Dáil Éireann debate -
Thursday, 24 Nov 1988

Vol. 384 No. 7

Local Government (Planning and Development) (No. 2) Bill, 1988: Second Stage.

Minister for the Environment (Mr. Flynn)

I move: "That the Bill be now read a Second Time".

Cúis shásaimh dom an Bille seo ar chúiteamh i gcúrsaí pleanála a chur os comhair an Tí seo. Tá iarracht déanta ann réiteach féaráilte a tharraingt as na ceisteanna deacracha a bhaineann le cúiteamh. Tá mé sásta go rachaidh an Bille chun leasa an phobail agus forbartha na tíre araon.

The purpose of this Bill is to amend and consolidate the law on planning compensation. The Bill also amends certain provisions of the sanitary services code so as to regulate connection of premises to public sewers and water supplies in a manner more consistent with the modern planning process. The Bill is a complex one, and I would like to assure the House that I will welcome all constructive suggestions on Committee Stage for its improvement.

Mr. Quinn

Tell that to your colleague, the Minister for Justice.

Mr. Flynn

I say that in all sincerity. Formalised physical planning legislation in Ireland dates back to the Town and Regional Planning Act, 1934. The Long Title of that Act cited the need to make provision for the orderly and progressive development of cities, towns and other areas, and to preserve and improve amenities. The half century which has elapsed since 1934 has seen some of the most rapid changes experienced in history. In national terms, it has encompassed the evolution of the modern Irish State, the growing urbanisation of our population and an enormous increase in the capacity of our building industry.

For all that, the objectives of physical planning as expressed in the 1934 Act remain surprisingly valid and unchanged. The success of the physical planning system in Ireland has been, by and large, to confine major development to the areas for which it was planned and for which public infrastructure has been provided.

Mr. Keating

A few more speeches like this and we will not feel the winter passing.

Mr. Flynn

It is thanks to planning control that we have not had to surrender major road reservations or duplicate sanitary services schemes. This kind of orderliness in physical planning is now perhaps largely taken for granted in the western world, but it depends in all cases on the extensive operation of planning controls. Abundant evidence of disorder arising from the lack of planning controls is to be found in many major urban areas of the Third World.

Mr. Quinn

The Minister could include parts of Tallaght in that.

Mr. Flynn

The major purpose of the Bill is to amend the law on planning compensation so as to give greater weight to the common interest in the determination of planning issues and greater protection to planning authorities in face of compensation claims. Even prior to the 1937 Constitution, compensation was in principle allowed under the Town and Regional Planning Act, 1934, where the value of a property was reduced by a restriction, control, curtailment or limitation imposed by a planning scheme. The Planning Act, 1963, continued this basic principle, subject, of course, to many exceptions, but related compensation to restrictions imposed by individual planning decisions rather than to provisions in planning schemes.

Statistics on planning compensation claims have been systematically compiled only since 1982. In the period to 1987 these indicate that nationally an average of some 25 claims were made each year, with payment being made on average in two cases per year. There is a striking contrast between the aggregate amount of compensation claims over the past six years, which amounts to some £79 million, and actual payments of compensation by planning authorities, which amount only to some £90,000.

This bare presentation of statistics might appear to suggest that planning compensation poses relatively minor problems for planning authorities. The reality, however, is different. A well publicised compensation award of some £2 million — still under legal appeal — was made against Dublin County Council in July 1988 and has focused the compensation issue very sharply. There is also the widespread perception that the threat of incurring heavy compensation liabilities may be inhibiting the proper exercise of planning judgment in certain cases. The Bill has been prepared against this background. Deputies will understand, however, that it cannot interfere retrospectively with compensation proceedings bona fide in progress under existing legislation.

There seems little controversy about the basic objectives which we all now want to achieve in this area: we all want to encourage as much development as the environment can reasonably accommodate; we all want planning authorities to have reasonably strong powers to prevent undesirable development and the vast majority of us accept that there may be circumstances in which a landowner will need to be compensated by the planning authority because of the degree of restraint being placed on his property rights. It seems that these three principles are common ground between most of the major political parties and the public.

I will go further and suggest that there is now also a considerable consensus on the need to strengthen the community bias, if I may call it that, in the area of planning compensation. In other words, there is seen to be scope for extending the range of non-compensatable circumstances and providing mechanisms for avoiding compensation in the form of alternative development consents.

To address the Bill as it is drafted, I have already referred to the fact that it will consolidate all of the law on planning compensation into one text. I regard this as a matter of some importance. The format of the 1963 Act provisions on planning compensation was quite obscure, associated as it was with provisions about the detail of development plans and with issues of compulsory purchase of land. There is no doubt that, at least partly due to these difficulties, a considerable number of compensation cases have arisen out of failure properly to understand and apply the law. In that sense, the much clearer presentation of the law which this Bill achieves should benefit all concerned with administering it and working with it.

The major new provisions of the Bill are as follows: under section 13 and the Third Schedule, paragraph 1, development may be refused without liability to compensation not just where water supplies or sewerage facilities are actually deficient, but also where their capacity is required for prospective other development; under section 13 and the Third Schedule, paragraph 3, development may also be refused without liability to compensation if it is premature by reference to any order of priority for development indicated in a development plan; under section 13 and the Third Schedule, paragraph 6, refusal of planning permission which would cause serious air pollution, water pollution or pollution connected with the disposal of waste, will be non-compensatable; under section 13 and the Third Schedule, paragraph 9, compensation will be excluded where planning permission is refused because development would materially contravene an objective of a development plan which was in operation at the time the developer acquired his interest in the land. This provision will apply to land acquisitions, otherwise than by inheritance or family settlement, arising after the date of publication of this Bill, that is, 20 October 1988; under section 13 and the Fourth Schedule, paragraphs 15 and 16, conditions may be attached to a planning permission, without compensation, in relation to the preservation of buildings of artistic, architectural or historical interest, or of features of such interest which form part of the interior of structures; and under section 21, tree preservation orders may embody conditions, without compensation, requiring a proportion of woodlands to be preserved or the felling of trees to be phased.

The Bill also contains an important procedural innovation in section 14, designed to replace the "undertakings" procedure of section 57 of the 1963 Act which has been found unsatisfactory by the courts. This new procedure will allow a planning authority to rebut a compensation claim by a notice stating that in their opinion alternative development ought to attract planning permission. This notice can only be defeated if planning permission is subsequently refused or conditioned in a manner inconsistent with the permissive statement.

Finally, the Bill will implement a number of provisions arising from the report of the Joint Committee on Building Land. The rules determining the amount of compensation have been revised by section 12 of the First Schedule and will now stand independently of the compensation rules applying to compulsory purchase orders.

The question of connection to public sewers and water supplies was also addressed by the joint committee. Sections 25 and 26 of the Bill deal with this issue. Under section 25, connection to public sewers will no longer obtain as a right of the person connecting but will be subject to the consent of the sanitary authority concerned. Under section 26, the right of a supply of water for domestic purposes will no longer obtain in the case of unauthorised development.

The measures proposed by this Bill have already attracted considerable comment. Most of this has been directed at the provision whereby persons acquiring land after 20 October 1988 will have no claim for compensation if they are subsequently refused planning permission because development would materially contravene an objective of the development plan which related to the land at the time of its acquisition.

As a matter of balance, I would like to point out that this is only one of a series of innovations made by the Bill, all of which I have just tried to summarise. Such has been the preoccupation with this particular "zoning" issue that I have heard people publicly claim that the Bill as a whole will apply only to new interests in lands. This is nonsense. With the exception of the one prospective provision on zoning, the Bill's provisions will apply equally to all landowners and developers, regardless of when they bought the land.

As I have said, the Bill provides that from 20 October, 1988, where a person acquires an interest in land and that land has a certain planning objective attached to it, that person will have no claim for compensation if he is refused permission to develop because it would contravene that planning objective. In other words, the principle the Bill is applying is caveat emptor. If a person knows in advance the zoning under which he is buying the piece of land, he must be satisfied to abide by that zoning. But if non-development zoning is imposed after he acquires the land, this alone should not prevent him from seeking compensation in certain circumstances.

I am aware of the arguments for refusing entitlement to compensation in all cases where development might conflict with zoning. However, after careful consideration of all the implications, I cannot now recommend this course to the House. The public interest would not be served by the conferring of excessive powers on public authorities.

Mr. Quinn

Failing the test again, I am afraid.

Mr. Flynn

This, I have to conclude, is what would be involved in making all zoning decisions non-compensatable. If zoning by the planning authority were the beginning and end of all landowners' rights, some very unjust consequences would be possible. For instance, it would be open to a major urban authority, without constraints, to zone for non-developmental purposes, for example, amenity or open space, a parcel of land which a person might have spent millions of pounds in bona fide assembling.

Mr. Quinn

What about the draft development plan?

Mr. Flynn

Zoning can change and it is not subject to any appeal process. Does the House seriously want to entrust these kinds of powers, without check, to planning authorities?

It would in my view be wrong to allow the possibility that important planning decisions of this kind could become totally divorced from the financial costs and benefits involved. It is well accepted that physical planning should be carried out in full awareness of the costs which it may be imposing. It is clear that writing a blank cheque for zoning decisions would offend this important principle.

It is worth remembering also that the very expression "zoning" is something of an inaccuracy in relation to the modern system of planning established by the Local Government (Planning and Development) Act, 1963. The word "zoning" appears nowhere in the 1963 or subsequent Planning Acts. Formal zoning was the hallmark of the earlier Planning Acts of 1934 and 1939, which envisaged the making of planning schemes which would have had full statutory force.

As is well known, these formal zoning decisions proved inhibiting to planning authorities and there was very little uptake of the provisions of these earlier Planning Acts. The single greatest change of policy effected by the 1963 Act was to replace rigid planning schemes with a more flexible system of development objectives. This change has always been supported by professional planners and others closely involved in the system and it must follow that a reversion to formal zoning would be seen by those planning interests as retrograde. Under the modern planning system, restrictions relevant to planning compensation are imposed at planning decision stage rather than in the context of formal zoning exercises. If we were to push back to development plan stage all decisions relevant to compensation, we must accept that greatly increased pressure would be placed on the development plan process. I am not satisfied that this would, in general, be a good thing for the planning system and I have therefore resisted it in the present Bill.

Finally on this question, let me emphasise that ample grounds will remain for refusing or conditioning planning applications from existing landowners without liability to compensation. In the first place, all landowners will be subject to the wider provisions of this Bill as regards non-compensatable circumstances. It will be possible from now on, as I have already explained, to refuse permission, without compensation, on the basis of future, and not just present, demands on water and sewerage services; also if development is premature by reference to an order of priority established by the planning authority, or if it would cause serious pollution. Conditions may now be attached to planning permissions, without liability to compensation, requiring preservation of features of artistic, historical or architectural interest. Secondly, refusal of a particular application for planning permission, on the basis, say, of agricultural zoning, will not necessarily give the landowner a clear run at compensation. If any other planning permission is available for the land of a residential, commercial or industrial character, or even if the planning authority declare in principle that it should be possible to develop the land in one of these ways, compensation is excluded.

So the only issue here is where the planning authority want to sterilise land altogether. In general, there should be a presumption in favour of some acceptable kind of development. But if a planning authority want to sterilise private land in the community interest, there may be occasions where it will be just and necessary to pay compensation for this. On the other hand, if someone knows of the sterilisation of land before he buys it, that person should have no case for compensation against the planning authority.

Given that a comprehensive explanatory and financial memorandum has been circulated, I propose to deal briefly and selectively with the detail of the Bill. Part I makes a number of standard provisions regarding interpretation and commencement. Section 4 repeals all of Part VI of the Planning Act, 1963, which is being replaced by the provisions of this Bill.

Part II of the Bill sets out common provisions, mainly procedural, for different kinds of compensation claims. In general, claims for compensation must be made within six months of the relevant planning decision, and there is provision for regulations regarding the detail of claims. Double compensation, that is under this Bill and any other enactments in respect of the same land, is prohibited, and section 11 provides subject to minor exceptions, for the full claw-back of compensation by a planning authority in any case where development is carried out on land on which compensation has been paid within the subsequent 14 years. Planning authorities are required by section 10 to enter a statement in the planning register of all cases where compensation exceeding £100 has been payable.

The most substantive provision of Part II is section 6. This continues the arrangement whereby, in default of agreement, the amount of planning compensation must be determined by arbitration under the Acquisition of Land (Assessment of Compensation) Act, 1919. However, a new set of rules, contained in the First Schedule, will guide the assessment of compensation. Many of the former rules are retained but, as I have already said, new rules have been added to clarify the market value principle and to discount any benefit to land from public subsidies.

Part III of the Bill deals with planning compensation in the context of decisions under Part IV of the 1963 Act. In layman's language, this means decisions on applications for permission to develop land or to retain structures, or what is normally referred to as planning permission. Revocation of planning permission is also comprehended.

Section 12 continues the basic principle of planning compensation whereby a person is entitled to be paid compensation by a planning authority if the value of his interest in land is reduced by a refusal or a conditioning of planning permission. This entitlement is, however, heavily qualified by sections 13 and 14.

Section 13 is the key section of the Bill. Through the Second, Third and Fourth Schedules of the Bill respectively, section 13 lays down classes of development which, in themselves, will not attract compensation, reasons for the refusal of planning permission which exclude compensation, and conditions which may be imposed on planning permission, without compensation. All non-compensatable circumstances from the 1963 Act are preserved. Further important non-compensatable circumstances are added, and these I have already described in some detail.

Section 14 is intended to replace the so-called "undertakings" provisions of section 57 of the 1963 Act, which have been found unsatisfactory by the courts, with a different procedure. Up to now, a planning authority could avoid liability for compensation by undertaking to grant permission for certain other development on the relevant land. A difficulty about this procedure was that it involved a quasi-contractual commitment by the executive of the planning authority to grant a particular planning permission. This was difficult to reconcile with the position of third parties, of An Bord Pleanála and of the elected members of the planning authority — in the case of a material contravention of the development plan — within the planning process.

The new procedure provided by section 14 makes it possible for a planning authority to avoid liability for compensation by serving a notice on the claimant stating that, in their opinion, the land in question is capable of other development for which planning permission ought to be granted. This will be more of a statement of principle than a contractual undertaking, and any planning application within the ambit of the notice will be dealt with through the normal procedures. As long as a notice under section 14 remains in force, planning compensation will not be payable. In practice, the only circumstance which would annul a notice would be the refusal or conditioning of planning permission in a manner inconsistent with the notice. If this happens, the original compensation claim will be revived. Otherwise the notice will stand and compensation will be precluded.

Section 15 gives an exceptional power to the Minister for the Environment, in limited circumstances, to order the payment of compensation where this would otherwise be excluded by the strict application of the compensation provisions of sections 13 and 14. This power of waiver, which parallels section 58 of the 1963 Act, is desirable so that the constitutionality of the Bill will not necessarily be threatened by hard cases arising in the operation of its normal provisions.

Part IV of the Bill deals with compensation in relation to a range of possible decisions by planning authorities which in practice arise much less frequently than decisions on planning permissions. The matters involved include discontinuance of an authorised use of land, removal or alteration of a hedge, compulsory creation of a right of way, and damage arising from cabling or pipeline work. The Bill merely re-enacts existing law on all of these matters.

However, section 21 considerably extends the provisions of section 45 (2) of the 1963 Act so as to give greater protection from compensation to planning authorities in the context of tree preservation orders. The difficulties of the Coolattin case and others have underlined the weakness of existing legislative provisions for the protection of woodlands. While I do not believe that planning legislation is competent to handle all of the issues involved — its perspective is necessarily that of amenity rather than of specialised botany or silviculture, I think that improved planning provisions can make a contribution to this general issue.

Section 21 contains two new provisions: first, that felling consents from now on, without compensation, attach conditions requiring the preservation of up to 20 per cent of trees in woodlands, where considerations of special amenity value or interest obtain; and, secondly, in the same circumstances, that felling consents may, without compensation, require the felling of trees in woodlands to be phased over a period of up to 20 years. These new provisions should allow planning authorities to mitigate the most harmful visual and amenity effects of the clear felling of woodlands while also allowing the owner to reap reasonable reward from his crop. They should make it possible both to conserve and restore woodlands without the serious loss of amenity which was an issue in the Coolattin case.

Part V of the Bill is designed to modify certain long-standing rights of connection of premises to public sewers and water supplies which are established in sanitary services legislation so as to make these more consistent with the overall control of development by planning authorities envisaged by the planning system.

Under section 23 of the Public Health Act, 1878, owners and occupiers of land are entitled to connect their drains to existing sewers within the district of a sanitary authority subject to complying with any regulation which the authority have made concerning the mode of connection, but regardless of the capacity of the sewer to cope with additional connections. Section 24 of the 1878 Act enables owners and occupiers of premises outside the sanitary district to connect drains or sewers to the sewerage system of the sanitary authority — on terms to be agreed by the parties or settled by arbitration. Accordingly, it is not at present possible for a sanitary authority to refuse a connection to a premises after it has been built inside or outside the sanitary district, regardless of the position under planning law.

A similar right of connection to water supplies exists under section 53 of the Waterworks Clauses Act, 1847. These rights, as they stand, could undermine the other provisions of this Bill allowing planning authorities, without compensation, to refuse development on grounds of deficiency in water or sewerage services. Accordingly, section 25 provides that, in future, premises shall require the consent of the sanitary authority, through planning permission or a special form of approval, for connection to a public sewer. Section 26 provides that the right to a supply of water for domestic purposes shall only extend to dwelling houses which are authorised under planning law. Section 24 of the Public Health Act, 1878, is being repealed under section 4. This particular right is inappropriate from a planning control viewpoint and, in future, if connections to a sewer are required from outside the sanitary district they should be arranged by agreement.

The Bill is a coherent and comprehensive response to the problems of planning compensation. It should ease certain undesirable constraints on planning authorities while maintaining an equitable balance between control and development interests. I emphasise again that I will give full consideration to all reasonable proposals to improve the Bill on Committee Stage.

I commend the Bill to the House.

Mr. Shatter

I welcome the opportunity to speak on the Bill. I am glad that finally we have a measure before the House which can deal with some of the many problems in the planning area. It would be churlish not to recognise that there are some good things about the Bill which introduces some long overdue reforms. However, it must also be said that there are a number of major flaws in the Bill. Whereas the legislation will clearly resolve some problems in the planning process, it is a matter of some considerable regret that some of the major difficulties we currently have are not addressed by the Bill. Other difficulties, particularly in the area of compensation payments arising from zoning decisions are dealt with in a way that can — at its most charitable — be described as flawed.

As we all know in the context of development plans the present position is that local authorities are often forced, under the fear of major compensation claims, to grant planning permissions that contravene development plans. Existing compensation provisions put into our Planning Acts which were designed to provide protection for the individual have been used and abused by unscrupulous speculators who seek to get planning permissions which are unjustified, or to force local authorities to pay out large sums by way of compensation for which there can be no justification. The Planning Acts have been abused by a small group of speculators for their own unjustified gains. That type of approach has on occasions brought our whole planning process into disrepute.

The Minister says this Bill is designed to tackle some of these problems and I intend in the course of my speech to address in some detail the difficulties which the Bill does not confront. I welcome the Minister's statement that he is listening and willing to take on board proposals for changing and improving the Bill. I would hope the Minister's concept of how one goes about changing and improving a measure is not based on a similar thought process to that of the Minister for Justice, whose belief in changing and improving measures has been exercising the attention of the House on a different Bill and whose primary contribution has been to create more problems than he would resolve. I welcome the openness of this Minister's approach and take it at face value. I hope he will see the points I am now making as designed to make a constructive input to this Bill in order to ensure that we get the best possible measure to tackle the problems which need to be resolved.

Some of the changes in the Bill are welcome. A Bill which brings together all aspects of our planning law relevant to the making of compensation claims in the planning process is overdue. The disparate and confusing provisions contained in legislation which started in 1963, with certain amendments over the years, have only helped to confuse the actual position. I welcome the fact that we at least have a Bill which seems to draw the varied and on occasions somewhat contradictory strands of planning law under the one roof.

The Bill addresses the issue of the preservation of trees and woodlands, in the context of which the inadequacies of our planning law were so clearly highlighted by the Coolattin controversy. I regret that it has taken this Government so long to deal with that issue. Other parties in this House at the time when the Coolattin problem arose sought to agree an all-party approach to the introduction of emergency legislation to deal with the issue. Belated though it is, we welcome the fact that this major lacuna in the planning laws is being addressed.

I welcome the fact that the Bill addresses the problems highlighted in the Nora Short case, namely the right of access to public waters or sewerage supplies, in so far as it confers a discretion on local authorities and an entitlement to reserve capacity in circumstances that will not result in compensation claims of an unjustifiable nature. I will return later in my speech to that reform. The manner in which that issue is dealt with in the Bill gives rise to a number of questions which I intend to ask.

Local authorities around the country have been trying to extricate themselves from compensation claims. Dublin County Council are the local authority who have been subjected to more compensation claims than any other, although most of them have been got out of by giving undertakings. This procedure, a twilight zone of the Planning Acts, was devised by the local authorities to try to provide a compromise position whereby they would grant limited planning permission to developers, who often made speculative claims in return for the local authorities not having to meet the expense of paying compensation. This whole procedure was totally undermined in the Grange Developments case and is now given a different approach by the serving of notices under the Act. There will be a statutory basis which will allow local authorities to serve notices to allow limited developments in circumstances where currently they would in effect be stuck with compensation claims. The provision is welcome, but whether it should be there is another question. Once zoning decisions have been made one must ask whether it should be possible for these claims to come forward, especially pre-20 October 1988 cases. This is a question I will address later.

Sections 13 and 14 confer on a local authority discretion to serve a notice to allow a limited development which the authority would regard as acceptable. There is a particularly curious flaw. First, it is saying there is a way of preventing unreasonable compensation to be claimed in the context of the balancing act between the private individual or building contractor and the local authority. Then there is a way out in section 15. The Minister states that section 15 reflects provisions in the existing Planning Act. It reflects provisions that may have been necessary under existing planning laws in the absence of the type of notice procedure which is provided in sections 13 and 14.

Let us put section 15 at its most simplistic. A planning application is made and the local authority, for proper reasons under the Planning Acts, do not grant permission. A compensation claim is made. The local authorities serve a notice using section 14 to set out alternative developments for which planning permission could be granted. Application is made for those planning permissions and they are granted, but they are allowing the speculator — as opposed to the bona fide developer — to carry out a development which would be a good deal less profitable than the original development applied for. The speculator gets in touch with the Minister for the Environment and says he has been treated unjustly, that he wants to get a major sum of money by way of compensation. I do not believe, especially in the context of the notice procedure in sections 13 and 14, that the Minister for the Environment, in a situation where planning permission has come through from the local authority or An Bord Pleanála, should be placed in that position.

An Bord Pleanála was put in place to take the Minister out of the planning process. I do not believe it is necessary to have the Minister conferred with a discretion to make compensation payments. That will put Ministers under unnecessary pressure and will lead on occasions to unjustifiable charges being made against Ministers. I can imagine the reaction if a Minister for the Environment made a determination under section 15 that it was reasonable that a particular developer should get a sum of compensation of £500,000. We will assume that is a bona fide decision. How many people outside this House might allege that the Minister was paying compensation to his political friends? The Minister might not even know the individual or company making the compensation claim. He may have no acquaintance with any of them. He may have made a purely objective decision having examined what he believed to be the background to the case. I do not believe that a Minister should be exposed to that sort of charge.

That provision remaining within this legislation in the context of sections 13 and 14 could become a Trojan horse in years to come for all sorts of false allegations being made about the behaviour of Ministers for the Environment. If it is necessary to have a residual provision, such as section 15 and if it is necessary to confer a discretion on someone to examine whether in exceptional circumstances it would be justified to pay a sum by way of compensation, would it not be more sensible for the courts to make that decision? That should be seriously considered, the Minister should not make the order declaring he is satisfied that it would not be just and reasonable in the particular circumstances that the payment of compensation should be prevented. If we need section 15 — I have doubts in that regard — the courts should make the decision and they would need more substantive guidelines than those contained in this section even though subsection (2) tries to lay down certain guidelines.

There is a variety of different aspects of the Bill which give rise to questions and concern. Many of these aspects arise by virtue of the provisions contained in the Third Schedule, particularly paragraph 9, although questions need to be raised about other paragraphs as well. I will deal with paragraph 9 first about which there is a justified fear. I hope the Minister will accept that I agree there is a number of good points in the Bill but I am not dwelling on them because we have no difficulty in accepting them and there is no controversy about them. However, paragraph 9 in the Third Schedule is a major problem and the Minister, in anticipation of views which will be expressed in this House, has already tried to address some of the problems in his speech. I am not satisfied with the Minister's assurances.

The difficulty with paragraph 9 in the Third Schedule is that instead of protecting local authorities and the community against unjustified claims for compensation, it could be regarded as the speculators' charter in a Bill designed to ensure that unjustified claims for compensation are not made by speculators. I am again taking at face value that the Minister is anxious to ensure that that is the case. In his speech, he very carefully teased out what he saw as the difficulties and I have no doubt he was advised that paragraph 9 may be necessary for constitutional reasons.

Since the 1963 Act when we became conscious of the difficulties in the area of compensation claims that are unjustified as opposed to those that should be available, successive Ministers for the Environment have appeared to get legal advice that they cannot tackle this issue for constitutional reasons. I am sceptical of that advice. It has been made very clear in a recent judicial obiter dictum by Mr. Justice McCarthy in a case heard in the Supreme Court — and repeated by him at one of the summer conferences — that compensation cannot be justified in circumstances where it is clearly unreasonable in the context of the common good and the community.

On occasions we lose sight of the fact that Article 43 of the Constitution talks about the right to private property but makes that subject to the public and common good. To date our courts have not been asked to tease out what is meant by the public and common good when you link Article 43 with Article 40.3 of the Constitution. I welcome the fact that Dublin County Council are now raising that issue in the courts in the Grange Developments case. I remember as a councillor at a meeting of Dublin County Council urging that if the Supreme Court judgment went against Dublin County Council on the issue that has already been determined in the Grange Developments case, they should raise the constitutional issue. It may be that raising that issue will clarify our minds in this area. However, there is a major problem which will not go away because of paragraph 9 of the Third Schedule.

The problem has two parts. It relates to the circumstances in which compensation can be claimed and the second problem — which I will address later — is the method of calculating the amount of compensation that should be paid where it is justifiable. Paragraph 9 says in effect that compensation can be refused if the proposed development contravenes materially any development objective of the development plan which was a development objective of that plan, or of a previous development plan, at the time, being a time subsequent to 20 October 1988, when the applicant acquired his interest otherwise than by inheritance of family settlement in the land. I assume that paragraph is designed to deal with the kind of problem highlighted by the XJS case in the context of lands in Killiney. It was designed to deal with a situation where a piece of land is zoned amenity and a development company buy it knowing it so zoned and puts in a planning application which is turned down purely on the basis of zoning. Then the compensation claim is made because of the fact that under our current planning laws the perspective is that someone who owns land and who is turned down for planning permission in these circumstances should be compensated for the potential maximum value of that land in the context of the maximum possible development.

In simplistic terms paragraph 9 deals with the XJS case in the sense of that being a company purchasing land, knowing what the zoning is and making a compensation claim. The reality is that paragraph 9 will be a speculators' charter. It is so circumscribed as not to solve the problem. Why? Let us assume that a company see a plot of land, zoned amenity, which is owned by an individual who has very little financial back-up and who would like to make a financial killing on his land. The individual would like to sell it to a development company. The company in question may come to the individual on 1 January 1989 and say that if they buy the land from the individual, look for planning permission — which they know they will not get — they will not be able to claim compensation because the land was purchased after 20 October 1988. They tell the individual that they will sign a conditional contract to purchase which will be based on an agreement that, if the individual gets planning permission, the company will then acquire the land for a particular price.

In return for that condition, the company will finance the individual's planning application and if it is not successful they will fund the applicant through the arbitration process to get compensation. In return for their getting 10 or 20 per cent of the compensation, they will then, rather than buy the land, get the remaining 80 per cent of the compensation. The cut-off point becomes irrelevant. It means that anyone who is in the speculative business and wants to purchase land can do so. He is not a genuine builder or developer whose only interest in life is to purchase a decent piece of land, put in a sensible planning application and get on with the job of building a good housing estate or some other development. We are dealing with a person who is looking for plots of land on which he can make a speculative windfall killing. Even the speculator who purchases land after 20 October from plain Joe Bloggs can enter into legal arrangements which allow him to go through the same planning process as happens in the context of other claims.

Let us assume that the planning application is made by Joe Bloggs who owned the land pre-October 1988 but who has a quiet agreement between himself and the speculators. He does not have to publish the agreement or to let anyone know that the agreement has been reached. When he puts in his application the planning authorities serve him with a notice allowing him, under section 14, to carry out a certain limited development. That development is not in any way as remunerative as the pretended development for which the original planning application was submitted. He then goes to the Minister, under section 15, and looks for compensation. This is where the problem arises.

There have been many difficulties in the past, on a constitutional basis, in trying to tackle this problem. I do not want to create a situation where this Bill is portrayed as being so bad that it never sees the light of day because there is a need for reform in this area. Paragraph 9 does not prevent claims being made by a speculator who wishes to abuse the planning process, in the context of the speculator showing an interest in that land after 20 October 1988. The second problem arises in that in some circumstances you do not need to have a secret contract with an option to purchase, such as I have just described. A company in the business of agriculture may have acquired land, zoned for agriculture, five or ten years ago and that company are very happily getting on with their job. They may consider selling the land but the people who own the company are not interested in getting into the speculative business. All they want to do is sell their agricultural land and get the true value for that land. Somebody who is interested in the land will tell them they are interested in buying it. In order to delimit the impact of stamp duties the purchaser will not take a transfer of the land from the agricultural company to his company but rather he will buy the shares in the company.

Mr. Keating

That is correct.

Mr. Shatter

Behind the scenes, the identity of the people who control the company changes but the land remains vested in the ownership of a legal persona, a company who owned it prior to 20 October 1988. The new directors and owners of the company are not interested in agriculture at all. They are speculators who will make a killing on the land. They will put in a planning application for permission for a major development that will contravene the development plan. The local authority may give reasons for compensation not being paid but we all know of similar cases which were brought before An Bord Pleanála who then granted the compensation claim. There was one notorious example of that in the context of a particular planning application and it is still a mystery as to why no non-compensatable reasons applied to the planning refusal. The only objection by An Bord Pleanála to the granting of such a planning permission is that of zoning. The directors who acquire the company after 20 October can then make a claim for compensation.

Paragraph 9 does not protect the community, the development plan or the democratic decision made by a local authority. It protects nobody. There are other problems with this paragraph. With any degree of limited legal advice in the area of planning, the speculators who have up to now sought to abuse the planning processes to make unwarranted claims for compensation or to force local authorities to contravene their own development plans so as not to have to pay compensation will be able to use those two possible approaches, and indeed some others, to extricate themselves from the type of control that paragraph 9 is designed to impose on the making of compensation claims.

That paragraph is ambiguous in other ways. In some instances, I would accept that it may be justifiable that where someone inherits land and if there was a right to claim compensation previously, that should remain. There are obvious cases where that may arise, for instance in the context of the death of a spouse and the other spouse inheriting land or by virtue of the death of a son or a daughter. In such cases bona fide compensation claims should be made. There has to be a balance between the rights of the community and those of the individual. There are a number of justified circumstances in which we must preserve the right to make that claim.

That is not the case in the context of all inheritance. I am concerned about the way the wording is drafted in that paragraph. The brackets around the words "otherwise than by inheritance or family settlement" could take every inheritance and every family settlement out of the limitations that that paragraph seeks to impose on the making of compensation claims. The concept of family settlement is not even defined within the Bill. Lawyers can say there are different meanings as to the term "family settlement". Is it a legal term of art that is so defined that it could not go beyond something that is not envisaged here? If I own a piece of land, a speculator may offer me a price that is well above the market value of the land in the context of its zoning but is clearly below what he may be able to claim by way of compensation if he seeks to put in a planning application for the optimum developmental use of that land. How will the speculator get around the provision regarding family settlement? He draws up a document of family settlement. He is not paying a price for the land but setting a sum of money with the family of the person who owns the land and they are then giving him the land. Is this a family settlement? A family settlement in the legal sense is normally supposed to mean a settlement within the family and not an outsider settling something with a family, but there is no reason why it could not mean that. There is a need, in the context of what the Minister may have in mind under the concept of family settlement, to clearly define within this Bill what family settlement means and to restrain it in a way that that type of approach cannot be used.

That paragraph also uses other terminology. It states that the development would contravene materially any development objective of the development plan. What is the definition in this context of "development objective"? What is meant by "contravening materially"? These things need to be spelled out.

I do not want to delay the House by going through the intricacies of the Planning Acts and the problems of working out the meaning of that terminology and what it could be in the context of other sections in the Bill. We will tease that out on Committee Stage, but there is a problem which needs to be addressed. There is a major problem with paragraph 9 which I believe is designed to resolve the problem, but that paragraph is fatally flawed and, instead of protecting the community against unjustified claims for compensation, if it remains unchanged it will be regarded as a speculator's charter. I am not saying that lightly but out of a concern that we get it right on Committee Stage and that we do not enact this legislation in the form it is in in the context of that paragraph.

What about other provisions in the Bill? In the context of the Third Schedule one welcomes some things. Nevertheless, there is a degree of ambiguity about them and a degree of concern that it is only appropriate to raise. In the Third Schedule which lists the reasons for refusal of permission which exclude compensation paragraph 6 states: "The proposed development would cause serious air pollution, water pollution or pollution connected with the disposal of waste." It does not refer to noise pollution. I do not know why. It does not refer to problems major industrial development could create in the context of vibrations in adjoining buildings. That is another form of pollution. I assume paragraph 6 is designed to deal on a statutory framework with the environmental impact assessment reports, to formulate by way of Statute, as opposed to a ministerial direction by way of a letter or something that local authorities should take account of, circulated back in June or July last, a non-compensatable basis for refusing a planning permission if the environment impact assessment report is not adequate and does not remove all worries. It would be relevant in the context of developments that do not require impact assessment reports as well.

We are all concerned to ensure, primarily in industry and in particular chemical and pharmaceutical industry, that major pollutions, be they air or water pollutions, are not the consequences of the granting of planning permission. We want to ensure we have no more Merck, Sharpe and Dohmes having the impact on lives of people living adjacent to them that the courts have established that company had on the lives of the Hanrahan family. The local authorities who are going to have to make decisions as to whether a proposed development will cause serious pollution, who are going to have to examine environmental impact assessment reports to determine whether there are sufficient assurances and safeguards in place to guarantee that pollution will not be caused, lack the expertise to adjudicate upon and assess the environmental impact assessment reports.

Local authorities do not have the personnel with expertise in this area. That was so vividly seen in what happened to the Hanrahan family in the Merck, Sharpe and Dohme case. It was a tragedy that should not have happened. Nobody within this State was able to assess fully what impact that factory was having on the lives of that family, on their farm animals, their cows, the water system and even on the trees growing on their land. They had to get that expertise from outside the country and have it called in a series of litigation that could have bankrupted the family, and they are proved to be correct. I am concerned that we do not have another Irish solution to an Irish problem, that we do not put in place legislation that gives the impression we are tackling a problem but in reality we are simply providing legislation that cannot be policed and has not the necessary back-up to ensure that the criteria people wish to put in place are abided by. Local authorities do not have those facilities.

I want to know, in the Minister's response to this Bill, what personnel and expert advice will be available to local authorities to assess the bona fides, accuracy and efficiency of what is stated in the context of works to be done by any industrial, chemical or pharmaceutical plant under the environmental impact assessment report to guarantee that a development or industry will not cause serious pollution. We have a major problem here and I am concerned that not only will we not resolve it domestically but we will end up in breach of EC regulations and directives in this area.

I am glad paragraph 6 is there. It does not go far enough; it does not deal with the types of pollution I mentioned. The problem is the capacity of local authorities to assess the possibilities of pollution and the impact of particular types of industrial development on the local communities to which they are adjacent. It is a major problem that we need to deal with.

What other problems arise in the context of this Bill? The Minister referred to, and I welcomed in my opening remarks, the provisions in the Bill dealing with the right of access to the public sewer under the relevant 1878 legislation, the Public Health (Ireland) Act, 1878. We saw in the Nora Short case that the right of access was one that in circumstances where a local authority wished to preserve a capacity for future projected development, if access was refused compensation should be claimed. The provisions in this Bill are designed to prevent the Nora Short type of situation arising again, but the problem is that the provisions in this Bill in this area give rise to certain questions that need to be raised. In dealing with it in his speech the Minister said that under section 13 and the Third Schedule, paragraph 1, development may be refused without liability to compensation not just where water supplies or sewerage facilities are actually deficient but where their capacity is required for prospective other development. The non-compensatable reasons are listed in the Third Schedule.

I want to hypothesise a problem here. This does not totally resolve the difficulty. There is a link between the access to a sewage facility and zoning. Let us maintain that link for a minute. Let us assume that we have in north County Dublin a piece of land that is currently zoned amenity or zoned agriculture, a major sewerage development is to be undertaken by a local authority and that local authority are inveigled into providing a greater development than they may have originally intended. That local authority are asked, and comply with the request, to lay a pipe from the original development sewerage facility across the lands of someone whose lands are zoned as agriculture or zoned as amenity to facilitate in providing sewerage facilities to a number of cottages for which there are already sewerage facilities albeit on a local sewerage plant. The argument is given that it is reasonable that that pipeline be laid so as to provide a full sewerage system without the necessity for a local plant being in place.

That pipeline is laid and those lands are zoned for agriculture. In five years time an application is made to get a planning permission for those lands. The local authority have a look at what the position is and find that those lands are zoned for agriculture, and the local authority believe that they should be kept as agricultural land. The problem is that they have laid this pipe across the land. It is serving a number of cottages but the capacity of the pipe goes beyond the cottages that are served. There is an additional capacity but it has not been designated by the local authority as being required for any other prospective development. A planning application is then made and is turned down on the basis of zoning. It cannot be turned down on the basis of the absence of a sewerage capacity or on the basis that the sewerage capacity is being reserved for any other development. The sewerage capacity is there and the application is turned down on the basis of zoning. Since the person who made the planning application owned the land before 20 October 1988 that person can make a planning application which, if it is not granted, can result in a claim for compensation.

I want the Minister to clarify how local authorities are going to work out exactly whether their sewerage capacity is required for other prospective developments? Every time the local authority lay a sewerage pipe, must they publish somewhere what the capacity of that pipe is so that no confusion can arise? Have they to specifically say that this is a pipe which has capacity for a certain number of houses, and will that be final? Will there be litigation over whether there is additional capacity in the pipe or not? If a local authority say there is no additional capacity, will the landowner have access to the sewerage pipe for his own independent assessment to be carried out as to whether there is or is not additional capacity?

By and large the provisions here are welcome, but there are some ambiguities about them that need to be clarified. It is particularly important that they are clarified and that no confusion can arise as to the exact impact this provision will have on the sort of situation I have just described.

The problems I have addressed so far relate primarily to the question of when compensation can or cannot be claimed. We have another problem which is the problem of how compensation is calculated, what principles the arbitrator should apply in determining the amount of compensation payable. The First Schedule to the Bill contains paragraphs 2 and 3 which are designed to, to some extent, amend the rules in the area of compensation. Paragraphs 2 and 3 do not go far enough because there are many cases where compensation claims can be justified and the loss to be compensated should be the actual value of the land that that person holds, not the potential maximum value based on some notional maximum development that could take place on that land. There is no justification for that. When we are talking about loss we should be talking about real loss, actual loss and not notional loss. The changes that are made under the rules set out in the First Schedule do not adequately deal with that aspect of things. In practice it means that if this Bill becomes law, there will be situations in which sums are paid by way of compensation that in reality are not truly compensation but windfall speculative gains that cannot be justified.

I fully support the right of any individual to be properly compensated who is adversely affected in the context of genuine land ownership by particular planning decisions made in the interests of the community but I will not defend a situation where instead of getting proper compensation somebody gets a speculative windfall profit out of the public purse, paid for by the taxpayers. I do not believe that is right. I will go into this in great detail on Committee Stage. I am concerned that the First Schedule does not properly, fully and adequately deal with that particular problem and that is something that needs to be clarified. It is something that An Taisce, the Irish Planning Institute and a variety of other bodies need to look at. Indeed the Building Land Committee of which I was a member addressed it in some considerable detail.

There are other areas of the planning Acts that this Bill does not address but which should be addressed. I pointed to a number of flaws in areas that the Bill does address. It is disappointing that there are other areas that this Bill could have dealt with but which have been ignored.

We have a major problem that primarily affects urban areas. It is a problem that I am all too aware of as someone who has been a member of Dublin County Council since 1979 and it is a major problem, particularly in the Tallaght area. It is a problem of the developer who is given a planning permission to build a major housing estate, who builds the estate, makes an awful lot of money but does not carry out the conditions that are attached to the planning permission. He does not provide the open spaces or the amenity areas that are a condition of the permission. The local authority have to take the developer to court and it may take years to process that court case. The developer may wind up his company and the local authority may discover, at the end of the day, that there is no one they can actually litigate against to ensure that the necessary amenities are provided in the estate, that the estate is landscaped, that open space areas are properly grassed, that roads and pavements are properly completed, all the things that are necessary to ensure that a housing estate is a reasonable area in which people can live. While the local authority are litigating to try to enforce their planning conditions the same developer, either under the name of the same company or under the guise of another company, can look for planning permission to build another vast estate somewhere within that local authority's area, and the local authority cannot refuse a planning permission on the basis that that developer is already in breach of planning conditions imposed on him in the context of a development that should have, long since, been completed.

Deputy Kitt, sitting opposite me, is more than familiar with the problem I am describing. He and I have, on occasions, joined forces at local authority level to try to ensure within our own constituency that this problem is faced up to by local authorities going to court against developers. Often even going to court is of no use. A local authority have, on occasions, had to grant a planning permission to a developer while litigating against the same developer in court. There should be a provision in our planning Acts which confers a discretion on local authorities to refuse to grant a planning permission to a developer who has had a reasonable time to complete a development and who is in breach of planning conditions. That should be an express non-compensatable reason for An Bord Pleanála and the local authorities to refuse a planning permission.

If there is a developer who has carried out a development in, say, County Dublin that has not been properly completed and who applies for permission in County Kildare, County Kildare local authority should be able to look at whether the estate in County Dublin has been properly completed and whether there are serious breaches of the planning Acts, take that into account and refuse to grant a planning permission. That can be a refusal to consider the planning application until such time as the outstanding works are completed. I am not saying that for all time that developer should not be allowed to develop but it would put pressure on the recalcitrant developers who have milked the system and who have abused the good will of tens of thousands of people living in our urban areas by taking full money from them for their houses under the promise of providing open spaces, landscaping, proper pavements and proper roads but reneged on such a promise.

Such a provision would put pressure on those developers to complete estates because they would know that no further planning permissions would be forthcoming until estates were properly completed. It would take the pressure off local authorities to spend large sums of money in litigation against developers in an effort to force them to complete those estates. It would be a cost-saving provision, a way of ensuring that the bona fide and decent developer was treated fairly. We have plenty of such developers and we should not turn this into an attack on them. There are plenty of good people and companies building excellent houses even in the context of the difficulties the Government have created for the construction industry. They are only interested in doing a good job of work, getting paid for it and moving on to another development.

However, such developers are blackened by the behaviour of the few cowboy developers we have. Unfortunately, some of the cowboys have been some of the big developers. Such a provision is long overdue in our planning laws. It would not cost the State anything to have it in but it would provide protection for the community, reduce the expense of local authorities and provide a very good stick for local authorities to use to ensure that cowboy developers do not use the planning Acts to abuse the development process and take full money from people for the houses they purchase without providing the facilities.

The price of a house, whether it is £30,000 or £80,000, is not only for the bricks and mortar. It has implicit in it a promise that within the estate there will be proper roads, lighting, landscaping and a decent sense of housing amenity. The Minister could introduce such an amendment to the Bill and it would be welcomed with open arms by all sides of the House.

I should like to highlight another problem which has not been addressed, one that is evident to any person who has been a member of a local authority. I am referring to the methodology of our development plan process. It may have been attractive when the 1963 Act was enacted, taking into account the preceding legislation we had, to get each local authority to engage in a development plan review every five years, although often the period is longer. However, there is a great anomaly in the way local authorities carry out the development plan process. For example, Dublin County Council review their development plan in isolation; Dublin Corporation review their development plan in isolation and Dún Laoghaire Corporation review their development plan in isolation. It makes no sense to have three different local authorities in the Dublin region reviewing such plans without communication between the elected members. The development plan process is one of the few processes left to elected members of local authorities and it makes no sense that the members of those authorities should review their plans in a vacuum. They do not consult with each other. It is almost as if when Dublin County Council are reviewing their plan that the corporation area does not exist. The plan may involve zonings of areas within 100 yards of the corporation area but the only contact there is is when the plan overlaps. The same applies to Cork and other cities. The problem is not confined to Dublin. We are a more built up country than we were in the sixties and we have the anomaly of development plans being reviewed in a vacuum by each local authority.

The fact that that process has become inadequate is evidenced by the need to establish on a non-statutory basis regional development organisations. We should try to lay down plans on a regional basis by the establishment of a national roads authority. The time has come to consider development plans on a regional basis and not based purely on each local authority's area. We should have a regional development plan system which would have an input from elected local authority members and would approach the five year review process on a regional basis and not purely confined, as local authorities must operate at the moment. We are creating quangos like the roads authority and other organisations and we should be heading into a regional structure in some of those areas. The local authority system is inadequate as far as the development plan process is concerned. It is inadequate in the context of the reviews of development plans, of having separate plans for the cities and counties of Cork or Dublin. It no longer makes any sense, if it ever made sense. It certainly does not make sense as we head into the nineties. It is time there was new thinking in regard to this.

I congratulate the Minister on gaining new responsibilities in regard to the Structural Fund, and the regional development projects in the seven regions. He should think in the context of development plans and realise that in the new era into which we have arrived there should be new thinking in regard to planning. That new thinking should protect the community and ensure that the development plan process has a real meaning and impact in the context of general planning decisions.

A great deal more could be said about the Bill and I could say a lot more about other anomalies in our planning laws. I hope the Minister regards some of my comments as a constructive approach to try to improve the Bill. I hope he sees fit to introduce some of the new thinking I have suggested in areas that have not been addressed in the Bill. I would like the Bill to become the vehicle for producing worthwhile reform. I hope we will see radical changes to paragraph 9 of the Third Schedule so that that will not become the speculators' charter it could be regarded as.

The Bill is not perfect by any means. The Fine Gael Party, when the Progressive Democrats produced a Bill which only addressed some of the issues referred to in the Minister's Bill, supported that measure on the basis that it provided a vehicle for bringing about the reforms necessary. We are taking a similar view of the Bill before us. We do not like certain aspects of it and we are worried about some of the provisions, such as paragraph 9. They give rise to considerable alarm but we see the Bill as a vehicle to provide badly needed reforms. It is our intention to table a number of amendments to improve it. We intend to try to introduce some of the measures I have referred to, unless the Minister indicates that he will table amendments along the lines I suggested. I appreciate that the Minister may need some further time to consider the prospect of changing the draft development plan process and we may not be able to change it radically in the context of the Bill. That may need to be done in a more overall reform of our local authority system. Nevertheless, it should be considered in the context of the Bill. For that reason we are reserving our decision on whether we consider it appropriate to table detailed amendments on that aspect of planning.

I do not see any reason why the Minister cannot deal with the problem of housing estates and cowboy developers, or with the problems of paragraph 9. I see no reason why he cannot extend the pollution provisions in this Bill and give us the necessary assurances that the local authorities will have the expertise to ensure that we have no more Merck Sharpe and Dohmes. There should be included within our planning laws, if we are going to make the environmental impact assessment report a meaningful operation, provisions which will render local authorities liable for damages in the event of the local authorities granting planning permissions for the provision of an industrial development, pharmaceutical plant or chemical plant which subsequently pollutes and damages and causes injury. It should be clear that there is a liability there. In the context of this Bill there will now be an implicit liability that the courts may interpret as applying.

We need to ensure that the local authorities realise that environmental impact assessment reports are serious things. I have been hearing stories as to how some local authorities are dealing with them. Some local authorities are getting these reports — and there are not too many of them around yet — and are following the Minister's July letter in this way. A planning application is made and the local authority say: "We need an environmental impact assessment report". The company who have made the planning application submit a draft of the environmental impact assessment report to the local authority. The local authority look at it and point out to the developer the bit in the draft about which it has worries and suggests they may take that part out and phrase it differently so that the worries do not arise. Then the chemical or pharmaceutical plant, or whatever, submit a sanitised version of the environmental impact assessment report which allows the local authority to accept it.

I am concerned, because I am getting some feedback, that in some local authority areas that is happening. If it is happening it is happening because local authorities do not have the expertise to assess the validity of the environmental impact assessment reports that are submitted to them. They do not have the expertise to determine what the possibilities of pollution are. All they want to do is to get a neat statement that does not give rise to them having a reason to have a fear. The Minister would want to be very careful about policing the way in which local authorities are dealing with the whole issue of pollution and the environmental impact assessment.

In the context of the city and county of Dublin, the Minister would want to be very sure as to what developments we have that might add to the air pollution and the smog that we already have within this city. At this stage he does not need to be told that. We have been saying it on this side of the House for some weeks past. The Minister has finally noticed the smog and he is doing something about it albeit what he is doing is still not adequate but we will come back to that on another day.

In conclusion, I am glad this Bill is here. It provides a vehicle for change. More needs to be done, but Committee Stage will give us the opportunity to do the additional work that needs to be done.

Mr. Keating

My party will be opposing this Bill because we believe it is fatally flawed. I expect that other parties in the House who feel similarly about the measures in this Bill will do likewise. I thought the whole thrust of this measure was designed primarily to deal with one particular issue, that of compensation extorted from the taxpayer on the basis of a spurious claim for alleged losses arising from a rejection by a planning authority or a local authority for planning permission. That is seen broadly in the public mind as a scandal. It is a scandal and it should be stopped.

The reason this Bill should be rejected is that not one existing speculator with an interest in land today will be adversely affected by its provisions in the context of their right to claim compensation for such a rejection. It is no more complex than that and no amount of peripheral waffling about other issues in the Bill can extradict that essential weakness.

I thought the Minister was less than gracious in referring — even obliquely — to the fact that the measure here today arises out of an attempt by my party last May to introduce a measure which, despite what Deputy Shatter has said, dealt with different issues, not a smaller number of issues, including the issue on which Deputy Shatter spent some time, that of unfinished estates. I am confident that this Bill would not be here today were it not for the Bill which we then introduced. I say it without wishing to make any major point but at least, in courtesy, we would expect some acknowledgment in that respect. In dealing with the Bill the Minister was gracious in admitting that we put in a lot of work at the time and he felt that the Bill had much to recommend it. I know it can be tedious and difficult for the public and non-interested parties to take a great deal of interest in the proposal before us, but the essential issue is that anyone with an interest in property or land right now — and that interest is not just ownership — was able to ride roughshod over the rights of the community by seeking this form of compensation. Those people have the same rights under this Bill as they had up to now. It is as simple as that. Unquestionably as has been pointed out that particular right will continue to be exercised and every conceivable device will be used to ensure that that right is established and utilised regularly.

The purpose for which the Bill was ostensibly designed and the whole reason for the Bill introduced by the Progressive Democrats last May, which was to stop that abuse, is not dealt with in the Bill. That can only arise, either from an act of gross irresponsibility or, and I am loath to accept or believe this, an attempted deception of the House and the public, into believing that something is being done when nothing is being done. The cases that have caused public scandal will continue for decades because this Bill does not address the fundamental issues involved.

What did the Minister actually promise to do when he dealt with the Progressive Democrats measure last May? He promised to introduce a comprehensive measure dealing with compensation and related issues. In the context of his words at the time no one had any doubt but that what he was saying was that the measure he would introduce would deal with changing fundamentally the abuse which facilitates the spurious compensation claims about which the public are rightly outraged and in respect of which every Member, and every party in this House, feel strongly that there should be action. But action has not followed. It is worth noting what the Minister said at the time and I quote from column 212, volume 380, of the Official Report of 3 May 1988:

... I expect to be in a position before long to circulate comprehensive legislative proposals on compensation to the House.

In column 214 he stated that the proposed measure:

... will remove the liability for compensation in any case where the refusal of permission is on the grounds that the proposed development would conflict with the objective of the development plan.

In the same column he continued as follows:

I have a comprehensive framework in hands which will deal with the problem of compensation and related issues.

I can see from the murmur of conversation in the House that this issue raises about as much interest here as it probably does in most of the public. I do not blame them for it because it is a difficult and tedious issue. The abuse is not dealt with in this Bill. I submit therefore, that that fundamental weakness is not one amenable to amendment and the House should rightly reject this Bill. We will be proposing its rejection and will be asking for a vote when that time comes. We will be expecting those who have been critical on all sides of the House to support that vote when it is called.

What does the Bill actually do? My reading of it and the reading of the Minister's speech this morning is that it deals with a number of peripheral issues which should have been dealt with years ago, but which at least, are being dealt with now. For example, they remove the right of someone to compensation if they are going to pollute the atmosphere — big deal. Is that an advance? That is something that should have been done a long time ago. I do not thank anybody for introducing such a measure. It proposes a number of similar fringe innovations, all of which in themselves are welcome but which, quite candidly, do not get to the heart of the issue before us. I propose to deal with that in greater detail after Question Time.

Debate adjourned.