The Minister of State at the Department of Energy, Deputy Michael Smith, was in possession. The Minister has 20 minutes left of the time allotted to him.
Private Members' Business. - Local Government (Planning and Development) (Trees and Woodlands) Bill, 1987: Second Stage (Resumed).
Question again proposed: "That the Bill be now read a Second Time."
The problem of Coolattin to which the proposed legislation by the Labour Party in this special Private Members' Bill refers is not new and did not develop overnight. It would be true to say that it has been simmering for a number of years. One has to ask the question as to why the Labour Party, as a partner in the last Government, did not, during their term of office when they had an opportunity to so do, introduce amending legislation to deal with this problem. It seems the problem was ignored and that it took the interest and the special willingness of the Taoiseach and of this Government, who were anxious to investigate in a very thorough way and seek to find a solution to the Coolattin carnage, to jog the consciousness of the Opposition and awaken their members out of a four year slumber.
I want to again put this whole situation into context. By giving a brief history I want to refresh the memories of Deputies in regard to this matter. The felling of trees is governed by the Forestry Act, 1946, which stipulates that, apart from certain exceptions, the permission of my Department is required before trees are felled. Local authorities have powers under the Local Government (Planning and Development) Act, 1963, to preserve trees on amenity grounds by making a tree preservation order. Where such order exists an application for permission to fell must be made to the local authority in question. Where such an application is refused, however, compensation must be paid to the applicant. I want to put the record straight that as far as the case of Coolattin Woods is concerned, all the felling licences which issued from the Department of Tourism, Fisheries and Forestry, as it was at the time, were authorised by the previous administration.
Coolattin estate comprises 500 hectares of woodland, 300 hectares of farmland and an historic 18th century mansion and was sold to its present owners, Bridgefarm Company Limited, at the beginning of 1983. The company immediately applied for a five-year general felling licence and my Department issued a one-year general felling licence in the first instance. This licence issued in December 1983 for the thinning of 75 hectares and the clear felling and replanting of 163 hectares. Those trees were not subject to tree preservation orders and Wicklow County Council did not object to the licence on amenity grounds. This licence has now expired and replanting has taken place.
In March 1985 Bridgefarm Company Limited applied to Wicklow County Council for planning permission to fell some trees covered by tree preservation orders. This permission was subsequently granted and my Department issued a further general felling licence to thin 14 hectares and to clear fell and replant 45.2 hectares. Again the county council did not object on amenity grounds. This licence expired in January of this year and replanting must be completed by January 1988. Two further licences were issued, one on 9 September 1986 authorising the felling of 548 trees subject to an obligation to replant 24,000 trees and compliance with the conditions of Wicklow County Council's consent. The most recent licence issued on 27 January of this year and this authorised the felling of 619 trees subject to an obligation to replant 36,000 oak trees.
The area at the centre of the current debate, Tomnafinnogue, covers 66.5 hectares or approximately 164 acres. It mainly comprises oak, estimated to have originated about the year 1700 AD. In 1978 the county council made tree preservation orders on the trees in Tomnafinnogue Wood. Bridgefarm Company Limited recently made application for planning permission to fell trees in the wood and this has been granted by the county council subject to very stringent conditions which provide for phased felling and a replanting programme designed to mitigate adverse effects on the environment. Having received such permission, the company, as they were obliged to do under the Forestry Act, 1946, lodged a felling notice with my Department giving 21 days notice of their intention to fell the trees. I immediately issued a prohibition order in response to this notice and no felling can take place unless a felling licence is granted. The company were in contact with my Department following receipt of the prohibition order and they have indicated that they will apply for a felling licence. In considering the licence, I would have to take full regard of the conditions set by Wicklow County Council in their planning permission and serious consideration would also be given to the company's performance in relation to the conditions attached to previous licences.
Deputies will recall that I informed the House during the earlier debate on this Bill that following a preliminary survey of Coolattin by my officials certain disturbing features to the new plantation by the Bridgefarm Company Limited were uncovered. On receipt of this information I instructed the inspectors in my Department to carry out a comprehensive survey with a view to finding out the facts as to whether or not this company had complied with the conditions specified in the granting of felling licences by my predecessors. This survey revealed a more than inordinate mortality rate in the new crop of plants. The numbers of dead, dying or very weakened plants varied between the differing species and were highest in the oak wood. My Department, during the years, have accepted that there will always be some level of failure in new plantations and, in accordance with practice, will accept up to 15 per cent mortality rate. However, in this instance, the rate of crop failure was considerably higher and was quite unsatisfactory. A likely contributory factor to this development is, in my opinion, the rate of felling of these woods. As has already been stated, about five-sixths of the wood has been clear felled and it could scarcely be regarded as good forestry policy to remove completely in such a short time and in one fell swoop trees that took 200 years to grow. The oakwood species thrives in sheltered conditions. The plant needs to be protected from excessive rainfall, frost and unwanted vegetation. The older crop of trees afford this cover and structured and sensitive felling of these species over a long period so as to allow for the proper generation of new crops should be the approach.
In spite of deficiencies in legislation which are an urgent priority for this Government, my Department have engaged in, and have openly encouraged owners of private broad leaf plantations to participate in agreements for the proper management of their woodlands. I want to further encourage owners of private woodlands to avail of these specialist services.
Our few remaining oakwoods have been so depleted that we are in danger of losing the quality seed source necessary to rebuild the hardwood resource. Broad leaf high forests cover about 34,000 hectares and of that the oakwood species has a mere 11,000 hectares. We import about £16 million of hardwood annually and, as the House knows, hardwoods are a fast diminishing resource all over the world and the remaining oakwoods in this country will continue to increase in money value terms. The yield class of Irish oak equals that of pine in Finland and the quality of Irish oak has been famous internationally for centuries. We cannot, therefore, be indifferent to this valuable resource and, as a consequence, the needs of future generations.
The debate which has resulted from the felling at Coolattin has highlighted the need for a defined national strategy in relation to broad leaf species. I am convinced of the need to increase the level of planting of broad leaf species by the State and of the encouragement of the private sector with a view to the needs of future generations. It follows from this that existing plantations, particularly semi-mature woods, need to be protected and felling of mature trees permitted in a sensitive and planned way allowing for gradual removal only and simultaneous replacement of the species.
I am setting out a programme to ensure there will be an annual increase in overall percentage terms in State planting of broad leaf species and also encouraging by way of special grants to the private sector, both to individuals and companies, to set aside suitable land for this purpose. In this context I repeat my conviction that such a policy requires urgent attention. It will have that from my Department, and the legislative framework and back-up will be put into place by this Government as soon as possible. This I believe can be achieved through the amendment of existing legislation and will not, in my view, require extensive changes.
People who grow oak realise they will not benefit financially themselves. They know it is a long-term activity. It is in many ways an act of faith in the country. They do something special for our heritage. This Government have demonstrated in a clear and unmistakable way that they will not spare any effort in preparing the way, both legislatively and otherwise, to put this sorry spectacle behind us and to begin a new era in a more enlightened and positive manner.
With the permission of the House, I intend to make a very brief intervention before asking my colleague, our spokesman on forestry, to speak for the rest of my allotted time. I hope the House will give me that permission.
Is that satisfactory to the House? Agreed.
Last week when the Minister of State made his announcement there was a great sigh of relief at his decision to halt the tree felling at Tomnafinnogue Wood. I welcome that decision without reservation, because Coolattin and the fate of those trees have been a source of considerable anxiety and frustration for some considerable time. Unfortunately, it will continue to be a matter of concern as long as there is some question of the reprieve of Tomnafinnogue Wood being only temporary, related not only to the beauty, amenity or antiquity aspects of the wood but to non-compliance with previous felling licence conditions as announced by the Minister of State last week. While welcoming the Minister's decision, I found it mysterious because we had confusing correspondence about what was going on at Coolattin over aconsiderable period.
I had a letter from the Department of Tourism, Fisheries and Forestry on 4 February saying that constant monitoring of forestry activity at Coolattin Woods had been carried out by officials of the Department and that the Department were satisfied all the conditions of the felling licences issued by them had been fully met. The Minister of State said on 27 May 1987, at column 3094, Volume 372 of the Official Report:
...it was brought to my notice that the conditions which applied to the earlier licences had not been complied with.
I say this is mysterious because things seem to have changed in just three months. I want to know who inspected the woods prior to 4 February and who inspected the woods in early May. Were two different people involved or did things change mysteriously in that period?
Quite a number of things changed in that period.
I know that but I would like to know if different people inspected the trees. I am not asking this in a mischievous way or to cause trouble or political problems. I want an answer to this question. The people who are concerned about Coolattin and the latest developments there might be forgiven for being confused and worried when changes like this happen.
In a letter dated 28 May the Taoiseach confirmed the decision announced in the Dáil by the Minister of State. There was a sentence in that letter which read "Any such felling cannot legally be undertaken at the wood at the present time". The phrase "at the present time" has an ominous ring, and perhaps the Minister would clarify that point. We have been told this problem will be sorted out. I hope the best brains in the Department of the Environment and in the Department with responsibility for forestry, together with the Attorney General's Office, will be used to find a way to deal efficiently and fairly with the kind of case Coolattin presents. My colleague, Deputy Carey, will deal in detail with this Bill.
I welcome the opportunity for this extended debate. Our country is not as wooded as it should be but, at the same time, we have a very strong responsibility to protect what we have while encouraging the forestry industry. Those responsibilities present a very tall order because they embody some inherent contradictions. I compliment the many groups and individuals in County Wicklow and across the country who, in the best spirit of community concern, raised, and continue to raise, the question of Coolattin. I hope their efforts will result in a final solution to this sorry chapter in our environmental history.
I join with Deputy Hussey in welcoming the spirit in which the Labour Party brought in the Local Government (Planning and Development) (Trees and Woodlands) Bill, 1987. It was a major effort to bring about a quick solution to the serious problems which had developed at Coolattin. I am disappointed with the petty arguments put forward by the Government side and their crowing about their goodwill towards and interest in broad leaf developments.
The Taoiseach promised there would be an early resolution to the difficulties experienced at Coolattin. The Government promised to bring in legislation but since examining the matter they have discovered there are huge constitutional difficulties involved. The Minister for the Environment dealt at length with the matter.
That was an assertion, not a fact.
That was the assertion of the Minister for the Environment. It is true to say the Minister is good at asserting things.
But very factual.
We will have to wait to see the new Bill before we know if he is correct about everything. Exaggerated promises given in relation to private property will inevitably delay any progress towards a resolution of the difficulties.
The Department of the Environment and the Department with responsibility for forestry have serious roles to play but my experience would lead me to believe that they are poles apart. The crisis at Coolattin should bring them together. Throughout the country county development plans are being drawn up. People are looking at ways in which to protect the environment and develop scenic and amenity areas.
The Bill cannot be supported because it has serious defects which would prevent it from achieving its avowed aim which is to protect trees and woodlands of special amenity value. It would impede commercial development of our forests. Any legislation dealing with this problem should include compensation at present use value for any person prevented from felling by a special amenity or preservation order. It should define a system of appeal in regard to preservation or special amenity orders. Any enactment brought forward should be referred to the Supreme Court for confirmation of its constitutionality.
I listened to the Minister for the Environment, the Minister for State at the Department with responsibility for Forestry and to the mover of the Bill. Deputy Kavanagh made serious efforts to protect Coolattin and its environment. I was very disappointed to hear the notion put forward on the Government side that they were the saviours of this amenity.
That is a fact. You did nothing while in Government.
The Fianna Fáil members of Wicklow County Council never objected to the various orders which were made for felling trees at Coolattin. There would be unity in the House about the matter if the legislation was brought in. The Taoiseach made great headlines in regard to this promised legislation. He made a famous trip by helicopter to Coolattin. This Government will be known as the chopper Government. Every little difficulty is resolved by a helicopter visit. The Minister for the Marine made two trips by helicopter to the Kowloon Bridge. The Minister for Communications made a lightening visit by helicopter to Bord na Móna sites in bad weather. I am sure the people in Bord na Móna could have informed him about the state of forestry development without his making helicopter trips to the various sites. They are now seeking to make this matter a high profile one because it is emotive and is one of the “green” issues. The problem with the Government is that they do not have the legislation ready and it ill-behoves them to attack Deputy Kavanagh because he made a reasonable effort to bring in a Bill.
You did not support it.
There should be some agreement in the House about matters such as the protection of Coolattin Woods. There will have to be considerable change before the Departments involved come to an agreement on it. As Deputy Hussey said, the order which the Minister of State has made is a temporary one and there is nothing to prevent a new application being made. If they are commercial developers they will pursue their interests. There were differences between the officials who visited the site to see if the conditions of planning had been met. If these conditions have been met, if the oak has been planted and if there is less than a 30 per cent failure rate, say it is 10 per cent, what will the Minister of State do then?
The Government are in a position to bring in the necessary legislation to save Coolattin and other such developments. I do not know if there is any good in uttering pious platitudes or giving lectures on botany about how one should grow oak or preserve the seed.
The Deputy has no interest in that aspect.
Yes, I have. It is very important. It is only lately that forestry has merited much attention in the Government's programme. It is worth checking the record of Fianna Fáil in regard to this. What have they done about broadleaf? There is not much evidence that they did much to develop this area before the crisis at Coolattin. While my party do not propose to support the Bill we appeal to the Government to get their legislative act in order and make reasonable efforts to protect Coolattin.
In introducing the Bill last week Deputy Kavanagh dealt at great length with the crisis at Coolattin, as was appropriate, but touched only briefly on the Bill. In fact I note that in the somewhat rambling, twisted and convoluted contribution of the Deputy opposite the provisions of the Bill were only briefly touched on. The woodlands at Shillelagh have been famous for many centuries and it is a tragedy that they are threatened in this decade. Timber from those woods was used to roof Westminster Hall, Henry VIII's chapel at Windsor and King's Chapel, Cambridge. It is also said that Coolattin oak was used in the Stadt House in Amsterdam.
The debate tonight is welcome because it highlights what has happened in Coolattin. The distribution of Deputy Kavanagh's time in the debate seems to indicate certain pangs of conscience on his part. Indeed, it is a great pity that his awareness of Coolattin, and its plight, was not exhibited when he was in a position, as Minister, to do something about it.
The Deputy is wrong again.
The inaction of the last administration stands in stark contrast to the actions of the Government. On 6 December 1968 the then Minister for Fisheries, Forestry and Tourism indicated, in correspondence with another Wicklow Deputy, his satisfaction with the way things were being run at Coolattin. It is not right to suggest that I am wrong in my statement. In that letter the Minister spoke of his satisfaction with matters at Coolattin and of the replanting obligations being fully completed to a high standard. Anybody who has a passing familiarity with the woodlands of Coolattin will know that the replanting obligations imposed on Bridgefarm Limited have not been adhered to, have not been completed to a high standard and have been met in a sinister and cynical fashion.
The letter to the Deputy in 1968 stated that felling at Coolattin estate had been closely monitored by officials from the Department and Wicklow County Council over the previous three years and there was no indication that the owners had any intention of exceeding the terms of the felling licences issued to them. The fact is that rather than cut down individual trees or take down one-third of the trees at Coolattin, Mr. Tatten and his servants have devastated five-sixths of the estate. They have clear-felled it and, to add insult to injury, moved bulldozers in and scraped the land. Not only have we not had proper husbandry there but we have had widescale devastation.
The suggestion that the Bill in some way is aimed at protecting Coolattin is a sham. When one looks at the stewardship of the last administration, and of the Deputy who introduced the Bill, we will see that there is every reason to understand the cynicism we sometimes attract as Members of this House. We got a lot of hot air from the last administration about our heritage and our environment——
The Deputy's party are adept at that.
In contrast to the attitude of the last administration the Government moved swiftly to deal with the problem at Coolattin. Their action was decisive in so far as the small portion of Coolattin Wood that was left was concerned. On 21 March the Taoiseach visited the woods to view at first hand the devastation that had taken place in the last two years of the Coalition. Following that visit the action of the Government was swift and decisive. The Minister concerned was requested to review the position urgently and come up with remedies. The woodlands were properly inspected to see if Bridgefarm Limited had complied with the conditions laid down in the felling licences which had been granted to them. A special amenity area order covering Tomnafinnogue Wood was prepared and passed by Wicklow County Council. On 27 May, the day the Bill was introduced, the Minister of State at the Department of Energy issued a prohibition order preventing the present owners of Coolattin Estate from any further felling of trees at Tomnafinnogue Wood.
I should like to take up two points relating to those actions which were raised by Deputies Hussey and Carey. Those Deputies, by the nature of their questions, appear to express disappointment at the decisive action of the Minister of State. Obviously, his decisive action did not suit them. In the course of her four minute contribution Deputy Hussey tried to find flaws in the positive manner the Government are adopting in dealing with the problem. In my view she cannot find a flaw in it. Coming from the garden county that Deputy surprised me with her evident lack of knowledge about plant life. An assessment of young forest crop in mid-winter could never be entirely accurate. Obviously, it takes the spring growth to indicate what is happening to young trees.
I visited Tomnafinnogue Wood recently and walked the lines of replanting. Anybody with an eye in his head could see that the owners of the wood have behaved in an extraordinarily cynical manner. They have not met their replanting obligations and have put in sceach oak here and there. When one gets to the headlands the lines of oak replanting disappear. The number of conifers replanted vastly outnumbers the number of young oak. It takes an interested citizen to walk those woods to see what happened while the Coalition were in office. Shame on them.
In my view the Minister's action was effective. In signing the prohibition order the Minister of State, Deputy Smith, did more at a stroke to save an irreplaceable part of the nation's heritage than the whole cabal of Labour lawyers could do in one year's consideration.
I welcome the prohibition order not only on behalf of the people of Wicklow but on behalf of all people who truly care for Ireland's heritage. I submit that to allow Bridgefarm Limited loose in Tomnafinnogue with a chainsaw, given their past performance, would be as recklessly irresponsible as letting a bunch of gurriers loose in the Louvre with an endless supply of spray cans. What has happened there is a shame and a disgrace. I should like to hearthily congratulate the Minister on what he has done. Deputy Carey suggested that this is only a temporary order but I have every confidence that the Minister, if he receives any further applications from Bridgefarm Limited, will take a long time to consider them and will treat them as he has treated the most recent application.
The events at Coolattin illustrate two things, the need to revise our planning laws — in particular the need to revise them in so far as they touch on the issue of compensation — and the need for a carefully drafted piece of legislation which will not allow a buccaneering company to run a coach-and-four through it. In other words, we need legislation covering some of the points nominally dealt with in the Bill. The Forestry Act, 1946 requires notification of intention before felling any woodland. That Act requires the Department of Forestry to review an application in order to see whether it is in order from a silviculture point of view and whether there are any objections from the amenity point of view. The 1963 Act also needs to be looked at. If a tree felling order is made as we tried to do in Wicklow County Council — although Deputy Carey does not seem to be aware of what the county council have done——
With Deputy Roche's agreement.
The Deputy should know — if not he should not be spokesperson — that that is an executive decision. There are two Fianna Fáil Deputies from County Wicklow both of whom are members of the county council, who have assiduously attempted to protect the woodlands at Coolattin and to reverse the effect of the devastation resulting from the irresponsible and reckless behaviour of the former Government.
The Bill attempts to deal with the nub of the problem between the Acts of 1946 and 1963 and with the issue of compensation which is a major problem given the considerable body of case law which has grown up from the constitutional protection in Article 40 of property rights. Deputy Carey dismissed at the outset of his extraordinary speech the Minister's report of the Attorney General's views which are on record on the issue of compensation. After speaking for about two minutes Deputy Carey found new constitutional problems and the necessity to refer certain matters to the Supreme Court. He did not make it clear whether he supports the Bill. At one stage he said he could not support it. He seemed to be criticising the House for not supporting it.
I criticised the Government for not producing the promised legislation.
We have been in Government a few short weeks and the Deputy's party were in Government for four and a half miserable years. During the last two and a half years of their term of office Tomnafinnogue and Coolattin woods were devastated. The previous Government did nothing——
The destruction started in 1977 when Fianna Fáil were in office.
No amount of twisting or turning will change the facts. Look at the dates of the felling orders and see who was in office. All this may be unpalatable but it is the truth. The Bill, laudably, attempts to deal with the compensation issue which is a very difficult one as it hinges on constitutional problems. Sadly, the Bill, while well intentioned, fails to reconcile its good intentions with the requirements of the Constitution. The Attorney General advised that the Bill is unconstitutional. In the circumstances it would be irresponsible of the House to pass the Bill as it would land the hard-pressed taxpayers with more lawyers' bills and would not protect a single tree.
Another point I should make about the Bill is that it will not and cannot have a retrospective effect. Instead of rushing through this legislation, the wiser course of action is that suggested last week by the Minister for the Environment in announcing his intention to set up a working group to urgently review the position on compensation and planning laws. Everybody in the House is in agreement that such a review is needed, especially in so far as compensation is concerned. The group the Minister promised to establish will make recommendations on legislative, administrative and organisational aspects and this is where there was some thread of validity in Deputy Carey's remarks about the distance between two Government agencies. There should be no distance between those Government agencies because they are both charged with the protection of the common good. Administrative, legislative and organisational issues are raised by the Coolattin case. In the area of trees and woodland, this group should learn from the experience at Coolattin; they should attempt to establish a restrictive definition in law as to what constitutes a tree because that has been a problem in the past. Is a piece of sceach elder left behind by the bulldozer a tree? It is difficult, this is a weakness in the law which must be addressed.
The group should also harmonise the provisions in forestry and planning legislation. They should also look at the way in which we can reconcile the amenity uses of our woodlands with the need for their economic exploitation. Above all, the group must explore fully the means whereby tree felling is regulated. They must set down the conditions which can apply to any tree felling because one of the problems arising from the Coolattin experience is that tree felling is extremely difficult to control.
The tragedy at Coolattin cannot be redressed by the Bill because it cannot recreate woodlands out of the devastation at Shillelagh. Deputy Kavanagh, when introducing the Bill, suggested that its passage might protect the remnants of Coolattin but, even if the Bill was not flawed, it could not do that, because, as I have already said, it would not have a retrospective effect in law. The immediate crisis at Tomnafinnogue has been averted by the swift action of the Minister and there can be no doubt as to the Government's concern, not just for our woodlands, but for our heritage in the widest sense. The House can confidently accept the course of action recommended by the Minister and the Government. There was good intent in the Bill but, given the extent of its weaknesses, unfortunately, the House has no option but to reject it.
I welcome the order made by the Minister of State which will put an immediate stop to the further destruction of the woods mentioned by previous speakers. Indeed, I recall that one of the very first questions I tabled dealt with this topic some weeks ago and I am glad that action has been taken which will temporarily put a stay on the activities of the present operators of Bridgefarm and their destructive consequences on the woods in question.
I wish to refer to remarks made by the Minister for the Environment in opposition to this Bill and repeated by implication by Deputy Roche. This raises an extraordinary question concerning the legislative process. Last week, despite repeated requests, the Minister for the Environment did not state precisely the objections on constitutional grounds to the Bill before the House. In the Official Report of 27 May 1987, column 3081, the Minister for the Environment said:
I have sought the advice of the Attorney General on the question of whether the provisions of the Bill are consistent with the relevant Articles of the Constitution. I have to tell the House that the Attorney General has advised that the Bill would not withstand a challenge on constitutional grounds. In his view, legislation which would amend the Planning Acts so as to abolish compensation in the event of a refusal of consent to fell woodland trees would be found unconstitutional.
The Minister said earlier that the provisions of the Constitution which would be contravened are Article 40.3, and Article 43. Last week I made repeated requests to the Minister to specify how Article 40.3 and Article 43 are offended by the proposed legislation. That is the nub of the issue before us. As Deputies decide whether or not they can support this Bill, they will have to ask themselves whether they are willing to pose this challenge. With regard to the people who are speaking against this Bill on constitutional grounds, there is an enormous danger they are damaging the concept of the common good. By firing away the question of compensation initially, they are putting a powerful tool into the hands of those who want to get away with the notion that compensation is somehow supported in the Constitution. There is no such explicit defence of the concept of compensation in the Constitution. Deputy John Kelly in his seminal work on the Irish Constitution, at page 658, summarises a review of the case law in relation to compensation as follows:
It will have been noticed that the cases presented so far occasionally refer to compensation as an element which may validate or make acceptable constitutionally what otherwise would be an objectionable inroad on private property, or to absence of compensation, as an element confirming the injustice of the interference. Yet there is no settled doctrine on the constitutional status of compensation. The cases disclose dicta which appear to permit a range of possibilities, varying from simple expropriation, through partial compensation at less than market value, in full market value, and even (where because of the temporary fluctuation the current market value might not be a just compensation) something more than it.
That is Deputy John Kelly's conclusion after a series of examinations of very specific cases of Irish case law dealing with the question of compensation.
I wish to follow this point as it is a point of the utmost importance in relation to the present Bill. We have to ask ourselves what is the role of the legislature in relation to the Office of the Attorney General and what is the role of the legislature under the Constitution. It seems extraordinary that the legislature will not justify which cases are being used to strike down different sections in this Bill, wilt not offer a whit of evidence and will just say, in a grand way, that Article 40.3 and Article 43 would be offended. That indicates a conservatism and a caution which is not even present in the courts.
Let me give a practical example of what I mean. Deputy Kelly, whom one would hardly call a radical and expropriation mad socialist, offers the opinion in his book. Equally, if one looks back over the Supreme Court judgments and the case law in relation to a number of tests which have been made, one will find that the courts have given hints as to their interpretation of the compensation clauses. Surely it would suit the legislature far better to be pushing a Bill out and testing the ground in relation to the compensation issue rather than seeming to accede to the most conservative possible interpretation of the case law. I believe the common good will be very badly served by such a cautious, conservative and narrow interpretation within the bounds of property. It is a conception of property which has not enjoyed a positive interpretation by the courts and is one which does not exist in relation to the Constitution itself.
Let me point out to the House the problem which faces the Minister, Deputy Flynn. He suggested that Article 43, for example, is affected by the Bill which the Labour Party have placed before the House. I would like to ask him a specific question to which I hope he will reply. Which interpretation of Article 43 is affected by the legislation which is before the House? Article 43 prohibits the abolition of the general right to ownership, the right to transfer and to inherit private property. Article 43.2 contains a proviso which entitles the State to delimit by law the exercise of this right to private property. There is an explicit provision "with a view to reconciling their exercise with the exigencies of the common good".
The whole point of having law which pushes out the limits in this regard is to force an interpretation of the common good but the advice given to the Minister by the Office of the Attorney General is that we should be so cautious that we are unwilling to test the concept of the common good which might be interpreted by the courts in a more modern way. Certainly, it would be interpreted differently in 1987 than it would have been in the sixties when there was a far less ecological awareness than there is now. There is enormous merit in abandoning this rather narrow, conservative and damaging concept of the Constitution. In fairness I do not believe the Constitution was framed — and I have been one of its critics — to be used in this particular way. Some people have taken the opportunity to force the courts to define the common good and to take account of changed circumstances.
The Minister also made reference to Article 40 of the Constitution which makes reference to the personal rights of the citizen. Article 40.3, which was referred to explicitly by the Minister, guarantees "to respect and as far as practicable by its laws to defend and vindicate the personal rights of the citizen". Article 40.3.2º states, "the State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen". A question arises immediately on the interpretation of that Article. Will the Minister tell the House where that Article is offended by the legislation which is before us at present?
Let me make a comment from my own reading of the commentary on the case law. The onus is on those who would be affected by this legislation to show that they, in fact, have been subjected to an unjust attack and that the unjust attack was such as to erode the concept of the common good. There seems to be a double protection there. In the previous clause of the Constitution one is protected by the interpretation of the common good and in relation to the second example mentioned by the Minister one is protected by the fact that the individual is not being singled out for specific mention. This arose in a famous case in relation to an archaeological site. In that case in so far as the individual did not have just one of these sites on his property and it had been diminished in value, you could proceed and not be shown to have an unjust measure directed specifically at the individual.
I worry very much about the principle of developing the concept of the common good eroding the notion of there being compensation for something which should never have applied in the first instance and about which the courts are reconsidering their decision. We in this legislature should not be taking a cautious view, throwing away whatever gains might be made through a decision of the courts and what gains might be possible in relation to the protection of our national assets and so forth. It has implications far beyond the question of Coolattin Woods.
To summarise this section of my argument, the Minister is under an obligation if he invokes Article 40 to tell us where and in what form an attack on personal property rights is contained in the Labour Party Bill. I remember the time someone would say when things were very bad that people should go down the country to say that there would not be enough money to pay the teachers or the nurses and people were supposed to accept that. Perhaps people did accept that kind of nonsense from time to time. We are all Members of a legislature and when the Minister quotes the Constitution and suggests that there is an impediment there is an onus on him to justify it. He cannot just cite Article 40.3 or Article 43 and walk away from that simple assertion.
As I said, the implications are far-reaching. This is a matter which has already been tested in the courts. For example, it was decided by Mr. Justice Kenny in the case of the Central Dublin Development Association and Others against the Attorney General in 1969 where the plaintiffs had challenged the constitutionality of a substantial part of the 1963 Planning Act including part 3 which dealt with development plans, part 4 which dealt with development and attention of certain structures and part 6 which dealt specifically with the issue of compensation.
In reaching his decision Mr. Justice Kenny followed that of the Supreme Court in Foley versus the Irish Land Commission, 1952, Irish reports, page 118 where the court held, at page 153:
The argument put to this Court on behalf of the Appellant when reduced to its logical conclusion, seems to involve the proposition that any limitation placed by the Oireachtas on private property, which may result in the loss of that property by the owner is repugnant to the Constitution, and, accordingly, void. If this argument be sound, the Constitution has certainly placed serious fetters upon the legislature in dealing with property rights and the court is not prepared to accept such a far-reaching proposition.
Mr. Justice Kenny goes on later as follows:
If any of the rights which together constitute our conception of ownership are abolished or restricted (as distinct from the abolition of all the rights) the absence of compensation for this restriction or abolition will make the Act which does this invalid if it is an unjust attack on the property rights.
It was accepted by the plaintiffs in the Central Dublin Development Association case that planning and control of buildings or land was required in the interests of the common good. What the plaintiffs attacked was the constitutionality of the section giving power to make development plans on the ground that such plans would result in a reduction of the value of some property.
Mr. Justice Kenny stated:
I do not think that the giving of power to a Planning Authority to make a development plan after they have considered and heard objections to the draft is an unjust attack on property rights.
Place that parallel with the appropriate section in the Labour Bill. Mr. Justice Kenny continues:
A plan of development for each City and town is necessary for the common good, someone must prepare it, and the Planning authority who have staff trained in this work seem to me to be the best persons to do it... The making of a plan will necessarily decrease the value of some property but I do not think that the Constitution requires that compensation should be paid for this as it is not an unjust attack on property rights.
That was Mr. Justice Kenny's interpretation of what constitutes the common good, of what constitutes an unjust attack and justifying, if you like, the full requirements of planning law. At page 90 of the report he said:
Town and Regional Planning is an attempt to reconcile the exercise of property rights with the demands of the common good and Part 4 defends and vindicates as far as practicable the rights of the citizens and is not an unjust attack on the property rights.
In relation to Part 6, which dealt with compensation, he said:
The restriction and limitation on the amount of compensation payable under Part 6 is not what the Plaintiffs described in their Statement of Claim as an arbitrary confiscation or partial confiscation of property in a manner which is contrary to the principles of social justice...It is not in any sense a confiscation of the rights, it is a provision that interference with one of the rights of the property is not lo be the subject matter of compensation and it is not a breach of the Constitution.
That case law is there and those opinions are there. It seems an extraordinary view of the Attorney General's office to be advising a senior Minister such as the Minister for the Environment in the way in which it has been reported to the House. It has implications of a more conservative kind that go far beyond the question of Coolattin Woods or the trees and woodlands, because it spills over into the whole area of amenities and compensation. To run away from the whole issue of compensation by seeming to accept it and establishing a working party which would deal with the nuts and bolts of the establishment of levels of compensation is to fire away the principle before one even has begun to test it. The appropriate way for the legislature and for Government is to frame the law with prudence and care, as speakers have said; that having been done, to make the assumption of constitutionality and let others test it before the courts. I doubt if they would enjoy such a welcome as the Attorney General's Office seem to anticipate before the courts. That is a very important point. I have dwelt on it at some length because I listened to contributions this evening and they seemed to come back again and again to the suggestion that the Labour Bill is flawed on the grounds of constitutionality. I reject that. The onus is on those who suggest that it is unconstitutional to point specifically to where the Articles they refer to the Constitution are offended.
I want to say a few words about the justification of the approach taken in the Labour Bill. In a curious way, what we are dealing with — and the reason for this discussion before the House — has been the appalling developments that have been presided over by the owners of these woods, Bridgefarm Company Limited. I am reminded by a previous speaker that the destruction of the woods preceded the existence of this company and that we should be talking about the activities of the individuals who bought the lands in question almost immediately from the time of their purchase which gives a date of 1978. One has the specific actions of Bridgefarm from their formation in the early eighties to the present time. I am not interested in quibbling about that. I welcome the temporary measures that have been taken to preserve what is left. I am very grateful, like the previous speaker, to the different interested groups, particularly those in the local action committee to save the woods and also the botainists of Trinity College and others who wrote to people like myself a while ago and from whom I was grateful to receive information.
There are a number of things provoked by this discussion. One follows on logically from the opening point which I took concerning the Constitution. I doubt if even the most conservative framers of the Constitution in 1937 would have wanted it to be interpreted as conferring a licence to do what has taken place in Coolattin and the adjacent woods. Did they, I wonder, ever think that there would exist some people to whom the rights of commercial exploitation would be so predominant that they would destroy the heritage of several generations that had gone before them and would remove the value of the woods from several generations that were to follow? Unfortunately, the kind of society in which we live and its conservatism and the notion of expropriation of an unqualified kind is one that has produced this kind of mind. Thus it appears that not only was the despoliation of the woods taking place but the material was for the most part being exported, depriving people who live in the vicinity of any opportunity of developing such crafts as are possible from the use and availability of high-class materials and so forth.
The fact that we have had this discussion here reflects something that is positive in a time in which matters are often construed very negatively. It shows that there is now far greater ecological awareness and responsibility, particularly among young people than there was previously. Indeed, the great advantage of all the groups who broke silence on the question of what is taking place in the woods is their great achievement of drawing the attention of so many people and the media to the proper appreciation of our ecological responsibility in relation to woodlands.
There is a point made in Deputy Roche's contribution in which I am very interested. Again it is a problem that arises in relation to the reform of other legislation. Indeed I would support that. It is that the concept of proper silvaculture should be addressed from amendment of the basic forestry legislation. While the details of what took place were revealed before the House, it became very clear that one had not only assertion and counter assertion but that when one stripped away the rhetoric one found that the basic principles of forest management had not been applied at all, that the notion of replanting was barely kept. In addition, what was replanted was nothing of the nature that would restore the wood over a period of generations to its previous character.
There was the pathetic offering of excuses and so forth. One of the more valuable contributions I received through the post was that from the botanists of Trinity College who took the trouble of writing to me and to whom I am very grateful and who replied point by point to the present owners and operators. They said that much of the state of the wood such as, for example, the parts imperilled by bad waterlogging and so forth are, in fact, directly the result of poor management by the present operators and owners, those who previously enjoyed licences to fell oaks and so forth. They also point out the serious defects in the replanting, as I mentioned. They point out the high mortality of what has been replanted and the inadequacy of the so-called radial circular development which would have exposed to even further danger a greater portion of the oaks themselves. They point out that the oak forest is valuable not only because of its age but because it is sheltering a range of flora and fauna which is terribly important and that as the oaks are interfered with so also is there a huge ingress on those matters of enormous ecological value. The botanists gave us indisputable testimony as to the fact that Tomnafinnogue Wood constituted a unique site in terms of the concentration of a large number of oaks of very considerable age.
In relation to the new atmosphere in which licenses are given and monitored, to what extent are ground rules laid down which can be monitored easily, effectively and with some enthusiasm by the Departments involved in granting those licences, so that the principles of proper silvaculture can be met? We were given an immediate problem to which we had to respond. I remember the reply of the Taoiseach when he was questioned in the House by me, among others, in relation to what was taking place at Coolattin woods. The Taoiseach's strategy as a pragmatist was to try to achieve something immediately. What was possible within some of the Acts by way of refuting the felling licences has been done by the Minister of State. I welcome that but it would want to go beyond the temporary nature of that. One would want to think in terms of further obstructive measures. That is one road down which one can go. There is the road of developing obstructions to stop the immediate despoiler of one of Ireland's oldest and most unique forests from doing what he is doing, that is damaging something which will not only affect us and our generation but which will affect the future.
The second strategy would be to look at the defects in the law which made possible what we have just described this week and last week. The Labour Party have chosen the second road, to look at the whole question of the Local Government Planning and Development Act, 1963 and particularly at the interpretation of the compensation clauses that have flowed from that. We have sought to develop within the concept of amenity, certain trees and woodlands definitions which would remove the compensation requirement where an order had been made and where An Bord Pleanála had decided that the area was one of amenity and where the process had worked itself out. The argument that that constitutes an infringement of the rights of the individual, or that it is an unjust attack on property is very hard to sustain. Indeed, all the statements made in this House develop the notion of the common good and the idea that there is an element of property that precedes us and certainly will succeed us, that it transcends private usage, that there is a concept of social usage involved and so on. The speakers here are making a case for the second approach which is to amend the law and remove the compensation requirement. With the removal of the compensation requirement one could reconstruct what would have been possible had such legislation been in place. It would have immediately unfettered the hands of the local authority who would have been freer to move in a far more aggressive way. There is no doubt in the history of this sorry affair that many people who are well intentioned wanted to act but felt that, because of the possibility of compensation, they should not do so. This acted as a constraint on them. Not only for this case, but for every other case, there is an enormous value in taking the second role of legislation. It is for that reason that I justify the approach taken by the Labour Party in developing a general rather than specific response.
If I was outside taking note of the discussion just taking place and had to take measures directed against a transgressor, I would feed into a legal system the possibility that actions were directed against a specific individual and would come close to the wind in their suggestion as to what might be an unjust infringement of an individual's activities. There is considerable merit in avoiding that risk in all of what we are doing and going for a general review of the legislation and the removal of the compensating clause for all trees and woodlands within the general definition of amenity. In relation to the case law that has developed from those sections of the Constitution which are appropriate, we would put ourselves on much firmer ground. I hope, on reconsideration of their position, the Members of the House will see that there is very considerable merit for going for an amendment of a defect in the law that would apply in every case, the onus being on the potential despoilers to test the matter in the Supreme Court, but if one were to fall victim to an excessive conservative caution that would roll over into all aspects of legislation and would be highly regretted. I would ask the Members of the House to carefully consider these points before they decide whether they can support this Bill. I hope they will support the Bill.
Perhaps it is my naivety as a new Deputy which prevents me from understanding how a discussion on an item such as the preservation of Coolattin Woods can develop into something of a political dog fight.
Coolattin Woods are only 20 miles from my home and are well known to me. Their proximity heightens my regret and sense of hurt at what has been allowed to happen there. I would thank anyone, including the former Minister, Deputy Kavanagh, for his attempts, albeit unsuccessful attempts, to prevent what is happening at Coolattin Woods. The preservation of these woods is not just a local issue. It has national implications and what has happened is a national scandal. A national treasure has been allowed to be raped and plundered for financial gain. The cry "Save Coolattin Woods" has been reverberating throughout Ireland. It is too late to save Coolattin Woods but is not too late to save for the benefit of future generations that which remains of the glorious oaks in the area of Tomnafinnogue Woods. If we failed in this rescue we would deserve the odium of future generations who would be deprived in this respect.
On 26 March 1987 a detailed planning application was submitted to Wicklow County Council by Bridgefarm Company Limited, the current owners of Coolattin Woods. This application was for the selective felling of specified trees at Tomnafinnogue, Ballyraheen, Ballykelly and Coolattin Park Townland, Shillelagh, County Wicklow. This application refers to trees covered by tree preservation order, reference No. 32/82/78 (a). The intention in respect of the application was to complete the devastation by removing the last of the Coolattin Woods. What has been done at Coolattin is claimed to have been within the law and to a great extent that is true, simply because there are deficiencies in the relevant law. In accordance with the provisions of section 45 of the Local Government (Planning and Development) Act, 1963 the local authority in the event of planning permission being refused would become liable for compensation. That is precisely the big stick that can be and has been waved, and the size of the big stick in relation to the Tomnafinnogue Wood application is £900,000 plus at this time. Clearly no local authority or any other authority can live with that.
While we have laws through which the proverbial coach and four can be driven, this kind of situation will be with us. As a Wicklow man and an Irishman, for me the first ray of hope of the survival of the remaining oaks at Coolattin emerged a couple of months ago when the Taoiseach, Deputy Haughey, indicated his deep interest in the matter by visiting Coolattin personally. His visit with its obvious implications was a great comfort and a great boost to those people in Wicklow and throughout the country who are interested in preserving our natural amenities and treasures and the Coolattin oaks in particular. As a Wicklow public representative, I welcome the initiative taken by the Taoiseach in this matter and the resulting action taken by various Ministers in his Cabinet. In particular, I welcome the action taken by the Minister of State, Deputy Smith, in the last few days.
In the context of the action taken it is interesting to review what precisely has happened in Coolattin to date in relation to felling and to compare that history with the most recently proposed plan to fell Tomnafinnogue Wood. Upwards of 80 per cent of the oaks at Coolattin have been felled to date. This felling was allowed to proceed under certain conditions pertaining to replanting. There is little evidence of the promised replanting having taken place and any effort in that regard has been half-hearted. Therefore, there is no reason on God's earth for any credence to be given to the possibility of any goodwill in the most recent felling proposals. Here again replanting is promised. Bands of trees left to preserve the aspect were promised. "Once bitten, twice shy" must be the approach at this stage.
Again I compliment the Minister on the stand he has taken in the matter. Future generations will bless him for it. I hope and expect that the tale of Coolattin Woods will be a lesson to all of us and that henceforth we will see greater care, vigilance and attention given to the natural treasures God has given us and that in our collective wisdom we will very soon have laws capable of protecting those treasures.
An Teachta Maureen Quill: Níl ach cúig noimeád agat.
Go raibh maith agat. Since I have only five minutes and I had geared myself to not speaking at all and since much of what I had planned to say has been said already by Deputy Higgins, I will be very brief. I compliment the Minister for the action he has taken in relation to Coolattin and I hope that it will bear fruit and that he will succeed in arresting any further destruction of those woods that we should all seek to preserve and pass on to the next generation.
My party and I support fully the substance and spirit of this Bill before the House this evening because we think that it is essentially good in itself in what it aims to do. We see it as having a much wider application than just to Coolattin Woods, important as the preservation of those woods might be. Though the Bill derived directly from Coolattin, we recognise that if its provisions are adopted and its aims and objectives are met, other woodland areas of high amenity value, like Fota Island in County Cork, will be protected. Fota Island is a famous wooded island of great natural beauty with woods dating back 200 years which now stand to be partially destroyed because of proposed commercial development.
Basically this Bill deals with two areas, the first being compensation. That has been discussed at great length in the House tonight so in the few minutes left to me I will talk about the other area of the Bill as I see it. In existing legislation I detect a failure to describe definitively what is meant by "woodland". As I understand existing legislation it is possible for a local authority to put a tree preservation order on a single tree or on a small cluster of trees but they cannot so do in an area that is described as a woodland. Section 45 of the Local Government (Planning and Development) Act, 1963, refers to "trees ... comprised in woodlands". If permission to fell is not granted in such an area, compensation must be paid under existing legislation even if the trees are of very high amenity value and are so known and described. If they are set out in an area described as "woodland" and if a preservation order is put on them or a felling order is refused, compensation must be paid. That is the flaw in existing legislation.
We must bring areas that are comprised of woodland directly under the provisions of the 1963 Act, but first we must define what we mean exactly by the kind of woodland to which this should apply and we must make a clear distinction between forestry developed for commercial or agricultural purposes and trees planted merely for ornamental purposes on the one hand and trees that have a very high amenity value, heritage value or great historic value on the other hand. Having made that distinction we must bring trees set out in woodlands and of high amenity value under the protection of the existing Planning Acts. If we succeed in doing that we will have gone half way to meeting the aims and spirit of this Bill. Unless we succeed in doing that, then compensation will continue to be able to be claimed. I agree entirely with what has been said by Deputy M. Higgins and his interpretation of the Constitution. The Government's interpretation of the Constitution in relation to this Bill frightens me; they have taken the narrowest possible interpretation. When I have more time I will read the relevant Article of the Constitution, as I think it ought to be interpreted for the common good. In defining the common good we cannot exclude any part of our heritage.
Debate adjourned.