I move: "That the Bill be now read a Second Time."
The Local Government (Planning and Development) Bill 1982 is limited in scope and is designed, in the main, to deal with matters in relation to which urgent action is needed. The provisions of the Bill can be grouped under five main headings, as follows: (1) duration of planning permissions, (2) validity of certain permissions, (3) general policy directives, (4) penalties for planning offences, and (5) fees for applications and appeals. The Explanatory Memorandum which has already been circulated with the Bill deals in some detail with the individuals sections. I propose, therefore, at this stage to order my remarks on the basis of the general headings I have just mentioned.
Sections 2, 3, 4, 11 and 14 of the Bill are concerned with the duration of permissions and are designed to replace section 29 of the Local Government (Planning and Development) Act, 1976. Under that section all permissions granted before 1 November 1976 ceased to have effect on 31 October 1981 unless they were extended by the planning authority and all other permissions similarly cease to have effect five years after the date of the granting of the permission unless so extended. In the latter half of 1981 numerous representations were made to the then Minister for the Environment from individuals and from legal and professional interests regarding the effect of section 29 and the difficulties which were being experienced in its operation. In addition, certain defects in the section came to light and it was considered desirable that these should be put right. In these circumstances, the previous Minister announced on 16 December 1981 that he intended to introduce legislation at an early date to repeal and replace section 29. His proposal was that permissions which expired under existing law on 31 October 1981 would be extended for a period of one year from that date and that all other permissions would have a life of six years. The statement indicated that the changes proposed were considered to be justified because of the lack of awareness on the part of many people of the limit on the life of their permissions and because the five year period allowed under existing law was too short in the case of some major developments. The development of legislation to implement the proposals announced in December 1981 had not been completed when the Coalition Government left office in March 1982.
Having reviewed the position in some detail, this Government decided to implement the undertaking in regard to the extension of existing permission and, in addition, to introduce a new procedure to eliminate difficulties caused for both developers and planning authorities in dealing with applications under section 29 for the extension of permissions. It would obviously be of little benefit to many people to provide at this stage for an additional year's life for permission which expired last October. Accordingly, to allow for the lapse of time since the previous Minister's announcement in December 1981, section 2 of the Bill provides that permissions granted before 1 November 1976 will expire on 31 October 1983. On the other hand, the Government are satisfied that the life of permissions granted in the future should not, in general, exceed five years and section 2 of the Bill provides accordingly. The previous Government had intended to extend the life of all future permissions to six years but I do not consider it to be necessary or desirable to provide for a general relaxation of this kind. On the contrary, I believe that a five-year duration for future permissions, coupled with the new provisions of sections 3 and 4, which I shall explain later, is a better solution. It will encourage speedier development and will be less conducive to delayed commencements and to undesirable consequences as regards dereliction and urban blight.
It is however necessary to make some form of tapering arrangement in respect of permissions granted between November 1976 and November 1982. Section 2 provides for this. Permissions granted during that period will last until 31 October 1987 or seven years after the granting of the permission, whichever is the shorter period.
I consider that the new provisions of section 2 will achieve a reasonable balance between the objective of encouraging early development and redevelopment and the practical problems encountered by developers of all kinds in commencing and completing their developments.
I should, perhaps, mention that where, under section 29 (9) of the 1976 Act a planning authority have already extended the duration of a planning permission by a period which is longer than that which is being provided for by section 2 of the Bill, that extension will continue to have effect. There is little option on this point: if such extensions were to be invalidated now serious hardship and adverse financial consequences could ensure for persons who entered contracts and made commitments in good faith on the basis of the law as it stood at the time. On the other hand, the fact that an extension has been refused under existing law will not limit in any way the application to a particular permission of the extended periods of duration provided for in the section.
Section 2 contains provisions which are necessarily complex about the scope and effect of the new provision regarding the duration of permissions. Detailed discussion of these will be more appropriate on Committee Stage.
Section 3 provides for a degree of flexibility in regard to the duration of permissions which is lacking in the existing section. It will allow planning authorities, as part of a grant of permission, to specify a period of duration longer than five years in cases where they consider that the nature and extent of the development or any other material consideration would warrant this. I envisage that this provision could be used in the case of continuing developments, such as quarries or in relation to large, complex developments which could take a long time to get under way. Refusal by a planning authority to exercise their power under section 3, or a decision by a planning authority to specify a particular period, may be appealed to An Bord Pleanála.
One of the difficulties created by section 29 of the 1976 Act was that it did not specify any procedure in relation to extension applications and, indeed, did not even require a formal application to be made, Moreover, no time limit was specified for dealing with applications and no criteria for deciding applications were laid down. Section 4, and the regulations to be made under section 11, should eliminate these difficulties.
Under section 4, criteria are set out for the granting of extensions and the section is drafted so as to require planning authorities to grant an appropriate extension where an application complying with these requirements is made. The requirements are—
(i) that a proper application is made in accordance with the regulations;
(ii) that any other requirements of the regulations are complied with — for example that any necessary supporting documents or information is submitted — and;
(iii) that the planning authority are satisfied that the development has commenced, that substantial works have been carried out and that the development will be completed within a reasonable time.
The term "substantial works" is not defined, leaving it to be given an ordinary commonsense meaning in the particular circumstances of each case. Having regard to the wide range of developments for which permission can be granted, any attempt to define "substantial works" could lead to serious difficulties and it seems best, therefore, not to attempt such a definition.
Under section 4, one extension only can be granted by a planning authority except where the relevant development has not been completed due to circumstances beyond the control of the person carrying out the development.
As I have mentioned already, section 11 will enable regulations to be made regulating procedure in relation to applications for extensions. It will also permit regulations to be made to deal with any consequential or other matter necessary to give full effect to sections 2, 3 and 4 of the Bill. The section is based generally on section 25 of the 1963 Act under which the regulations dealing with planning applications are made.
Section 14 provides for savers which are necessary as a result of the replacement of section 29 of the 1976 Act. These can best be dealt with on Committee Stage, as can the repeals of certain subsections of section 29 which are included in section 15.
I turn now to section 6 of the Bill, the purpose of which is to remove doubts about the validity of certain permissions and approvals granted on appeal before 15 March 1977 when An Bord Pleanála took over appeals functions. The need to do this arises from the decision of the Supreme Court inThe State (Pine Valley Developments Ltd.) v. Dublin County Council (judgments delivered 5 February 1982). In that case, the court held that the Minister for Local Government had no power, in determining a planning appeal, to grant permission for a development which contravened materially the relevant development plan. I should emphasise that the Minister was not a party to the case and had no notice that the important point of law involved was to be raised or decided in the Supreme Court in the case.
The Pine Valley decision has to be seen against the background that, in determining planning appeals, successive Ministers for Local Government had always been advised that they had power to grant a permission even in material contravention of a development plan. A significant number of such decisions were made between 1964 and 1977, when the function of determining appeals passed to An Bord Pleanála, but it would not be possible to attempt to identify all of the cases which might conceivably be involved. However, cases are known, the facts of which appear to be similar on this issue to those of the Pine Valley case; these include cases involving very substantial housing and industrial developments.
The Supreme Court decision has given rise to unease and uncertainty in the construction industry, among the financial institutions and in the legal profession. It is particularly undesirable that purchases of land, dwellings and other buildings have been made, and that contracts and commitments have been entered into, in good faith, on foot of permissions which are now open to challenge in the courts. Serious problems are arising not only for builders who have developments in progress but also for owners of completed buildings. Problems are also arising in closing sales of new houses and other property. The Incorporated Law Society have been in touch with me to express their concern about the effect of the Pine Valley decision. The society feel that many innocent parties would be involved in considerable hardship unless the situation is latered. As the society see it, this hardship would affect people changing house or buying a new house, who could be on bridging finance and unable to complete a mortgage or sale because of the doubt now cast on the planning permission for the property. For this reason, the society have urged the introduction of legislation to remedy the situation.
Before deciding to introduce legislation to deal with the matter, an effort was made to have the relevant point of law reviewed in the course of another case which is before the Supreme Court, but that case will not now be taken until the term commencing in October 1982 and I cannot, of course, be certain as to the outcome of the case even then. In these circumstances, and having regard to the disruption and hardship which have arisen, the only sensible course at this stage is to enact a provision which will put the matter beyond doubt. Section 6, accordingly, makes it clear that a permission or approval granted on appeal prior to 15 March 1977 (when An Bord Pleanála took over appeals functions) shall not be invalid by reason only of the fact that the development concerned would materially contravene the development plan.
Section 7 provides that the Minister shall, from time to time, issue such general directives as to policy in relation to planning and development as he considers necessary. Subsection (3) makes it clear that the power conferred by the section may not be used in relation to particular cases. Essentially, section 7 is a re-enactment of section 6 of the 1976 Act extended to apply to planning authorities as well as to An Bord Pleanála. The terms of section 6 are otherwise unchanged. In 1981, planning authorities received approximately 54,200 planning applications while An Bord Pleanála received over 4,500 planning appeals. It is anomalous in these circumstances that planning authorities are not required to have regard to ministerial policy directives as to planning and development which apply to the board. Clearly, the same criteria should be applied at local level and at appeals level, and the new section will enable this to be achieved. Section 6 of the 1976 Act will be repealed by section 15 of the Bill.
Only one directive has been issued under section 6 of the 1976 Act. This directive was given by me to An Bord Pleanála in May 1981, and related to policy on large retail establishments. When the Bill is enacted, I intend that the May 1981 Directive will be re-issued to planning authorities and to the board. This will be consistent with the Government's commitment to the continuance of a policy of freedom of choice for consumers as between large-scale and independently owned retail outlets.
Sections 8, 9 and 13 of the Bill are concerned with the level of penalties for offences under the Planning Acts. The wider question of enforcement will be considered as part of the general review of planning law which I am carrying out at present, but the present Bill is being used to provide, as an interim measure, for higher penalties as a deterrent to those who contravene the requirements of the Acts.
The effect of section 8 is to increase the monetary penalties for all offences under the 1963 and 1976 Acts to take account of the fall in money values. For the less serious summary offences, a maximum penalty of £100 is provided for in place of the fines of £20, £10 and £5 which now apply. The more serious offences which now attract fines of £250 on summary conviction will carry a maximum fine of £800. The legal advice available is that this is the maximum penalty which can be prescribed at present while retaining the offences within the category of minor offences which can be dealt with in the District Court. The offences which will attract the new maximum fine of £800 include failure to comply with the conditions of permissions in regard, for example, to housing estates and other development. The penalties for further or continuing offences related to the basic offences are being increased pro-rata (that is from £2, £5 or £10 a day to £25 a day in the case of lesser offences and from £50 to £150 in the case of the more serious offences).
Section 8 (3) makes provision, for the first time, for indictable offences in the case of two basic offences under the Planning Acts. These are the offences under section 24 (3) of the 1963 Act of carrying out development, in respect of which permission is required, save under and in accordance with a permission, and the offence under section 26 (4) of the 1976 Act of failing to comply with a warning notice, or knowingly assisting or permitting development in contravention of a notice, or damaging or removing a tree to which such a notice relates. On conviction on indictment of either of these offences, a person will be liable to a fine of up to £10,000, or up to two years' imprisonment, or both. These penalties are intended to be a real deterrent in the case of flagrant breaches of the Planning Acts and are an indication of the seriousness with which the Government view such breaches. Clearly, however, every contravention of the relevant sections will not warrant such large penalties or, indeed, being dealt with as an indictable offence. It will be a matter for the Director of Public Prosecutions to decide when to press for a trial on indictment and when to consent to a summary trial in the District Court. Section 9, accordingly, permits a justice of the District Court to try summarily an indictable offence where the Justice is of opinion that the facts constitute a minor offence, the Director of Public Prosecutions consents, and the defendant does not object to a summary trial instead of a trial by jury.
Where an indictable offence is tried summarily under section 9, the section provides for maximum penalties of £800, or six months' imprisonment, or both, plus further fines and/or imprisonment for continuing offences.
Section 13 is consequential on the provision in section 8 for indictable offences. As it stands, section 80 of the 1963 Act provides that any planning offence may be prosecuted by the relevant planning authority. Since the Director of Public Prosecutions is responsible for the prosecution of indictable offences, it is necessary to confine the planning authority's power under section 80 (1) to summary offences, and section 13 provides accordingly.
Finally, I come to the provisions of the Bill in relation to fees for planning applications and appeals. The main provision is section 10 but sections 5 and 12 are related. Under section 10, the Minister for the Environment will have power to make regulations, with the consent of the Minister for Finance, providing for the payment of fees to planning authorities and to An Bord Pleanála in relation to the various categories of planning applications, appeals, and so on. Where fees are prescribed in relation to a planning application, the two-month period during which the planning authority must determine the application will not begin to run until the fee has been received by the planning authority. Similarly, where fees are prescribed in relation to appeals, provision is made under which the appeal will not be valid unless the fee is received by the board within the period specified for the making of the appeal. In addition to enabling fees to be prescribed for payment by the main parties to applications and appeals, the section makes provision for the payment of fees by other persons who wish to make submissions or observations either to the planning authority or to the board as regards an application, appeal and so on. Provision is also made under which an additional fee could be prescribed in respect of requests for oral hearings of appeals or references to the board.
The power to make regulations under section 10 is deliberately framed in a flexible manner. In particular, it is made clear that the regulations may provide for the payment of different fees in relation to cases of different classes or descriptions. This power could be used to require relatively small fees to be paid for single house applications or for other minor developments as compared, for example, with the fees for major commercial developments. The power to allow for complete exemption from the payment of fees in circumstances specified in the regulations, or for the waiver, remission or refund, in whole or in part, of fees in specified circumstances could be used to make special provision in relation to certain categories of applications at local level or to make special provision in relation to appeals by prescribed categories of persons or bodies.
The question of charging fees in relation to the processing of planning applications and appeals has been raised at intervals in the past 10 years and has been considered in detail in more recent years in the context of other changes in the system of local finance. In May 1980, for example, a paper on local government finance prepared by the County and City Managers' Association recommended that local authorities should be empowered to charge for the "investigation and determination of planning applications". Following consideration of proposals submitted by the former Minister for the Environment, the Coalition Government decided in December 1981 that legislation should be prepared to enable planning fees to be introduced. This intention was confirmed at the time of the January 1982 budget. The legislation now before the House is the same as that decided on by the former Government, and I trust that this will be borne in mind in the debate.
I might mention that the cost of planning control at local level in 1981 is estimated at £6.86 million. The total number of planning applications in that year was 54,200. The average cost of dealing with applications was about £280 in County Dublin and the four county boroughs, and £85 in the other counties. In areas outside of Dublin and other major growth areas, a high proportion of total applications relate to housing — either extensions of existing houses or proposals to erect new single houses or small groups of houses.
Section 15 of the Bill will enable the existing requirement as regards appeal deposits to be repealed when fees regulations are made. The deposit of £10 is no real deterrent to frivolous or vexatious appeals. In the past number of years, only a very small number of appeals have been declared by the board to be vexatious — 14 in 1979 and 13 in 1980. This does not mean that a much higher proportion of appeals may not have been without substance but is a consequence of the legal interpretation of "vexatious" as used in the 1976 Act. It appears that "vexatious" in that sense is held not to include, for example, causing unnecessary delay and is not synonymous with being frivolous or without foundation. The fact that only a small number of appeals is formally declared to be vexatious cannot be taken as an indication that all others are reasonable. In practice, the true nature of an appeal which is vexatious, or frivolous, or without merit, may not emerge until processing of the case is well advanced or almost completed. Each appeal is, of course, dealt with on its merits, and experience has shown that few can formally be declared to be vexatious, given the legal interpretation of that word.
Quite apart from the fact that the £10 deposit system does nothing, in present day circumstances, to deter vexatious or frivolous appeals, there is also the consideration that the deposit system creates unnecessary administrative cost for the board. The receipt of deposits, the preparation and issue of receipts, the maintenance of deposit ledgers, the refund of deposits and so on, all give rise to an expenditure of staff time which is entirely disproportionate to any benefits a deposit system may bring.
One illustration of the ineffectiveness of the deposit system is that there are now more than 1,000 appeals which have been effectively abandoned by those who lodged them, notwithstanding that £10 deposits have been paid in respect of the appeals. The appellants in these cases have only to notify the board of the withdrawal of their appeal or application to secure the refund of the £10 but they do not take the trouble to do so. The deposits in these cases have to continue to be held in suspense and accounted for yearly in the books and records of the board. It is this which provides the immediate need for section 5 of the Bill which will establish a mechanism to enable An Bord Pleanála to deal with these cases as part of a general power to dispose of cases which the board are of opinion have been abandoned.
References and appeals are regularly made to the board and not proceeded with. In some cases, there may be a request to hold an appeal in abeyance. If such requests are reasonable, they will be acceded to by the board. Section 5 is not designed to interfere with that system. However, where an appellant simply does not co-operate in processing the case, or, in effect, abandons it, the board have no way of dealing with that situation, except to determine the original application, involving a commitment of time and effort which should go to more pressing cases. What section 5 proposes is, in effect, to confer a power on the board to enable them to clear from their books cases where the appellant has clearly lost interest in pursuing his appeal. Before exercising their powers under section 5, the board will be required to serve appropriate notice on the parties and to invite submissions in relation to the matter. Any such submissions will have to be considered by the board before an appeal is formally declared to be withdrawn.
Section 12 of the Bill will allow the fee for a copy of an entry in the planning register to be increased by regulations. The fee fixed by section 8 of the 1963 Act is 10 shillings which, under the Decimal Currency Act, 1969, must now be construed as 50 pence. In fixing the new fee account will be taken of the fall in the value of money. The planning authority register is used for the purpose of recording all entries required under the Planning Acts in relation to all land within the area of a planning authority. Copies of entries are required mainly for conveyancing or other legal purposes and are sought primarily by solicitors, auctioneers, architects and estate agents. It is reasonable to increase the fee having regard to rising production costs.
I undertook in the House, on 6 July, to report in the course of this debate on the administration of the draft building regulations. Deputy Quinn raised the matter then. With the permission of the Chair, I shall endeavour to give the House as full a statement as is possible on the subject. I propose to go into some detail on the history of the matter, not to justify the length of time which the process has taken, but as a necessary background to an understanding of the present position and the complexity and importance of the subject.
The power to make building regulations, and I stress that it is a power and not a duty, was given in sections 86 to 88 of the Local Government (Planning and Development) Act, 1963. The intention was that these national building regulations would apply uniformly throughout the State and would replace local building by-laws which a small number of local authorities operate by virtue of powers under the Public Health Acts.
These by-laws are over and above the provisions of the Planning Acts and require, as a general rule, that a person proposing to erect or alter a building should not merely get planning permission where required but also get approval under the by-laws. There is no appeal against refusal of approval. The by-laws contain many useful provisions, but it is inevitable that with developments in building technology they would become out-of-date. A uniform approach throughout the country was desirable. The basis of administration of the by-laws, involving as it did waiting for approval with no right of appeal, could lead to delays and frustration.
Following the coming into operation of the 1963 Act, An Foras Forbartha were asked to prepare recommendations for the technical content of the proposed regulations. This they did with the help of a committee and sub-committees on which a wide range of specialists sat, including representatives of the professions. The committee reported in 1969. Consultation with the building industry ensued and resulted in technical changes.
It was then necessary to put the document into legal form to ensure that the requirements would be enforceable in law. This was an extremely complex task. Eventually the draft regulations issued in 1976 to the building industry and the professions with a request for any comments they had. In the meantime, I should say that it had become clear that certain amendments of the relevant provisions of the 1963 Act were desirable and these had been effected in the 1976 Act.
More than 500 different comments were received on the 1976 draft and these were considered and where appropriate accepted. However, a more fundamental issue had been raised by the building industry. They were concerned that the proposed method of implementation and control, involving the submission of plans and other documents for approval to the local authority, would create inhibitory and costly delays in getting construction projects under way and seriously affect efficiency and employment in the industry. It was also clear that the system proposed would involve the recruitment and training of a substantial number of staff in each local authority area, particularly those without by-law controls, and this would impose a substantial financial burden on local authorities at a time when, in common with other elements of the public service, they were having to face unavoidable limits on resources. And it would take a substantial amount of time to train and recruit the numbers involved. Alternative solutions had to be considered, and so emerged the idea of a certification system of control. Under it a designer would certify that the lodged plans for a building complied with the regulations and on completion the builder would similarly certify the building. The local authority would act as registrar for the certificates and oversee the system in their area, making spot-checks to ensure that certification was not being abused. In turn the Minister would receive reports from local authorities and oversee the system nationally. There would be close co-operation between the building control and the fire staffs of the local authority.
That was more or less the position as I remember it on taking up office late in 1980. The amendment of the draft regulations was being finalised, and a certification system of control was being drafted in consultation with the industry. Naturally, following the Stardust tragedy, everything was done to speed up this process. The draft regulations, with a list of approved amendments, were issued to local authorities with a request that they take them into account in dealing with planning applications, and likewise to the building industry and the professions. Shortly afterwards a comprehensive revised document issued. About the same time a document setting out a full control system based on certification issued to the building trade and the professions for comment, and work was completed on the preparation of heads of legislation which were then circulated to the many Departments concerned. The legislation is necessary because of the need to cover such items as energy conservation in the regulations, to provide for EEC requirements and to cover the certification system. Consultation with Departments has been completed, but we shall of course have to consider the Tribunal's recommendations before deciding on the terms of legislation.
Consultation with the industry and the professions has been ongoing. While this related chiefly to the control system, the professions raised some aspects of the regulations, as drafted, particularly those dealing with fire, and they have been specially considered in my Department. I shortly expect a considered report from the professions on the latest draft of the regulations and the proposed control system. Again the Tribunal's recommendations will have to be considered. To speed up that consideration, I have arranged for the immediate examination by a special group in my Department of the Tribunal's recommendations on the draft regulations.
We are also considering as a matter of urgency the Tribunal's recommendation that the fire aspects of the draft regulations should be taken separately and quickly brought into force. I may say that we had already considered this, but it appeared that the provisions of the draft regulations regarding structural matters are inextricably related to those regarding fire, since a building must be designed as a whole. However, we shall look at this again.
Furthermore, we are looking at the Tribunal's recommendation that a by-law approval type system should be used for fire aspects even if a certification system is used for others. Such a concept would certainly require careful examination and consultation with the industry and professions and the local authorities. It may come to a clear choice between certification on the one hand, or by-law type approval on the other, for all aspects, with all that that entails.
Perhaps I should make the point that building regulations are exclusively concerned with new building work or with changes in the use of a building. Other features of the Tribunal's recommendations, for example, those related to management regulations, seem to relate to fire legislation and do not come within the scope of building regulations, and I do not propose to deal with them here. They can be discussed in the debate on the Tribunal's report promised for the next session.
Before concluding, I should make it clear that the Bill now before the House is regarded by me as a short-term measure only and that I see a need for further legislation to bring about the improvements required in our planning system. A general review of that system is being carried out so as to enable us to decide what changes are necessary to improve the performance of the system and to speed up the decision-making process at local and at appeals level. Clearly, it will take some time to complete this exercise and to introduce and enact whatever legislative proposals may be decided upon. In the meantime I will be asking planning authorities to review their own approach to planning control so as to ensure that the system will not have the effect of causing delays in the commencement of worthwhile development and in the creation of jobs. Work on the preparation of a substantial memorandum containing advice and guidelines to assist planning authorities in reviewing their procedures is well advanced in my Department.
The present Bill, although it is an interim one, provides for some necessary and desirable modifications of existing law. In addition, some of its provisions are urgently required for reasons I have explained earlier. In these circumstances, I trust that the House will co-operate with me in giving the Bill a speedy passage through all Stages.
I commend the Bill to the House.