic thinking that needs to be done at this stage.
Having failed to get the Minister to accept my amendment on Committee Stage, I have returned to the fray with this amendment. If it were adopted it would not by any means be as satisfactory as my Committee Stage amendment but it would be something. In this amendment I am asking that each planning authority have a duty to protect and preserve the natural environment in their own area, that the Minister should have power from time to time to issue through a planning authority such directives as he considers necessary in the context of the protection of the environment and that the planning authority would have to comply with the directives. This amendment is second best but at least it would be something. It would place a solemn obligation by statute on each planning authority in each area to protect the natural environment in their jurisdiction.
Local authorities have many pressures to contend with and many conflicting demands are made on them. They are pressed to provide different amenities and services in the interests of the community. In the light of all these pressures on local authorities, unless we take a firm grip on the situation now the protection of the natural environment will be left very much in a non-priority situation. It is necessary that it should be spelled out by statute, that planning authorities must have this responsibility placed on them.
There was a time when the general view of Irelandvis-à-vis Great Britain was that the latter had all the advantages of the wealth and prosperity that flowed from the industrial revolution but she had also all the disadvantages of it. We here had not an industrial revolution. We had not reaped any of the advantages of it but, on the other hand, we had beautiful scenery and a perfect natural environment. I am afraid that concept is being turned upside down. In Britain they are setting positively and diligently to restore the damage done by the industrial revolution, whereas here we are steadily and surely going in the opposite direction. The situation in regard to pollution and the desecration of our natural environment is getting worse daily.
This amendment makes some favourable gesture towards arresting that process. We will have to content ourselves with this limited objective for the time being until we have had an opportunity to do something more fundamental about the situation and I would hope the Minister would accept this proposal even at this late stage. I cannot see what objection he has to it. I would expect that in theory, at least, he would agree with me that the natural environment needs protection and that the obvious people in each area to protect it are the local planning authorities.
In any event, I would hope that by putting down the amendment I will direct attention to what is an urgent, critical situation. I do not go to either extreme in regard to environmental matters. I do not accept completely the well-argued case of some persons interested in this area that things have probably gone too far and that the industrialised world is facing catastrophe and disaster. That is an extreme view I do not go along with but, on the other hand, I do not accept that all is well and that there is no particular need for anyone to worry unduly about the situation— that the various agencies are there and that they are taking reasonable steps. To an increasing extent we must devote more administrative and legislative attention to this area and I had hoped that the amendment, though not very significant, would commend itself to the Minister.
This amendment is very similar to one put down by Deputy Haughey on Committee Stage and defeated on a vote last July. The only real difference is that the earlier amendment would have imposed the duty to protect and preserve the natural environment on the Minister, whereas this amendment proposes to impose the duty on planning authorities. I bow to the ruling of the Chair that the amendment is in order but it appears to me that Deputy Haughey is getting in the back door what was thrown out of the front.
That is exactly what it was intended to be.
I had an idea that was so. In his comments Deputy Haughey referred to a number of things I would have preferred him not to refer to, including the Dublin Bay proposal in regard to a refinery. There has been an inquiry and that is an argument against what he has been saying because no matter who has responsibility the situation is that a person or persons will be entitled to apply for permission to erect a refinery and people will be entitled to object and an appeal can be heard. Eventually it will land on my table and I will make a decision after I have had the best expert advice.
I do not know whether this amendment is using a sledge hammer to kill a midge but I would point out that an awful lot of effort has been made in this area. I do not know what the decision will be, but it proves that the planning laws which were introduced by my predecessors in Fianna Fáil were very useful and did a lot of good down through the years. Things may have been done which were wrong, but that is beside the point. A lot of good was done and they allowed public airing of views on important issues.
The Dublin Bay issue is important and in the Tipperary matter an appeal was granted and an unholy row was kicked up by people who objected when those concerned proposed to go ahead to set up an industry which would give massive employment. When those people left, those who were objecting decided they had no objections any longer. I have been around the country a lot and I suggest it all depends on which side people look at things from. Deputy Haughey's view and that of a man waiting to have an industry established to give him a job would be quite different.
I am asking for ground room.
In his amendment the Deputy is asking for that but in his contribution he said there is a lot of damage being done by people whose purpose is to create industry and he said some people held it has already gone too far. He was perfectly entitled to make those comments and I am entitled to put the other side. I believe the environment must be protected but that onus is not entirely on the Minister for Local Government but is shared by everybody in the country. There are clashes of interest between job promotion and what might be minor damage to the environment and one cannot blame people who are seeking employment if they come down on the side of job creation.
I should like to point out here that the advice the Minister will get will be the most expert advice available and I should hate to think anybody would feel it was because of lack of expertise that things were done which appeared to some people to be wrong. I do not think anybody will be able to injure the reputation of those people who do a good job well. Whether by me or by my predecessors, the decisions in this field have been taken on the best available advice.
The amendment is not acceptable. The Bill is one to amend the law in relation to physical planning which is, of course, an important means of protecting the natural environment, but the Minister and the planning authorities have no monopoly of responsibility in this regard. Others concerned include the Minister for Lands in relation to forestry and wildlife, whose functions will be considerably widened by the Wildlife Bill now before the Dáil. The Minister for Agriculture and Fisheries has responsibility for preservation of fishery resources. Other Ministers and agencies are responsible for development programmes which call for various environmental constraints in their execution. It would, therefore, be inappropriate to impose a general duty, such as is proposed, on planning authorities without regard to all the implications and to attempt to do this in the present Planning Bill would be quite wrong.
Apart from that, the terms of the amendment are unduly restrictive. If the duty to protect and preserve the natural environment were imposed without qualifications this would leave very little discretion. It could preclude permission being given for a wide range of desirable and even essential developments, for example, power stations and transmission lines, mining operations, factories and, in certain areas, even roads and houses could not be provided.
The Department of the Environment in Britain have been referred to but the extraordinary situation there is that what they have got is a Department of Local Government only they call it the Department of the Environment. In addition to the environment the Minister is also responsible for roads, housing and a whole variety of things which the Minister for Local Government in this country is responsible for and changing a name will not solve the problem at all. It is only fair to refer to another aspect of this, that is the question of water pollution.
That is the next amendment. I deliberately did not refer to that because it is the next amendment.
Deputy Haughey said that the position was worsening throughout the country. As far as I am concerned the Water Pollution Bill will be introduced in the Seanad next week.
The Minister is preempting it.
Maybe I am. The evidence I have is that as a result of the modern techniques used in sewage disposal a number of the rivers and the lakes already are coming back and we will have fish in lakes which for years were considered to be almost dead. This is an example of the fact that people care and are taking whatever steps they can under the existing legislation. Under this legislation the position will be immeasurably stronger. The amendment suggested by Deputy Haughey would not work. I know it was put down with the best intention in the world, as I accepted the fact that his Committee Stage amendment was also put down in good faith, but I do not think he can sustain the amendment. I am sorry but I would not be prepared to accept it.
I move amendment No. 56:
In page 25, between lines 50 and 51, to insert the following:—
"(b) the insertion of the following new section before section 43:
42. A.—(1) If it appears to a planning authority, after consultation with the prescribed authorities, that it is expedient to make provisions for the prevention of the pollution of any coastal waters, estuary, river, lake or inland waterway, they may make an order prohibiting (subject to any exemptions for which provisions may be made by the order) the pollution of such coastal waters, estuary, river, lake or inland waterway.
(2) Every order made by a planning authority under this section may make provision as respects all, or as respects any one or more, causes of pollution in any special area.
(3) Without prejudice to the generality of the foregoing a planning authority shall, in particular, have responsibility for—
(a) the control of discharge to and abstractions from coastal waters, estuaries, rivers, lakes and inland waterways in or adjoining their areas;
(b) the monitoring of such discharge and abstractions; and
(c) the regular and systematic sampling of the water in all such coastal waters, estuaries, rivers, lakes and inland waterways.
(4) Any person who—
(a) fails to comply with the provisions of an order under subsection (1), or
(b) knowingly assists or permits another person in the non-compliance of such an order, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £100.
(5) Where a person is convicted of an offence under this section and there is a continuation by him of the offence after conviction he shall be liable on summary conviction to a fine of not more than £100 for each day on which the offence is so continued or to imprisonment for a term not exceeding six months or to both such fine and such imprisonment."
This amendment is very closely related to my previous amendment. In it I seek to have something done about the situation in regard to prevention of pollution in our coastal waters, estuaries, rivers, lakes, inland waterways and so on. I put down an amendment along those lines on Committee Stage but the Minister did not see fit to accept it. He assured me that his Bill on water pollution was on the way. I accepted that from the Minister and withdrew my amendment on Committee Stage. I am returning to it here because I was doubtful about the possibility of that Bill coming before us in the near future. Whatever we may say about the Government we have at the moment, whatever disasters and catastrophies they have brought on us—they are many—we would all agree on this side of the House that the Minister for Local Government, above any of his colleagues, has been assiduous in bringing forward legislation but recently the Parliamentary programme has got into complete disarray. Quite frankly, we have no certainty what are the possibilities with regard to any piece of legislation. For that reason I felt compelled to return to this matter in this amendment.
Everything I said on the previous amendment applies here except more so. The situation in regard to our waterways is steadily deteriorating. I am very upset to hear that the Minister can be optimistic about this situation and to say that certain rivers are improving and coming back. That certainty is not my experience. I do not believe that anybody who is interested in this subject, either at local or national level, would agree with the Minister. There is a constant and continuous deteriorating of the situation. I have had personal experience of a small river, a stream and a lake, which I sought to have cleaned up and cleared of pollution but failed because the legislative structure at the moment is not adequate. It is not appropriate for dealing with this sort of situation.
The Minister said he knew of rivers which had been improved in recent times. I was certain he would refer to the River Thames because that is the most dramatic improvement that has been carried out in this whole area of conservation in the last 20 to 30 years.
There are no planes going to Mullingar but the Deputy might look at the lake the next time he goes there. It might not be as dramatic as the Thames.
Let us talk about this very seriously. It is a fact, whether we like to admit it or not, that the British authorities have done a marvellous job in certain areas and in particular the Thames, which is a striking example of what can be done in this area. There are now forms of bird life back on the River Thames that have not been there for 200 years. I am not sure if this is correct but it has been said that a salmon has been caught opposite the House of Commons. If that can be done with the River Thames I suggest it puts this country to shame. I regret to say that the Minister seems to be taking this subject flippantly. I do not believe he can say the same about the Liffey. If we take those two rivers and contrast them with each other the River Liffey has steadily deteriorated in recent years to the extent that now it is not much more than an open sewer.
In the EEC Committee we had occasion to draw attention to the condition of some of the bathing places around Dublin. I do not believe there is any cause for complacency in that area either. All in all our waterways, whether estuaries, coastal waters, lakes or rivers, present a pretty dismal and depressing picture at the moment. That is bad enough but I believe that situation can be very quickly restored. One of the encouraging things in this area is the capacity of nature to restore itself very quickly with the slightest effort. In my experience, either in regard to wildlife or any form of conservation, I have found that if one engages in the slightest efforts the rewards are abundant. Once one starts to make any effort nature is very quick to respond. Even though the situation in regard to many of our rivers and lakes is depressing and unsatisfactory they can be restored to a satisfactory condition very quickly if we make the effort.
We must start to make the effort. In the amendment I was placing the responsibility on planning authorities to do something about the situation. I would not wish to press this amendment too strenuously or too seriously if the Minister gives an assurance that this Bill is on the way; that it will come before us very soon, either though the Seanad or through the Dáil. If that is so, I would welcome that news. I know the Minister has the need for this legislation very much in mind and I am sure he is anxious to proceed with it. If we can be certain that the overall comprehensive legislation to deal with this problem will be introduced quickly, I will not press this amendment. A popular ballad at present tells us that only our rivers run free. Let the Minister set himself the target that our rivers will run free of pollution in his time.
I wish to assure the Deputy that the Water Pollution Bill will be moved by me in the Seanad on 25th February, the next sitting day. I hope it will get through the Seanad quickly and, if there is not too much obstruction in this House, we may get it through before the Summer Recess.
Take that back.
Having experienced what has been happening here in recent times—it has been lovely here today and we have got through things in a reasonable way—I am not too optimistic. I was surprised Deputy Haughey picked on the River Liffey. I am aware of his regard for a river that flows very close to him and aware that somebody, unfortunately, threw milk or something into it on one occasion and made a mess of it. I am also aware that he has been endeavouring to preserve the wildlife in the area and it was too bad that that should have happened to him.
That is a point the Minister can do nothing about.
With regard to the River Liffey, I should like to state that had the previous Government started the South Dublin sewerage scheme, and they should have, the Liffey would be flowing free of all pollution.
The Minister should not make a political football out of the environment.
Last year we spent £4 million on an ongoing project and this year about £5 million will be spent on taking the sewage out of the capital and the south side in order to prevent the Liffey being polluted. If we were as rich as the British, I am sure we could do it with every river in the country but we are not. We are making a major effort and expending a lot of money in order to make the Liffey pollution free.
We all know that the two major pollutants here are the local authorities and agriculture. The reason why local authorities are major pollutants is that nobody seemed to realise the seriousness of allowing raw sewage flow into rivers until recently. Even if somebody two miles down the river was pumping water from the river for the use of the town it seemed to be all right to let raw sewage into it. I do not say we are solving that problem overnight because it cannot be solved in a short time but any money I can get from the Government to solve that problem will be spent on it.
It will not be much.
In view of the fact that the most the Deputy's party could turn out was less than £7 million and that it is now more than £22 million we are not doing too bad. I could spend £100 million if I had it on this problem and I would only be on the verge of it. This is a big problem and I hope everybody accepts that.
In regard to agricultural pollution, I believe our farmers are beginning to realise that it was not a paying proposition to pollute waters in their area. It is stopping. The lake at Mullingar was always dead because the sewerage system for the town was not satisfactory. A new system has been introduced there and it has improved the position immeasurably. It is not perfect but I would like to see this happening all over the place. However, it is wrong to say that we are not making an effort to deal with pollution. The Water Pollution Bill will prevent people who are deliberately polluting our rivers. There are people who are deliberately polluting water and this Bill will prevent them doing that. Such people are selfish and they believe that no interest should be considered except theirs. If they were intelligent enough they would realise that they are not serving their own interest by doing this. We may see Deputy Haughey catching a salmon off O'Connell Bridge in a year or so if he keeps going and we can forget about the one that was caught at Westminster.
I do not think it is correct to say that it was only in recent times heed was given by local authorities to the necessity for treating effluent discharged into waters. I do not think public sewerage schemes constructed since the war are discharging raw into the local rivers.
The Deputy should ask Deputy Faulkner about that because he can give expert advice, unfortunately for both of us.
It would be more accurate for the Minister to have stated that most public sewerage schemes put into operation since the war, and possibly earlier, are treated where it is deemed necessary. The main cause of all our difficulties in relation to sewerage schemes arises from the fact that the old schemes were constructed to discharge raw. However, in the past 25 to 30 years treatment works have been provided where they were considered necessary. The Minister will find that this can be confirmed by his Department.
On the question of the Liffey I believe both sides of the House will agree that the Liffey is in a poor state. Both sides will also agree that the Coalition Parties, while in opposition, did not seem to concede the point that it was impossible to remove the level of pollution in the Liffey satisfactorily until such time as a new sewerage scheme was provided for Dublin. The old sewerage system in the city was constructed in such a way that the overflow was designed to flow directly into the Liffey. There was raw discharge and there was no capacity within the old system to take overflow of that kind. That type of discharge over a number of years has been the principal cause of the serious pollution of the stretch of the river that flows through the city.
Fianna Fáil were concerned to bring the Liffey back to a clean water state and recognised that the only way was through a massive capital provision for a huge sewerage scheme to accommodate all the additional capacity coming on stream annually. The old system was unable to take that and it was discharging raw into the Liffey. That scheme was started in our time. It has been under way for a number of years. As the Minister knows, it is a very costly scheme and it will be some time before it will be completed. The citizens of Dublin, and the citizens of Ireland who are proud of their capital city, will see a remarkable change in that stretch of the Liffey which flows through the city when this new sewerage scheme comes into operation. Until that day we cannot expect to make any major headway.
A number of industries are also contributing very seriously to the pollution of the lower Liffey, industries which of their very nature discharge very ugly effluent. The River Camac is taking quite a substantial load of this and it is in a dreadful condition and has been so for a number of years. New legislation was needed to deal with that type of discharge, industrial effluent causing pollution. I trust that the Water Pollution Bill will provide adequate power to the local authorities to deal with industrial effluent. The only way to deal with the local authority sewage effluent is the provision of new sewerage systems. That is under way in Dublin for some years past. The Minister may be able to give a date for the completion of that scheme. It would be interesting to get it. It is costing many millions of pounds, involving the provision of a tunnel, and very costly work. I take it that both sides of the House support it. We are pleased to see the progress which has been made since it started.
The Minister mentioned that agriculture was probably a major cause of pollution. I can assure him that if you want to get a grant from the Department of Agriculture and Fisheries you have to have a slurry tank and a liquid tank and you have to have planning permission. In erecting farm buildings we are very careful about pollution.
When the grant is paid there is a pipe down to the nearest river.
That is not correct.
In some cases it is unfortunately.
I was born beside a lake. Our yard is pretty near that lake. When we decided to put up a silage outfit we had to go away up the farm. We have a liquid tank and a slurry tank, and rightly so. It entailed quite a substantial amount of money to change the sheds and put them away from the lake. This had to be done or we would get no grant. There is no good in saying there are no restrictions on the agricultural community. There are, and rightly so.
I did not say there were no restrictions. I said they were still doing it.
It would be grossly unfair to say agriculture was the principal cause of pollution. People who look for grants in connection with agriculture have to be very careful that there will be no pollution. That is pretty well tied up.
I recognise that so far as expenditure of moneys are concerned there are limitations on the Minister, just as there were on Deputy Molloy when he was Minister and on other Ministers. My amendment is not really concerned with that area. Any Minister or any Government can only spend whatever capital resources can be made available.
There is a vast other area of legislative powers and things which can be done simply by restrictions and limitations on persons, and institutions, and companies, if we have the right laws to govern the situation. It is with that area that my amendment is principally concerned. Perhaps more important, in both of my amendments I was trying to get the local authorities and the planning authorities environmentally-minded. I was trying to get them to take environment matters from the bottom and put them right up there in the front of their priorities. That is what I was concerned about in both these amendments.
Is the amendment withdrawn?
Yes, in view of the Minister's assurance that the Bill will be the law before the summer.
With the co-operation of the Opposition, I can give that assurance.
I move amendment No. 57:
In page 26, to insert "air pollution or" before "the emission" in line 27.
The purpose of this amendment is to add conditions relating to the reduction or prevention of air pollution to the list of conditions in respect of which—under section 56 of the 1963 Act—compensation is not payable. It arises from a Committee Stage amendment by Deputy O'Brien which the Minister agreed to examine.
The provision should encourage planning authorities to impose conditions which would help to reduce atmospheric pollution. The generic term "air pollution" is generally accepted and is already used in the Bill at page 26, line 44.
I move amendment No. 58:
In page 27, to delete lines 2 to 11 and substitute the following paragraphs:
"(a) the substitution of the following subsections for subsections (1), (2) and (3) of section 82:
`(1) Regulations may provide for any matters of procedure in relation to appeals to the Minister under section 88 of this Act or in relation to any section 76 hearing.
(2) Regulations shall be made under this section providing—
(a) for oral hearing of any such appeal to the Minister in respect of which oral hearing is requested by the appellant,
(b) for any such oral hearing or any section 76 hearing being conducted by a person appointed for that purpose by the Minister.
(3) Where a question of law arises on any reference, appeal or section 76 hearing—
(a) the question may be referred to the High Court for decision by,
(i) in the case of a reference or appeal, other than an appeal to the Minister under section 88 of this Act, the Board,
(ii) in the case of such an appeal to the Minister or a section 76 hearing, the Minister, and
(b) an appeal shall lie to the High Court on the question and may be taken at any time within the period of three months after the giving of the decision or such longer period as the High Court may in any particular case allow.';
(b) the substitution in section 82 of the following subsections for subsection (8):
`(8) Subsections (4) to (7) of this section shall apply, with any necessary modifications, in relation to a person conducting a section 76 hearing.
(9) In subsections (3) to (7) of this section—
" `appeal' " except in paragraph (b) of subsection (3), means an appeal to the Minister under section 88 of this Act or an appeal to the Board;
" `reference' " means a reference under section 5 of this Act to the Board;
" `section 76 hearing' " means a hearing held pursuant to section 76 of this Act, as amended by section 43 (1) of the Local Government (Planning and Development) Act, 1976.';".
I move amendment No. 59:
In page 29, to delete "; and paragraph (c) of section 82 (2)" from line 31.
I move amendment No. 60:
In page 29, to delete line 34 and substitute "(2) The Principal Act".
This is a drafting amendment to bring the wording of the existing subsection into line with the interpretation provision in section 1 of the Bill.
I move amendment No. 61:
In page 29, to insert "or more than ten" after "four" in line 49.
A Committee Stage amendment from Deputy Haughey which was withdrawn proposed to limit membership of the board to the chairman and not more than four ordinary members. The Minister proposed a maximum of ten ordinary members and agreed to introduce a Report Stage amendment to provide accordingly.
I move amendment No. 62:
In page 30, lines 2 and 3, to delete "is a former judge of the High Court" and substitute "formerly held judicial office".
I move amendment No. 63:
In page 30, lines 14 and 15, to delete "is a former judge of the High Court" and substitute "formerly held judicial office".
I move amendment No. 64:
In page 30, lines 16 and 17, to delete "efficiently" and substitute "effectively".
This is a drafting amendment. The word "effectively" which is already used in article 10 is considered more appropriate by the draftsman.