Dáil Éireann debate -
Tuesday, 17 Jul 1979

Vol. 315 No. 16

Housing (Miscellaneous Provisions) Bill, 1979: Report Stage.

Minister for the Environment (Mr. Barrett)

I move amendment No. 1:

In page 3, to delete lines 14 to 17 and insert the following:

" `house' includes any building or part of a building used or suitable for use as a dwelling and any outoffice, yard, garden or other land appurtenant thereto or usually enjoyed therewith and `housing' shall be construed accordingly;".

In view of the reservations expressed by Deputy Fitzpatrick on Committee Stage it seems appropriate to amend the definition of "house". I consider that the amended definition is an improvement on the original since it would remove the doubts expressed as to whether an outoffice in its own right could be interpreted as a house. The inclusion of the word "outoffice" in the definition is necessary because of the fact that an outoffice such as a coal or a turf shed need not necessarily be part of a building suitable for use as a dwelling.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I am obliged to the Minister for having reconsidered the definition of “house”. With due respect and in all humility I think that the amendment suggested by me and accepted by the Minister is a much neater and clearer definition of the word “house” and indeed it clarifies the position and makes the section much more readable and clear.

Amendment agreed to.

Mr. Quinn

I move amendment No. 2:

In page 3, lines 29 and 30, to delete "with the consent of the Minister for Finance and the Minister for the Public Service and".

We referred to this amendment in the debate on Second Stage. It is an attempt to redress the balance between central government and local government on behalf of the public representatives. All the arguments that had to be made for it were made on Second Stage and I will not repeat them now.

Mr. Barrett

I am prepared to accept Deputy Quinn's amendment, which will have the effect of continuing to ensure that consultation takes place with the Minister for Finance and the Minister for the Public Service in the event of a future decision by the Minister for the Environment to devolve responsibility for administration of the grants. It is accepted that there should be consultation rather than consent.

Amendment agreed to.

Mr. Quinn

I move amendment No. 3:

In page 3, line 37, after "consult with" to add "the Minister for Finance and the Minister for the Public Service and",

Amendment agreed to.

Mr. Barrett

I move amendment No. 4:

In page 4, to delete lines 27 and 28 and substitute the following:

"(b) in case the person builds the house, the foundations were not completed before the 27th day of May, 1977.".

The purpose of this amendment is to improve the drafting of the section to meet a point made by Deputy Fitzpatrick on Committee Stage.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Again I am grateful to the Minister for reconsidering this drafting. It is again much clearer than the paragraph as it originally appeared when the Bill was introduced. This is an improvement.

Amendment agreed to.

Mr. Quinn

I move amendment No. 5:

In page 4, after line 51, to add:

"(h) the phased payment of a grant.".

This amendment may not be necessary. It is simply to enable the Minister to decide if he wishes to make provision for the phased payment of grants. There was under the old system which we referred to on Committee Stage a provision whereby a certain proportion of the housing grant was paid when the structure reached the roof so that the cash flow of the builder could be improved. This amendment is simply to reintroduce the legal provision for that if it does not already exist. It does not put any extra charge or any extra difficulty upon the Minister but it does give extra flexibility in the event of the housing grants reaching the scale of financing that they had reached in the late 1950's. In that event it would be essential to have some provision for phasing.

Mr. Barrett

I am opposing this amendment not because I disagree with the sentiments which prompted the Deputy to move it but on the grounds that they are unnecessary in the context of this Bill. I am advised that it is unnecessary to provide specifically in section 4 of the Bill for the payment of new house grants by instalments. The section as drafted is adequate to enable grants to be paid by instalment if that is desired.

At present new house grants are paid directly to the members of the voluntary housing associations and not to the association. Section 4 provides for payment of a grant to the person. A voluntary housing association would come within the definition of a person. Consequently an association may qualify for a grant under section 4 subject to such regulations as may be made. Regulations may provide for different amounts of grants for different classes of persons and the amendments are unnecessary.

Mr. Quinn

If the amendment is unnecessary then I would be happy to withdraw it, but I want a clarification that a voluntary housing association could make a joint application for, say, ten grants and that that could reach the Department of the Environment in a single form with the necessary signatures and so on and that that sum could be paid either in one lump or in a certain number of payments to avoid, explicitly and particularly, the necessity of ten separate applications being made, processed and subsequently paid. If the Minister is assuring me and the House that a voluntary housing association can benefit by coming together and getting payment either in a lump sum or in one or two parts and that he has the legal powers to do that, then my amendment would be unnecessary.

An Leas-Cheann Comhairle

The Minister has not the right to reply. If he wants to say yes or no he may but that is all.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I did not understand that Deputy Quinn was replying.

An Leas-Cheann Comhairle

Deputy Quinn was replying.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Would the amendment enable the Minister to pay a moiety of the grant when the house was roofed?

Mr. Barrett

The answer is yes in regard to the part payment to voluntary groups.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Is the answer yes in regard to payment of a moiety of a grant to individuals?

Mr. Barrett

The Bill provides for that to be done.

Mr. F. O'Brien

Can the Minister do it by regulation?

Mr. Barrett

It is at the discretion of the Minister. We do not need a regulation.

An Leas-Cheann Comhairle

We are only dealing with amendments on Report Stage. The Minister can give explanations on the Bill on the Fifth Stage.

Amendment, by leave, withdrawn.

An Leas-Cheann Comhairle

Amendment No. 6 is out of order.

Amendment No. 7 not moved.

Mr. Barrett

I move amendment No. 8:

In page 11, line 10, to delete "may" and insert "shall".

The purpose of the amendment is to meet criticisms made by Deputy Fitzpatrick on Committee Stage that the optional arrangements proposed under section 13 would be used by housing authorities to avoid their responsibilities in relation to the carrying out of pre-sale structural repairs. The amendment which I am now proposing will provide that in the event of failure by a tenant to carry out all necessary work the onus of ensuring that such works are actually carried out continues to rest with the housing authority. Under this amendment there should be no undue delay on the part of the authority in seeing that the work is done.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): This amendment is an improvement but it is still a bad section. Originally, the onus was on the housing authority to put the house in structural repair before the sale to the tenant was completed. I consider that did not go even far enough because the onus should have been on the housing authority to put the house into reasonable repair. The section as drafted gave an alternative to the housing authority to put the house into structural repair or to enter into an agreement with the tenant whereby the tenant would put the house into structural repair and the housing authority would recoup the tenant the amount spent by him on the repair. I regarded that as a sort of never ending operation and an effort by the housing authority to wash their hands of the obligation to repair the house. I made the point that the housing authority were really passing this on to the tenant because they could not get the work done in a reasonable time.

Paragraph (d) of section 13 (2) provided a procedure whereby if the tenant did not honour the agreement entered into the local authority might then come in and do the work. That was entirely unsatisfactory. The Minister is now amending it by saying that if the tenant and the authority opt for the agreement procedure whereby the tenant does the work, where the tenant does not carry out his part of the agreement, the housing authority must come in and do it. That is an improvement, but it is still a bad section and it will prolong in a most unreasonable way the carrying out of the necessary structural repairs to the house.

Mr. F. O'Brien

I am glad the Minister has made this change. He has come part of the way towards what we have been looking for but there are still problems. If in the first place the local authority could not carry out the repairs because of lack of staff and facilities the Minister is now making it mandatory on them to do so. If they could not do it in the first place and the work is not done by the tenant, the Minister is making it mandatory on them to do it although the reason they could not do it was that they did not have the staff or facilities. It is rather a tweedledum-tweedledee situation. That is my only point of disagreement. I am in favour of the local authority doing the work or farming it out to a small contractor and so at least making sure that it is at all times in the control of the local authority. The Minister is passing the job on to the person buying the house, and if he does not do it it is passed back to the local authority. It is still unsatisfactory. The wording is stronger but I am still not satisfied that it meets the case we are concerned with.

Amendment put and agreed to.

An Leas-Cheann Comhairle

Amendments Nos. 9 and 10 are consequential on amendment No. 11 and the three may be discussed together.

Mr. Barrett

I move amendment No. 9:

In page 11, line 14, to delete "and".

The purpose of these amendments is to meet criticisms expressed by Deputies on Committee Stage of the optional arrangement proposed in section 13. Amendment No. 11 makes it clear that, whenever the Minister determines an appeal under section 13 (2) (e) regarding compliance by the housing authority with the terms of the agreement under the optional arrangement proposed in section 13, the housing authority would be required to comply with the Minister's decision on the appeal.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): It is still on section 13 and it is an improvement.

Amendment agreed to.

Mr. Barrett

I move amendment No. 10:

In page 11, line 23, to delete "question." and insert "question, and".

Amendment agreed to.

Mr. Barrett

I move amendment No. 11:

In page 11, between lines 23 and 24, to insert the following paragraph:

"(f) the authority shall comply with such directions, if any, as may be specified by the Minister in a determination under paragraph (e) of this subsection in relation to compliance by the authority with the terms of the agreement."

Amendment agreed to.

Mr. Barrett

I move amendment No. 12:

In page 12, to delete lines 14 to 17.

Section 14 of the Principal Act applied only to regulations for the purposes of any section contained in Chapter III of Part II of that Act. Sections involved were sections 13 to 43. Sections 13 and 32, 35 (2) and 40 are repealed by this Bill. In the light of what the Deputy said during Committee Stage and in view of the wide powers conferred on the Minister throughout the Bill to make regulations, it would appear that the proposed section 5 (5) of the 1966 Act could be omitted except in so far as it relates to section 9 of the Bill in relation to private sites subsidy. Amendment No. 12 provides accordingly. Acceptance of amendment No. 12 would involve an amendment of the word "subsections" on page 12, line 7 to read "subsection".

Mr. F. O'Brien

This is the one where we were taking over from the Planning Bill. The Minister is dropping all that now. That is very satisfactory.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): We are deleting——

Mr. Barrett

Subsection (5).

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): We are deleting from section 14 subsection (5), which reads as follows:

(5) Regulations under this Act may provide for compliance by houses with conditions as to site, aspect, planning and number per hectare and with such plans as may be approved of by the Minister.

We made the case on Committee Stage that that was clearly in conflict with the authority of the Planning and Development Act, 1963, as amended to regulate planning and development. Am I correct in thinking that the Minister concedes that and says that the items contained in section 5 are matters for the planning authority and that he is leaving it with with them?

Mr. Barrett

It is unnecessary.

An Leas-Cheann Comhairle

Has Deputy Fitzpatrick concluded?

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): It is not my amendment.

An Leas-Cheann Comhairle

I know, but the Minister cannot reply until all Deputies have concluded.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Would the Minister in his reply confirm that subsection (5) is not necessary because it is adequately covered by the Planning and Development Act and because what are to be entrusted to the Minister by section 5 of this Act are matters more appropriately to be regulated and dealt with by the planning authority under the Planning Acts?

Mr. Quinn

I was not here when Deputy Boland dealt with his first erroneous decision in Dublin County Council insisting on the maximum density of houses at ten houses per acre, something which was an albatross around the neck of Dublin Corporation's housing committee. The Minister is right to cede to a local authority the powers in relation to planning. But the conditions in relation to grants and so on should not necessarily include planning provisions as indicated in section 5.

The word "may" is embodied in this clause. The one the Minister proposes to delete simply states that the regulations may provide for and goes on to specify certain things. I should like to think that the Minister responsible for housing would still retain, where public moneys are being used, sufficient powers to request the local authority to ensure that the house development programme it engages in is not wasteful in terms of density or other considerations. The argument we had in Dublin Corporation with regard to Dublin County Council was that they persisted in the belief that they were a rural authority and therefore should maintain their development at ten houses per acre, which was enormously expensive. If the Minister says it is unnecessary in general terms let us delete it and not have unnecessary clauses cluttering up legislation.

I should like the Minister in his reply to assure me that he has sufficient powers, by virtue of being Minister for the Environment and the Minister responsible for housing, to ensure that a local authority tied by a development plan designed in the mid-sixties, before the Ayatollah was ever heard of, can be sufficiently leant upon so that in its own housing development programme it will not be wasteful.

Mr. Barrett

Deputy Fitzpatrick is correct. This is unnecessary and is covered by the Planning Acts. With regard to development plans, they are submitted to me and I have power to change them but I do not make a practice of it.

Amendment agreed to.

An Leas-Cheann Comhairle

Amendments Nos. 13 and 22 are related and may be discussed together.

Mr. Barrett

I move amendment No. 13:

In page 12, to delete lines 45 to 51 and in page 13, to delete lines 1 to 3 and to substitute the following:

"16. —Section 60 of the Principal Act is hereby amended by the substitution for subsection (4) of the following subsection:

`(4) A scheme under this section may specify that—

(a) particular priorities shall be accorded to particular categories of persons in the letting of particular dwellings;

(b) for the purpose of determining the order of priority to be followed in the letting of dwellings to persons in accordance with the scheme, the housing authority shall obtain and have regard to a report from a medical officer of health of the health board established under the Health Act, 1970, in whose functional area the functional area of the housing authority is situate—

(i) in the making of all such lettings, or

(ii) in the making of all such lettings in relation to the making of which priority is claimed on grounds consisting of or including medical grounds.' ".

I have given careful consideration to the points made by Deputies Fitzpatrick, Quinn and O'Brien in the course of the debate on section 16.

When speaking on proposed amendments Nos. 19 and 20 on Committee Stage I emphasised that I am anxious to facilitate some housing authorities who are experiencing lengthy delays in getting reports of medical officers under section 60 (8) of the Principal Act. I am prepared, however, to concede that the elected members of a housing authority should be in a position to require that a report be obtained from the medical officer of the health board either in respect of all housing applications or only for those cases in which a medical factor is included in the grounds on which the application is based, and that where such a report be obtained the authority shall have regard to that report.

This concession will, for example, enable an authority like Dublin City Council to continue with their present arrangements, if they so wish, while allowing a county council which may feel strongly about delays to decide to allow their county manager to make lettings without referring cases to the medical officer or referring to the medical officer only cases with a medical factor involved in the grounds of the application.

This is a reasonable compromise which preserves some degree of the flexibility which I originally sought in section 16 of the Bill but concedes substantially the view that a medical officer should be involved where medical grounds are present in an application.

Section 60 of the Principal Act is built around the principle that each housing authority should itself decide, subject to the primary objectives specified in section 60 (3), the provisions of a scheme of letting priorities best suited to their own area. I am preserving the essence of this desirable principle in the compromise amendment which I now propose which will give the elected members of each housing authority the right to decide an important element of the letting priorities.

The repeal of section 60 (8) of the Housing Act, 1966, is consequential on this new amendment and is provided for in amendment No. 22.

Mr. Quinn

I should like to welcome the Minister's amendment and express the view that it represents an improvement on the legislation.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I should like to thank the Minister for reconsidering his decision in regard to the letting of local authority houses. This is an enormous improvement because under the section as originally drafted the function of the county medical officer of health disappeared completely from the procedures for the letting of houses, even in the case where applicants claimed priority on the basis of the condition of the health of a member of the family. That was monstrous and the Minister's attitude in reconsidering it is to be welcomed. Indeed, it shows what can be done by a reasonable Committee Stage debate on Bills. I am sure most local authorities will include this in their schemes for letting houses.

Mr. F. O'Brien

I welcome the amendment. Subsection (a) of the proposed new section states that:

(a) Particular priorities shall be accorded to particular categories of persons in the letting of particular dwellings;

I should like to know why the words "particular dwellings" are used. In my view that should be changed to "particular categories of persons in the letting of dwellings". It may be necessary from time to time to have certain priorities. For example, Dublin Corporation have introduced a scheme for categories in the medical and welfare fields. We find that many people qualify on welfare grounds also. It is possible that the Minister is referring to disabled persons having a particular type of dwelling. The Minister should leave a little more scope in the amendment.

Mr. Barrett

This is a repeat of what is in section 60 of the Principal Act.

Amendment agreed to.

An Ceann Comhairle

Amendment No. 14 is in the name of the Minister and No. 15 is consequential. Amendments Nos. 16 and 19 are related and amendments Nos. 17 and 18 are consequential on No. 19. These amendments may be discussed together.

Mr. Barrett

I move amendment No. 14.

In page 14, line 13, to delete "certificate." and insert "certificate, or".

The effect of these amendments will be to: (a) provide for a right of appeal to the Circuit Court against the refusal of a CRV; (b) enable the Minister to make regulations fixing the maximum site value which would be permissible for CRV purposes, and (c) enable the Minister to refuse a CRV where the cost or value of the site included in the price of a house is greater than what he considers to be the reasonable value of the site and to indicate in advance whether a particular site price is considered reasonable.

The two main issues involved, namely, the suitability of the Circuit Court as an appellate tribunal for appeals against the refusal of CRV and the possibility of influencing land prices by means of the CRV system, were both discussed at length during the Committee Stage debate so I will be as brief as possible.

In that debate Deputies Fitzpatrick and O'Brien laid much stress on the fact that there would be enormous delays—periods of one and two years were mentioned—involved in getting an appeal heard before the Circuit Court. In view of this, and as I certainly would not wish to bring in an appeal system that would involve excessive delay and expense to house builders, I agreed not to press the amendment on Committee Stage and to reconsider the matter before Report Stage.

In the meantime I have checked the position about Circuit Court delays. I understand that any delays of the magnitude mentioned by the Deputies would not be due to court arrears as there is at present no backlog of cases awaiting hearing in any of the circuits. In Dublin, for example, I am informed that there is at present only a time lag of ten days between the setting down and the hearing of cases. Similarly, the circuits in Cork, Limerick and Waterford have no arrears awaiting hearing. Therefore, I am quite happy that this is not an argument against the right of appeal being to the Circuit Court and I would hope the Deputies opposite would now accept that this proposal will offer aggrieved applicants a fair and reasonable appellate tribunal. The Circuit Court can call in experts fairly readily and it is located throughout the country. Considering the legal status of the Planning Appeals Board as the body appointed by the Minister to determine planning appeals and the fact that an appeal lies to the Minister against a refusal by the board of a request for an oral hearing it would be entirely inappropriate to have the board determining appeals against the decisions of the Minister. As well as that the assignment of such appeals to the board, might divert the board from its primary function in the planning area possibly with consequential delays in the processing of planning of appeals.

Furthermore, I am not convinced that a special tribunal would have any appeal advantages over the Circuit Court from the point of view of time or public confidence. I have every confidence that the provision I made in the amendment for Circuit Court appeals will enable the functions assigned to it to be discharged in a reasonably prompt and impartial manner. I will keep the position under review in this respect. I am asking the House to accept this part of the amendment as it had been drafted for Committee Stage.

The remainder of this group of amendments deal with the question of land or site costs. I am not going to repeat what I said at Committee Stage about the question of land costs generally except that I am pushing ahead with proposals which I intend to submit to Government as soon as possible. These amendments which are of an enabling nature are made without prejudice to whatever proposals finally emerge from the Government's consideration of the Kenny Report and are unlikely to be invoked in advance of such proposals.

However, I accept Deputy Quinn's point that it may take some time before a further Housing Bill comes before the House and it is partly for this reason that I am prepared to include provisions of this nature since there is always a possibility that in the future the position about the cost of sites could be such as to warrant the invocation of these powers at short notice without the delay which the preparation of new legislation would entail.

Regulations specifying the maxima for different areas densities and so on would, of course, be known to those engaged in the selling and as well as those involved in the purchase of sites. Therefore, no builder could argue afterwards that he bought the site in ignorance and was being penalised unfairly.

If amendment No. 16 is accepted and the new subsection (4) is invoked there will be a right of appeal to the Circuit Court against a refusal of a CRV on the grounds that the value of the site is not considered reasonable. Paragraph (b) of subsection (4) expressly gives the Minister power to issue an indication of whether the price proposed to be charged or paid for a site represents reasonable value. This is to ensure that in the event of paragraph (a) of the subsection being brought into operation a small builder purchasing sites will have an opportunity to know where he stands vis-a-vis a CRV application before he pays for the sites. I believe that this would be welcomed by many small builders.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): There are two principles or issues involved in this group of amendments, first of all, the control of the price of the site and, secondly, the appeal to the Circuit Court. There has been quite a considerable improvement effected here but, quite candidly, in regard to the attempt to control the price of sites, I thought the Minister was going further in these amendments. I was somewhat disappointed to hear him say it is not proposed to implement the power given to him here until the Kenny Report has been dealt with. I do not think that that report is involved in these amendments.

The first of this set of amendments Amendment No. 15—seeks to add another paragraph to subsection (3) of section 18. Subsection (3) begins by saying, the Minister shall not grant a certificate in respect of the sale of a house, (a), (b), (c), and then (d), to be added would read:

if the amount of the cost or value of the site of the House included in the price is greater than an amount standing prescribed for the time being under subsection (7) (h) of this section.

Amendment No. 19 proposes to add to subsection (7) a new subsection (h) which will give the Minister power to make regulations in relation to a number of things, including the amount that is the greatest amount that may be reckoned by the Minister in respect of the cost or value of the site of a house in determining an application for a certificate. The Minister can only shelve the procedure until after the Kenny Report becomes law if he does not make a regulation dealing with the price of land under subsection (7) of section 18, and I think he should make such a regulation.

Amendment 16 proposes to add a further paragraph to subsection (4) which reads at present:

The Minister may, on the application in writing of a person to whom a certificate was granted under subsection (1) (a)....

Anyway it proposes to add a paragraph to subsection (4) reading as follows:

The Minister may refuse to grant a certificate in any case where the amount of the cost or value of the site of a house included in the price is greater than the amount for which the site appears to the Minister to represent reasonable value.

In view of what the Minister says it appears that he does not intend to implement that subsection either until the Kenny Report is dealt with. That is a pity because an unanswerable case was made on Committee Stage that it is just not possible to control the prices of houses without controlling the price of land.

As soon as this Bill becomes law, as soon as the Minister gets round to making regulations under it, I would urge him to take the power to at least consider whether or not the site is value for money. If we are to have astronomical prices for sites, there is no way the Minister can keep down the price of houses. The Minister said on Committee Stage that even if the price of the site was a bit dear, a contractor by economising here, there and everywhere, could still make the whole package value for money. That is putting a temptation in the way of the builder to economise unwisely on the materials in the house or the workmanship, and that is bad. I strongly urge the Minister to utilise the powers and authority I am glad to see him taking in these amendments.

That brings me to the appeal to the Circuit Court. I admit I had not brought myself entirely up to date with delays in the Circuit Court, although I attempted to do so on several occasions between the Second Reading and Committee Stage of this Bill and was unsuccessful. The Minister tells me—and I am glad to hear it—that the present President of the Circuit Court has made improvements and brought things more up to date. But, from my knowledge of the procedures in the courts there will be delays. The Minister says at least it will not be the fault of the Court, that when appeals get onto the list and are ready for hearing they will be heard. But there will still be the solicitor, counsel, the architect and all the other experts to be consulted and brought together. I believe that the Minister still could allocate a Circuit Court judge to hear these appeals and be engaged in nothing else. I am not sure, but I believe he could perhaps give a Circuit Court judge the power to have the assistance of assessors because, if appeals under this section—against decisions of the Minister in regard to certificates of reasonable value—are heard in the formal way in court as obtains at present, they will be entirely unsatisfactory.

In this respect I note also that the Minister has not changed the amendment, as originally drafted. The Circuit Court judge will have two options only—he will be able to affirm the decision of the Minister, that is, to affirm the decision in refusing the appeal, or he will be able to grant the certificate, that is presumably, in the amount requested by the applicant. But I wonder under the subsection whether he will have power vary it. I maintain he should have power either to affirm the Minister's decision or vary it, that is, perhaps grant a certificate for some figure in between the amount requested by the applicant, or to refuse that amount. It is not easy to get this point over. As I see the position at present the court may, as it thinks fit—on the hearing of the appeal—affirm the decision of the Minister refusing the certificate, or direct the Minister to grant the certificate. If the judge is satisfied and is advised that he can direct the Minister to grant the certificate in a sum other than that for which the applicant has applied, I would be satisfied. But if the judge is to be tied to either affirming the refusal of the Minister or accepting the figure of the applicant, that is not a sufficiently wide discretion; he should have discretion to grant a certificate in a reduced sum.

Furthermore, nowhere in the Bill so far is there provision which will make the Minister give reasons for refusing a certificate, and until the Minister gives reasons for refusing a certificate an appeal is meaningless. How is a judge to hear an appeal in a meaningful way and give a reasonable decision unless he knows why the Minister refuses the certificate? It might be on site grounds. It might be because the roof was too dear. It might be on any one of a multitude of things, and unless the judge is going to go into all the plans and specifications item by item, he will not be able to arrive at a meaningful decision that will satisfy the parties unless the Minister gives his reasons for refusing the certificate.

Mr. Quinn

The collective amendments in this section deal with one of the most contentious elements of this whole miscellaneous legislation. I welcome the fact that the Minister has enabled future Ministers—even possibly a Fianna Fáil Minister although I have reservations about that—to do something positive about the cost of building land. I welcome the fact that these sections are here now and could be used, but I find it hard to accept the reasoning put forward by the Minister in relation to the whole question of appeals and his rejection of the idea of the Circuit Court not being a suitable venue for such appeals. "An equitable and just forum" was the phrase he used originally on the grounds that there was not a backlog of cases, and that therefore it was the best vehicle. By extension the suggestion was that An Bord Pleanála, because they are a body appointed by the Minister, could not reverse the decisions of the Minister.

The amendments to section 18 on Report Stage still have evaded the essential criticism that the private sector of the building industry, upon whom the Minister's housing strategy depends, have not been dealt with and they relate two things. Firstly, there is the reason for the refusal of a certificate, and I will come to the appeals procedure in relation to that. Secondly, there is the consultation. The Minister in his Second Stage speech talked about being flexible in his approach and consulting at all time with the relevant interests. In deciding the most suitable venue for an appeals procedure I would have thought that any Government Department—particularly this Government Department, depending as they do on the private sector—would realise that the people with whom decidedly they should discuss such a venue would be the private sector and the housing industry. Perhaps the Minister in his reply to this section will indicate how the CIF feel about their members going into the Circuit Court complete with the expensive services of Deputy Fitzpatrick's colleagues, counsel, some of my colleagues and quantity surveyors. A builder operating in a small way is not going to feel comfortable in a legal chamber—some of which are quite out of date, badly ventilated and awesome in their physical appearance—where he is obliged to swear an oath and to perform in a semi-theatrical fashion in a legal court in order to try to show to a judge not that his houses are of reasonable value—because the judge at the end of the day cannot even say that they are—but to try to show to the judge that the Minister was wrong in not granting a certificate. That does not seem to be the right kind of venue.

I regret that, for whatever reason, the Minister has not seen fit to be more flexible in deciding the nature and location of the appeal process. I accept that between Committee Stage last week and today some of the difficulties in relation to the suggestion I made could not be resolved. I am not suggesting that my proposal for An Bord Pleanála is the solution. There may be difficulties which I do not foresee. I am irrationally terrified of courts. I feel uncomfortable in them. I do not feel at home there. Many others hold that view. Fortunately, I do not have to be in them, but I know a number of architects, for instance, who do not like to do legal work. We are supposed to be educated and professionally trained and therefore, presumably, more at ease and more comfortable in such a venue than somebody who has not the benefit of such education and training. I shudder to think of the discomfort in which people will have to be placed in trying to argue their case, to say nothing of the cost which eventually will be put back on to the purchase price of the house.

Those are my comments in relation to the venue and the process of appeal to which, unfortunately, the Minister is still wedded and obviously there will be no movement in that. Perhaps in his reply he will indicate if the CIF or any of the interested bodies, or individual private builders who might not necessarily be members of the CIF, have indicated their reaction to that section.

I would like clarification on another point. I am trying to think in the context of someone who would be called upon by a solicitor to act professionally in court on behalf of a builder who was refused a CRV. All the lawyers do is argue your case with facts supplied by other people. How would you go about preparing a case? How would you write the technical brief for the senior counsel or the solicitor to argue? How would the Minister's representatives go about defending that case? Are we not logically brought to the stage where the reasons for the refusal of the certificate in the first instance would ultimately have to be brought out in court by the Government's counsel? Alternatively, if that was not the case we could be continuing to play some kind of bureaucratic spot-the-ball contest in which we would never be able to get down to the nub of what was considered by the Minister and his people to be the unreasonable section.

If, at the end of an appeal process, representatives of the Government through their legal advisers and the Attorney General's Office end up by saying to the judge and to the court, "Of the one hundred items that made up the bill in the application for a CRV we found the following four items unacceptable because they were over the prevailing levels of cost", why can they not do it initially? If that is done initially there will be very few court cases. If a builder gets back a refusal and he is turned down on half a dozen grounds, that builder, if he has any sense, is not going to engage in a legal wrangle. He will simply go away and see if he can take his costs down to that level.

These amendments are critical to the nub of concern in section 18 which relates to the way in which the CRV system is being administered and the grounds upon which a CRV refusal is issued. If the Minister can indicate that some format of reason for refusal will issue as a result of this prolonged discussion in the Dáil, then we may have made some progress. I have some indication from the Minister's Committee Stage speech that by engaging a quantity surveyor in consultation with the CIF there was movement in that direction. The movement is pretty slow and the appeals procedure offered to the private sector, upon whom the Government's housing strategy now depends, is inadequate.

Perhaps the Minister could have regard to the factors which I have raised when he is replying. Firstly, has he followed his own advice on Second Stage and sought real discussion and consultation with the CIF in relation to the proposed system of appeals which is now embodied in these amendments? Is the Minister happy with their assessment of how their members will attempt to operate this appeals procedure? Does the Minister envisage that in a court action where the Department will be defending a decision of the Minister to refuse a CRV that the legal team for the Minister will give specific reasons why they have found the application to be unreasonable and will identify the areas which were considered to be unreasonable in terms of value? Will he not, therefore, consider that it is possible to give such reasons in the initial refusal? This would save dragging the unfortunate builder through the court with the expense of the legal trappings which go with it and the time delayed.

Mr. F. O'Brien

With regard to the CRV for the site when this Bill was introduced there was nothing in it about controlling land prices or site development costs. Deputy Fitzpatrick and I have at least something sewn into the Bill to ensure that this is considered. I realise the Minister has plans with regard to land and how it should be controlled. That may or may not be accepted by the Government. It is important that the Minister writes this into the Bill. He wants to leave it dormant until he has his own proposals on the control of land before the Government. While he is waiting for this he should examine the whole situation of site costs and should take all the powers he can to ensure that there is no abuse in this area.

The kernel of the CRVs is the control of the price of houses. We all know that today one of the great factors in escalating the price of houses is the cost of the plot of land on which a house is built. We all know that there are some very high prices and some builders are actually getting out of building and engaging in site development work so they can sell the sites at very high profit. The Minister has gone some way in the amendment but not far enough as far as I am concerned. I hope he will not leave this dormant until he has his proposals approved by the Government.

With regard to the question of appeals I am very disappointed the Minister did not accept the proposal from this side of the House with regard to the Circuit Court. I said on Committee Stage that it is a lazy way out. We are talking about whether or not the price of a house is too high. I do not consider it is the function of the Circuit Court to judge those matters. The prices commission was suggested by Deputy Fitzpatrick, I suggested an appeals board, and Deputy Quinn suggested the Planning Appeals Board. We did not want something very formal and costly. The Minister said he will keep an eye on this and obviously if it is not working satisfactorily he will review it. Our courts appear to be totally unsuitable for this type of activity. I would go along with it if the Minister had said that he was appointing a Circuit Court with assessors, experts and people qualified to make decisions on whether a house was good value or not and this would be done in a formal place. The Minister did not say that. The appeal has to come before the Circuit Court. The Minister says that the Circuit Courts are fairly up to date and the builder will only have to wait 10 days before his appeal is heard. He will have to employ counsel, get quantity surveyors, architects and all the other expertise. All the law we are making is a bonanza for the legal people. We are giving them another bonanza in this Bill. If one went down to the Circuit Court without counsel some of the judges would throw you out. If a builder is seen hanging around the court by some of the people he owes money to they will be checking up on him and wondering what type of trouble he is in.

Deputy Quinn pointed out that when one goes into those austere places one is made feel a criminal. We are now forcing people to go to the Circuit Court to prove whether or not they are right. The Minister stuck rigidly to the fact that he will not give his reasons why he refused to give a CRV. If he goes into court and his counsel says that he will not give his reasons a reasonable judge will throw him out. I am against going into the court but it will certainly expose the Minister's hand. He will either have to lose all his cases or he will have to stand up and give some valid reasons why he refuses to give CRVs, which might not be a bad thing. I am very surprised the Minister wants to run into the Circuit Court. Who will pay the cost? If the Minister loses does he pay the costs? If the builder loses does he pay the costs? I believe that it is only the consumer who will pay the cost. While he might not pay it the first year all these factors will be taken into account and will have to be charged some way or other.

It would be unreasonable to build in for the future the cost of litigation, I would say unnecessary litigation, whereas it should be possible to have a situation of a number of reasonable men sitting round a table, examining the facts and reaching a quick decision. The Minister would not agree to our proposal that a decision would have to be given within 21 days. Presumably he realises that there will be a backlog in the system causing serious delays. We have experience of the grant system and of inspections in that regard in respect of which there can be delays of some months. If an applicant for a CRV should fail to obtain the certificate after waiting for many months for his application to be dealt with, he must then go to court.

The Minister says that that would happen within ten days, but within six months or a year the Circuit Court may be back to what was the former situation of nine-months delays. Obviously this additional workload being put on the Circuit Court will create a backlog. Inflation is rampant in house building prices so that delays in relation to any aspect of the industry are bound to add substantially to the ultimate cost of houses. If a builder is not able to recoup his costs he goes out of business. Therefore, he must pass on additional costs to the consumer.

The Minister is determined to bring the Circuit Court into this matter despite our pleadings, which stem from genuine concern for the industry as a whole and of course for the consumer. Our fears would be allayed to some extent if the Minister would at least promise to review the situation within three months and then to consider it again after another three months. This legislation is not workable. The builders will be reluctant to go to court. If after a review of the situation the Minister should find that it was not working, I should hope that he would be big enough to come back to the House and propose whatever changes might be found necessary. We shall be tabling questions as to the progress of the legislation and, generally, we shall be taking note of how the system is developing. Hopefully, the Department, too, will monitor the situation.

Mr. Barrett

I have gone some distance in relation to this amendment. The main point that has been clarified is the question of the long delays to which the Deputies have referred and which would concern all of us. We have established that there is no backlog and that the time lapse in taking a case to the court would be about 10 days in places like Dublin, Cork, Waterford and so on.

Deputy Quinn raised a couple of points. He raised the question of how the court might give a decision in the absence of information concerning the reason for a CRV having been refused. The court would have to be informed as to the reason for such refusal before they would be in a position to give a decision.

The other point related to the situation of a builder who is refused a CRV. It is my intention that in a case in which there is refusal that there will be communication with the builder concerned and that he will be invited to come in and discuss the situation.

Amendment put and declared carried.

Mr. Barrett

I move amendment No. 15:

In page 14, between lines 13 and 14, to insert the following:

"(d) if the amount of the cost or value of the site of the house included in the price is greater than an amount standing prescribed for the time being under subsection (7) (h) of this section.".

Amendment agreed to.

Mr. Barrett

I move amendment No. 16:

In page 14, between lines 13 and 14, to insert the following subsections:

"(4) (a) The Minister may refuse to grant a certificate in any case where the amount of the cost or value of the site of a house included in the price is greater than the amount for which the site appears to the Minister to represent reasonable value.

(b) For the purposes of paragraph (a) of this subsection, the Minister may, on the application in writing of either the vendor or purchaser of the site of a house indicate in writing in advance of an application for a certificate whether or not a particular amount proposed to be included in the price as the cost or value of the site appears to the Minister to represent reasonable value.

(5) (a) Where the Minister decides under subsection (3) (a) or (4) (a) of this section not to grant a certificate, he shall notify in writing the person who applied for such grant of his decision and the person may, within the period of 21 days beginning on the date of receipt by him of the notification, appeal to the Circuit Court against the decision and that Court may, on the hearing of the appeal, as it thinks proper, affirm the decision or direct the Minister to grant the certificate.

(b) Notice of an appeal under this section shall be given to the Minister and an officer of the Minister shall be entitled to appear and be heard on the hearing of the appeal.

(c) No appeal shall lie from a decision of the Circuit Court on an appeal under this subsection.".

Amendment agreed to.

Mr. Barrett

I move amendment No. 17:

In page 15, line 27, to delete "and".

Amendment agreed to.

Mr. Barrett

I move amendment No. 18:

In page 15, line 29, to delete "certificate." and to insert "certificate, and".

Amendment agreed to.

Mr. Barrett

I move amendment No. 19:

In page 15, between lines 29 and 30, to insert the following:

"(h) the amount that is the greatest amount that may be reckoned by the Minister in respect of the cost or value of the site of a house in determining an application for a certificate.".

Amendment agreed to.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I move amendment No. 19a:

In page 16, to delete lines 47 to 56 inclusive.

Section 18 creates a number of criminal offences and subsection (12) provides that in certain cases it shall be a defence to these criminal proceedings if the accused person shows that the act or omission giving rise to the offence was not done by him but was done by somebody else. Subsection (12) (b) provides that in any case where it is a defence to show that the accused person did not actually commit the act giving rise to the offence, if he is making that defence he shall be obliged to notify the prosecution seven days before the hearing of the name and the address of the person who committed the act giving rise to the prosecution.

I am objecting to that proviso. My amendment seeks to delete lines 47 to 56, the paragraph which obliges the accused person seven days before the hearing to notify the prosecution of his defence. I believe this subsection is introducing pleading into criminal proceedings. I know in some other countries in the case of a defence of an alibi, it is necessary for the accused person to disclose his alibi some days before the court hearing. That is not the case here. My objection to this subsection is that it is amending the criminal law piecemeal and making special provisions for the defence of a criminal prosecution under this Bill that are not in other Acts.

If the criminal law and the law of evidence in regard to criminal prosecutions is to be amended, it should be amended right across the board and not piecemeal. There is a school of thought in favour of the amendment the Minister is making to the criminal law here. Perhaps there is something to be said for that, but this is not the place to amend one section of the criminal law. If the law of evidence in regard to criminal prosecution is to be amended, it should be amended in the case of manslaughter, murder, assault, and every other sort of criminal prosecution, and not merely in this isolated instance under the provisions of this Bill which provide for the granting of certificates of reasonable value.

A prepared argument could be made which would take a very long time. Time does not permit us to develop it. The kernel of my argument is that this is amending the law of evidence in criminal cases piecemeal and that is wrong.

Mr. Barrett

Deputy Fitzpatrick objected to paragraph (b) of subsection (12) on the grounds that it introduced a new principle to the criminal law of this country. I want to point out to him that it does not. In fact this subsection is identical to section 22 of the Consumer Information Act, 1978. Section 107 of the Factories Act, 1955, has a somewhat similar provision. Therefore we are not introducing a precedent in this paragraph.

I do not think Deputy Fitzpatrick thinks the provision is wrong in principle but he is more concerned lest a precedent be established in the criminal law. As I have established that we are following existing valid precedents, I expect that he will be happy to leave the subsection stand. In any event I cannot accept this amendment because it would weaken the provisions of this section. We must ensure that a person charged with an offence cannot too easily shift the blame on to somebody else without having good grounds for doing so.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I am sorry I cannot accept the Minister's reasoning. I made the case that this is amending evidence in criminal law piecemeal. The Minister has found other Acts in recent times in which there is this provision. The Government of the day are now seeking when the opportunity presents itself to put these provisions dealing with the creation of criminal offences. In a murder case a person is not obliged to do this. He can go into the witness box and say for the first time: “I was not at the scene of the crime. At the time it was committed I was at a race meeting in Killarney with someone else, or I was out of the country.” He is not obliged to give notice of that.

In any one of a host of criminal cases the defence of an alibi is available without an obligation on the accused person to notify the prosecution in advance that he is making the defence of an alibi. He does not have to make it until his counsel opens the defence. For the instances the Minister has given, anybody who did a bit of research could point to hundreds of other cases where such a defence would be open and where there is no obligation on the accused person to go through the procedure laid down here. It is wrong, and it should have been objected to in the other cases as I am objecting to it here.

Amendment put and declared lost.

Mr. Barrett

I move amendment No. 20:

In page 17, line 29, to delete "1965" and insert "1979".

This is a technical amendment to update the reference in section 18 (14) of the Bill to the Trustee Savings Bank Acts. The Trustee Savings Bank Act, 1979, was passed by both Houses of the Oireachtas and is likely to become law before the passing of this Bill. The Trustee Savings Bank Acts, 1863 and 1965 and the 1979 Act will be construed together as one Act.

Amendment agreed to.

Mr. Barrett

I move amendment No. 21:

In page 17, to delete lines 33 and 34.

This amendment seeks to delete the definition of "loan" in subsection (14) of section 18. I had included this amendment on Committee Stage but, on the basis of Deputy Fitzpatrick's comments on it, I agreed to reconsider the matter and withdraw the amendment with leave to re-enter.

The definition of "loan" was originally included in subsection (14) of section 18 so as to exclude bridging loans from the scope of the section. On reconsideration I am inclined to believe that, first, this exclusion could be likely to be used to circumvent the whole purpose of section 18. Even Deputy Fitzpatrick described the definition as an "escape hatch".

The second reason why I now propose the deletion of this definition is that there is no valid reason why bridging loans should be excluded from the terms of section 18. A bridging loan is made to enable a person to complete the purchase of a house in advance of receiving a long-term loan. However, at the time of completing the purchase of the house, whether by means of a bridging loan or a long-term mortgage, a CRV should have already been obtained and the sale should be completed in accordance with it.

It would seem a bit illogical, therefore, to exclude bridging loans from the scope of section 18. To do so would be likely to cause grave difficulties in cases where, after a person had purchased a house by means of a bridging loan, the application for a CRV was refused and the person was unable to obtain a long-term mortgage. This type of situation would lead to untold difficulties for house purchasers. I am firmly of the opinion that, in order to ensure that the effect of the section is not diminished and to avoid difficulties for hire purchasers, a bridging loan should not be made unless a CRV is obtained.

Deputy Fitzpatrick raised another aspect of this proposal in pleading a case for persons who were solvent and who did not need a mortgage loan in reality but might need a short-term loan for two or three months. I am advised that under sections 14 and 18 (2) of the Bill regulations would be made to exclude certain types of short-term loans, if that were desired. If necessary, bridging loans could also be excluded. I propose, therefore, to proceed with the deletion of the definition of "loan" in section 18 (14).

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I am opposed to this amendment. As originally defined, “loan” did not specifically include moneys advanced for a period not exceeding three years. The object of the definition was not to prevent people who not alone were solvent but who did not want a loan provided they had reasonable time to realise their securities. I concede that the definition as originally drafted might have led to abuses but the present amendment is a lazy one because the draftsman did not have time to look at it and simply amend the matter by taking out the definition of “loan”, thereby enmeshing all loans, whether for three weeks or three months.

The person I am concerned about is the person who sees a property that he wants to buy and who has sufficient assets to pay for it. Those assets might consist of money in the US or elsewhere which would take time to get back here, or they might consist of property which he would have to sell. He knows that he can realise more money out of his own assets than is necessary to complete the purchase. If he goes to a bank for a temporary loan he will be driven to get a CRV. If the seller of the house says, "I am not interested in that sort of thing; I have another purchaser," he will lose the house. It is unnecessary interference with a private transaction.

The object of this measure is to preserve loan finance for people who should be able to avail of it. This is a lazy amendment which will lead to grave inconvenience and trouble. It shows that legislation like this should be introduced and dealt with in a more leisurely way. I urge the Minister to reconsider the matter and to let the definition of "loan" stand. He even weakened his own argument by saying that he may exclude bridging finance by regulations. If he can do that by regulations why can he not do it now? Why has he to wait for regulations when it was originally thought that it should be done in the Bill?

Mr. Barrett

I will make regulations to exclude the type of case the Deputy is talking about.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I am grateful to the Minister for that undertaking.

Amendment agreed to.

An Ceann Comhairle

Amendment No. 22 is related and was discussed with amendment No. 13.

Mr. Barrett

I move amendment No. 22:

In page 20, in column (3) of the Schedule, after "44," to insert "60 (8),".

Amendment agreed to.

Bill received for final consideration.

Agreed to take Fifth Stage today.