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Dáil Éireann debate -
Wednesday, 11 May 1988

Vol. 380 No. 5

Private Members' Business. - Local Government (Planning and Development) Bill, 1988: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Last night I made the point that the 1963 Act was the first comprehensive piece of legislation which had been put on the Statute Book. It replaced a mixed bag of legislation dealing with town and regional planning. I also made the point that the Act was now 25 years old and was beginning to show distinct signs of wear and tear. Perhaps, surprisingly, I had agreed with the analysis by Deputy McCartan that it was correct to say that our planning laws had not been entirely successful.

Our planning laws are cast in the shadow of a relatively rigid Constitution. The Constitution has had its provisions on private property more emphasised by the judicial review process than have been the general rights of the community. This emphasis is no doubt due more to the nature of the cases brought before the courts than to any perversity on the part of the members of the Judiciary. Whatever the reason, the fact is that the compensation issue is continuously to the fore in planning. While neither the objective of the 1963 Act nor the intention of the drafters of Bunreacht na hÉireann was to award windfall financial gains to spurious or mythical plans drawn up with the intent of trawling for compensation, we have seen the issue all too often head in that direction.

The Bill before us at its core deals with the vexed issue of compensation. Indeed, its treatment of compensation is one of the two main points of focus. It is wrong that those who own land on the edge of expanding areas or those who acquire land in scenic areas should be allowed effectively to blackmail the community at large by threatening to rush into compensation claims.

The Minister in his speech dealt with the compensation issue at length. He pointed out that the general exemptions in section 56 of the 1963 Act are such that they mean that there is no general right of compensation. It is comforting to see that of the 183,000 planning applications decided by local authorities, between 1982 and 1986 only 130 actual claims for compensation arose. Less comforting, however, is the news that compensation claims have totted up over the years to the ludicrous sum of £70 million. The compensation threat, sometimes veiled, sometimes open, had an impact beyond the actual number of cases taken. The Minister rightly touched on the insidious problems which arose. Compensation can hang like a sword of Damocles above the head of the planning authorities and of its members.

I am a member of Wicklow County Council and that planning authority has had more than their fair share of planning problems and more than a small number of planning controversies. On the one hand they have had to protect the most remarkable natural beauty bestowed on any part of this island and, on the other hand, they have to try not to impede worthwhile development and progress. In the past two years the compensation issue has reared its ugly head on a number of important occasions. In the case of the woodlands at Coolattin the deficiencies in the planning laws were emphasised first by the threat of a massive and ruinous compensation claim against the planning authority. In the face of that threat the county council were forced to permit felling and to grant licences. A very real lacuna in the planning laws then came to light when the local authority tried to enforce the planning permission and the licences that they had given. At this crucial stage the developer could claim while he was felling everything in sight that he was complying with the law by leaving the odd sceach, the occasional seedling and a scattering of holly standing.

Given the spurious, trumped up and totally dishonest clamour which has been put up by a rag-tag and bobtail mob purporting to represent the borough on what they wish falsely to portray as high level intervention, it is worthwhile recalling that the very welcome personal intervention by the Taoiseach was the factor which led to the halt of the devastation of that irreplaceable part of our natural heritage, the beautiful woodlands of Tomnafinnogue.

Another case where the threat of compensation was used to mug the local councillors in Wicklow was the case of the ESB 220 KV powerline which is now winding its ugly and obtrusive way through the garden of Ireland from Arklow to Carrickmines. Here a State company in a most unethical and unpardonable manner has trampled over the rights of residents of small estates like Countybrook Lawns in Enniskerry, has ignored the fears of the parents of children at Kilmac national school and has cocked a snook at the rights of the special children who attend St. Catherine's School for the handicapped. Recently the same ESB, threatening possible compensation claims, tried to force the manager and the members of Wicklow County Council to bow before its imperious might and to extend a 1980 planning permission which the ESB, the council and all and sundry know to be unconstitutional. The permission in question is unconstitutional on the same basis as was another 1980 permission granted by Wexford County Council. I refer to the case of Gormley v. the ESB. The ESB in their dealings with the council and with the courageous landowner who sought to protect the national treasure at New-townmountkennedy used the threat of compensation in a most extraordinary manner.

While the Minister has welcomed, as I do, the raising of the compensation issue in this Bill, he has pointed out the possible deficiencies in the manner in which the proposal before us addresses the problem. The fact that the Bill's provisions would not stretch to cover a case such as that of Coolattin would, in itself, warn me off the Bill. The possibility of further constitutional difficulties renders this part of the Bill unsupportable. The Bill's failure adequately to identify a community-funded value is a further defect. The Minister has outlined the route he is taking in the proposals before the Attorney General to deal with the compensation issue. Those sponsoring the Bill — and Deputy Keating in particular — should be satisfied with what the Minister has outlined.

The second major problem dealt with in Deputy Keating's Bill is that of unfinished estates. We in Wicklow have suffered, as have people elsewhere, from the blight of maverick developers in some estates in bray, Greystones, Kilcoole and Wicklow town. Home owners are struggling with the aftermath of dealings with the quick buck merchants. This is a very real problem which must be addressed. I am inclined to the Minister's view that the provisions of sections 5 and 6 of the Bill are too particular in this matter. It is undoubtedly correct to suggest that better administration and practice at local government level by the planning authorities, in addition to more rigorous enforcement, would tackle much of the problem of unfinished estates. Frightening statistics have been outlined by the Minister in regard to this plague.

The Bill refers to the office of planning receiver but it is hard to see how this concept, novel though it is, would work. As Deputy Flood pointed out last night, the planning receiver's ability to raise funds on estates left unfinished without any major realisable assets would be questionable. I should like to see the existing law in this area used more carefully and perhaps strengthened.

In the case of large estates, there is an argument for phased planning permissions with later stages of development being allowed only after earlier phases have been completed. Early action by local authorities to ensure that the details of planning permissions are being met, more vigorous planning enforcement programmes and adequate security for completion would address the problem of unfinished estates in a better way than the untried concept of the planning receiver.

This Bill, while welcome, has its defects. Perhaps its most glaring defect is that its focus, while very important, is too narrow. After 25 years the whole operation of the Planning Act is due for a rigorous review. The development side of the Act requires attention. The use of the infamous section 4 of the 1955 Act in conjunction with the 1963 Planning Act needs review. Planning and development is a comprehensive issue. While I welcome the focusing of attention on compensation and on unfinished estates, I feel that planning and development will be more appropriately dealt with in the comprehensive legislation promised by the Minister.

This Bill addresses in a twofold way the question of the payment of compensation in certain cases of planning refusal and the process of regulating the development and completion of estates. I am not sure it was appropriate for the sponsors of the Bill to combine their attempts to resolve problems in these two areas in one Bill.

The comments of Deputies on all sides of the House indicate agreement on the need for action in the area of compensation.

However, I must say that I am very much at one with the comments of Deputy Quinn who last week suggested that perhaps the most fundamental problem in this area relates to the manner in which compensation is assessable under the 1919 Act rather than as to whether compensation should be allowable. A measure of the complexity of this problem is that, as Deputy Quinn pointed out, virtually every conceivable solution has been mooted in relation to this matter over recent years and none of them has so far passed successfully the Attorney General's office in such a way that it has been published as a Bill put forward on behalf of any of successive Governments. I say that deliberately as a prelude, to indicate the complexity of the problem and the difficulty in trying to find a solution which gets the balances right, which addresses the problem and which sits easily inside the requirements of the Constitution.

I am afraid that this present and latest attempt proposed by the Progressive Democrats also falls far short of an ideal solution and, in fact, quite a number of the proposals in it, not only in relation to compensation claims but in relation to the matter of unfinished housing estates, are, I suspect, so unworkable that it is questionable as to whether some, at least, are improvements at all on the present situation. It is, additionally, difficult to establish just how the proposers of the Bill felt that it might work in practice because of the extraordinary — I venture to suggest almost unique — wording of the explanatory memorandum which accompanied the Bill, which appears to be more of a political polemic than an explanatory memorandum. It might perhaps have been more useful from the point of view of the sponsors, had they genuinely wished for support for the Bill, if they had attempted to write an explanatory memorandum which explained the Bill and how its provisions might work, rather than berating successive Houses of the Oireachtas for their inactivity in this area.

This is a problem the complexity of which is known to everybody in active politics and I am not at all surprised that there are the sort of deficiencies I have noticed in this measure and which other Members of the House have also commented on. This entire area is a problem to which there is no ideal solution. What we must endeavour to achieve, as Members of the Oireachtas, is to put in place the most workable and most achievable of measures which help to guide the area of development and redress the problems as they arise.

What we must try to achieve in the area of compensation is the very difficult task of bringing about a balance which defends the interests of the genuine landowner and, at the same time, which defeats the intentions of those who seek to use the provisions of the planning code in a manner which was neither intended nor fair. That latter example in relation to some quite extraordinary compensation claims, as opposed to amounts actually awarded in recent years, has to a large extent prompted this proposed legislation.

It is equally fair to recall that it would be a genuinely generally held view in this country that people are entitled to private property and to the use and enjoyment of such. That is established clearly in the minds of the people. It is part of a national aspiration — perhaps not an unusual aspiration, it is reasonable to say, for a peasant race to have. One need only think back to the activities of Davitt and the Land League to realise how highly Irish people value land and ownership of land. In the context of the time and preparation of the Irish Constitution 50 years ago and, indeed, in comparative constitutions both prior to and later than ours, it is not unusual to find the right of guarantee to private property in these. Indeed, it might have been looked on askance had the Constitution been put before the Irish people at that time without constitutional protection for the right to private property.

It is interesting to note that in their proposed alternative Constitution the party who are sponsoring this Bill repeated, some months ago, virtually word for word the provisions of the 1937 Constitution regarding the right of the individual to enjoy private property and the benefits therefrom. I do not disagree with that in any way. But we must try to protect, of course — and the general public would not thank us if we did not — the situation where the relatively small landowner, down to perhaps an exaggerated example of the person who owns no more land than that on which his house is built and his front and back gardens, is protected against that front or back garden being expropriated by the State without any right of hearing, or right of appeal on the part of the landowner and without any right to legitimate compensation if, after an independent hearing, it is decided that that land should be acquired by the State. That small landowner would expect that the Oireachtas would defend his small but to him very important property rights and the right to enjoy that property in privacy.

Taking that a stage further, the owner of, say, two, three or five acres of land which perhaps also has been in the family for generations, would feel particularly aggrieved if he were to have that property removed from him compulsorily, without any right to recompense or compensation. He would feel that he had a right to seek to improve that property and to benefit from its enhancement. That is what the Constitution initially and subsequently, the planning legislation set out to try to do. Equally, there devolves an onus on the Oireachtas to ensure that when misuses of statutory provisions come about, the Oireachtas moves to try to cure that situation.

There is no doubt in my mind that, in a number of compensation claims which were made in recent years, the provisions which were designed to protect the common man and his right to private property have been deliberately misused by certain speculative developers in an effort to force compensation from the public purse into their coffers in return for their carrying out virtually no work or enhancement whatsoever. On the other side, as has been pointed out, the level of compensation which has actually been paid out in recent years is indeed relatively minor — somewhere in excess of £80,000 but that is not to diminish the fact that it is also well known that in quite a number of cases the planning authorities had decided that it was better to grant a planning permission of some type which they might rather have chosen not to, so as to avoid compensation cases. To have an idea of the full picture, it is fairer that we should realise that, apart from the money actually paid, there have been instances of permissions actually granted where it seems those permissions might not have issued had it not been for the compensation provisions.

I think, however, that any attempt to mend this problem will have to involve the 1919 Act and the method in which the level of compensation is paid. Any measure put forward ought to include some provisions of that nature. I was somewhat surprised that this present Bill did not do that. The difficulty in trying to remedy the problem by including further non-compensatable reasons is that, as Deputy Birmingham pointed out last week, when he quoted from the book or article on this subject written by a member of the Irish Bar who has apparently particular knowledge and perhaps expertise in the area, at present the list of non-compensatable reasons is as long as one's arm. Despite that there are still cases where individuals could and do take compensation claims. No matter how many further non-compensatable reasons the Oireachtas attempts to include in the legislation there will still arise from time to time cases where the general public, quite rightly, feel that compensation ought not to have been paid in a case, and that a case was a misuse of statutory provisions. That is not to say that there should not be an attempt to include further non-compensatable reasons, but they need to be workable. I find some difficulty in the additional non-compensatable reasons that have been included in section 3 of this Bill. I am not sure that they will improve the situation. I am surprised that there has been no attempt to address a problem that arises regularly. When a planning authority refuses development for clearly non-compensatable reasons and the decision is appealed to An Bord Pleanála, the appeals board will then quite regularly confirm the decision of the planning authority in refusing permission but will exclude from the reasons for refusal the non-compensatable reasons. As long as that situation can continue, we can write a volume of non-compensatable reasons but the refusal will still be compensatable because the appeals system will allow for decisions to be made which do not include non-compensatable reasons.

I am surprised that so little discussion in this debate has centered on section 3(c) of the Bill because in a manner which is not in the present legislation this paragraph clearly allows for compensation to be paid to land owners if they are refused permission for reasons of public policy. For example, where a planning authority decide that an area should be zoned for public open space, this Bill is actually including a new and definitive compensatable reason which was not previously as clear. It is rather strange, reading the contributions from the sponsors of the Bill that they do not advert at all to section 3(c). It is not a paragraph to which I take particular exception because if it is deemed to be in the public good that one piece of land ought to provide the amenity for other lands which are to carry development and if it is felt that the public should have the enjoyment of that land, the public should be prepared to pay fair compensation for its use. It is interesting that a new compensatable reason in a separate paragraph to be added to a section other than section 3 is included in the Bill.

Reference has been made to the fact that in recent years members of the Judiciary have pointed out that the remedy in this matter lies with the Oireachtas. It is fair also to point out that there is clearly not unanimity among the Judiciary in relation to the problem and how it might be dealt with. The recent issue of Administration which was devoted exclusively to the Constitution, carried articles by Mr. Justice Brian Walsh and his successor as chairman of the Law Reform Commission, Mr. Justice Keane. Mr. Justice Walsh in a very trenchant defence of the private property Article, said that the Irish Constitution unusually, with one exception, makes no express provision for the payment of compensation and he went on to draw comparisons with the Constitutions of France, the US, the Federal Republic of Germany, Spain, Greece and with the First Protocol to the European Convention of Human Rights, all of which specifically make provision for compensation, and he said that a Professor Where in his book on modern constitutions suggested that the Irish Constitution in the absence of specific provision for compensation payment hardly goes further than the Constitution of Yugoslavia. After that trenchant defence of Article 43 by Mr. Justice Walsh, his successor Mr. Justice Keane suggested that there is some obvious deadwood in the Constitution and specifically that the utility of some of the Articles specifying individual fundamental rights is at least questionable. That and private property is an obvious case, he said.

There is clearly disagreement even among the Judiciary as to how the protection of property rights ought to be carried out. A lot of the case law in this goes back to the definition by Mr. Justice Kenny when he examined the 1963 Act and found it to be constitutional, when he referred to a bundle of property rights which everybody has and suggested that the removal of any one of those rights was not necessarily compensatable. It is difficult to understand, for example, the decision of the courts in some of these cases taken with their decisions in other cases. I mention in passing the O'Callaghan case where the Supreme Court ruled that compensation was not payable to a land owner who had had an order under the National Monuments Act placed upon his land, although they held equally that the ESB could not expropriate land for the purpose of erecting pylons without some form of appeal situation. On the other hand in the case of Druher versus the Irish Land Commission they ruled that the absence of compensation provisions was not unconstitutional. The extra-judicial pronouncements of members of the courts in a volume like Administration and indeed the contrasting court decisions shows that the courts and members of the Judiciary often have divided views on this matter.

I noticed with interest that one of the references in the course of the debate was to the fact that some people seem to feel that there has been an over-rigidity in our planning laws and that there was perhaps in recent times an attempt being made to have a more open and flexible attitude on the part of the planning and development authorities. The effect of section 3 would be to impose an even greater rigidity into the system and place a paramount importance on developing plans many of which are outmoded and well outside the time for their statutory review. I am not sure just how realistic this extreme emphasis on the development plan would be from the point of view of practical development. Before I turn to the other part of the Bill I would make the point — and the case is referred to specifically in the explanatory memorandum — that under section 3 (c) of this Bill the XJS case in Killiney which caused so much furore is clearly provided for as a compensatable case. It would be extraordinary if the amount eventually awarded by the arbitrator under paragraph (c) of section 3 was any less than the amount which the arbitrator awarded in the XJS case.

What is also relevant is that the entire area of Killiney Hill was offered to the local authority at a cost of £50,000 but for their own reasons they chose not to buy it. If a local authority decide that they want to purchase an area as a public amenity then they have to be prepared to pay a realistic and a reasonable price for it. In the XJS case because the local authority chose not to acquire the land at a very reasonable price, they later ended up having to acquire a smaller portion of it at a greater price. There is a lesson to be learned from this.

The proposal in respect of obtaining orders in the Circuit Court and that those orders should be of a mandatory as well as of a prohibitive nature along with the general provisions contained in section 4 are welcome. Last week Deputy Birmingham made the point that orders obtained under section 27 of the 1976 Act were originally intended to be made not only against a development company but against the directors and shareholders of a development company. In recent years the courts have moved away from imposing such a liability and for a resolution to this problem there would have to be a return to that provision whereby orders obtained under section 27 of the 1976 Act could be made against the shareholders and directors of a company.

I suspect that the passage of the Companies Bill, which will place greater responsibility on the directors of a company generally, will have very welcome spin-off effects in the area of development in that unscrupulous developers who set up one company after another would no longer be able to do this in the same way because of the personal responsibility they would have to carry as a director or shareholder of a previous company. It is important to remember that the Companies Bill would make a very important tool available to planning authorities who are endeavouring to secure more orderly development.

At present it is difficult to see how this problem can be resolved. It is not possible to discriminate against a planning application on the grounds of the person sponsoring it because the planning application must be considered from the point of view of suitability to the land in question. It may very well be that the planning authority with a little bit of imagination might be able to take cognisance of the previous track record of the applicant through the size of guarantee bond which it would decide to impose. I do not think that this course of action is resorted to very often.

The provisions of the 1963 Act as amended by the 1976 Act offer far greater scope for finding a solution to the problems of unfinished estates and non-compliance by developers. One of the things the Minister could do is to encourage planning authorities to pay more attention to their powers under the 1963 Act as amended by the 1976 Act and to encourage them to have a much more "hands on" approach to developments as they are taking place rather than just issuing permission and then later discovering that there is a problem in that the estate has been left unfinished. The planning authority should monitor the development as it is taking place. Any attempts to simplify the provisions contained in section 27 of the 1976 Act such as contained in section 4 of this Bill are to be welcomed but it would be far more preferable if the planning authority were able to sequester the guarantee bond and use those moneys to resolve some of the problems.

The issuing of letters of compliance should also be resorted to more often by planning authorities. It would be fair to say that better management in planning authorities would result in a resolution to many of the problems and would prevent many of the problems becoming intractable.

My difficulty with this Bill lies with the way in which the sponsors of this Bill have attempted to address the problem of unfinished estates in sections 5 and 6 of the Bill because essentially they are Utopian. If we lived in a Utopian world, there would be no need for legislation as those problems would not exist. Section 5, for example, takes no account of the existing state of the construction industry and no account of the difficulties which would be presented for purchasers who were endeavouring to get finance in order to buy houses if a restriction was inserted that they would not be allowed to occupy those houses until the estate had been completed to a particular standard laid down by the planning authority.

Section 6 contains an extraordinary manner for appointing a planning receiver. I do not see what function a planning receiver would have unless he was going to obtain title to a property. As we are all aware, most development companies obtain funds from financial institutions and a financial institution will not advance money to a development company unless they have first charge on the property.

If the first charge is to be set aside in favour of the planning receiver, then the financial institutions are not going to advance money. There certainly would not be a problem because a development did not take place. If the first charge is not going to be set aside then the planning receiver is going to have a thankless task because he would have to liquidate the remaining assets of the development company on foot of paying off all or part of the first charge of the financial institution who bankrolled the development in the first place. Whatever about some of the more meritorious aspects of this Bill, and section 7 which endeavours to address this problem falls into that category, whoever dreamt up section 6 did this Bill a serious disservice. I have to say, with respect, that section 6 contains a rubbish proposal which does not deserve to be contained in any measure which claims to seriously address this problem. The solution to this problem is to allow the local authorities more ready access to guarantee bonds, for them to have better management expertise and for them to maintain closer touch with developments as they are taking place. They should also have the power of acquisition and the power of charging the development or associated companies. The concept of having a planning receiver amounts to nothing more than gloss; it contains no depth when one examines it.

I have expressed our reservations on major aspects of this Bill and I have to say that if it passes Second Stage we, in the Fine Gael Party, will be proposing major amendments on Committee Stage to section 3 and possibly section 5 although I suspect we may be more inclined to oppose section 5 particularly because of the way it is worded at present. Certainly section 6 will be opposed outright on the basis that it is unworkable and is not suitable for inclusion in any serious legislation. I agree wholeheartedly with the provisions contained in sections 4 and 7 and I accept that attempts should be made to address these problems. However, I would have to suggest to the House that while the aspiration is laudable, the solution is suspect.

Before calling on the Minister of State I want to advise the House that I understand there is agreement that the question be put at 8.30 p.m. in which case the Minister of State will have to be confined to 15 minutes because we must call Deputy Kennedy at 8.15 p.m.

I am pleased to speak on this important debate. The Minister has already outlined the Government's position in some detail. We accept that this Bill is a serious attempt to make necessary changes in the law on planning compensation. Some of the proposals we can support but we believe that the Bill does not go far enough and our Bill will be a much broader and wider ranging one.

As the Minister has explained, a Bill on planning compensation is at present being drafted in the Attorney General's office and I can guarantee the House that this is being given top priority. Our view is that the Bill, when drafted, and prepared with the benefit of the Attorney General's advice, will give us a sound framework for dealing with the difficult issues involved. We see the value of the present Bill on a number of these issues and we will take these on board in finalising our Bill. We will also be fully open to all reasonable amendments when the Government Bill is debated in both Houses of the Oireachtas. For these reasons we have asked in the most constructive possible way that the present Bill should be withdrawn.

The modern planning law stems from the 1963 Planning Act. The system has changed considerably since then, but the law in the area of planning compensation is basically the same as that under the 1963 Act. Section 55 of that Act gives the general rule which is that a person is entitled to compensation where a refusal of planning permission or the laying down of planning conditions reduce the value of his interest in his land. However, section 56 sets out a list of exceptions to this general right to compensation. These exceptions are so wide that, in the words of one commentator, one might be forgiven for wondering which is the rule and which is the exception. In addition, section 57 prevents the payment of compensation where certain other development is allowed or where compensation has already been paid. Under section 58 the Minister may, in certain cases, require the payment of compensation under section 55 even though the claim for compensation would otherwise be blocked by sections 56 or 57.

Sections 55 to 58 of the 1963 Planning Act have generally provided a fair system for planning compensation but a number of Court rulings have raised doubts as to whether the system still protects the common interest as strongly as was intended when the 1963 Planning Act was passed.

There is general agreement among all of us in this House that we have a problem which must be faced up to. There is clear need to amend the law on the payment of planning compensation. We all seem to agree on this. I can also agree that the time to do it is in the short term rather than much further down the road. I am glad that because of the time we have given to this we are now in a position in which we have made up our minds on what is required and can deliver in the short term. We have already given very careful consideration to the very difficult problems involved in changing the law. Like a number of other speakers on the Bill, we are satisfied that worthwhile amendments to the law on planning compensation can be made without giving rise to constitutional difficulties.

I believe that the Bill before the House does not go far enough to solve the problems in this very difficult area. I congratulate the promoters of the Bill on bringing it forward and on the efforts they have made. It would be a pity at this stage to miss out on the benefits from the detailed consideration which we have given to the large problems which have come to the surface in this area.

I believe that section 3 (a) of the Bill will create its own problems. The section provides for a wider definition of "use" for the purpose of section 56 (1) of the 1963 Act. It is intended to reverse the effects of the Viscount Securities case but it could mean that practically every form of development would be caught by the changed definition. These developments would then be non-compensatable in respect of an adverse planning decision. This, I believe, goes too far and could give rise to new serious problems in relation to planning compensation. The Minister for the Environment has given details to the Dáil of the Government's new proposals regarding compensation. He has promised considerable extension of the scope of non-compensatable circumstances.

As I said, I can support some provisions of this Bill but they do not go far enough. The Minister for the Environment has been reviewing all aspects of the law on planning compensation to ascertain what changes can and should be made. This review has taken full account of recent court cases on the compensation issues. It has also dealt with the problems brought to light by the Coolattin situation and looked carefully at possible constitutional difficulties. The review is now completed and a general scheme is now with the Attorney General. Drafting is being given top priority with a view to the earliest possible circulation of the Bill.

We propose, for a start, to restate and, as necessary, amend the present rules for determining the amount of compensation in planning cases. These will be included in a Schedule to the Bill. A number of new rules will also be added — these will largely reflect the recommendations on this question of the Report of the Joint Committee on Building Land. Power will also be given to the Minister for the Environment to vary, by regulations, the list of rules, subject to affirmative resolution of both Houses of the Oireachtas.

We propose also to amend the law on "undertakings" to give planning permission so as to have regard to the judgment in the Grange Developments v. Dublin County Council case. Local authorities will be in a position to resume use of this arrangement.

In general, we propose not to allow the payment of compensation in any case where the refusal of permission is on the grounds that the proposed development would conflict with an objective of the development plan.

The new Government Bill will amend section 45 of the 1963 Act so as to limit the payment of compensation under subsection (2) as a result of a tree preservation order. Our Bill will provide that a proportion of the trees included in an order can be preserved, in the interests of amenity, without compensation. The aim of this change will be to strike a better balance between the need to preserve the amenity value of woodlands and the reasonable rights of the owners of commercial woodlands.

Our Bill would also include suitable transitional provisions to cover both claims and rights to compensation arising under previous legislation. Transitional arrangements of this kind are not included in the Bill before the House. Our Bill will deal with the questions of deficiency of water supply and of rights of connection to public sewers and mains in a manner broadly sinilar to the present Bill.

The present Bill proposes a number of other amendments to planning law beyond those dealing with the central issue of compensation. It wants a greater involvement of the Circuit Court in enforcement procedure; and also to allow the courts to order repair or reinstatement works on an application under section 27 of the Planning Act, 1976. Works of this kind can of course already be required under an ordinary enforcement notice. In general, I have an open mind on the merits of these proposals. As the Minister has said, we will certainly be prepared to consider them fully in the next review of miscellaneous planning law improvements.

The Bill also proposes extensive new powers to deal with unfinished development, including the appointment of a planning receiver. I have to say that I regard these proposals as over elaborate. They are unlikely to produce as much improvement on the ground as the more energetic approach to planning administration which we are trying to encourage in local authorities. The Minister has spoken of the detailed survey of this problem which the Department have now completed and of his initiative in involving the Construction Industry Development Board to advise on a solution.

So what else can I say to the House? The Government share the concern for early and sound changes in the law on planning compensation. As I have said our proposals for this are well advanced. The intention is to have our Bill circulated before the summer recess. All of us want to have the best Bill possible on this very difficult topic. It is in this spirit that I ask the promoters of the Bill to withdraw it so as to enable progress to be made on a much wider measure. All of us can hopefully then share in the success of a good Bill, a Bill which will strike the proper balance between the rights of property owners and the common good.

It is a high priority of the Government to bring a Bill before the House as quickly as they can. It will be open to debate and we will be sympathetically disposed to accepting any amendments which would improve the Bill. If they are designed to improve the Bill we will do our best to accommodate them as far as we can. It is the Government's aim to introduce a comprehensive Bill on this matter before the summer recess.

I call on Deputy Kennedy to conclude.

I have arranged to give five minutes of my time to Deputy Kemmy if that is all right with the House.

Such arrangements require the formal agreement of the House. Is that agreed? Agreed.

I am grateful to Deputy Geraldine Kennedy for giving some of her precious time. Like the Minister I would like also to welcome the fact that the Progressive Democrats have taken the initiative in putting forward this Bill. It is good that local government planning and development and the Acts relating to these subjects should be discussed in the House at this time. Such a discussion is long overdue and it has been obvious to many people for a considerable number of years past that radical reform of our planning laws is also long overdue. This Bill is well intended and contains many useful and necessary proposals. While I support many of the new measures proposed by the Progressive Democrats, I must make a number of criticisms of the Bill, and I do so as somebody who has worked in the building industry for most of my life.

It is difficult to understand the implications of many of the proposals. As Deputy Boland said, even the explanatory memorandum is not much help and one would want to study the details of the many court cases cited in the document and which took place between 1978 and 1987 to be able to deal with and grasp many of the points in the memorandum. Unfortunately one has to take much of the Bill at face value and this is not a reliable method of coming to terms with such a complex matter as planning. There is also considerable duplication of existing legislation in the Bill. Perhaps this is inevitable but it does not help to clarify many of the sections and parts of the Bill.

As I have said, there are good and urgent reasons for the reform of our planning laws. Some of the decisions and interpretations of the Supreme Court in recent years have been extreme and perverse. Such decisions have nothing to do with good planning or the public interest and when these planning laws were being framed 25 years ago one could never have envisaged that such decisions would be made by any court. One can also say that as a direct result of these decisions planning is now an expanding and lucrative area of law in this country. In their judgments the courts are giving the maximum weight to the rights of private property and the so-called free market but little weight to social responsibility and the common good. The position is that the rights of private property have always been canonised in our society. I do not want to sound alarmist but because of Supreme Court decisions in recent years in upholding, and in some cases extending, the almost unqualified rights of private property as laid down in our Constitution, there is a strong possibility that much of our present planning legislation could well be found to be unconstitutional if tested in the courts. It is hardly desirable that our planning laws are forced to operate in these circumstances.

During the course of his submission to the House Deputy Boland invoked the name of Michael Davitt. I wish I had more time to deal with what he said because Michael Davitt was a very sorry man that he ever founded the Land League. The cry "The land of Ireland for the people of Ireland" must surely have been a sad and cruel misnomer because the people of Ireland never got the land. Only a small minority of them got the land and the people who had the land when we got self government in 1922 probably still have the land now. This is hardly a desirable state of affairs but perhaps it is something I can take up elsewhere. To invoke the name of Michael Davitt in this context tonight is a cruel mockery of what the man stood for. I am sure that if he had his time over again he would not give a drop of sweat, not to talk of a drop of blood, for the Land League and the cry "The land of Ireland for the people of Ireland". He was a sad man at the end of his days when he saw the way things turned out but he would be even sadder today if he knew that after 65 years a small number of people have used the concept of private property to make themselves rich at the expense of ordinary people.

The measures contained in the Kenny report have not been implemented because people have said they are unconstitutional. I do not accept that. These measures should be implemented in the interests of the public and the Constitution should be amended accordingly. Phrases like "common good" and the "public interest" are useless if our Constitution continues to remain unchanged and if the Supreme Court continues to give bizarre decisions on compensation.

There are some good parts in this Bill. I welcome those and I wish I had more time to expand on them. However, I have great difficulty in coming to terms with many other parts of the Bill. It does not take account of the fact that some of the rogue developers have been known to put in as many as six applications for the one site.

Deputy Kemmy, I interrupt you merely because I know you would not like to be accused of having transgressed the offer made to you. There are only ten minutes left now for Deputy Kennedy. You have had seven minutes.

I will wind this up in half a minute. It is very difficult for any court or planning authority to know what planning application or what part of it a developer is carrying out.

I must agree with what Deputy Boland said about the question of unfinished sites and not allowing the residents to take up residence in those areas. If that happened it is not the developer who would be punished or penalised but the unfortunate house buyer who already has to pay bridging finance for long periods. In this case the buyer would pay the cost and not the developer.

I wish I had more time to speak, on more aspects of the Bill. It is unfortunate that one who has worked in the building industry and knows a little bit about it cannot say these things whereas other people who have very little knowledge of it can ramble on for a long time.

I am very pleased that the Progressive Democrats are using their fourth Private Members' Time since I was elected to bring forward a major initiative in the planning area. This Bill is long overdue. If my relatively short career as a Deputy has taught me anything, it is that aside from social welfare problems, the most frequent inquiry from constituents relates to their experience with planning problems and rogue developers. It is in the sure knowledge of this fact that I have taken a determined stand on the need for the full planning process to be invoked for the marina in Dún Laoghaire.

The purpose of this new Bill is to do much more than merely amend and widen the local government and planning Acts dating back for 20 years now. Its real purpose is to provide, for the very first time, the facility to combat the menace of cowboy builders through inexpensive planning enforcement by both the planning authorities and by aggrieved individuals of communities and, in particular the residents of unfinished housing estates.

I support the aims of our Bill and I notice that most Deputies who have contributed to the debate over the last four nights would be in agreement with its aims also. I hope that the Opposition parties in this House will vote for our Bill tonight rather than go along with what the Government are proposing, that is, to put the grave problems in the planning area on the long finger once again and into the category of promised legislation.

The most remarkable feature of the Progressive Democrats' Bill is that it changes the law so as to ensure the completion of unfinished housing estates. The powers conferred under this Bill will enable local authorities to direct, through the planning process, the sequence of building work and prohibit occupation of unfinished developments until all the essential works are completed. Far too often, as most Deputies in the House will know, cowboy builders have been able to erect houses in an estate and sell them leaving either uncompleted or, unsatisfactorily completed, the pavements, roadways or open spaces that are an integral part of the environment of a housing development. A common practice relied on by unscrupulous developers of large scale housing projects is to incorporate their activities on a house by house basis with another and separate company holding the freehold title to the development site and, on completion or sale, these one-house companies are put into voluntary liquidation and the unfortunate residents have no useful legal redress. In relation to this abuse of the principle of incorporation, one of the proposals canvassed in the preparation of our Bill was that the controlling principles behind development companies be required to apply jointly in their own names, along with the company, for planning permission. This would have the advantage of enabling people to know with whom they are dealing. However, to be really effective major changes would be necessary in our company law before this ideal could be proceeded with.

Leaving that problem aside, this Bill provides a mechanism to prevent cowboy builders from taking their money and running, abandoning residents of unfinished estates and leaving them to their own resources and to the financially hard pressed local authorities.

The Bill creates the function of planning receiver for the first time in a role analogous to that of the receiver and liquidator in company law. For the first time in planning matters we are proposing that the court can call a halt to rogue developments in accordance with the planning permission granted and in the interests of the community involved. This feature is unique because it takes an offensive attitude to planning problems and overcomes the bureaucratic and financial inertia that inevitably affects local authorities when left to clean up the mess of cowboy builders.

I believe that this feature would work well in practice even though Deputy Boland disputes it; he is quite welcome to do so because any further proposals could be debated if this Bill were put into Committee, and I think that our proposal of a planning receiver in time would be worth extending to permit control over property that is deliberately being allowed to go into dereliction. No longer will an irresponsible property owner of, say, a listed building be permitted to remove the tiles off the roof shared with his neighbours so as to hasten the decline of his property in order to defeat the planning controls on a change of use.

The Bill also seeks to prevent and curtail the abuse of compensation provisions of the planning Acts by property speculators. It is necessary to point out, considering the lack of attention given to these matters, that this serious shortcoming in planning legislation which continues to be exploited to the cost of local authorities should have been addressed and attended to by the Government immediately on taking office last March in the wake of the XJS case in my own constituency.

The Bill also proposes to close off another loophole where property speculators are able to use existing sanitary legislation to compel local authorities to provide sewerage facilities to sites that have not received planning permission. It also enables authorities to seek financial contributions to the cost of providing sewerage facilities. In this way developers who have ignored their planning responsibility cannot force local authorities to recognise their activities after the fact.

The other major change proposed by the Progressive Democrats is to confer on the Circuit Court the jurisdiction at present exercised by the High Court in relation to section 27 planning injunctions. This would automatically have the effect of overcoming the invisible barriers to High Court litigation such as the divergence in scale between small planning problems and expensive recourse to the High Court. In this way recourse to the courts by aggrieved communities in the protection of their environment would become more realistic; people would be able to afford it.

The Bill goes further than that, however, in dealing with the anomalies and limitations of the so-called planning injunction provided for in section 27 of the Planning Act of 1976. Subsection (1) of section 27 as it stands only permits the court to prohibit the continuance of development or unauthorised use where permission has not been obtained but does not permit the court to go further. Our Bill is intended to rectify this anomaly and to make express the court's jurisdiction to order and direct as it sees fit in the circumstances.

This would bring about an enormous improvement in the planning laws as they affect the ordinary residents' associations in many estates throughout the country. I have been presented with a problem created by the limitations of the section 27 injunctions as they are being encountered by the residents of 100 to 110 Quinn's Road, Shankhill at present. This problem has been going on for years and still has not been resolved. When these ten houses were being built the developer took part of their gardens and a side entrance to the development for his building materials. The full gardens have never become the property of the householders. Dublin County Council sought an order in the High Court last year in respect of the discontinuation of the unauthorised use, the removal of the concrete sheds, the removal of the false boundary wall at the rear of 100 to 110 Quinn's Road and the incorporation of that area into the rear gardens. In his judgment delivered on 6 October 1987, Mr. Justice Gannon stated that, as the law now stood, he was unable to order the removal of the concrete sheds nor the removal of the wall at the rear of the gardens nor the closing of the gate and passage from Quinn's Road. He did, however, under his powers under section 27, grant an order restraining the continued unauthorised use of the piece of land and preventing it from being sold.

The limitation in section 27, as illustrated by this case, means that the residents of this area and Shankhill have never been able to appropriate their full gardens as provided for in the planning permission for this housing development. Under our proposed change in the Bill, the High Court or Circuit Court would have been enabled to make an order not merely restraining the continued unauthorised use of the lands but delivering back to the residents the ownership of their rightful property.

Finally, I am very pleased that we have presented a major change in the planning laws in our fourth Private Members' Bill to the House. I would appeal to the Opposition parties to support us. If they do not agree in full with some of the proposals we have put forward, they can be debated in full on Committee Stage. I commend the Bill to the House.

Question put.
The Dáil divided: Tá, 66; Níl, 69.

  • Allen, Bernard.
  • Barnes, Monica.
  • Barrett, Seán.
  • Barry, Peter.
  • Bell, Michael.
  • Boland, John.
  • Boylan, Andrew.
  • Bruton, John.
  • Bruton, Richard.
  • Burke, Liam.
  • Carey, Donal.
  • Clohessy, Peadar.
  • Colley, Anne.
  • Connaughton, Paul.
  • Cosgrave, Michael Joe.
  • Crowley, Frank.
  • Cullen, Martin.
  • Deasy, Austin.
  • Deenihan, Jimmy.
  • De Rossa, Proinsias.
  • Desmond, Barry.
  • Doyle, Avril.
  • Dukes, Alan.
  • Durkan, Bernard.
  • Enright, Thomas.
  • Farrelly, John V.
  • FitzGerald, Garret.
  • Fitzpatrick, Tom.
  • Flanagan, Charles.
  • Shatter, Alan.
  • Sheehan, P.J.
  • Sherlock, Joe.
  • Gibbons, Martin Patrick.
  • Griffin, Brendan.
  • Harney, Mary.
  • Harte, Paddy.
  • Hegarty, Paddy.
  • Higgins, Jim.
  • Higgins, Michael D.
  • Howlin, Brendan.
  • Kavanagh, Liam.
  • Kemmy, Jim.
  • Kennedy, Geraldine.
  • Kenny, Enda.
  • Lowry, Michael.
  • McCartan, Pat.
  • McCoy, John S.
  • McDowell, Michael.
  • McGinley, Dinny.
  • Mac Giolla, Tomás.
  • Mitchell, Jim.
  • Molloy, Robert.
  • Naughten, Liam.
  • Noonan, Michael (Limerick East).
  • O'Brien, Fergus.
  • O'Keeffe, Jim.
  • O'Malley, Desmond J.
  • O'Malley, Pat.
  • O'Sullivan, Toddy.
  • Pattison, Séamus.
  • Quill, Máirín.
  • Quinn, Ruairí.
  • Spring, Dick.
  • Taylor, Mervyn.
  • Taylor-Quinn, Madeleine.
  • Wyse, Pearse.

Níl

  • Abbott, Henry.
  • Ahern, Bertie.
  • Ahern, Dermot.
  • Ahern, Michael.
  • Andrews, David.
  • Aylward, Liam.
  • Brady, Gerard.
  • Brady, Vincent.
  • Brennan, Matthew.
  • Brennan, Séamus.
  • Browne, John.
  • Burke, Ray.
  • Byrne, Hugh.
  • Collins, Gerard.
  • Conaghan, Hugh.
  • Connolly, Ger.
  • Coughlan, Mary T.
  • Cowen, Brian.
  • Daly, Brendan.
  • Davern, Noel.
  • Dempsey, Noel.
  • Dennehy, John.
  • de Valera, Síle.
  • Doherty, Seán.
  • Ellis, John.
  • Fahey, Frank.
  • Fahey, Jackie.
  • Fitzpatrick, Dermot.
  • Flood, Chris.
  • Flynn, Pádraig.
  • Foley, Denis.
  • Gallagher, Denis.
  • Haughey, Charles J.
  • Hilliard, Colm Michael.
  • Hyland, Liam.
  • Jacob, Joe.
  • Kirk, Séamus.
  • Kitt, Michael P.
  • Kitt, Tom.
  • Lawlor, Liam.
  • Leonard, Jimmy.
  • Leyden, Terry.
  • Lynch, Michael.
  • Lyons, Denis.
  • McCarthy, Seán.
  • McCreevy, Charlie.
  • MacSharry, Ray.
  • Morley, P.J.
  • Moynihan, Donal.
  • Nolan, M.J.
  • Noonan, Michael J. (Limerick West).
  • O'Dea, William Gerard.
  • O'Donoghue, John.
  • O'Hanlon, Rory.
  • O'Keeffe, Batt.
  • O'Leary, John.
  • O'Rourke, Mary.
  • Power, Paddy.
  • Roche, Dick.
  • Smith, Michael.
  • Swift, Brian.
  • Treacy, Noel.
  • Tunney, Jim.
  • Wallace, Dan.
  • Walsh, Joe.
  • Waslsh, Seán.
  • Woods, Michael.
  • Woods, Michael.
  • Wright, G.V.
Tellers: Tá, Deputies Kennedy and Colley; Níl, Deputies V. Brady and Browne.
Question declared lost.
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