Amendment No. 1 arises out of Committee Stage proceedings and is consequential on amendment No. 49. Amendments Nos. 16 and 49 form a composite proposal. Amendments Nos. 1, 3, 4, 16, 17, 18, 21, 49 and 50 are related and may be discussed together.
Local Government (Planning and Development) Bill, 1973: Report Stage.
I move amendment No. 1:
In page 3, between lines 22 and 23, to insert the following:
"company" except in section 35 (4)*, means a company within the meaning of section 2 of the Companies Act, 1963, or a company incorporated outside the State;.
I understand that the Rules of the House require that these nine amendments be discussed together. Accordingly, I will attempt to explain the background to them and the relationship between the individual amendments.
On Committee Stage, three new sections were inserted in the Bill to deal with the conflicts of interests which can arise when elected members of local authorities are dealing with planning and land acquisition and disposal matters. The first of these—now section 33—required that members of planning authorities should make declarations of certain interests and keep them up to date. The second—section 34—was designed to prevent members of planning authorities and committees from voting on, or otherwise influencing, a decision on a planning or land acquisition matter where they have a pecuniary or other beneficial interest in, or which is material to the matter. The third—section 35—contained supplemental provisions.
On Committee Stage, Deputy Molloy moved amendments which proposed to apply somewhat similar provisions to board members and their employees and to the staffs of planning authorities. My initial reaction was to oppose this, on the grounds that it would be preferable to wait for general legislation when all aspects of the matter could be dealt with. However, I was pressed strongly in the matter and, as a result, I indicated that I had no objection, in principle, to the application to board members and their employees, and planning authorities' staffs of provisions along the lines of those proposed for local councillors. I undertook, therefore, to put down a Report Stage amendment, which would apply provisions, similar in their principles, to these additional categories. Amendment No. 49 achieves this.
Amendments Nos. 1, 3 and 4 standing in my name are consequential on amendment No. 49. They provide for the inclusion in section 1 of definitions of "company", "manager" and "shares", respectively. These definitions are necessary for the purposes of the revised sections being inserted by amendment No. 49.
Amendment No. 16 which has also been put down by me, proposes to delete the existing section 10 which deals with board members' interests. This is also consequential on amendment No. 49 which deals comprehensively with those interests. Amendments Nos. 17 and 18 which have been put down by Deputy Faulkner, Deputy Molloy and Deputy Haughey, propose certain amendments in the existing section 10. As I have indicated, it is proposed in amendment No. 16 to delete this section. Moreover, the points at issue in amendments Nos. 17 and 18 are covered by the comprehensive provisions proposed in my amendment No. 49. I assume, therefore, that amendments Nos. 17 and 18 will not be moved. Amendments Nos. 21 and 50, which have also been put down by Deputy Faulkner, Deputy Molloy and Deputy Haughey, relate to the interests of employees of the board and of planning authorities, respectively. Since both categories are covered by the provisions of amendment No. 49, I take it that amendments Nos. 21 and 50 will not be moved.
I should like to draw the attention of the House to the fact that we are on Report Stage and consequently there will be one contribution from each speaker except the proposer of the amendments who has the right to reply.
We appreciate that the Minister has come quite a considerable distance to meet the amendments originally proposed by members of this party. The arguments put forward were cogent, particularly in relation to the same standards being applied to the board and to officials of the board as were being applied to members of local authorities. The Minister said he would have preferred to leave over the matter in relation to the board to a later date. He will remember that we, on this side of the House, would have preferred to leave over the whole question relating to the local authorities to a later stage, when a general Bill could be introduced to deal with such matters.
However, the Minister introduced amendments on Committee Stage in which he included members of local authorities. We felt this tended to single out the local authorities who were dealing with planning matters and that it was only right in such circumstances that all of those who were involved should be covered by the Bill. The Minister will agree that, at the time he introduced these amendments, he was probably motivated by the fact that considerable publicity had been given to charges made against Members of the Oireachtas relating to planning matters. Perhaps it is as well to mention that these matters were fully and thoroughly investigated by the Garda and it was clearly shown that the people concerned were not involved in any illegal activities. Perhaps this should get as wide publicity as the publicity originally given to the charges made.
In regard to amendment No. 18, I should like to know from the Minister how this aspect of what we had been proposing is dealt with in his amendments. We made a case in relation to the definition of "beneficial interest" to include membership of voluntary bodies and institutions. We pointed out on Committee Stage that these are people who are so involved in voluntary organisations that the organisation's interests very often took precedence even over their business interests. Such a person could be, and indeed often is, swayed more in his decisions by his membership of such an organisation than he would be in regard to his own personal interest. For example, some members of golf clubs are very dedicated and the interests of the club to which they belong might override any other consideration in their minds. If they were in a position to decide on a planning matter related to such a club it might be likely that they would be swayed by such membership. We need to ensure, as I said, that whatever the planning may be those who may be swayed by any interest should have to declare such an interest and it was for that purpose we put down this amendment. The Minister has told us that amendments Nos. 17 and 18 were covered by amendment No. 49 tabled in his name. I should like to know how these amendments are covered.
With regard to the other amendments relating to amendment No. 49, I believe the amendment put forward by the Minister in amendments Nos. 49 and 50 covers to a considerable extent what we have in mind and has improved the Bill considerably and, for that reason, we appreciate the action of the Minister.
During the Committee Stage debate I pressed this matter very strongly. The debate was, indeed, rather prolonged. The Minister gave an assurance towards the end of the debate that he would introduce an amendment along the lines suggested and it would be less than gracious on my part were I not now to express my appreciation of the Minister's bringing forward this amendment. As it was, the amendment was somewhat lopsided and it would have saved a great deal of debate had the Minister withdrawn his amendment at that stage and introduced instead this comprehensive amendment.
I thank Deputy Faulkner and Deputy Molloy for their comments. At the start of the debate I pointed out that the Bill belonged to the whole House and the whole House should take part in framing it. I also said any reasonable amendments suggested would be considered. There were some things with which I could not agree but in the main the work done on Committee Stage was useful and has resulted in an improved Bill. I believe that by the time we finish with it this afternoon we will have done a very good job. Devoting time to the Bill is, I believe, a good thing. It is the better way of dealing with the Bill and that must be appreciated by the Opposition. A great deal of work was involved and there was no point in my bringing in half-baked amendments. When I hold on to something on the advice of my officials I am criticised. When I take the other way I am also criticised. I am glad the Opposition have taken the line they have on amendment No. 49 which covers the points raised by them. It deals with membership of a company or any other body which has a beneficial interest. This is an attempt to cover the type of case referred to and I do not think there was anything more we could have done to tighten things up.
Amendment No. 18 seeks to define beneficial interest to include membership of voluntary bodies or institutions. That is the point referred to by Deputy Faulkner. Perhaps the Minister could identify precisely where in amendment No. 49 that particular aspect is dealt with.
The second point is in relation to somebody who would be unseated from a local authority under the provisions in amendment No. 49. Would the vacancy be filled by co-option in the normal way? I presume it would.
Yes. Section 34 provides:
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....
It goes on to say what that is. I think it covers the point raised by Deputy Haughey.
The Minister is adverting there to a member of a company or any other body who has a beneficial interest.
Yes. I do not know if there is any other way wide enough to cover the various types of interest covered by this.
With amendment No. 2 amendments Nos. 6, 62 and 63 can be taken by agreement.
We got no information about this.
I think they are meeting our point of view.
Is it agreed to take them together?
The Chair would like to inform the House that in regard to amendment No. 6 the Bill will have to be re-committed for the purpose of the new matter.
It is not contentious. It will meet the point fully.
I want to clear the position lest there be any misunderstanding with regard to it. The Bill will have to be re-committed for the purpose of amendments Nos. 2, 6, 62 and 63 since it has been agreed to discuss these amendments together.
I move amendment No. 2:
In page 3, between lines 25 and 26, to insert the following:
"judicial office" means an office, being the office of Chief Justice, President of the High Court, ordinary judge of the Supreme Court or ordinary judge of the High Court;
This definition is being inserted for convenience in drafting. The term "judicial officer" is used in amendment No. 6 to section 4 (1) (b) which clarifies what was intended by "a former judge of the High Court". It is used also in the consequential amendments Nos. 62 and 63 which will bring articles 4 and 6 of the Schedule into line with section 4 (1) (b) as amended.
I move amendment No. 3:
In page 3, between lines 25 and 26, to insert the following:
"manager" means a manager within the meaning of section 1 of the City and County Management (Amendment) Act, 1955;
I move amendment No. 4:
In page 3, between lines 27 and 28 to insert the following:
"shares" includes stock and "share capital" shall be construed accordingly.
Amendments Nos. 5 and 7 can be taken together by agreement. Amendment No. 7 is consequential.
I move amendment No. 5:
In page 3, to delete lines 36 and 37 and substitute the following:
(a) such ordinary judge of the High Court as is for the time being nominated with his consent by the Government after consultation with the President of the High Court, or.
On Committee Stage, Deputy Haughey argued that section 4 should provide for consultation with the President of the High Court before a serving judge is nominated as chairman of the board. Such consultation would be in line with normal practice and would take place in any case but, to meet the Deputy's point, it is being specifically provided for by an addition to section 4 (1) (a) under amendment No. 5. That amendment also inserts the word "ordinary" in subsection (1) (a) to exclude the possibility of a serving President of the High Court being nominated, and thereby obviating the necessity for making consequential provision for the carrying out of his functions.
Amendment No. 7 is related to amendment No. 5. As subsection (3) stands, a judge of the High Court who is chairman of the board would not automatically cease to be chairman if he became President of the High Court. This could give rise to difficulties in relation to the exercise of the functions of the President of the High Court. Accordingly, the amendment provides that a judge of the High Court who is chairman of the board will cease to be chairman on ceasing to be an ordinary judge of that court.
That was the original one proposed by Deputy Haughey?
Lest it become monotonous, I want to thank the Minister for meeting our point of view on this, and on all of the rest where he has met us he can take it we are expressing our gratitude.
The Deputy is very welcome.
I move Amendment No. 6:
In page 4, to delete lines 1 and 2 and substitute the following:
(b) a person who is appointed by the Government and formerly held, but who no longer holds, judicial office.
I move amendment No. 7:
In page 4, line 8, to delete "a judge" and substitute "an ordinary judge".
Recommittal is necessary for amendment No. 8 since it involves a potential charge upon revenue.
I move amendment No. 8:
In page 4, between lines 12 and 13, to insert the following subsections:
"(5) Where a person is nominated under subsection (1) of this section, the following provisions shall apply for the duration of the relevant period, namely,
(a) the fact that the person is an ordinary judge of the High Court shall be disregarded in applying section 1 (1) of the Courts Act, 1973, and
(b) the said section 1 (1) shall have effect accordingly.
(6) In this section `the relevant period' means, as regards a person nominated under subsection (1) of this section, the period beginning on the day on which the person is so nominated and ending on either—
(a) the day on which the person ceases to be an ordinary judge of the High Court, or
(b) the day on which the next subsequent such nomination is made,
whichever first occurs."
Arising from the provisions in section 4 (1), it is necessary that provision be made to ensure that the number of judges of the High Court available to discharge the business of the court is maintained in the event of a serving judge being nominated as chairman of the board. Section 1 (1) of the Courts Act, 1973, limits the number of ordinary judges of the High Court to seven. The effect of these amendments is to enable a judge who is acting as chairman to be disregarded in reckoning the seven and thus, in effect, to allow another person to be appointed as a judge to fill the vacancy in the court. The proposed provisions are broadly similar to section 14 of the Law Reform Commission Act, 1975.
As the Minister said, if a High Court judge is appointed as chairman of the board, it will necessitate the appointment of another judge. In amendment No. 6 he refers to a person who is appointed by the Government and who formerly held judicial office. What would the position be if the extra judge were appointed and some time later the Government decided to appoint a person who no longer held the office and you had eight judges in the High Court?
I imagine everybody dealing with the law would be delighted to have an extra judge to try to dispose of the long list of cases. Eight judges would have to continue.
I move amendment No. 9:
In page 4, line 16, after "planning authorities and" to insert "bodies which are prescribed by regulations made by the Minister for the purposes of this section and".
There was a considerable amount of discussion on this matter on Committee Stage and the Minister said at the time that he felt there was some merit in the objections raised by the Opposition to the subsection as it stood. He agreed to bring in an amendment on Report Stage, even going so far as to suggest the format of the amendment, and it is that format I have used in putting down the amendment. It is almost word for word as the Minister detailed it in his comments during the debate on the subsection. Deputy Molloy then withdrew his amendment in view of the Minister's offer to introduce an amendment which would satisfactorily cover the case being made by the Opposition.
I will very briefly deal with the case for the amendment. As the matter stands at the moment, the board are bound to keep themselves aware of and informed about the policies and objectives of the Minister, the planning authorities and any other body which is a public authority whose functions, in the opinion of the board, have a bearing on proper planning and development. We believe that this was too restrictive, that there are many individuals who take a special interest in proper planning and development. They may not always agree with the official attitude or approach to planning and development in specific areas. Because they are especially interested they very often have much to contribute to proper planning and could act in some cases as a balancing factor to the official approach, and I think I might lump together those designated in the subsection as official. This balance of approach would be of considerable value to the board.
There are several groups who are very interested in the environment. Many of them have taken upon themselves the onerous task of making appeals on a number of occasions. Some of them might be regarded as nuisances on occasion by the official side, but I think few would deny they have a contribution to make and, in my view, the acceptance of the amendment could help to broaden the whole outlook of the board.
The Minister will note that we are putting down a proposal that the board would keep themselves informed of policies of bodies which are prescribed by regulation made by the Minister, and therefore the door is not left wide open. Only bodies prescribed by regulation by the Minister could be involved. I think it would be worthwhile if the board were to keep themselves informed of the ideas these bodies have.
We should remember that nobody, the Minister for Finance included, can dictate to the board. What we are asking is simply that the board in deciding on their own policy will have a knowledge of the various policies of groups who are involved in the whole matter of planning and development. That the board should keep themselves informed of such policies is not the same thing as, for example, that the groups interested in environment should put forward individual suggestions. The bodies outside the statutory bodies have general policies which can be related to particular cases, and as I say, the board should keep themselves informed of these policies. This would help the board to evolve a broadly based policy which perhaps would be more acceptable to the public generally.
I think the Minister will agree that so far as planning generally is concerned, the public, and particularly those bodies which are not statutory bodies, feel divorced from it. They feel that the official attitude is what counts. They will not feel involved in future under a board unless the policy adopted by some of the non-statutory bodies of which anybody interested can be a member, can have some bearing on the general policy of the board.
Again we are not suggesting that the board should have to concern themselves with the policies of any small group who might be interested in the environment generally, but that it will apply only to bodies which are designated by the Minister, and the Minister would be the person who would decide on what bodies should be designated. It is essential that we have as much involvement of the public as possible in relation to the general policy of the board.
People tend to regard the whole question of planning development as something that is reserved to the official side and they have no great part in it, except in so far as they feel somewhat inhibited when trying to get planning permission because they have to face up to the official side which, at times, is difficult enough to convince, of the efficacy of their proposals.
I would ask the Minister to give further thought to this in order to ensure that the board can ultimately evolve a policy which will not only take into consideration the desires of the Minister and the official side, but also of those who, while I accept have created problems and difficulties on occasion, nevertheless are deeply concerned about employment and have something worthwhile to contribute.
I should like to support my colleague in regard to this amendment. I find myself a little puzzled at the Minister's non-acceptance of the idea we put forward in this regard on Committee Stage. Section 5 is very important. Many of us had doubts about this whole concept of a board, as I explained to the Minister on Committee Stage. In my view, planning is a social and, therefore, a political matter. I am very sorry to see it departing from the political ambience of the Minister who is responsible to this House. That decision has been taken and we are now to have a board.
We on this side of the House are concerned that this board should not operate in an ivory tower. It will not be answerable to the Dáil but we would like to think that, to the greatest possible extent, in its operations it would have regard to all sorts of social and public welfare considerations. Section 5 is designed to help in that regard. It says that "the Board shall"—it is important to notice the word here is "shall"
so far as may in the opinion of the Board be necessary for the performance of its functions, keep itself informed of the policies and objectives for the time being of the Minister, planning authorities and any other body which is a public authority whose functions have, or may have, a bearing on the proper planning and development ... of cities, towns or other areas whether urban or rural.
We regard it as important that the board must inform itself. We are laying down a mandatory principle here. We are not saying the board must even take these opinions into account. All we are asking under section 5 is that it should inform itself of the policies and objectives of these different bodies.
The Minister goes a fairly long way in section 5. He stipulates that the board must inform itself of the opinions and the objectives of other Ministers, the Commissioners of Public Works, the Irish Land Commission, a harbour authority and any other body established by or under statute which is declared by him, by regulation to be a public authority. He is going a fair distance in ensuring that the board will fully inform itself of the opinions of these public bodies but it should be noted that they are all public bodies, in so far as he gives himself power to include other bodies by regulations, they must be established by or under statute. As the section is framed at the moment, it is wide so far as public bodies are concerned. Under the section the Minister has power to make sure the board fully informs itself of the objectives and policies of any public authority. In effect, that is the meaning of section 5. We are not asking the Minister to go much further than that.
We are trying to direct his attention to the fact that outside the public sphere, outside the establishment bodies, there are very useful organisations which have a contribution to make in this area. We have already mentioned bodies like An Taisce, the different academies, the Royal Dublin Society, bodies which do not come within the ambit of section 5 as framed at the moment. In our view it is important that in certain instances the Minister would stipulate by regulation that the board should inform itself of the outlook, policies and objectives of such valuable organisations, institutions and bodies which have a very important contribution to make to the development of our community in different ways. As my colleague, Deputy Faulkner, pointed out, we are not asking the Minister to throw the whole matter wide open. All we are asking is that he give himself power to prescribe by regulation bodies which he thinks should come within the provisions of section 5.
It is not difficult for any of us to think of a number of important bodies and institutions which should be included and about whose policies and objectives this new board should be informed. I am puzzled and surprised the Minister has not brought forward an amendment along these lines in his own name. We are not asking for a great deal or making any great extension of principle. We are merely asking the Minister to bring in bodies which are valuable and useful but just happen to be outside the establishment umbrella.
We debated this matter very fully on Committee Stage and gave the reasons why we sought the change. The bodies we were anxious to have included under the umbrella and whose opinions would be available to the board were mentioned by Deputy Faulkner and Deputy Haughey. On Committee Stage the Minister said at column 157 of the Official Report of 26th November, 1974:
For Report Stage I would be prepared to consider having a look at subsection (1), line 37 and, perhaps, after "planning authorities" to insert "and any other person or body which is prescribed by regulations made by the Minister...."
Later he said:
...In an effort to meet the Opposition I suggest this change. It will have to be dressed up, perhaps, for Report Stage. I shall repeat it slowly:
In subsection (1), line 37, after "planning authorities" to insert "and any other person or body which is prescribed (by regulations made by the Minister) for the purposes of this section".
I stated that that was acceptable to the Fianna Fáil Party and would withdraw the amendment which stood in my name in view of the Minister's offer to introduce an amendment which would satisfactory cover the point we had been making.
I know we can only speak once in this debate but we have not had any explanations why the Minister was not able to go ahead with this. It is disappointing he did not do it, because, in my view, it will weaken the Bill. Planning up to now has been operated under a system whereby appeals were made to a political figure. Taking into account the report of the inspector which is presented to him on an appeal and bearing in mind the proper planning and development of the area in question when dealing with an appeal, the Minister can take various other aspects into consideration before arriving at a decision. But we are establishing a board that will operate strictly within the terms of this Bill and we are directing that board to take into account only the policies of public authorities. We consider this to be far too rigid a provision for the board. It will mean that they will not have the flexible approach that the Minister has been able to exercise up to now. They will operate very much according to the letter of the law under which they are appointed. Such rigidity in relation to planning appeal procedures and decision making will act to the general detriment of public acceptance of planning, a public acceptance which, after a struggle, has been quite good.
On Committee Stage the Minister expressed the view that it might be possible for him to meet the case we were making but since he did not do so we went so far as to suggest a formula which we tabled in the form of an amendment for this Stage. It is a pity that the Minister cannot accept our amendment now but I ask him to consider this whole point fully again for the various Stages of the Bill in the Seanad because we are hopeful that the Bill will be improved further before it is passed. We are not in a position now to debate this matter in any great detail. We are confined to one contribution and have no wish to go back over the ground we covered earlier on Committee Stage. Perhaps the Minister has good and valid reasons for not accepting the amendment but to leave the matter as it is will make more strict the procedure in relation to planning and this will not be helpful.
After the contributions from Deputies Haughey, Faulkner and Molloy there is not much more one can say on this amendment except to remind the Minister again that planning today must be based on the widest concept possible and must take account of the wishes of all the people concerned because these are the people who must live with the results of whatever decision is reached. Also, it is a very good exercise in civics to encourage people to take an intelligent interest in planning matters. The amendment is reasonable and, if adopted, would make the Bill that much better.
Deputy Haughey mentioned several bodies that might be included. All of us could mention many bodies which would have something to contribute to better planning. We should tell all these people that their views are welcome. This board will not be accountable to the House. Consequently, before it is established we should ensure that it is based on the broadest concept possible. Therefore, I appeal to the Minister to accept this amendment.
Since reference has been made to what I said in this regard on Committee Stage I shall quote those remarks as reported at column 157 of the Official Report for 26th November, 1974:
Deputy Haughey suggested that perhaps we might be able to overcome this problem. That would be my suggestion also, because the whole idea of discussing the Bill is to try to improve it. For Report Stage I would be prepared to consider having a look at subsection (1), line 37 and, perhaps, after "planning authorities" to insert "and any other person or body which is prescribed by regulations made by the Minister...". This is something like what Deputy Haughey suggested earlier and might meet requirements. I am not trying to make it too narrow but neither am I making it a mile wide so that every crank in the country can create some little group and say, according to the Act, he is entitled with his association to have a say in the matter. If that happened there would be no planning. In an effort to meet the Opposition I suggest this change. It will have to be dressed up, perhaps, for Report Stage....
I am not denying that what I said could have been interpreted as a promise. I said that I would be prepared to have another look at the matter and I am not trying to pull a fast one on anyone. However, having looked at it, there appear to be a number of complications which will have to be considered. For instance, Deputy Haughey mentioned a couple of organisations but there are in this city up to 30 or 40 organisations all of which claim to be protecting the environment and all of which will create a great fuss if we make this amendment and they are not included. I have included public bodies but I would be afraid that to include these other bodies would lead to a situation where, not only during the hearing of an appeal but all the time, the board did not appear to be taking account of the policy of any such organisation, they could take their case to court and hold up the whole procedure for a long time on the grounds that they were satisfied that their opinions were not being taken into consideration.
Surely only reputable national organisations would be included in the regulation.
The Deputy would be amazed at the type of organisation that would consider itself to have that right. Deputy Haughey was not correct when he said that in the future the public will not be able to participate in the way they can participate now. The public will participate and the case of the Dublin Bay oil refinery is a typical example of what can happen when people become involved in something like this. The right to be heard on any issue will remain but what will not continue will be the right of any organisation to claim that their view has not been taken into consideration. Any organisation will be free to go to the board at any time and put forward their views but to put that in the Bill as a statutory right is an entirely different matter. I would be afraid that to do so would result in something which none of us here would desire.
I thought that section 5 would deal with the matter. In providing for the setting up of an independent body there is an obligation on us to set some guidance for them as to policy and conditions for approaching their task. A voluntary body is not responsible for planning policy in relation to planning and development and it would be wrong to put such bodies on a par with local authorities who are charged in law with that responsibility.
Some of them would compare in the public mind much more favourably than the Dublin Port and Docks Board, for instance.
The public mind is something peculiar. One would have to define which public mind he was talking of.
Then, let us say "in the minds of right-thinking people".
What is extraordinary in regard to planning is that we can get about a 50-50 breakdown in regard to any decision. It is said that one cannot win them all but we have reached the stage that we cannot win any of them, because no matter what decision is given there is always a large section of the community who will be prepared to say that it is wrong. If the opposite decision were taken somebody else would say it was wrong. However, I am anxious to help, and if the Deputies opposite would be happier I would agree to have another look at this for the Seanad, but I am not promising to bring in an amendment on this because I am not quite happy about the effect it might have.
Amendments 10 and 11 may be taken together. If amendment No. 10 is carried amendment No. 11 cannot be moved.
I move amendment No. 10:
In page 4, to delete lines 28 and 29 and to substitute the following subsection:
"(1) The Minister shall, from time to time, give to the Board such general directives as to policy in relation to planning and development as he considers necessary."
During Committee Stage an amendment was put down by Deputy Haughey to substitute "shall" for "may" in section 6 (1). I undertook to consider introducing a Report Stage amendment to meet the Deputy's point. The Deputy's point can be met by such amendment which makes the giving of general directives mandatory where such appears to be necessary.
If amendment No. 12 is carried amendment No. 13 cannot be moved.
I move amendment No. 12:
In page 5, to delete lines 1 to 6 and to substitute the following subsection:
"(2) Accounts kept in pursuance of this section shall be submitted by the Board to the Comptroller and Auditor General for audit at such times as the Minister shall direct and, when audited by him, shall, together with the report of the Comptroller and Auditor General thereon, be presented to the Minister who shall cause copies to be laid before each House of the Oireachtas."
On Committee Stage I undertook to introduce a Report Stage amendment on these lines. The net effect of the amendment is to revise the existing subsection (2) by inserting after "audit" the words "at such times as the Minister shall direct" and dropping the word "annually".
This amendment would allow the Minister for Local Government to direct when accounts should be presented for audit, for example, within a certain number of months after the end of the financial year. I think this meets the suggestions made.
I move amendment No. 14:
In page 5, line 7, to delete "in each year" and substitute ", not later than the 30th day of September in each year,".
This amendment implements an undertaking given by me during the Committee Stage debate. It provides that the board shall submit their annual report to the Minister not later than nine months after the end of the year to which it relates.
Again, we are grateful to the Minister for meeting our viewpoint. I am not entirely clear as to what the amendment will now involve. Amendment No. 14 proposes to insert into lines 11 and 12 the words "not later than the 30th day of September in each year". This refers to the board supplying the Minister with a report of their stewardship. The new subsection (2) will then read "The Board shall not later than the 30th day of September in each year". Does the Minister envisage that the board year will be an annual year?
And, therefore, will be 30th September of the following year?
I am not sure if it is stipulated elsewhere in the Bill that the board shall operate on a calendar year basis. Even if it does, would we be in some difficulty at the start?
A year means 12 months ending December. Naturally, unless it started on 1st January there would have to be a short year.
The Minister does not anticipate any difficulty at the start?
The year will end on 31st December?
That is right.
Even if it is not a full year the report will have to be made before the following 30th September?
I move amendment No. 15:
In page 5 to delete lines 11 and 12 and to substitute the following subsection:
(2) The Board shall supply the Minister with such information relating to the performance of its functions as he shall from time to time request.
On Committee Stage Deputy Haughey pressed to have the phrase "relating to the performance of its functions" used instead of "relating to its functions" and I undertook to consider the point. Whichever wording is used, the Minister would have the power to obtain whatever information he might require. Both forms are used in existing legislation, but since Deputy Haughey pressed his point so strongly the amendment proposes to substitute the phrase "relating to the performance of its functions".
Amendment No. 16 has already been discussed.
I move amendment No. 16:
In page 5, to delete lines 13 to 15.
I move amendment No. 19:
In page 5, line 18, to insert "as to the number and kind of such employees" after "the Minister".
Deputy Haughey's Committee Stage amendment No. 18 proposed the deletion of the words "such and" from subsection (1). He argued that the present wording gave the Minister power to approve or not to approve of particular persons a board wishes to appoint as employees.
While the form of words used in the existing subsection has been used in other enactments, and while there was never any intention that the provision should operate in the manner suggested by Deputy Haughey, it may be no harm to clarify the matter. The present amendment, therefore, puts the matter beyond doubt that the Minister's power to approve extends only to the number of employees and their kinds, grades and classes and so on, and not to individual appointments. The words, "number and kind" are used in section 11 of the Local Government Act, 1941, the basic provision about employment of local authority staff.
I am glad to see this change. As the Minister said, the original form appears in other legislation. There have been arguments on many occasions in relation to it. I think the change made clarifies the situation.
I move amendment No. 20:
In page 6, between lines 45 and 46, to insert the following subsections:
"(2) Any person may notify the Board in writing of his willingness to be engaged by the Board as a consultant or adviser pursuant to this section and such person when so notifying the Board shall give to the Board particulars of his qualifications and experience.
(3) The Board shall maintain a list of the persons who duly give to the Board a notification pursuant to subsection (2) of this section.
(4) The Board shall, in engaging a consultant or adviser under this section, have regard to the list maintained under subsection (3) of this section, but the foregoing provisions of this subsection shall not be construed as precluding the Board from engaging as a consultant or adviser a person whose name is not on the said list.
(5) The Board shall include in each report made under section 9 of this Act a statement of the names of the persons (if any) engaged pursuant to this section during the year to which the report relates.".
The Bill, as introduced, did not contain any specific provision enabling the Board to engage consultants or advisers. However, in order to put the matter beyond doubt, I introduced an amendment on Committee Stage which was agreed and now appears as section 14 of the Bill. Deputy Molloy was anxious that some provision should be made to ensure that suitably qualified consultants who were prepared to offer their services to the board would be considered and that the names of persons engaged would be published. This amendment covers the matter.
Deputy Molloy also suggested that there should be disclosure of fees and I pointed out the difficulties which might arise in obtaining consultants from abroad. I have considered the matter and while appreciating its purpose, I consider it would probably be invidious to discriminate against Irish consultants in this way.
Amendments Nos. 22 and 23 are related and may be taken together.
I move amendment No. 22:
In page 7, line 13, to delete "contribution" and substitute "matter".
This and the next amendment are drafting amendments and should be taken together. The purpose is to improve the wording of Section 15 (3).
I move amendment No. 23:
In page 7, line 15, to delete "and be determined by the Board" and substitute "the Board which shall determine the amount of the contribution".
I move amendment No. 24:
In page 7, to delete "(3)" from line 31.
This is purely a drafting amendment. The determination of a dispute referred to in section 15 (6) of the Bill arises under section 56 (3) of the 1963 Act. While the circumstances in which such a dispute could arise are set out in section 56 (2), it seems more appropriate that the reference in this subsection of the Bill should be section 56. There are references to section 56 (3) in subsections (7) and (9) of section 15 of the Bill but there is no necessity to change these.
Amendments Nos. 25 and 26 are related amendments so both may be discussed together.
I move amendment No. 25:
In page 8, to delete lines 48 and 49 and substitute the following:
17.—(1) Except where a direction is given by the Minister under this section, the Board shall have an absolute discretion to hold an oral hearing of any reference or appeal to the Board.
(2) Where the Board is requested to hold an oral hearing of a reference or appeal and decides to determine the reference or appeal without an oral hearing, the Board—
(a) shall serve notice of its decision on the person who requested such hearing, and
(b) shall not proceed to determine the reference or appeal until after the expiration of the period mentioned in subsection (3) of this section.
(3) Any person on whom a notice is served under subsection (2) of this section, other than a person on whom there has also been served a notice under section 19 of this Act relating to the relevant reference or appeal, may, at any time before the expiration of fourteen days beginning on the day on which the notice under the said subsection (2) is served, apply in writing to the Minister for a direction under this section as regards the relevant reference or appeal.
(4) In case an application is made under subsection (3) of this section to the Minister, unless the Board decides to hold an oral hearing of the relevant reference or appeal, it shall not determine such reference or appeal pending the decision of the Minister on the application.
(5) The Minister may direct the Board to hold an oral hearing of any reference or appeal to the Board and any such direction shall be complied with by the Board.
The existing section 17 gives the board an absolute discretion to hold an oral hearing of a reference or appeal. On Committee Stage Deputies expressed opposition to the idea of leaving it entirely to the board to decide whether an oral hearing should take place. I pointed out that not only is the number of appeals rising, but also the proportion of cases where an oral hearing is requested. I made it clear that it is no longer practicable to ensure that every appellant who demands an oral hearing will get one unless we are prepared to accept very extensive delays. My sole objective to including section 17 in the Bill is to help to reduce delays and this I feel sure is an objective we all share. However, in deference to the views expressed by Deputies, I am now proposing an alternative provision under which the board will still have discretion as to whether or not an oral hearing should be held except in a case where the Minister directs that there should be such a hearing. It will be open to a person who is aggrieved by a decision of the board to refuse an oral hearing to apply to the Minister to give the board a direction in the matter.
The Minister will remember that our objection to this section was on the basis that the board had absolute discretion. We felt that the Minister should have a certain authority here and he has taken this in the amendment so it is acceptable to us.
I move amendment No. 27:
In page 9, line 9, before "the person" to insert "to".
This is just a simple grammatical change rather than a drafting change. I do not intend to divide the House on it. Perhaps the Minister will indicate whether or not he thinks it is necessary.
This is a drafting amendment which was also put down on Committee Stage by Deputy Haughey. It was moved by Deputy Molloy in Deputy Haughey's absence. The Minister said he saw no merit in the amendment and wondered why it was put down. No case was made for the amendment and it was withdrawn.
It is put down simply in my passion for the purity of language but if the Minister does not think it worth while far be it from me to force it on him.
I often agree with Bernard Shaw who said that language well spoken is language well understood. I am not sure that everybody will understand that.
The only thing I would say before withdrawing it is that a teacher of first-class English in a primary school would agree that I am right but having said that I withdraw it.
I move amendment No. 28:
In page 9, line 19, after "appeal" to add "but any party may within the stated time after the service of the notice make written submissions to the Board who shall consider such submissions before determining the reference or appeal".
We put down the amendment simply to ensure that the serving of a notice by the board does not preclude the party concerned, within the stated time after the serving of the notice, from making a submission which must then be considered by the board before coming to any decision. We feel that the section as it stands could be interpreted as meaning that if a party or parties concerned have not already made the submission before the notice is served they could be precluded from so doing after the notice is served. As we pointed out on Committee Stage there could be many and varied reasons why the people concerned did not make a submission before the time at which the notice was served and, therefore, we want to ensure that the serving of the notice will not preclude them from making further submissions.
This is the same as the Committee Stage amendment put down by Deputy Haughey and withdrawn after discussion. The Official Report for 22nd January, Volume 277, No. 5, columns 848 to 850 has the record. As it stands, section 19 enables the board to make a decision at any time after the period allowed by the notice issued under subsection (1). It does not enable the board to make that decision without considering any submission received from a party either before the notice was issued or before expiry of the time allowed in the notice and it does not even exclude the possibility that if a submission was received from a party after that time the board would still consider it if they had not already made a decision. Subsection (2) is permissive and not mandatory. While there is no fundamental objection to the amendment the fact that it is mandatory in its terms might preclude, or at least discourage, consideration of a submission which arrived a few days after the relevant period but before a decision was made. In all the circumstances it seems preferable to leave the section as it stands.
Is the Minister satisfied with the position?
Yes. I satisfied Deputy Haughey on Committee Stage about this because he withdrew a similar amendment.
The Minister should reconsider my position further.
Is the Minister satisfying me now?
Amendment No. 29 is consequential on amendment No. 31 so amendments Nos. 29 and 31 may be discussed together by agreement.
I move amendment No. 29:
In page 9, line 30, to delete "Where" and substitute "Subject to subsection (2) of this section, where".
Section 20 was debated at length on Committee Stage but no definite conclusion was reached. Some reservations were expressed about nearly all the suggestions put forward for its amendment. In the end, it was left to me to review the matter before Report Stage although I made it clear that I did not see that much could be done by way of amendment. As I said before, the section is largely a re-enactment of section 18 of the 1963 Act which was intended primarily to encourage reasonable decisions by planning authorities and to discourage abuse of the appeals machinery. In fact, that section has not been used to any great extent and although the provision is now being widened to bring in third parties not included before, my experience is that the percentage of cases where the section might apply would still be very small. That does not mean that it is not necessary to have the provision.
It is extremely difficult to define precisely the circumstances in which the section might be applied so it is unavoidable that we must rely on the discretion and the good sense of the board. However, I want to put it on the record of the House that there is no general intention that an appellant exercising his right of appeal in abona fide way should be directed to make any contribution to expenses even if his appeal proves unsuccessful. I do not believe there is any need to fear that where a person's property is affected and he is genuinely aggrieved by a decision of the planning authority, or the appeal of a body concerned with environmental matters is reasonably grounded and reflects that concern, the board would direct such person or body to pay expenses merely because they availed of their statutory rights but were unsuccessful in their appeal. In order to clarify subsection (1) (b) (ii) and remove fears that excessive costs or costs not related to an appeal, will be rewarded, I am proposing amendments Nos. 30 and 31 which will remove the reference to costs and will require the board to consult with the Minister before directing payment by any party to an appeal of a sum exceeding £50. Amendment No. 29 is a consequential drafting change.
The amendment proposes the insertion of the words "subject to subsection (2) of this section". Will that subsection (2) be the new subsection (2) which amendment No. 31 inserts?
In fact, the whole thing will be subject to the Minister's overriding power if the amount exceeds £50.
I move amendment No. 30:
In page 9, lines 55 and 56, to delete "costs or other expenses" and substitute "expense".
I have already covered that. In order to clarify subsection (1) (b) (ii) and remove fears that excessive costs, or costs not related to an appeal, I am proposing amendments Nos. 30 and 31 which remove reference to costs. The reference to costs is being deleted because it is different from the other subsection and that is what the Opposition were objecting to. I am taking out the reference to "costs" and that meets the views of the Opposition.
Is it legal costs?
I will put the word back in again if the Deputy wishes.
Will it, in fact, mean that the board will not be able to award legal costs to an appellant? What is the difference between costs and expenses here?
Section 18 (b) (i) of the 1963 Act states:
The Minister, if he so thinks proper, may direct the appellant to pay—
(i) to the planning authority, such sum as the Minister, in his absolute discretion, specifies as compensation to the planning authority for the expense occasioned to them in relation to the appeal,
In section 20 (b) (ii) of the original measure we had:
to any of the other parties to the appeal, such sum as the Board, in its absolute discretion, specifies as compensation to the party for the costs or other expenses occasioned to him in relation to the appeal,
We are taking out "costs or other".
This is a matter of some significance and I do not know that we had any discussion about this before on Committee Stage.
It is only expenses in relation to the appeal that can be included. On Committee Stage the Opposition argued that any costs could be included. The Opposition objected to that, and rightly so. We have taken out "costs" and only the expenses related to the appeal can be included. There was a suggestion that somebody could say they had lost a couple of thousand pounds because this had happened but that has been taken out of the Bill now.
We agree that consequential loss should not be included but is the Minister satisfied that the new wording will cover all reasonable expenses and outlay of the party conducting an appeal?
In other words, any outlay or expenses in the conduct of the appeal can be awarded by the board?
Yes, and that is the same phraseology that was used in the 1963 Act.
I move amendment No. 31:
In page 9, after line 60, to insert the following subsection:
(2) A direction to pay any sum exceeding £50 shall be given by the Board under subsection (1) of this section only after consultation with the Minister.
In connection with amendment No. 32, in the name of the Minister, amendment No. 58 is related and amendment No. 59 is related to amendment No. 58. By agreement amendments Nos. 32, 58 and 59 will be taken together. Recommittal is necessary in respect of amendment No. 32 since it involves new matter of substance which does not effectively arise out of Committee proceedings.
I move amendment No. 32:
In page 10, to delete line 4 and substitute the following:
"21.—(1) The Minister may make regulations providing for any matter of procedure in relation to references or appeals to the Board.
(2) Regulations shall be made under this section providing for any".
This is a drafting amendment.
The Minister took out "shall" and substituted "may".
It is a drafting amendment. It includes in the Bill a specific new provision for the making of regulations about the procedure in relation to appeals and references to the board. As a consequence, section 82 of the 1963 Act is being redrafted. Amendment No. 58 is consequential. This also is a drafting amendment designed to clarify the position in relation to appeals procedures. Specific provision has already been made by amendment No. 32 for the making of regulations about procedure in the case of appeals and references to the board. As a consequence, this amendment redrafts section 82 (1) and (2) of the 1963 Act so as to confine them to those appeals (under building regulations) remaining with the Minister for decision and oral hearings in relation to the closure of rights-of-way. The other amendments being made in section 82 are necessary to take account of the provision in section 43 (1) of the Bill under which oral hearings, rather than public inquiries, will in future be held in cases where closure of public rights-of-way is proposed.
I must confess I am not too clear. The Minister is dividing the existing subsection (1) of section 21 in two parts. The first part will be the new subsection (1) which states that the Minister may make regulations providing for any matter of procedure in relation to references or appeals to the board. To that extent the new provisions leave it open to the Minister to make regulations in so far as procedure is concerned. The new subsection (2) will go on to say that regulations shall be made under this section providing for any oral hearing by the board of a reference or appeal. It seems that there is a difference being made between procedures and other aspects of the oral hearing. Is that the position?
The Deputy is under the impression that this matter was discussed on Committee Stage. The draftsman felt it would be better to put in the amendment to the 1963 Act. It is new but there is no change of substance whatever. The Deputy can be assured that this is simply a question of redrafting it to make it better.
The draftsman may have intended to redraft it with a view to making it clear but I do not think he has succeeded. All he seems to have done is to divide the existing subsection (1) into two parts and provide that the Minister may now make regulations covering the procedures and he shall make regulations providing for any oral hearings. Surely the procedures would be part of the oral hearings.
Why he wants to take them out I do not know. If the draftsman thinks it is better drafting, I am not prepared to quarrel about it at this stage.
I move amendment No. 33:
In pages 10 and 11, to delete lines 18 to 58 and 1 to 7, inclusive.
This is the transitional section. Subsection (3) provides:
For the purpose of enabling the Board to perform its functions on and from the appropriate day, the Board may, as an interim measure, make arrangements for the supply to the Board by the Minister of any services required by the Board pending the making by the Board of sufficient appointments pursuant to section 11 of this Act and the Minister may supply and the Board may avail of services for which arrangements are made under this subsection.
I wonder could the Minister clarify for us what his intention is in relation to his reference to an interim measure, and what procedures it is expected will take place when the Act comes into operation. We want to highlight the fact that the interim could turn out to be quite a long period and in fact the same procedures would be in operation long after the Bill was passed. The same individuals would be involved. Would they be employees of the board or employees of the Minister? If they are employees directly under the Minister the question of the independence of the board would arise in the minds of some people. If the Minister could clarify for us what his proposals will be in relation to the period immediately after the Act comes into operation, we might withdraw the amendment.
Further to what Deputy Molloy has raised, I should like the Minister to advert to this whole question of the transitional arrangements. Thinking about it, I am not certain in my own mind where a matter is being processed under the existing procedures, where it is before the Minister and being considered by him, whether it is entirely valid and suitable to transfer that matter half way through its consideration to this new board.
It is something about which I would have some doubt. It seems to me it could be argued that, where a matter is before the Minister under the existing legal provisions, and where all the arguments have been submitted to the Minister as the appropriate deciding person, the whole case could be lifted out of the existing provisions and transferred to the board for decision. As Deputy Molloy asked, what precisely will happen? Will the whole matter have to start offab initio? Will all the case have to be argued again? Will the appellants have to repeat any trouble and expense they have already been put to? A matter of some consequence arises here.
One thinks immediately of the current case of the Dublin Bay Oil Refinery. Presumably if the Minister acts expeditiously with the remaining Stages of this legislation, that would be a case which would come under the provisions of section 22. Is it envisaged that the inspectors who sat on the Dublin Bay Oil Refinery case would make a report to the Minister and the Minister would transfer that report and the whole matter to the new board?
If the report was made to me, I would make my decision. If I had made my decision, it would stay with me. If a decision has not been made, it goes to the new board. There is no question of more people being involved. The same report will be going on to someone else.
It is important from the public interest point of view to clarify what precisely will happen. At the moment the inquiry has concluded. The inspectors are now presumably drafting their report. That report will be submitted to the Minister. If the board has been established when the Minister receives that report, will it then be transferred to the new board for a decision? If so, will the new board feel confident to decide it simply on the basis of the inquiry which has been held and the report which has been submitted, or will it consider it necessary to reopen the whole matter and conduct its own inquiry? This is a consideration which involves my asking the Minister if it is not preferable in cases which are under way, transitional cases, to have them finished out by the Minister and not transferred half way through to this new board. I wonder would the Minister like to give us his views on what will happen in regard to the more important of these issues.
As I see it, the position is that the change cannot take place half quickly enough.
Is the Minister dodging the Dublin Bay issue?
If the Dublin Bay issue comes before me before the change takes place, I will deal with it.
Throw it out.
The Deputy would not ask me to make a decision without going fully into the evidence. If a report comes in, even if it means reading the whole thing, which is necessary in many cases, the decision will be made in a matter of hours, or days at the most. At that stage an appeal does not hang around. If it were a question of an appeal dragging along for several weeks, I could understand why Deputy Haughey should wonder what would happen. Normally it would be dealt with within a matter of days at the most. It would be a question of reading through the material, consulting certain people, checking on the conditions, and so on. Normally appeals which were investigated and for which reports were prepared but which had not come to me physically would be transferred to the new board who would deal with them as I would deal with them if I had got them. The evidence would be available and there would be no necessity to go into the question of another inquiry or anything else. It would be the same as if there were a change of Government.