In April of this year the Progressive Democrats introduced their own Planning and Development Bill in this House. That Bill put forward a series of sincere and serious proposals aimed at eradicating the defects and repairing the deficiencies which had surfaced under the 1963 Planning and Development Act. That Bill won the support of all the Opposition parties and Deputies in this House but it was voted down by the Government. The reason given for this was that the Minister would bring forward a more comprehensive Bill and that that Bill would be before the House before long. On that occasion the Minister said that, acutely aware of the urgency of the issue, they had spent seven months in waiting and that in the meantime the mountain had gone into labour and brought forth a mouse.
By any standards the Bill before this House on this the first day of December 1988 is nothing more than a pale and timid version of what was proposed in the Progressive Democrats' Bill last April. However, that being said I do not intend to describe this Bill as a Mickey Mouse Bill, even though others have said that about it, because I have far too much regard for Mickey Mouse who takes his job seriously, but I do say that this Bill is not a serious document. That is becoming patently obvious from the comments made by Members on every side of the House here today, and I have been sitting here since this morning.
This Bill is not a serious response to all or any of the issues raised by the Progressive Democrats, raised repeatedly during the course of the debate on that voted down Bill and raised here again this morning and even a moment ago by Deputy Roche. It is not a serious response to all those issues. For example, there is no evidence of a serious attempt to deal definitively with the issue of compensation. That was the key issue in our Bill. It is an issue which has hung like an albatross round the neck of an otherwise highly enlightened Act, the 1963 Act, which by any standards and in terms of the time in which it was enacted can only be described as a radical and most enlightened piece of legislation. The issue of compensation has been the central issue which has bedevilled the application of that Act during the past 25 years and it is incumbent on all of us to come to terms finally and fully with that issue. The most fundamental weakness in this Bill is that it fails to do that. Indeed in this respect the most charitable thing which can be said is that the Minister has "scotched the snake, not killed it." I am quoting on this occasion from Shakespeare's Macbeth.
Additionally the crucial problem of unfinished estates has been ignored. This was a major element in the Progressive Democrats' Bill. During the course of the debate on that Bill, and again during the debate in this House this morning, speaker after speaker stood up and described in detail the plight and predicament of new home purchasers who have suffered as a result of a small bunch of unprincipled builders who take their money and move out of estates leaving urgent outstanding works undone and leaving helpless mortgage holders with their life long investments devalued. We in the Progressive Democrats hammered home the need to put in place legislation that would give better protection to future home buyers. What we argued for was a consumers' charter but our argument fell on deaf ears. I must ask the Minister why he was afraid to address this issue. Surely it must be acknowledged that a carefully designed provision incorporated into the law aimed to eliminate the scourge of unfinished estates would protect the honest builder as well as protect the rights of home purchasers. The only people who would suffer as a result would be the small handful of rogue builders who are as much a scourge to the good reputation of the building industry as to the house purchaser.
Thirdly, this Bill fails to tackle the matter of planning exemption for Government Departments. The Progressive Democrats recently issued a Bill, the purpose of which is to apply permission and planning law to the State in any development where the State proposes to carry out that development. Under our Bill the State would be obliged to seek planning permission from the local authority to comply with the local development plan and to be amenable to the objections by the local community in exactly the same way as any other private individual or corporation would be.
The 1963 Local Government (Planning and Development) Act provided that the State should be immune from planning controls. In this respect our law then became similar to British law. The reason British law made that provision is that in English law at that time the sovereignty of the Crown and its immunity from local control and local laws was considered to be a cornerstone of the British Constitution. But we live in a democratic Republic with a written Constitution and the State's rights in Ireland have been circumscribed by the Constitution and are regulated by law. The State cannot arrogate to itself total sovereignty and override community rights, just in the same way as it cannot override individual rights. The old English Constitution maxim which says "The King can do no wrong" should have no place in Irish law or in Irish planning law.
We believe that this Bill offers this House an opportunity to change that state of affairs. We believe it is high time the Dáil said to the Government and to the various Departments of State: "You are just as much subject to the planning laws as any private individual or company". Planning law is very much a matter of protecting community rights. There is no logical or moral force in a law which protects community rights from individuals but allows the executive power in the State or the bureaucracy of the State to be totally exempt. It matters not to a community who builds a building which destroys the environment or who pollutes their rivers or their foreshores. A strong case was made today by the Members of the Government side of the House against the ESB for the many works they carried out in contravention of what would be deemed good planning. Surely this is the time and place to put that right. The principle of planning control is to protect the built environment; the identity of the developer is irrelevant — the nature of the development ought to be the only issue.
In this respect we deplore the failure of this Bill to confront the issue and to remedy it in a satisfactory way. We believe that there would be nothing but benefit for the community at large if the State was obliged to make a planning application for any development it wishes to carry out; to make that application to the local development authority; to comply with the local development plan and to meet, accommodate and, where necessary, overcome the legitimate objections of others on the same basis as any other person or company. In short the principle underlining State immunity from planning control is wrong. Its practice is destructive and the proper occasion on which to remedy that wrong is here and now in this Bill.
To give an example of what I am saying I can refer to my local authority area in the city of Cork where in recent years the local corporation, conscious of the need for urban renewal, in a street called Grand Parade put together a package which breathed new life into that street. In conjunction with the Cork 800 celebrations they developed from a derlict site a most delightful little park on the side of the street. This park was beautifully designed, well developed and was put there with a great deal more creativity than just cash. All of this work was carried out under the unique inspiration of a most enlightened city manager who is no longer with Cork Corporation, Mr. Joe McHugh, and his staff. This work was carried out to the great pride and satisfaction of the people of Cork. In conjunction with the provision of this park the whole Grand Parade got a new appearance and we in Cork were beginning to say that some former grandeur had at last been restored to a Grand Parade that had become very tatty and run down over the years.
Just when we were all beginning to be very pleased with ourselves, central Government decided to locate Government offices in Cork. In any circumstance Cork city would have been delighted with such development which was long overdue and warmly welcomed. The only quarrel we had with central Government was that the office block was built exactly across a channel of the river from the Grand Parade. Into this lovely, newly created, renewed atmosphere was put this great ugly office block, out of scale, out of tune, out of texture and totally out of character and out of harmony with what had been carried out very painstakingly and very tastefully by the local authorities. Here there is this conflict. The reason for that happening in that place and in that way was that the Department were not compelled to apply to the local planning department for planning permission. Assuredly, had that been done that office block would have been located elsewhere. That has happened in my own city. It has happened only once but that is too often. In terms of its impact, it is altogether out of scale in every respect. That should not and must not be allowed to recur, in Cork city or any other city.
The time has come for us to come to terms with what has been done by State bodies like the ESB. We are all aware of the manner in which they can run telephone lines through our most beautiful landscape, thereby scarring the face of that landscape. It is time to put an end to that. It is also time to face up to the issue that in very many instances local authorities can be the worst polluters, of rivers, of foreshores. That is something which has been tolerated over a number of years. Within the provisions of this Bill it is time to put in place legislation that will not allow that to continue any longer and insist on its enforcement. All we have, facing into the end of this century and looking to the next, is a country which is unique and the envy of a number of European countries. By universal standards, we have clean air, relatively clean water and a relatively unspoilt landscape. Let us, for God's sake, hold on to that and let us legislators and those who are entrusted to become legislators put in place a package of measures that will protect that gift. It is the least that we can offer to the next generation. The duty is ours; the opportunity is ours. Let us do it now. Now is the time for us to bring the State, State bodies and semi-State bodies within the ambit of the planning laws, within the ambit of local authority development plans and local plans. If we do that we will have done a great favour to the physical fabric of our country for the next generation.
That brings me to the issue of compensation. On reading the memorandum to this Bill, one would have believed that the Minister had met all the demands made, and coped finally and fully with the issue of compensation. Unfortunately, in the Bill there is a contradiction, a glaring paradox — a classic example that one should not judge the book by the cover. In relation to this Bill one should not judge the text by the Memorandum. The issue of compensation is a critical one which must be put right now if we are serious about giving to the next 25 years what the framers of the 1963 Act gave to the last 25 years. In terms of their time, they did their best. We, with hindsight, have an obligation to put in place all-embracing legislation which will deal fully, finally and definitely with the issue of compensation.
When the Progressive Democrats introduced a Bill last April into Dáil Éireann to deal with a planning compensation scandal, among other issues, we provided that one of the reasons for which compensation would be excluded in the case of a refusal of planning permission would be where the proposed development would materially contravene a development objective of the county, or borough development plan. That has been echoed in the memorandum to this Bill. However, at the time the Progressive Democrats issued their own explanatory memorandum which set out their arguments in detail. We believe these arguments to be sound and a fair resumé of the law for the time being, to the effect that the Constitution does not require compensation in the case of refusal of planning permission where the development of the subject matter of the application is, in fact, a breach of the development plan. It is our view that the Constitution recognises explicitly the right of the State and the community at large to regulate private property rights in the interests of the common good.
In the case of real property including land and buildings, the permissible regulation of property rights takes the form of a set of property and planning laws which apply for the time being. The State, under the Constitution, is obliged to protect property rights against unjust attack. It is not obliged to compensate every person whose property rights are affected by legitimate legislation introduced for furthering the common good. The nature of the attack in respect of which the State owes an obligation to a property owner is that it must be unjust in law. The State is not obliged to provide any system of protection or compensation in the case of legitimate curtailment of property rights. How can it be argued that the implementation of a development plan which is carefully arrived at under the complex procedures of the Planning Acts amount to an unjust attack on property rights? Indeed, it has long been accepted that property has its duties as well as it rights.
In a complex modern society the fact that one owns, say, agricultural land does not carry with it an unqualified right to build a city, a town, a factory or a chemical plant on that land. The environment is the property of all citizens. Individual rights to exploit or develop small holdings of land can come into conflict with the general community right to have an orderly, pleasant and humane environment in which to live. The resolution of that conflict is a matter for law and a law which is designed bona fide to resolve that conflict in the interests of the common good and with due regard for the property rights of the individual is a fair law and cannot amount to an unjust attack on property. For these reasons, the Progressive Democrats propose to amend the law of planning compensation so as to exclude compensation where the application was for a development which would materially contravene the development plan.
At the time when we introduced this Bill, the Minister indicated that he accepted the principle of our arguments. He did not raise any constitutional argument against the principal features of our Bill which were to make the development plan work and give it legal superiority over development rights of the individual. Now, in the Third Schedule of this Bill which the Minister has introduced, it is provided at paragraph (9) that compensation will not be payable where the refusal of permission concerns a development which would amount to a contravention of a development plan. However, hidden away in the third paragraph in the Third Schedule in this Bill is a time bomb which completely invalidates the merits of the Bill, undoes its purpose and contradicts what is said in the memorandum. It provides that the exclusion of compensation for the refusal of planning permission will apply only to a development which contravenes a development plan and only where the land has changed hands subsequent to 20 October 1988. The Bill therefore specifically preserves for the present owners the right to claim compensation. There are a great many present owners out there in the wings waiting to claim compensation. They had good reason to be worried during the past few months when this Bill was in the course of preparation but they will now have relaxed, knowing full well that they have nothing to fear. The Bill specifically preserves for present owners the right to claim compensation. More extraordinarily, it preserves the right to claim compensation for the heirs of all present owners or persons who are given lands by present owners under family settlements. That is the nub of our disagreement with the Bill. As Hamlet would have put it, there is the rub. This is the fatal flaw in the Bill.
Even worse than that, the effect of Article 9 of the Third Schedule is effectively to provide that where land is now held by a company as long as it remains the property of that company the right to compensation will continue in perpetuity. That is because the company will be the applicant and will have acquired its interest in the land prior to 20 October 1988. The shares in the company, which really show who are beneficial owners of the company as opposed to the artificial corporate ownership of the land by the company, can change hands at any time after 20 October 1988 perhaps for greatly inflated values because of the entitlement to claim compensation. But that will not amount to an acquisition by the company of the land after 20 October 1988. It will merely amount to a change in the ownership of the shares of the company. That will not affect the right to compensation. That is the second major weakness in this part of the Bill.
The effect of Article 9 of the Third Schedule is that while it appears to concede what was asked for by the Progressive Democrats and others, that is the superiority of the county or city development plan over the right to claim compensation for planning permission refusals, the particular provision is comouflaging a deliberate retreat by this Government. The effect of the Third Schedule, and in particular of Article 9, is to preserve the right of existing property owners, their sons, heirs and shareholders and the future shareholders of companies which own property in perpetuity.
That is exactly the opposite of what has been stated to be the major objective of the Bill. It is exactly the opposite to what was sought by the Progressive Democrats when they brought their draft Bill before the Dáil last April. That is the major flaw in the Bill. While there are a number of extremely good and welcome features in this Bill, this is the provision which will put us in the position where we have no option but to vote against it. The taxpayers have paid out far too much already in compensation to clever speculators who know how to manipulate loopholes in the planning law. There is no way we can saddle that obligation on another generation of taxpayers for the next 25 years. I regret that a number of other very good features in the Bill stand to be eclipsed because of that fatal flaw and the other two I mentioned.
I welcome the effort made by the Minister's Department to address the trees and woodlands issue. I am particularly pleased by the manner in which that is being done. A number of other very good features have been incorporated in the Bill as well, but taking it overall as a comprehensive piece of legislation, it certainly is no charter to take the people of this country, private individuals and house developers, into the 21st century. By any standard it is not a people's charter. It is wide open to become a speculator's charter, a developer's charter. The Fianna Fáil Party have left themselves wide open to the charge that they are still in some way afraid to take on the developers, the rogue builders, the cute and clever speculators. It will be said that the captain's lady and Judy O'Grady are sisters under the skin. That is a pity.
