I should like to thank the Deputies for their contributions to the debate. These have ranged over many important issues of policy and of principle. So far as possible I shall try to respond to them. Some Deputies have also raised quite detailed points on the drafting of the Bill or on its application to very particular cases. I have noted all these points but do not think it would be appropriate for me to deal with them at this stage. We all agree that the Bill will benefit from amendment on Committee Stage. I see that stage as the natural stage for discussing these matters in greater detail.
The Bill has the limited but important purpose of revising the law on planning compensation. While its long title is wide enough for accommodating amendments about other planning matters, as a matter of policy we should resist the temptation to defuse the central purpose of the Bill in this way. I hope to present separate legislative proposals on environmental impact assessment within the next few months and a miscellaneous review and updating of other aspects of planning legislation could be appropriate for a further Bill some time after that. I am not therefore attempting to deal with the large number of points raised by Deputies on very general planning matters.
This Bill is concerned with compensation and we would like to keep it to that. It has been deliberately designed and brought forward quickly to deal with what we all perceive as a pressing problem of compensation. My view is that, by and large, we should stay within this framework. On this basis I have regard to a number of important comments from Deputies as falling outside the scope of this Bill. Deputy Shatter, for example, mentioned the need for greater co-ordination of the development plans of the three Dublin planning authorities. As he himself acknowledged, this is a very wide question involving, ultimately, the structure of local government overall in the Dublin area. I accept the importance of the issue but not its relevance to the present Bill. The Deputy also asked for assurances about the capacity and expertise of local authorities to operate environmental impact assessment requirements. I have full confidence in the ability of local authorities to discharge this requirement which I notified to them through circulars of July 1988. However, as I have said, full treatment of the subject of environmental impact assessment is for another day in this House, when, as I have said, I hope to introduce a separate Bill to deal further with this matter.
Deputy Quinn spoke knowledgeably and at some length about the history of the building or development land question. As he himself expressed it, this issue is a first cousin only of the compensation question which this Bill sets out to address. It relates to local authorities pursuing an active land acquisition policy by themselves, buying up land and promoting development, either in green field or inner city situations.
This Bill deals with a different set of circumstances where typically a planning authority is trying to restrain rather than promote development. The key issue of the Bill is not the terms on which local authorities should be enabled to acquire land, but on what terms should they be allowed, in the common interest, to prevent or restrict development of land by others.
So while I am grateful to Deputy Quinn for his very able exposition of the background to the building land question, I have to regard the issues at stake in this Bill as somewhat different. I am not minimising the knowledge I know Deputy Quinn has in these matters and, indeed, it was educational for us all to listen to what he had to say from his wide experience in the matter and all matters relating to land, architecture and so on. However, I would ask him to bear in mind that some of the matters raised were somewhat different and not appropriate for this Bill. They may well be very appropriate in other circumstances. I accept, of course, that in the rules for determining the amount of compensation there is overlap between these two questions, and I will be returning to this later.
Many Deputies spoke broadly about problems of planning in their areas, whether urban problems, as dealt with by Deputies Kemmy, Flood, Kitt, Quill, Lawlor, Kavanagh and Pat O'Malley this evening or rural problems, as dealt with by Deputies Dempsey and Durkan. I have taken note of the many general points involved in connection both with possible advice to local authorities and with a review of miscellaneous provisions in planning legislation. I should mention that work on revising and consolidating the extensive body of planning regulations is already under way in my Department.
Deputy Shatter, Dennehy, Farrelly and Pat O'Malley this afternoon all mentioned the specific problem of unfinished housing estates. I had to argue, reluctantly, in May of this year that the provisions of the Local Government (Planning and Development) Bill, 1988 — sponsored by Deputy Keating, would not give an effective solution to this question. I regard the problem however as a real one. It is something that must be addressed and I will be considering urgently whether new legislative and/or administrative measures should be deployed to deal with it. It is hoped that it will be dealt with in the latter way because then we could perhaps get the matter cleared more quickly, but certainly it must be dealt with. I am willing to take advice in the matter from Deputies on all sides of the House in this regard. It is a problem that has continued to all our knowledge in every part of Ireland, to a greater or lesser degree depending on the effectiveness of local authority administration one way or other for quite some years. Many administrations have failed to come up with the solution that covers the whole matter. If it requires legislation to deal with it, so be it. However I would hope that it could be dealt with administratively. If not, then the other course will have to be taken
Two broadly different kinds of view were offered by Deputies on this Bill. The first set of views, represented by the Government side, and by Deputy Shatter and others, supported the general thrust and principles of the Bill, subject to varying views as to the degree of amendment which would be desirable on Committee Stage.
The second set of views opposed the Bill. Deputies taking this line wanted the Bill is impose even greater restrictions on the circumstances in which compensation should be paid. Deputy Keating was outright in his opposition but Deputy Quinn was considerably more qualified in his opposition. Deputy Keating gave the impression, rightly or wrongly, that he did not very much care if planning compensation was completely abolished. He referred to the spurious notion of a land owner suffering a projected loss due to a planning application being turned down. He also said that it was as logical for a planning authority to have to pay compensation for refusing planning permission as for the IDA to have to pay compensation for refusing an industrial grant application. These are forthright views but ones which will not commend themselves to responsible opinion in this House.
Deputy Keating professed to see little merit or importance in the many provisions of the Bill, other than the Third Schedule, paragraph 9. According to the Deputy, these other matters were peripheral or ones which should have been dealt with long ago. I regard this position as extraordinary and I am content to note that it was not widely shared among the Opposition speakers who contributed.
The Bill's provisions on water supply and sewerage address real constraints on local authorities which have arisen from well publicised court judgments. Similarly, section 14 is designed to deal with the so called "undertakings" procedure of the 1963 Act which was found unsatisfactory in the Grange Developments case. The shortcomings of the "undertakings" procedure which, incidentally, were not addressed by Deputy Keating's Bill, were the immediate reason for the award of the £2 million against Dublin County Council in that case.
Deputy De Rossa made it clear that his aspirations regarding public control of land go beyond what would be permissible having regard to Articles 40 and 43 of the Constitution. Without wishing to comment on these aspirations in themselves, I have to remind the Deputy that Article 15.4.1º forbids the Oireachtas to enact any law which is, in any respect, repugnant to the Constitution or any provision thereof. Deputy De Rossa, however, reserved his position on the Bill so that he could wait to see what my attitude was to the points raised in the debate. I will deal later on with the main issue of concern to him and Deputy Quinn in a way which, I hope, will allow those Deputies to support the Bill. I should like all sides of the House to support the Bill. Its principle was accepted by all Deputies.
Deputy Flood spoke convincingly about the practical virtues of this Bill for planning authorities. He and Deputy Dennehy emphasised the importance of using the physical planning system as constructively as possible to encourage development. Deputy Dennehy also made the valid point that sensible administration of planning law by local authorities and An Bord Pleanála was essential. It is certainly true that, in the area of compensation, the law alone cannot guarantee full protection to local authorities. The law needs to be complemented by good administrative judgment and practice.
A number of Deputies referred to the report on planning compensation which was circulated by the Irish Planning Institute in mid-October 1988. I should explain that the Bill was on the point of publication when I received this report — in fact, it was at the printers — and its provisions cannot, therefore, directly reflect the influence of the IPI report. Despite this, I am satisfied that there is reasonable convergence on many issues between the Bill and the IPI report. There are also differences on the extent of the force to be given to zoning and on the approach to determining compensation, which I will deal with in a general way later on.
Deputy Quinn asked me to comment specifically on the IPI recommendation that zoning should be made mandatory for rural as well as urban areas. The present legal requirement is that development plans must embody zoning objectives for urban areas, but that it is at the discretion of county councils whether and to what extent to include zoning objectives in development plans for non-urban areas.
I would like to observe, first, that this issue is fairly independent of the question of planning compensation. If zoning is to be made mandatory for all areas, then one would want to see this justified in overall planning terms and not just because of its possible relevance to compensation issues.
The case for mandatory zoning of non-urban areas fails this test of coherence in overall planning terms. Assigning objectives to every piece of land in the country for use solely or primarily for a particular purpose would be a huge administrative task and would be demanding on scarce personnel resources. In respect of many areas, this zoning would be an unnecessarily detailed and restrictive exercise, since the land would be compatible with a wide range of uses. It is significant that even in the UK, where pressure on the countryside is much greater than in Ireland, zoning is not mandatory for, and is not applied to, all rural areas.
Deputies Shatter and Farrelly were concerned about the inclusion in the Bill of section 15, which empowers the Minister for the Environment, in certain circumstances, to direct that compensation should be paid. I can assure the Deputies that there is no ulterior motive for including this provision. It wholly restates existing law, under which ministerial directions to pay compensation have only twice been issued in the 24-year history of the 1963 Act.
I can, of course, appreciate the Deputies' misgivings about the discretionary power conferred on the Minister for the Environment by section 58 of the 1963 Act and proposed by section 15 of this Bill. If policy considerations were the only thing at stake, I would have a preference for dropping this provision. I would ask Deputies to accept, however, that in including this provision I have only acted bona fide on the legal advice that it will strengthen the constitutionality of the Bill. That was appreciated by Deputy Kavanagh on two separate occasions in his contribution's but I must refer to this element of it which was addressed by other Members.
A number of Deputies argued that noise should be added to air, water and waste pollution as a non-compensatable reason for refusing planning permission. Noise is mentioned in the Fourth Schedule, paragraph 25, as a matter which may be regulated by planning conditions, without compensation. In general, one would expect the noise aspect of a proposed development to be satisfactorily controllable by planning conditions rather than by itself to require outright refusal of permission. However, I will have the point examined between now and Committee Stage, and if it stands up to scrutiny, so be it. I would not go to the stake on it, but Deputies might reflect on what I have said as may be a means of catering for it without necessarily having it added in. We will see.
Deputy Roche and others welcomed section 21 which will strengthen the hand of planning authorities in securing preservation of woodlands. I will look at Deputy Roche's drafting suggestions with a view to Committee Stage. Understandably, Deputies focused strongly on the provisions of the Third Schedule, paragraph 9. Opposition speakers were concerned about the possibilities of circumventing this provision and I am certainly open to suggestions for strengthening it on Committee Stage. I indicated that earlier and I am confirming it now. Let me say, however, in a general way that I am convinced this provision will make its mark.
As regards the possibility that company ownership of land would not be adequately caught by paragraph 9, we will have this further examined at the highest level. Deputy Keating asked me to do that, and it will be done. This would only of course be an issue in the minority of cases where land immediately prior to 20 October 1988 was in company ownership. I will look also at the merits of placing an invalidating prohibition on contracts between an eligible owner of land and a developer with a view to sharing out potential compensation arising for the landowner.
I am pleased to note that Deputy Shatter, as spokesman for his party, is able to accept the structure of the solution proposed by paragraph 9 of the Third Schedule, subject to possible loopholes being tightened up on Committee Stage.
I take some encouragement also from Deputy Quinn's helpful statement of his party's position. He also has made it clear that he could accept the structure of the solution proposed by paragraph 9, provided that the commencment date of 20 October 1988 is removed from it. I will consider this suggestion closely between now and Committee Stage. I must tell the House honestly however, that after a preliminary examination which I had carried out while the Second Stage was in progress, I see serious problems with it.
The fact is that, in the 25 years of operation of the 1963 Planning Act, the status of zoning objectives has only been an indicative one. Zoning objectives have never been, in themselves, a non-compensatable reason for refusing a planning permission. This was the situation intended by the Legislature in 1963 and it has not been revised up to now.
For reasons which I have argued in detail in my opening speech, I am not prepared to accept that compensation should in every possible case be precluded where a development proposal is inconsistent with zoning. Zoning can, and is, frequently revised by local authorities and I would regard it as excessive that a landowner purchasing land on the basis of a development zoning could be denied all prospect of development by a subsequent non-development zoning without any access to compensation. I ask Deputies opposite to appreciate that as the basic thinking for the Bill as so framed.
Deputy Quinn's proposal is different. He is suggesting that I retrospectively apply the principle that where land was acquired under a certain zoning, and that zoning remains in force, then any proposal to contravene that zoning should not attract compensation. The problem with this proposal is that it would retrospectively make the objectives of development plans relevant to the question of compensation, despite the fact that when the landowners acquired their lands, these objectives were irrelevant to the question of compensation.
This proposal would also have somewhat arbitrary effects. It would exclude landowners from compensation where the zoning of their lands had remained unchanged, but admit landowners to compensation where this zoning had been changed. It would be very hard, in equity, to defend this different treatment to existing land interests, given that zoning was not intended, prior to this Bill, to affect the right to compensation.
Deputy Kavanagh recognised the limitations in what is possible with due regard to the provisions of the Constitution in this area. Indeed, many Deputies have referred to aspects of constitutionality in this whole question of planning compensation. The present Bill, having been certified by the Attorney General, carries the presumption of constitutionality for all its provisions. In saying this I am not ruling out that there may be other possible solutions to the problem at hand within the constitutional constraints, but as Deputies have said, the constitutional provisions on property have a relevance in this area and we should try to bear this in mind when framing Committee Stage amendments.
Deputy Kavanagh was also concerned as to the adequacy of the Bill to guarantee the protection of trees and woodlands. I recognise his legitimate concern here. Deputy Boylan and Deputy Jacob also expressed great interest in this area. As I indicated in my Second Stage speech, I do not believe planning legislation is competent to handle all the issues involved but the Deputies will recognise that the two new provisions in section 21, that is, the provision for the preservation of up to 20 per cent of trees in woodlands and the power to phase the felling of trees in woodlands without compensation, will bring about a significant improvement in the legislative power to protect and preserve trees and woodlands. That was generally accepted by all who contributed on this very important issue. Deputy Kavanagh's involvement pressed the matter along at some speed——