Local Government (Planning and Development) Bill, 1973: From the Seanad.

The Dáil went into Committee to consider amendments from the Seanad.

I move that the Committee agree with the Seanad in amendment No. 1.


In page 33, paragraph (a), for lines 4 to 18 the following substituted:

"(3) Where a question of law arises on any reference, appeal or section 76 hearing, the question may be referred to the High Court for decision by it by,

(a) in the case of a reference or appeal, other than an appeal to the Minister under section 88 of this Act, the Board,

(b) in the case of an appeal to the Minister under section 88 of this Act or a section 76 hearing, the Minister.

(3A) A person shall not by prohibition, certiorari or in any other legal proceedings whatsoever question the validity of—

(a) a decision of a planning authority on an application for a permission or approval under Part IV of the Principal Act,

(b) a decision of the Board on any appeal or on any reference,

(c) a decision of the Minister on any appeal,

unless the proceedings are instituted within the period of two months commencing on the date on which the decision is given.".

Amendment No. 2 is consequential and, if the House agrees, amendments Nos. 1 and 2 may be debated together.

These two amendments to the Bill were made by the Seanad at my request. They arise from difficulties which have arisen in relation to particular development proposals for which planning permission has been granted on appeal subject to the most stringent environmental and other conditions. So far as I am concerned, anybody who is dissatisfied with an appeal decision is entitled to go to the High Court to seek to have the decision quashed if he has reasonable grounds for doing so, but I do not think that a person should be entitled to obstruct a developer by threatening to take a High Court action at some future date.

Under section 82 (3) of the 1963 Act, which is being replaced by a provision of section 42 of the Bill, an appeal lies to the High Court on a question of law which arises on any appeal, and such an appeal to the High Court must be taken within three months after the giving of the decision or such longer period as the High Court may in any particular case allow. Apart altogether from this provision, the general law entitles a person at any time to apply to the High Court for an order of certiorari or a declaratory order seeking to have a particular appeal decision quashed and there is no time limit on this.

As I have said, I have no wish to deprive anybody of right to apply to the High Court seeking to have an appeal decision quashed in a case where the person considers that there are grounds for so doing, but I think it is only reasonable that, if a person wishes to exercise this right, he should initiate the proceedings within a reasonable time. It is only fair that there should be some provision to ensure that all objections to a particular development proposal can be brought to a speedy end. For this reason I put down amendments which in effect involve a reasonable regulation of the right to access to the courts to question a decision made either by a planning authority on an application for permission or by the Minister or the board in an appeal case. There are precedents for this type of provision both in English law and in our own law, for example, in the provisions of the Housing Act, 1966, dealing with the confirmation of compulsory purchase orders.

I have given a considerable amount of thought to the period which should be allowed under the proposed new provision for the initiation of proceedings in the High Court. In the interests of bringing a case to finality and enabling a worth-while development to go ahead as quickly as possible, I would like to provide for quite a short period. However, I think we must recognise that people who may have a legitimate grievance will need time to consult with their legal advisers and to weigh up the pros and cons of proceedings in the courts. Moreover, if we were to provide for an unduly short period there could, perhaps, be a danger that the entire provision might be found to be unconstitutional in that it would represent a unreasonable interference with the right of access to the High Court. In all the circumstances, I have been advised that a two-months' period would be appropriate, and I had the amendment drafted accordingly.

I should, of course, point out that even if we set a fairly limited period for applying to the High Court in a case where the validity of a permission is being challenged, a considerable delay could still result before the case would come to a hearing or judgment could be delivered. I am advised that nothing can be done about this by way of further amendment since it would not be appropriate to attempt to regulate court procedure in the Bill. I might mention, however, that once proceedings are initiated in the High Court, a developer will have some remedy because, if there is unreasonable delay on the part of the person who instituted the proceedings, an application can be made to the court for an order either directing that the statement of claim, and so on, should be lodged quickly or, alternatively, striking out the proceedings. The type of case about which I am particularly concerned is the case where a person does not actually institute proceedings but threatens to do so if and when a development commences. I am satisfied that the proposed amendment of the 1963 Act would, at least, prevent this type of situation arising in the future.

The amendments themselves are largely self-explanatory. The first proposes that the existing section 82 (3) should be redrafted to confine it to cases where points of law which arise in appeal cases may need to be referred to the High Court either by the Minister or the board. A new subsection (3A) is then being inserted to provide for the type of limitation about which I have been speaking in the case of proceedings designed to challenge the validity of a planning decision. The second amendment of section 42 is purely consequential; it takes account of the redrafting of section 82 (3) which is effected by the first amendment.

I take it the first amendment is simply a drafting amendment in subsection (3) where the words "by it" are inserted?

That is correct.

I agree in principle with what the Minister has stated and with the amendment. I believe there should be a time limit and there have been cases here in this country where threats of proceedings resulted in our losing industry. I would accept fully that it is only right that we should endeavour, through our legislation, to avoid this type of thing in future.

The only point with which I have a slight problem is in relation to the amount of time given to the person to institute proceedings. The Minister has stated that he went into this very thoroughly, and I would simply ask him if his legal advisers would agree this was, in fact, sufficient time for a person to actually institute proceedings.

They have done so. There would be a holdup for two months while a decision was being reached, but the court can give an extension of the period, if they so desire. Once the case starts, the court could give an extension of the time. They could adjourn the case while they were——

That is not provided for in the Bill.

No, but the court can normally adjourn any case.

In that case I accept the amendment.

What does "institute proceedings" mean in this context?

It means the case must be notified to the court.

There are various steps in the proceedings.

A summons on motion. Whatever action is necessary to bring the case before the court must have been taken, not just standing outside the court, shaking their fist and saying: "We are going to do something".

I would not expect that that was what was involved, but legal proceedings are very technical, and I would just like to be clear on what constitutes "instituting proceedings" in this amendment.

Would instructing a solicitor, for example, be——

No. The necessary action would have to be taken to ensure the case was, in fact, before the court.

It would not be enough just to write to the planning authority and say: "I am instituting proceedings"?

How then would the matter be affected by vacation in the courts? Suppose there is a two months' vacation.

The summons would be sufficient to show they were starting proceedings.

The institution of proceedings can be between the parties. It need not necessarily be in the court. If my solicitor issues a summons——

If the High Court summons is issued, it would be taken as evidence.

I want to be absolutely certain that court vacations cannot affect this because otherwise it could render the matter completely ineffectual. Is it the position that everybody will have a full two months to consider the situation and then take some positive, initial, procedural action?

Very definitely. We all know that the reason for taking it is that it has been shown that by merely saying proceedings would be taken industry was frightened off after a lot of trouble was taken.

We know the tragic case the Minister has in mind. Would the normal law cover a situation where a person, through no fault of his own, was not aware of the decision which would necessitate his taking those proceedings? Is it deemed to be a notice that once a decision is given time starts to run against the person straight away and there are no exonerating circumstances?

There is no exoneration because if one loophole was allowed in it I am afraid too many people could crawl through it.

It could, of course, result in injustice in that way. If my vital interests were affected and I happened to be away——

The Deputy would have somebody looking after his interests.

I suppose it is rough justice but probably necessary.

Question put and agreed to.

I move: That the Committee agree with the Seanad in amendment No. 2:

In page 33, paragraph (b), lines 25 and 26, ", except where the context otherwise requires" substituted for "except in paragraph (b) of subsection (3)".

Question put and agreed to.

I move: That the Committee agree with the Seanad in amendment No. 3:

In page 35, between lines 53 and 54, the following section inserted before section 44:

"44.—Section 42 of the Public Health (Ireland) Act, 1878, as amended by sections 86 and 91 of the Principal Act, shall be construed and have effect as if `or such extended period as may at any time be agreed in writing between that authority and the person proposing to execute the work,' and `or such extended period, as may be appropriate' were inserted therein after `within two months' and `such two months', respectively."

This amendment was also made by the Seanad at my request. Section 91 of the 1963 Act amends section 42 of the Public Health (Ireland) Act, 1878, so as to extend from one month to two months the period within which a planning authority must give a decision on whether any building work is in conformity with building regulations. The preparation of such regulations is now at an advanced stage. It is likely that, in some cases and through no fault of their own, the planning authority may not be in a position to give a fully considered decision on applications within the prescribed time due, for instance, to the complexity of the project or delay on the part of the applicant in furnishing necessary supplementary information in good time.

It seems reasonable, therefore, in the interests of both planning authority and applicant that there should be some provision for the extension of the time allowed for dealing with applications. The most acceptable way of providing for such an extension would be to amend the existing law by providing that the time limit may be extended to the extent that the person proposing to carry out the building work agrees in writing. This amendment, therefore, inserts in the Bill a new section which amends the 1878 Act so as to allow such an extension to be agreed.

I accept this amendment. I feel it is helpful and an improvement on the situation as it was. I am, therefore, in agreement with the amendment.

Question put and agreed to.

When does the Minister propose to set up the board?

The new Act will come into operation on such day or days as may be fixed by order by me. Different days may be fixed for different provisions of the Act. Generally, it is the intention to bring all sections of the Bill into operation as soon as possible but it must be recognised that this cannot be done at once.

I hope to be able to bring a number of the provisions of the Bill into operation within about a month of its enactment. These are the provisions in relation to development plans and most of those relating to planning control and enforcement. It will, of course, be necessary for my Department to provide advice and guidance for planning authorities as to the intent of these provisions and their practical operation. Hence the need for some little delay in bringing them into operation.

A further group of provisions in the Bill are dependent for their operation on the making of regulations. The conflict of interests provisions are an example. I hope to be able to make the necessary regulations and take the other steps necessary to bring these provisions into operation in the autumn.

Finally, there are the provisions relating to the establishment of the board and the transfer of appeals functions to them. While it is my aim that the board should be established and take over responsibility for dealing with appeals as soon as possible after the Bill is enacted, I must make it clear that before this can actually be done a great deal of administration work will have to be carried out and various sets of regulations will have to be revised. Moreover, if there is to be a smooth transfer of functions with minimal disruption of the important work of deciding appeals, it will be necessary for the board to have some time to prepare for their task. I can assure the House, however, that in so far as I am concerned, the sooner the board become operational the better.

The responsibility for dealing with roughly 4,000 planning appeals each year is not something which I or my Parliamentary Secretary want to retain for even one day longer than is absolutely necessary. However, looking at the matter realistically, I envisage that it will require about six months or so to prepare for the full transfer of responsibility to the board.

When Senator Dolan asked me about this in the Seanad I gave the same reply to him. I assure the House that I will try to have it in operation as quickly as I can because I cannot see the end of it quickly enough. I am told by my experts it will take approximately six months to have the board finally operating properly.

The Minister will agree——

Deputies will appreciate that we are being irregular in this discussion at the moment.

While it is a fact that very many worth-while changes have been made in the Bill, public attention has been focussed on the question of the board and the transfer of the Minister's powers to the board. For that reason, and because this is part of the basic reason the Bill was introduced, I would be glad to see the board in operation as soon as possible. The Minister says it will take about six months before the board are actually in operation. Does he intend appointing the members of the board in considerably less time than six months?

I would imagine within the next couple of months we will have to be preparing for the new members of the board. It is not everybody who will be anxious to be a member of the board because they will not have the experience I have had of trying to deal with appeals. I would say that maybe within two or three months we will have to be trying to get at least a panel of members from which they would be selected.

If the board were to be actually functioning within six months, it would be necessary that the members of the board would know quite a considerable time before that.

I agree that that is so.

It is true to say that although the Bill was a long time before the House a very good job was done on it. The worth-while result has been because of the fact that the Minister accepted quite a considerable number of amendments and the Opposition did very considerable work in relation to the submitting of amendments.

I am a great believer in democracy and this is an example of the democratic way to deal with legislation. All Bills, no matter what they are, should be debated fully in both Houses. They have been dealt with not always in a reasonable way but eventually when we got the nitty gritty, the contentious things away, we came down to the discussion. I would like to pay a tribute to Deputy Faulkner who was very constructive and also Deputy Haughey in the proposals he put in. I am grateful for it and I hope the Bill will be successful in its time as the 1963 Act was. While we did not think at the time it would be so successful, it did a good job considering it was pioneering legislation. I hope this will be the same.

We should include Deputy Molloy and Deputy Haughey.

Let me also say that I believe it shows the public that the Members of this House decide on what the legislation is.

That is the way it should be.

Amendments reported and agreed to.
Ordered: That a message be sent to the Seanad accordingly.