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.