Dáil Éireann debate -
Wednesday, 14 Feb 1990

Vol. 395 No. 7

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

Section 1 agreed to.

SECTION 2.

Mr. Shatter

I move amendment No. 1:

In page 4, lines 23 to 26, to delete all words from and including "on such day" down to the end of the section and substitute "one calendar month after its enactment by the Oireachtas.".

Section 2 states:

This Act shall come into operation on such day or days as the Minister may fix by order, either generally or with reference to any particular purpose or provision, and different days may be so fixed for different purposes and different provisions of this Act.

It is a concern of the Fine Gael Party that we enact legislation and bring it into force as rapidly as possible to tackle the very serious inadequacies of our laws with regard to compensation claims and compensation awards. This legislation was published on 18 October 1988 and has had an extensive Second Stage debate. At the time I made the point that I felt the legislation was grossly inadequate and did not deal properly with many of the problems that had to be confronted. During the course of that debate I listed a number of problems with the legislation as I saw it and proposed a number of different approaches I hoped the Minister would be willing to take on board.

As we start this debate I want to say I am pleased the Minister, in the vast number of amendments he has tabled, has taken on board many of the fundamental changes that Fine Gael proposed to this Bill. Whereas I still disagree with some aspects of the Minister's approach, I think even if none of the Opposition parties' amendments were accepted — I hope some of the amendments tabled on this side of the House by all parties will be accepted — and even if we simply took on board the Minister's amendments, the Bill would emerge from the current procedure as a measure vastly improved from that originally proposed to the House. I am glad the Minister, having said to the House on Second Stage that he wished to hear what Members had to say about the Bill, has shown a genuinely constructive response to many of the criticisms of the Bill. It is right that we say this because on too many occasions when Opposition Deputies raise issues with legislation Ministers go deaf and are not willing to take on board constructive changes that are proposed. Therefore, I welcome the approach the Minister has shown to the Bill and many of the amendments he has proposed. Certainly they will improve the Bill.

Due to the inadequacies of the original legislation it is only now, in February 1990, almost a year-and-a-half since this Bill was first published, that we are getting down to Committee Stage. In the time lapse that has taken place further possible claims for compensation in circumstances that we would regard as unjustifiable have been lodged against local authorities. Local authorities are at risk of further claims being processed and awards being made that I do not believe are in the interests of the wider community.

I do not really understand why section 2 is phrased as it is. I do not see why, once this legislation is passed through this House and through the Seanad and is signed by the President, it should not automatically become law. I do not know why the Minister intends, as it appears from the section, to bring different parts of the legislation into force at different times. I am concerned that that could result in further compensation claims building up that may have to be determined under the current law and under the criteria laid down in the current law rather than be determined under the new provisions we are going to enact under this Bill. Therefore, my initial reaction to section 2 is that it should be opposed, and I think Deputies Quinn and Gilmore have taken a similar view. If I understand the procedures of this House, we will go through a two-fold voting stage. My reaction is that the section should be taken out of the Bill. If we do not succeed in taking it out of the Bill we should delimit the time following the passage of the legislation within which it comes into force.

In a sense, my amendment No. 1 is an alternative to taking this section completely out of the Bill. If we cannot take the section completely out of the Bill I propose a substitute amendment to the effect that the Bill must come into force one calendar month after its enactment by the Oireachtas. The Minister may feel that for some reason local authorities may require a brief lead-in time following the Bill being signed by the President to come to terms with the provisions contained in the legislation, though I do not see why they would need that lead-in time.

The preferable approach would be to delete section 2 and let the Bill commence upon its enactment. The next preferable approach, though not the best, would be to have 21 days or one calendar month following the signing of the Bill by the President and it becoming law. The worst approach of all is to have this provision in section 2 that is there which means that, first, following the enactment of the legislation there is no certainty when it will become operative. It may not become operative in 1990; it may become operative in 1991 or 1992. There is no certainty when different parts or different aspects of the legislation will become operative. Because of the interacting nature of the legislation and because different provisions in it are interdependent with other provisions, I see some difficulty in different parts being brought into play at different stages.

I urge the Minister to reconsider section 2. It is the type of section we have as a commencement section. It is what one has seen in other legislation. Perhaps the parliamentary draftsman just put it in. We had a similar provision in the Building Control Bill which gave rise to similar concerns. I do not think it is appropriate in this legislation, considering the lead-in time to our getting to Committee Stage. If the Minister feels there is some need to give owners of lands a warning of this legislation, they have had a year and a half to be warned. I do not think people who seek to abuse the provisions in the Planning Acts to seek unjustified compensation in circumstances that from a social policy perspective are indefensible should be given any particular notice in any case. I ask that the Minister agree that section 2 be deleted. If he will not agree to that, then I propose amendment No. 1 which would have the effect of ensuring that within one calender month of the legislation being enacted it would come into force.

This is very important legislation. As far as I know, in a local authority of which I am a member, Dublin County Council, there are accumulated possibilities of compensation claims amounting to in the region of £18 million. I am not saying some of the property development companies who may seek to make those claims will necessarily succeed in them even under existing legislation. They may not, and I want to say nothing in this House to lend credibility to some of those claims. However, they are there and that local authority are under threat from them. There are probably other claims mounting or threatened against other local authorities. I am most familiar with what Dublin County Council are confronted with and because of that it is most urgent that this legislation come into force immediately upon its passage.

It is urgent for another fundamental reason. A number of local authorities, including Dublin County Council and Dublin Corporation, are involved in the development plan review process. The whole procedure of the development plan review and the re-zoning of lands in the context of taking an overall view of the planning in the city and county is rendered nugatory by threats of compensation from developers seeking to put housing estates or industrial development on land zoned for agricultural or amenity use. As a result of such threats, local authorities who do not have the funds or capacity to pay compensation claims have succumbed to granting planning permission which materially contravenes their development plan and which in effect makes the development plan review process a largely futile exercise.

Very recently we had a situation where Grange Developments, who had been paid £2 million compensation by Dublin County Council, were given planning permission for their lands which materially contravened the development plan, in effect because the Fianna Fáil majority on the council wished to recoup the £2 million which had been paid to them. To my mind the decision was not based on what was in the interests of the planning of County Dublin; it was a planning permission eventually given, in a sense, on account of financial blackmail. We must bring that financial blackmail to an end and ensure that we have proper planning and development. We must also ensure that the preparation of development plans mean something and that compensation claims of the type we saw in the Grange Development case will not arise following the enactment of this legislation. There must be no delay in bringing it into force.

I hope the Minister will take on board our amendment that we remove the section entirely. However if he does not take the proposal on board, I would ask him to consider that we have a one month lead-in time before the legislation comes into operation following its enactment.

Mr. Quinn

In his opening remarks Deputy Shatter has spoken for the House in a broad sense and I do not want to repeat unnecessarily what he has said.

The Minister will have an opportunity very quickly to indicate what he will do in relation to this section. It is quite clear that it is totally unsatisfactory in its present form. I wish to join in supporting the view expressed by Deputy Shatter that the Act must come into operation at a fixed time. The public at large and the developers are well aware of its contents and that the terms of compensation have been changed. The overall commitment to deal with this problem has been signalled by this House for some time. The Department of the Environment have the resources to make the necessary regulations quite quickly and to bring the Act into operation at a fixed point in time, which can be readily calculated by the Minister and his advisers from today 14 February 1990.

I invite the Minister to respond positively and to indicate clearly to the House that it is his intention to amend this section on Report Stage or to signal quite clearly that the legislation will come into operation by a fixed date. I am referring to all of the provisions of the Bill coming into operation on a fixed date and not just individual sections as proposed in the wording of section 2 at present. For that reason, like other Deputies I am opposed to the section. Having regard to the arguments that have been made on the section, I would like to hear what the Minister's response will be.

Mr. Gilmore

The Bill before us deals with legislation that is certainly long overdue. There has been a great degree of hesitancy going back over the years in tackling the problem of planning compensation. For years we were told we could not legislate to do away with planning compensation because that would be unconstitutional. It was not until there were very substantial claims in the Dublin area — the case against Dublin Corporation, of which I am a member, by X.J.S. in Killiney and the case in Mountgorry involving Grange Developments and Dublin County Council, of which I am also a member — that it became quite clear that it was no longer supportable to have a situation where the taxpayer had to fork out large sums of money simply to compensate somebody who had been refused planning permission. I might add that in both of those cases the circumstances of the refusal — or certainly the circumstances in which An Bord Pléanala made its final decision — gave rise to very serious questions that have yet to be answered.

It is important that the legislation comes into effect quickly. Like Deputy Shatter I do not understand why section 2 is as it is in the original Bill and why it is proposed that the provisions of the Bill would only come into effect piecemeal and that the Minister might have the power to bring into operation one part of the Bill, which for example, deals with the question of connections to sewers or the water supply but that he would also have the power not to bring in the substantial part of the Bill, dealing with compensation until some time later, or that he might bring in the part of the Bill dealing with compensation and not bring in another part. That seems to me to leave the whole question of planning compensation and the need to tighten and eliminate the loopholes very much in the air.

I believe that the section should be deleted from the Bill and that the legislation should come into effect immediately. There are very good reasons for that. The principal reason is that you do not give advance notice to people who may wish to lodge planning applications or claims against local authorities for compensation or allow a hiatus period within which that may be done. I agree that Deputy Shatter's suggestion would improve the section, if it is not going to be deleted, but I would still be concerned that if you give a month lead-in time between the enactment of the legislation and its coming into force it would be a very busy month for the local authority planning departments. I believe that planning applications would be lodged by the hundreds and compensation claims as well in order to meet the deadline. Obviously it would be considerably worse if you allowed a period of time that would be longer than this. There is a good deal of experience that supports my view on this.

It is interesting that in the past couple of years the number of planning compensation awards and the amounts of the awards have been increasing. The people who have been making the claims have been encouraged by the awards that have already been made. If we allow a period of time between the enactment of the legislation and its coming into operation we are in fact inviting and encouraging additional planning applications, which might be very spurious, but are lodged simply to get a toe in the door and be in line to claim compensation. Unfortunately that has been the experience. People have talked publicly about closing the loophole in the planning law by abolishing planning compensation or at least by limiting the circumstances in which it can apply. I think it would be very regrettable if the Legislature, having faced up to the problem at long last, were then to leave a further loophole through which property speculators could slip in their planning applications and their compensation claims against local authorities. There is a considerable number of claims outstanding. In reply to a parliamentary question last week the Minister said that at the end of 1987 the total was over £10 million in Dublin County Council alone. He told me that it was £13.5 million but my information from Dublin County Council is that the figure is closer to £20 million. I believe that the national figure is probably in the order of £50 million to £60 million. Between 1982 and 1987 the aggregate of claims against local authorities was in the order of £70 million. We are talking about very large sums of public money, possibly, going to people for refusal of planning permission. There is an obligation on the Legislature to close the loophole irreversibly so that developers and speculators cannot slip through.

Mrs. Owen

I support this amendment in the name of Deputy Shatter and also the amendments calling for this section to be deleted. One has to welcome the fact that this Bill has been radically changed since it was first in this House. I was not then a Member but I worked behind the scenes with Deputy Shatter to ensure that we could get a better Bill. Knowing the difficulties of the 1963 Act at local authority level, we saw the flaws in the Minister's Bill. I welcome the fact that the Minister has tabled so many amendments.

There is risk that if this section stays in the Bill the Minister may find himself under enormous pressure from local authorities and particularly from developers. There are so many claims for compensation that he might be pressured into saying that they should be sorted out and tidied up before this legislation comes into force. In that event, many more claims will be commenced. One does not simply put in a claim today for compensation. There are many minor steps along the way. Dublin County Council and other local authorities have many claims that are very low down on the ladder but, if this legislation is delayed, there will be an opportunity for these claims to climb up the ladder in such a way that the Act will not apply to them.

We want to make sure that the claims now outstanding do not come into the same realm as the scandal last year when Mountgorry Lands and Grange Development Properties managed to get £2 million of taxpayers' money from Dublin County Council. It is interesting to note that they got that money within 24 hours. A planning permission which was granted has been appealed to an Bord Pleanála, who might have the sense not to grant it. It is ridiculous that compensation by local authorities has to be paid in one lump sum but we are now in a position where the local authority have to do a deal with the current applicant to get the money back over ten or perhaps 20 years. It certainly will not be returned with the same speed as the council had to pay it out from their precious capital funds.

The Minister should listen to the Opposition case. I know he wants this Bill to be effective. If that section remains, the Minister will come under enormous pressure to hold the line until there is a tidying up of any claims outstanding. The Minister has shown his openness in accepting so many amendments to improve this Bill and his name will go down in history as the one who introduced the necessary legislation to get rid of the scandal of compensation. I know he is big enough and man enough to accept this amendment, or even the slightly less suitable one, which will ensure that the Bill comes into force within one calendar month.

Minister for the Environment (Mr. Flynn)

I thank Deputy Shatter for the generous way he has opened this debate on Committee Stage and I also thank Deputy Owen for her kind remarks. I think I can say that to all Deputies who have contributed. With the welcome given to the proposed legislation, as amended, I hope this generosity will see a speeding up of the passage of the legislation, which is in all our interests. I acknowledge that it has had a long passage already and I share the concern expressed by all Deputies that it should operate at the earliest possible date.

Even if we let section 2 stand, I do not envisage any significant delay in bringing the Bill into operation. A commencement section is a normal provision whereby regulations must be put in place before it can come into effect. Perhaps everybody has had sufficient warning of the implications of this legislation and sufficient notice has been given to all those to whom it would apply. Rather than accept the amendment which would defer the commencement of the Bill for a month, I will drop the section altogether.

Amendment, by leave, withdrawn.

Section deleted.

SECTION 3.

Mr. Flynn

I move amendment No. 2:

In page 4, subsection (1), between lines 28 and 29, to insert the following definition:

" `habitable house' means a building or part of a building which—

(a) is used as a dwelling, or

(b) is not in use but when last used was used, disregarding any unauthorised use, as a dwelling, or

(c) was provided for use as a dwelling but has not been occupied.".

The amendment introduces the concept of "habitable house", using the same definition as is contained in the Planning (Exempted Development) Regulations, 1984. Later amendments, particularly amendments Nos. 61 and 77, will rule out any compensation where planning permission is refused or conditions are applied so as to prevent the demolition of a habitable house. The collective effect of these amendments will be to reinstate the exclusion of compensation in this matter which existed between 1969 and 1984 by virtue of the now repealed Act of 1969. I recommend the amendment to the House.

Amendment agreed to.

Mr. Gilmore

I move amendment No. 3:

In page 4, subsection (1), after line 31, to insert the following definition:

" `woodland' means an area planted for commercial purposes since 1922;".

I have decided not to press this amendment but to introduce it at a later stage. I also give notice of a further amendment which I wish to make to the definition section which is related to the method of calculating the compensation awards. It will arise at a later stage.

Amendment, by leave, withdrawn.

Section 3, as amended, agreed to.

SECTION 4.

An Ceann Comhairle

Amendment No. 4 in the name of Deputy Gilmore. Amendment No. 59 is related and I suggest that we discuss amendments Nos. 4 and 59 together, by agreement.

Mr. Gilmore

I move amendment No. 4:

In page 5, subsection (1), line 9, after "Principal Act" to insert ", section 23 of the Public Health (Ireland) Act, 1878".

This amendment deals with the section on the connection to public water supplies and sewers. The owner of any premises within the district of a sanitary authority shall be entitled to cause his drain to empty into the sewers of that authority, subject to the following conditions:

That he applies to that authority in the prescribed form and receives permission to do so;

That he pays the contribution required by that authority for making such a connection;

That he complies with the regulations of that authority in respect of the mode in which the connection between such drains and sewers is to be made and with the directions of any person who may be appointed by the authority for the supervision and inspection of the work.

A sanitary authority may refuse permission for such a connection if, inter alia, the existing capacity in a sewer has been designated for the drainage of an area zoned for development in the development plan made in accordance with Part III of the Local Government (Planning and Development) Act, 1963.

This is an amendment which was recommended by the Irish Planning Institute in their document submitted to the Minister and circulated prior to the publication of the original Bill. The view of that professional body should be given serious consideration in relation to the connection to water supplies and sewers.

Mr. Flynn

These amendments attempt to improve the drafting of section 25. They also introduce an explicit power and requirement for a sanitary authority to charge for making a connection to a public sewer.

I might deal with the drafting matters first. Amendment No. 59 proposes a new subsection (3) for section 25 but leaves the other provisions of that section intact. Section 25 (6) and (7), as drafted, in effect provides that the requirement of special permission under subsection (3) to connect to a sewer will be dispensed with where a sanitary authority already direct a person to connect, or where planning permission or by-law approval has been obtained for the structure. In that type of case a person would avoid the mandatory charge or contribution the amendment seeks to establish.

With regard to section 25 (3) (b), as proposed by amendment No. 59, essentially this appears to repeat what is already catered for in subsection (8) which, incidentally, the amendment would leave untouchéd. I intend to speak more fully later about the policy considerations behind section 25.

I should explain that I am not concerned in this Bill to effect a fundamental overhaul of public health and sanitary services legislation. Section 25 was designed only to prevent developers from finding an escape route by way of normal planning controls by way of earlier rights laid down in the sanitary services code. As to charging for consent to connect to a sewer, this is not provided for in the Bill. The reasoning is that such charging should be possible under section 2 of the Local Government (Financial Provisions) (No. 2) Act, 1983 or, in the circumstances of a planning application, by way of a development contribution under section 26 of the 1963 Planning Act where it is already catered for. In those circumstances I cannot support the amendment.

Mr. Gilmore

In view of what the Minister has said I will not press my amendment at this stage.

Mr. Flynn

It is strange kind of policy for The Workers' Party to pursue. I am not seeking to engage in any argument with the Deputy.

Mr. Gilmore

I am simply responding to the Minister's earlier generosity.

Mr. Flynn

I thank the Deputy.

Amendment, by leave, withdrawn.

An Ceann Comhairle

We come to amendment No. 5 in the name of Deputy Gilmore. I observe that amendment No. 6 is related. If it is satisfactory to the House I suggest that amendments Nos. 5 and 6 be discussed together. Is that satisfactory? Agreed.

Mr. Gilmore

I move amendment No. 5:

In page 5, subsection (2), line 14, after "under this Act," to insert "and any other case under Part VI of the Principal Act, which arises or has already arisen before this Act comes into operation,".

This is a very important amendment because, as the Minister and Members will be aware, there are outstanding a considerable number of claims for planning compensation. The Bill, as drafted, would not affect any of those claims. I might add that we are talking about claims, nationally, of the order of £50 million to £60 million, an enormous sum of public money. As was mentioned earlier, in the case of one local authority, we are talking about claims close on £20 million. The House has a responsibility to protect the public purse against huge payments of this kind. It may be argued that the payments may never be made. If they are not made in practice what will happen is that local authorities will give undertakings to developers to grant planning permissions that would otherwise be refused.

Deputy Owen has already mentioned the repeat case of Mountgorry, the very same lands in respect of which Dublin County Council paid £2 million in compensation in April 1989 and in respect of which a new planning application was submitted. There is the possibility that the £2 million may be refunded, that Dublin County Council, under severe financial strain, will decide to grant planning permission for a development there which is virtually the same kind of development in respect of which they originally refused permission as they fought through the courts and in respect of which they ended up paying £2 million.

I have had experience of both of the major payments made in relation to planning compensation. I am a member of Dún Laoghaire Borough Council which ended up having to pay £150,000 in compensation and subsequently in excess of £50,000 more in order to purchase lands on Roche's Hill in Killiney, the XJS case. I remember the difficulties we experienced in Dublin County Council last year with the award to Grange Developments. It is ironic that those members of Dublin County Council who sought to resist that payment last year — and there were over 50 of us who voted against the payment at a meeting of Dublin County Council — were told subsequently that a file had been sent to the Director of Public Prosecutions to establish whether we were in contempt of court. I find it remarkable that public representatives, who sought to protect the public, and public money from being paid out in such circumstances, could find themselves threatened with legal action, whereas nothing appeared to be done vis-à-vis the recipients in that case who had a horrendous track record in County Dublin with a long list of unfinished housing estates.

What I am endeavouring to do in this amendment — in addition to closing off future claims which may be lodged against local authorities — is to close off the possibility that local authorities will have to pay out on claims already in the pipeline because of planning permission refusals to date.

Mr. Quinn

I should certainly like to see this amendment supported. I should also like to hear the legal advice the Minister has received in relation to it because it appears to me to contravene a fundamental rule within our Constitution that retrospective legislation cannot be enacted. That would appear to be its impact. Certainly it is its intent because a claim for compensation filed under existing law — however ridiculous that law may be considered to be — would appear to me to be legally valid. Certainly I would support the sentiment. It is not merely a matter of trying to close the barn door after the stallion has galloped away, it is more a case of endeavouring to construct the barn before we even get the stallion into it.

Mr. Shatter

What Deputy Quinn has said constitutes a major problem in this area. That is my understanding of it. There is a very old law case, called the Sinn Féin funds case, the legal principles of which have been reiterated since. They are to the effect that if litigation has been instituted, the Oireachtas cannot pass legislation which would interrupt the course of that litigation, or change the law from the date when court proceedings were issued, until the date on which the case was heard in a way which would directly impact on that case.

Therefore, we have a difficulty in this area, which relates to litigation which has been instituted. Once litigation has been instituted it is somewhat like a football match, one cannot move the goalposts or change the ground rules halfway through the match; constitutionally that is not permissible. Nevertheless there is one aspect of the Bill that I am concerned with and I have tabled amendment No. 6 to give the Minister an opportunity to tease this out with us. It seems that there can be different stages of a claim. A developer could say to a local authority: "I am going to bring a claim against you"; the next stage may be when the local authority says: "You do not have a claim" and the developer then institutes court proceedings to determine whether he can properly claim compensation. A court, in those proceedings, may take the view that under existing legislation the developers can claim compensation. If the court so decides it can take a further step and suggest that ultimately the amount of compensation is determined by an arbitrator under an arbitration procedure.

Each of these steps are individual legal steps in their own right. If, at the date this Bill is passed, a developer verbally or through correspondence threatens a local authority with a compensation claim but has not instituted court proceedings, he will be bound by this Bill and there will be no problem. If there is a dispute as to whether there is a claim to be made for compensation, as opposed to what the amount is, that may require a court's adjudication. I appreciate that we are travelling a somewhat thin constitutional line in this but it seems that if the dispute that may arise on the date this legislation is passed is whether there is a valid claim for compensation, there is nothing wrong with this legislation making provision that, if subsequently it is determined there is a valid claim for compensation, the new rules laid down in the legislation for determining how to calculate the compensation payable can apply.

I would like to invite the Minister to tease out the different scenarios I have painted and perhaps come back to this matter on Report Stage rather than deal with it definitively today. If — and I think this is justifiable — the thin dividing line can be traversed in a way that is constitutionally sound so as to allow, in certain claims, a moving away from compensation being awarded on the maximum developmental potential value, as opposed to the reduced value under the new rules which will apply under the new First Schedule of the Bill, it is worth doing. We should tease out this matter carefully.

There is a difference in the approach of Deputy Gilmore's amendment and that of mine. There is a constitutional problem in this area and we have to get it right. In cases where the formal arbitration system has not commenced in the context of processing a claim to determine the amount of compensation to be awarded, where the arbitrator has not been asked to fix an amount, we cannot interrupt that procedure. If it is a question of the courts first of all having to determine whether a claim for compensation can be properly made it seems that amendment No. 6, which proposes to insert a new subsection (3) in section 4 of the Bill, could delimit the amount of compensation that can be properly claimed. It may ensure that the speculative element in abusing the planning process is further reduced in the context of the level of any award that might be made.

I would invite the Minister to tease out this matter further. I appreciate that he, his officials or the Attorney General's Office may not have had sufficient time to tease out the implications of amendment No. 6 but if the Minister says he is willing to consider the scenario I have painted and come back on Report Stage with comment on it I would be happy. There is a constitutional problem in our taking on board the approach that Deputy Gilmore wishes us to adopt. Nevertheless, in the context of the outrageous claims that local authorities have been confronted with — Deputy Gilmore and I are colleagues on Dublin County Council and we see this at the coalface all the time — I have a great deal of sympathy with the amendment Deputy Gilmore has tabled. Like Deputy Quinn, if I thought we could constitutionally get away with it I would be quite happy to go along with Deputy Gilmore's amendment but I do not think we would get away with it. If we could make some provision that is constitutionally sound, to at least delimit the damage, it would be worth considering.

Mrs. Owen

I would like to go a little further into teasing out the provisions of this section of the Bill. The Minister might be able to tell me what are the legal implications of the word "assessed". The Bill states that this section will not apply other than to a case where any compensation assessed will be payable. Does that mean where compensation has already been assessed before the Bill becomes law or does it mean in the process of being assessed? The wording in the section needs to be tightened up. As I said on an earlier amendment, the process whereby a developer eventually receives a cheque for £2 million, £150,000 or whatever the sum might be starts literally from the day on which he or she lodges a planning application. Very often planning applications are lodged in the full knowledge that they are going to be refused and that perhaps it may not be possible to put a non-compensatable clause into that refusal.

In the very well known Mountgorry case, I believe the developers had a very clear understanding that they were on the road to compensation when they put in a planning application. It took nearly six years to bring that case to finality. Companies who have already lodged a planning application but are nowhere near getting any money out of it could claim that they were already in the process and that there was a future compensation claim to be assessed. Because of the way this section is worded, these companies could be outside the law. I do not believe that is what this House wants, nor do I believe it is what the Minister wants. I think he would like to feel that he is closing off this source of compensation.

In my view, Deputy Shatter's amendment clarifies the position. There may not be much of a difference in the wording in the section from that in Deputy Shatter's amendment but I believe the amendment spells out loud and clear to developers that it is only those who are at the very last stage of getting compensation by swap of land or whatever, those who have gone through the various processes under sections 57 and 58 of the Planning Acts, who will receive it. I would like the Minister to clarify the wording "any compensation assessed will be payable". Does it mean that compensation already has to be in the process of being assessed before this Bill rules it out?

Mr. Flynn

Perhaps it is as well that I give the statistics as I understand them concerning current planning compensation claims because this matter has been raised by a few Deputies. The latest published planning statistics prepared by the ERU are for 1987 and show a total of £78 million for planning compensation. These claims were lodged with planning authorities over a six-year period, from 1982 to 1987. Planning authorities were requested, for the purpose of compiling the statistics, to give details only of new claims arising each year. However, there is now reason to believe that this instruction was widely misunderstood and that consequently the aggregate of £78 million is significantly overstated. They misunderstood the instruction.

Mrs. Owen

Is the Minister saying that the £78 million is cumulative?

Mr. Flynn

Yes, and regrettably it has led to a lot of confusion. We are now working to revise those statistics and I hope to have the data available shortly. A Dáil question would be a way of getting that information but as soon as I have it, it will be made available. I understand that Dublin County Council as of now have a figure of £13.5 million.

Mr. Quinn

Total aggregate?

Mr. Flynn

Yes, as I understand it.

Mrs. Owen

And that would not include the £2 million printed last year?

Mr. Flynn

Quite right, and in fact there was nothing for Dublin Corporation or Dún Laoghaire Corporation. There may be a couple of other cases around the country, but they do not involve a serious amount of money although anything is serious to a local authority. I am afraid they misunderstood the direction.

Mr. Quinn

Does the Minister have the figures as to what was actually paid out in compensation?

Mr. Flynn

I will seek them before the end of business and give them to the Deputy. The figure was £2.1 million in recent times.

I am advised that by virtue of section 21 of the Interpretation Act, 1937, any compensation claim resulting from a decision or other action taken before this Bill becomes operational will be dealt with under the procedures and valuation rules established by the 1963 Act. Section 4 (2) with which the amendment is concerned deals with another matter entirely. It preserves the valuation rules of the Acquisition of Land Act, 1919, as amended by section 69 (1) of the 1963 Act so that they can continue to apply to CPOs and purchase notice cases. This will be so, despite the repeal of section 69 of the 1963 Act by this section. Amendment No. 6 seeks to apply the provision of the Bill to any compensation claims arising from the 1963 Act still being processed when the Bill commences. This would run counter to the normal run of transitional provisions including those of the Interpretation Act, 1937, which preserve rights accrued under repealed statutes and, prima facie, to deprive persons of rights merely because their claims have been processed less quickly than others would be unfair and I am not disposed to accept the amendment.

Deputy Quinn's and Deputy Shatter's understanding of this litigation process is right. They have stated the point quite adequately and there is no point in my restating it now. Matters where litigation has been instigated have to be disposed of under the legislation applying at the time of the institution of the proceedings.

Mrs. Owen

Where does it start?

Mr. Flynn

Planning compensation cases only arise from planning decisions and not from planning applications. I have listened carefully to what the Deputy has been saying and, in view of the general interest implied by the amendments, in the transitional arrangements that might be appropriate to this Bill, the question of transition can be looked at between now and Report Stage to see if we can make those arrangements more watertight. That may not be possible but I will have it examined.

Mrs. Owen

The Minister said that it starts from the time of the planning decision. Is that a decision by the local authority or by An Bord Pleanála?

Mr. Flynn

Either, I am advised.

Mrs. Owen

Surely it would be An Bord Pleanála?

Mr. Flynn

I think so, yes. Where an appeal takes place, it would apply to the decision of An Bord Pleanála but where there is no appeal it would relate to the decision of the local authority.

Mrs. Owen

If a developer makes a claim after refusal by the local authority but before a decision by An Bord Pleanála, has he started the process?

Mr. Flynn

It is not a decision until it has been disposed by An Bord Pleanála. The decision would be subsequent to the activity of An Bord Pleanála in that case.

Mr. Shatter

I thank the Minister for his very constructive response to the problems we have outlined. I welcome his openness in dealing with this legislation. I am happy to let this amendment rest until Report Stage in the hope that the Minister, with the assistance of his officials and possibly the assistance of the Attorney General's Office, will be able to come back to us to look in more detail at the transitional arrangements. I appreciate that on Second Stage we dealt with the broader issues as to the circumstances generally when compensation should be payable and how the amount payable should be determined and that we are now teasing out the process. I would be happy to withdraw this amendment until Report Stage.

Mr. Gilmore

Like Deputy Shatter I welcome the Minister's positive response in relation to the transitional arrangements but it does not meet what I was getting at in amendment No. 5. I appreciate that there are legal difficulties but the issue I am asking the House to address is whether we should legislate to block off the substantial number of claims outstanding regardless of whether the amount is £78 million or less.

Mr. Flynn

Is the Deputy referring to the existing claims?

Mr. Gilmore

Yes.

Mr. Flynn

That was answered.

Mr. Gilmore

I am not so sure that it was. I appreciate the legal difficulties. In relation to the 1963 Act the question of the constitutionality of the compensation provisions there have already been raised. In the XJS case, for example, when it was being addressed by Mr. Justice McCarthy in the Supreme Court, he raised very clearly whether the compensation provisions in the 1963 Act were constitutional and drew our attention to the fact that, while the Constitution protects the rights of private property, it limits those rights and provides for the limiting of them by law where social justice or the exigencies of the common good require. It is clearly not in the interest of the common good that the taxpayer would have to pay, even after the passage of this Bill, huge sums of money claimed under the 1963 Act. The Minister has already referred to claims of £13.5 million in the case of Dublin County Council plus other outstanding claims against other local authorities. Even after the passage of this Bill large sums of public money could have to be paid out over the next number of years. Notwithstanding the legal difficulties that have been raised, this House has a responsibility to the taxpayer to protect his money and to prevent that situation arising. I am very much aware of the difficulties referred to by Deputies Quinn and Shatter, and repeated by the Minister, in relation to the legal side.

I suppose in many respects issues like that ultimately end up being tested in the courts. As I said earlier, there is a major question over the constitutionality of the compensation provisions of the 1963 Act. Two Supreme Court judges at different stages questioned whether the compensation provisions of the 1963 Act were constitutional and they virtually invited a challenge on constitutional grounds against that part of the Act. There is public concern about the pay-out of compensation awards and this House should not fail to address the outstanding claims already made against local authorities. The Minister mentioned the question of transitional arrangements and I should like him to clarify whether it is his intention to address the question of outstanding claims already made.

Mr. Flynn

The Deputy asked me to look at this matter and I will do so. However, I am sure that Deputy Gilmore recognises the legal difficulties attached to this question. He and I know that inevitably the taxpayer can only be protected by legislation enacted here. We all agree that we are changing the law insofar as planning compensation is concerned. This will be a fundamental change but the Deputy is asking whether the Legislature can somehow fairly seek to impose new provisions retrospectively. I do not think that can happen. However, I undertake to examine the matter but my personal opinion is that we cannot seek to impose this kind of restrictive clause retrospectively.

Mr. Quinn

I thank the Minister for undertaking to look at the matter. Notwithstanding the provisions of the Interpretation Act, 1937, and other Interpretation Acts, the net point on which we will be seeking legal interpretation from the Attorney General's Office is in regard to compensation. If a claim had been lodged for compensation and if that claim had been conceded in principle by a local authority in respect of a refusal permission for whatever reason — maintaining open spaces or something like that — and if the process of filing for monetary compensation had not commenced at that stage, in other words if the refusal of the planning permission had been arrived at but the lodgment of a claim for moneys had not yet legally commenced, you could ensure that the method of valuation applied ultimately by an arbitrator in the event of a dispute between both parties would have regard to the new rules as distinct from the old rules. I will give an analogy which I can understand; if a football match resulted in a draw and a replay was ordered it would provide an opportunity for the rules of the game to be changed by the governing body of that sport between the scoreless result of the first match and the commencement of the replay.

Mr. Flynn

It is a neat point.

Mr. Quinn

That is what Deputy Shatter suggested and I know that the rules cannot be changed in the middle of the game.

Mr. Flynn

No.

Mr. Quinn

If there is a gap but the stage has not been legally commenced — I stress the word "legally"— in relation to ascertaining the amount of compensation could this Bill be applied to the area? That is the point we are asking the Minister to look at. If the Minister says he cannot change the rules midstream none of us would be greatly surprised.

Mr. Flynn

Take two persons in the same situation where one had initiated a claim and the other was just preparing it. I know what the Deputy is getting at, that there is a distinction between claims initiated and taking a decision. Deputy Owen asked when does it start and that is a good point. The answer is, following a decision taken.

Mr. Quinn

There must be a commencement date.

Mr. Flynn

Yes.

Mr. Quinn

People who were considering an extension to their house but who did not get their application in lost out on occasions as well. However, I should like the Minister to look at this point.

Mr. Gilmore

I am disappointed that the Minister gave his personal opinion in this matter which seems to throw water on my idea.

Mr. Flynn

My personal opinion does not matter. I am saying it will be examined as a technical amendment.

Mr. Gilmore

Fair enough. I am glad to hear that and I will await the outcome of that examination before pursuing the matter any further.

Amendment, by leave, withdrawn.

Amendment No. 6 not moved.

Section 4 agreed to.

SECTION 5.

An Ceann Comhairle

There is an amendment to this section in the name of Deputy Gilmore. Amendment No. 10 is consequential. Amendments Nos. 11, 12 and amendment No. 2 to amendment No. 16 are related. I suggest, therefore, that we discuss amendments Nos. 7, 10, 11, 12 and amendment No. 12 to amendment No. 16 together. Is that agreed? Agreed. If amendment No. 7 is negatived amendment No. 10 cannot be moved.

Mr. Gilmore

I move amendment No. 7:

In page 5, before section 5, but in Part II, to insert the following new section:

"5.—No person shall be entitled to compensation, as a result of any decision made by a planning authority or by the Board, involving a refusal of permission to develop land or a grant of such permission, subject to conditions.".

This amendment is about the core of the legislation and I wanted to move it before the House discusses the whole question of procedures for claiming compensation and so on. The amendment deals with planning compensation and whether it should exist. That is something we must decide and my amendment seeks to put clearly and unambiguously in the Bill that there shall be no compensation for refusal of planning permission. It is blunt and simple. The Bill as presented deals with limiting the circumstances in which compensation can be claimed. That is certainly a major improvement on the situation which applied heretofore and is welcome. However, the core issue of whether there should be compensation in the first place has to be addressed.

It has been argued that the reason for a compensation provision in the 1963 Act relates to the constitutional right to private property. As I said earlier, the Constitution is clear on this point, it confers the right to private property but it qualifies it by the requirements of social injustice and the exigencies of the common good. If somebody applies for planning permission and is refused, as the law stands, in certain circumstances he can be paid compensation. Under the Bill he can still be paid compensation, albeit in more limited circumstances and, perhaps less than would be the case under the 1963 Act. The important thing is that such people continue to qualify for compensation.

I do not think that should be allowed. The planning process is quite elaborate and democratic. Democratically elected local authorities draw up a development plan and each local authority has a professionally staffed planning department. There is a clear procedure for the making of a planning application. Applications are scrutinised in considerable detail and at the end of that scrutiny the applicant can appeal against the decision if he or she is not satisfied with the outcome. After the outcome of the planning appeal the applicant can still submit a new application, perhaps for some varied development, in respect of the same lands. The door is never closed to an applicant for planning permission in his or her efforts to get approval.

I do not understand why it is that in the planning area compensation is allowed to an applicant who is refused permission. Why is it that a person who is refused planning permission becomes entitled to compensation while a person who is refused permission for anything else is not entitled to compensation? For example, as a result of public policy and measures decided in the House there are many people who are applying to get into hospitals but cannot gain admission. They are not entitled to compensation. There are children whose parents are applying to get them into particular schools but they are not entitled to compensation if they are refused. A person who buys a car has a constitutional right to own the car but it does not appear that he has an automatic constitutional right to drive it. That person must apply for a driving licence and if he or she does not succeed in obtaining the licence they cannot apply for compensation. Why on earth should a person who owns a plot of ground and wants to develop it be entitled to claim compensation if planning permission is refused? By and large, planning applications are not made by people anxious to build a house for a son or daughter on a piece of ground that they own. By and large planning compensation claims have been made by people who acquire land in the first place for speculative purposes and want to make a killing out of it. Why on earth should people be entitled to compensation if they are refused planning permission? I do not understand the logic of that.

As the issue has arisen in this debate, we should state clearly that there should be no compensation for a person who is refused planning permission. There is a clear procedure for applying for planning permission and, if a person is refused, that should be the end of the matter. I do not see why there should be any requirement on the taxpayer to have to underwrite the property values or the possible speculative gains for people applying for planning permission. My amendment seeks to end planning compensation. That is what we should be doing, otherwise we will be limiting circumstances in which it will apply and leaving people entitled to claim compensation if they are refused planning permission.

Mr. Flynn

These amendments, as Deputy Gilmore said, would remove the right to planning compensation in any circumstances. As such they run counter to the political consensus on Second Stage among the main political parties about the need to provide for some possibility of planning compensation.

It is not necessary for me here to retail chapter and verse on the constitutional provisions regarding private property. It is enough to point out the following. The planning control system will be constitutionally acceptable as long as it can be shown to operate its restrictions on property rights bona fide in the community interest. This Bill provides for a very wide range of non-compensatable circumstances, but always by reference to specified considerations of community interest.

To provide simply, as the amendment does, that there should never in any circumstances be a right to planning compensation is to presume that a planning decision automatically, and without the need for justification, will always fairly embody the community interest. It is to assume that arbitrary or inconsistent decisions, or decisions based on poorly conceived planning objectives, will never take place. That is not my understanding of the position. Some remedy in terms of planning compensation is to be found in virtually all physical planning systems in the western world. There may be differences between countries, as there may be between us here, on the exact extent of circumstances which should be compensatable. But there is no argument about the need for some provision in some circumstances for planning compensation.

Against that overwhelming consensus I find it difficult to entertain the amendment and I should like to ask Deputy Gilmore to recognise that and withdraw it.

Mr. Shatter

This is an astonishing amendment from Deputy Gilmore. The Minister has treated it in as circumspect language as he could in opposing it. What we are about in the House, and what we want to achieve, is to ensure that the property speculator who tries to abuse our planning legislation to get financial gain from the community by making unjustified compensation claims against local authorities is no longer allowed to do so. We want to ensure that if a person purchases a piece of land knowing that it is zoned for amenity or agricultural purposes he or she cannot go and obtain compensation if they are not allowed to build a major residential development or a major industrial development on the land. In such a case the land was purchased knowing that it was zoned as agricultural or amenity land and the applicant should have absolutely no rights to get any compensation from the community or the taxpayer for not being allowed to carry out a development that he or she knew they would not be allowed to carry out at the time the land was purchased.

Our problem concerns the way the planning Acts operate. Unscrupulous speculators can run a coach and four through the planning system. The zoning provisions put into play in the interests of the community can be seriously undermined by compensation claims. Awards of the nature we saw in the Grange development case can be made. The legislation is designed to ensure that the property cowboys, the speculators, cannot undermine the planning process and the planning Acts. We must, in our legislation, provide protection for the community on two fronts. We must protect the community against unjustified claims. We must also provide protection for the community against a real loss suffered either by a community or an individual as a result of a decision made by a local body or a Government body. Let us take the case of á person who buys a site of one acre which is already zoned for residential use. That person pays a sum of money for that site based on a valuation that one can build on the site because it has a residential zoning. The local authority, six months later in their development plan, may decide that it is in the interests of the community that that land, together with other land adjacent to it that previously had been zoned residential, be zoned amenity. In effect, the local authority are reducing the value of the land and preventing the person who purchased it in good faith on the basis of a zoning by the local authority, from utilising the land for the purpose for which it was acquired with the result that they suffer real financial loss.

There are two different types of political systems, one is a democracy in which you recognise that decisions are made in the interests of the community that cause real loss to an individual where the individual is entitled to some compensation from the community; the other is the totalitarian-type systems which we saw in Eastern Europe where there is a democratic centralism in which it is believed that whatever the Government or the local authority does is always right and no matter how it impacts on the individual — who is powerless when confronted by the local authority despite all the theories of democratic centralism — he can be screwed down and can find that the property which was properly acquired and properly paid for in good faith with proper, legitimate expectations, is taken away from him and he can simply be left with no compensation from the State.

Let us put in perspective what Deputy Gilmore is trying to achieve. This is a political exercise to try to pretend that some parties in this House are still in favour of unjustified compensation awards. We are not. The message that goes out from this House on this legislation is that the type of problems we have had in the Planning Acts with some development companies will no longer be tolerated. The person who buys land which is zoned for residential purposes is entitled to compensation if the community, through their local authority, make a decision which reduces the value of that land that results in its being changed to amenity or agricultural zoning. Is Deputy Gilmore suggesting that if the local authority decide to widen a road in his constituency which has 50 or 60 residents, a decision resulting in half of people's front gardens being removed, the local authority are entitled to do that and pay them no compensation?

Mr. Gilmore

No, I am not.

Mr. Shatter

He would need to clarify that because in the context of this amendment——

Mr. Gilmore

Read the amendment.

Mr. Shatter

——there is an ultimate logic no matter how he may try to confine it to this particular provision in the Bill. The ultimate logic is that if a local authority or a Government Department make a decision which impacts on the individual's correct entitlements, constitutionally recognised entitlements and justified expectations, they should never get compensation. I do not believe that is the type of system that is wanted by the vast majority of the people. The fact that it is unconstitutional is incidental. The reality is that it would impose on the Irish people a system, in effect, in which one would take the view that the State is entitled to abolish the rights to private property. That is the ultimate logic behind Deputy Gilmore's amendment.

It is the policy of The Workers' Party that there should be no rights to private property. It is a system they tried to operate in Eastern Europe for 45 years and which is now being turned on its head. That approach has been shown to have no acceptance by the population of those countries who laboured under the yoke of the type of democratic centralism that The Workers' Party favour. This particular amendment may have been seen by Deputy Gilmore to be a politically astute way of suggesting that other parties in this House are not committed to tackling the scandal of unjustified compensation awards but he has lifted the lid off where The Workers' Party truly stand ideologically in this particular area. Let the message not be confused. This amendment is not about the problem we are trying to confront in relation to unjustified compensation awards.

Mr. Gilmore

The Deputy has not read the amendment.

Mr. Shatter

This amendment is about The Workers' Party view that no one in this country has a right of any kind to private property——

Mr. Gilmore

That is not what I said.

Mr. Shatter

——that cannot be interfered with by the State and that they have no right, if the State decides to interfere, to obtain any compensation. It is an extraordinary amendment. Perhaps I am wrong, but I cannot recall The Workers' Party even going this far on the Second Stage of the Bill. I do not think Deputy Gilmore was in this House on that occasion and possibly his colleagues felt, in the context of the likelihood of the general election approaching at that time, they had better be a little more circumspect in their approach. For my part and on behalf of the Fine Gael Party I cannot support this amendment. It seeks to turn on its head the approach that the overwhelming majority of people in Ireland would like to see taken. They want to see the speculator who tries to blackmail local authorities, through unjustified compensation claims, taken out of the scene and they want to see local authorities being able to exercise proper planning controls and proper planning functions. People also want to see that, where someone owns land which had been purchased in good faith, based on zoning and with a clear indication of the particular use permissible, and if as a result of local authority decisions the possible use of that land is changed and the property is seriously diminished in value, such a person is compensated, in the same way as the person is entitled to be compensated if the local authority want to take a portion of their farm to build a highway or a portion of their front garden to extend a road, or for a variety of other reasons which one can list and for which compensation is payable. If I was Deputy Gilmore I would rapidly withdraw this amendment.

Mrs. Owen

I am disappointed that this ideological amendment should be put down by Deputy Gilmore. I believe there is a unanimity in this House, despite our political differences, to tackle the scandal of compensation claims. Albeit that Deputy Gilmore says his amendment does not call for the abolition of compensation, in introducing the amendment he made it quite clear that he was trying to remove the whole concept and principle of compensation from our legislation.

There is no point in trying to rectify a disastrous situation by putting in other inequities and inequalities into the Bill. In every other law some form of compensation is available to the members of the public for whatever reason. I recall that when a few Deputies from this House were elected they marched in front of an office. I think they were trying to stake a claim to some rights and compensation for the jobs they held before being elected to this House. The same principle applies here. By an action of some other body, not of their own doing, they were being denied certain rights and they sought rights and compensation in that way. One cannot differentiate on the principle of compensation. If one has been knocked down and badly injured on the road by a car which the owner driver has not properly maintained — and one has no right to ask him to maintain his car — one is entitled to some compensation. In exactly the same way in the planning laws, there are instances where people are entitled to claim compensation. If we do away with any of those instances we will be doing a bad day's work.

Even within the terms of Deputy Gilmore's amendment there are instances where local authorities have changed the zoning of land, which was formerly residential or industrial, to amenity zoning, in the course of which the beneficial rights of people have been diminished. I shall give an example. A family in a certain location in County Dublin gave land to the community to use as a sporting amenity. It was land that at that stage was considered residential and was zoned residential, but it was not needed by the owner and his family gave that land. Subsequent to that a case was made to actually zone the land in keeping with the sporting amenity that was on it, thus reducing the land from residential zoning to amenity zoning. By no action of that owner his land was reduced greatly in value and was no longer available to him to develop, despite the fact that it was by a generous act that the land was given. There is no law in any country I know that would not say that by an act of generosity such an owner had been deprived of his beneficial rights to that land and was entitled to seek compensation.

What about somebody who buys land that is zoned residential and, because of some Act passed subsquent to the purchase of that land, a local authority decide to change a road line? Dublin County Council are in the process of making a great many changes to a number of the existing road lines throughout County Dublin, mainly the smaller road lines and because they have been on our maps for many years, many people who might otherwise have got a single house on a bit of land may have been deprived because they were told there is a 30 year road plan. There may well be instances where we will have a road line put through land people bought in good faith and now, because of developments — maybe the building of an industrial estate — we want to move the line nearer to the industrial estate so that people can get to work. I do not think Deputy Gilmore would like to see a situation where some form of recompense would not be paid to people who suffer in such a way. We in Dublin County Council — and three of us in this House are members of Dublin County Council — will be responsible for making decisions in our development plan for the common good that might well damage other people's rights.

I agree with Deputy Shatter that this amendment was put in such a way as to imply that if we do not agree with it we are, in some way, condoning what the cowboy developers, the big speculative developers, in this city and country have been doing for the last number of years, that is, driving a coach and four through the 1963 Planning Act to their own benefit. We are here today trying to rectify that but there is no point in creating another inequity.

I hope Deputy Gilmore will take what I and Deputy Shatter are saying in good part. He may well have worded the amendment in a certain way but what he has said in speaking to the amendment is not what he is actually saying in the amendment. He is trying to get rid of the whole concept of compensation. I do not think that is fair. He only has to think of his own lifestyle since he came into this House and perhaps equate what he and Deputy Rabbitte attempted to do to get compensation for some losses they suffered when they moved in here.

Mr. Gilmore

I look forward to Deputy Owen joining me on the picket line the next time I decide to parade up and down outside a certain high rise building in the city.

It is a pity Deputy Shatter did not read the amendment. Had he done so it might have restrained him from the outburst he engaged in. The amendment says that no person shall be entitled to compensation as a result of any decision made by a planning authority or by the board involving a refusal of permission to develop land or grant of such permission subject to conditions, in other words, it is dealing solely with compensation where there has been a refusal of planning permission. It is not dealing with the abolition of the right to compensation if a local authority put a highway through one's front garden; of course the person who owns the property in that case is entitled to compensation.

There is a section of this Bill which deals with situations where local authorities might put sewers, water or other mains through property. I am not proposing to amend that; of course people are entitled to compensation in those circumstances. There is a section in this Bill which deals with the situation where there have been certain changes introduced by the local authority and somebody may suffer a loss as a result. I am not proposing to amend that. All this talk about Eastern Europe and abolishing the right to private property and to compensation and so on is garbage because Deputy Shatter is not in a position to answer my question, that is, that he should explain why compensation should be paid at all in a case where there has been a refusal of permission.

Mrs. Owen

The Deputy is ignoring some of the reasons for the refusal.

Mr. Gilmore

That question has not been answered. The closest anybody came to answering it was the Minister when he said that the planning authority might make an arbitrary decision, that it might be inconsistent in its decisions. There are, however, a whole range of areas of life where an arbitrary decision may be made. People who apply for social welfare benefits have arbitrary decisions made against them day in and day out, and arbitrary decisions made against them on appeal. Can they apply for compensation? They cannot. If somebody who applies for a medical card has an arbitrary decision made against him, can he apply for compensation? No, he cannot. Why is there one set of rules for claiming compensation for refusal of planning permission and another for every other area of activity in this country? Why, for example, did this House abolish criminal injuries compensation? I see a letter in today's newspaper about that. Why is it that there is no compensation in those cases but somebody who is refused planning permission can apparently be compensated? Deputy Shatter spoke about lifting the lid off ideology. There is no lid on my ideology but it would appear that the amendment has done something to lift the lid off his own ideology.

Let us deal with the question of compensation in the case where there is a right to private property. Let us be clear that I am not challenging that right, but let us tease this out a little further. Let us suppose I live next to a field and the owner applies for planning permission and is refused; he can claim compensation. Let us suppose he is granted permission and as a result the value of my property which is next to it is devalued. Can I claim compensation? No, I cannot. There is an inconsistency here. There are people living in housing estates which have been left uncompleted by developers. It is remarkable that the beneficiary of the largest claim paid out in planning compensation in this country — £2 million to Brennan and McGowan Developers — left people in houses in estates all over County Dublin with roads and other services not completed. Could the owners of those houses claim compensation? No they could not.

Mr. Shatter

They can. They can sue them.

Mr. Gilmore

Of course they can sue them as, indeed, can the planning applicant in the normal course of civil law, as I am sure the Deputy is well aware, pursue a case if he feels a local authority has been negligent in the way it has exercised its responsibilities. There is a total inconsistency here. The application for planning permission is the only area where this right of compensation exists. There is no right to compensation where the owner of an ordinary private house has his or her property devalued as a result of a planning decision made, perhaps, in the interests of a particular developer. There is no right to compensation where the owner of a house who has put his entire life savings and taken out a mortgage to buy that house, finds himself living in an estate which is not completed. Since there is no right to compensation in any other area of activity where people apply to public authorities for decisions on rights they believe they are entitled to, why should there be a right to compensation where a local authority refuses planning permission?

Again, I come back to the question of the options open to a planning applicant. If a planning applicant submits a planning application there is a professional decision made on it. If he does not like the decision the applicant has the right to appeal to An Bord Pleanála. the applicant also has the right to approach public representatives and ask them to pursue that planning application through a section 4 motion at a local authority meeting, and that is done regularly although it is something with which I do not particularly agree. It is a legal right which somebody can pursue.

Both Deputy Shatter and Deputy Owen will be aware that section 4 motions are repeatedly tabled for the agendas of the meetings of Dublin County Council. If a planning application in some way contravenes a development plan it is open to the applicants to get their public representatives to propose a material contravention to the development plan. Again, this is regularly done. At the last meeting of Dublin County Council there were material contraventions for a total of 914 houses and something in the order of 15 material contravention motions were proposed. Therefore, a whole range of options are open to somebody who is refused planning permission or who finds the going difficult.

A far greater range of options are open to a planning applicant in those circumstances than is ever open to somebody who applies for a medical card, a social welfare benefit or anything else from a public authority. There is no justification in asking the taxpayer to pay out money to somebody who has been refused planning permission but there is justification for the payment of compensation in cases where property has been devalued as a result of a road being built through it or some other activity which might be engaged in by a public authority. It is wrong and disingenuous of Deputy Shatter and Deputy Owen to suggest that my proposal not to pay compensation in cases where there has been a refusal of planning permission somehow automatically applies right across the board in other cases.

Mr. Shatter

The Deputy has missed the point entirely.

Mr. Gilmore

I have not missed the point. We are talking only about compensation where there has been a refusal of planning permission.

Mrs. Owen

How do you trigger the compensation?

Mr. Gilmore

To date nobody has——

Mr. Shatter

If land is zoned as residential but is changed to amenity how do you trigger the compensation?

Mrs. Owen

They first have to look for planning and then get a refusal. There is no other way.

Mr. Gilmore

Why should there be a trigger at all?

Mr. Shatter

The point is that if you buy property for residential purposes but it is changed to amenity you are not entitled to compensation.

Acting Chairman (Mr. Sherlock)

If the Deputy is so concerned about the questions he has posed he should give Deputy Gilmore an opportunity to reply. I want to give Deputy Gilmore that opportunity now.

Mr. Gilmore

That is not the issue which is addressed in my amendment. The issue addressed is where there is a refusal of planning permission——

Mr. Shatter

That is the point.

Mr. Gilmore

Both Deputy Shatter and Deputy Owen should read my amendment.

Mrs. Owen

May I ask Deputy Gilmore to clarify——

Acting Chairman

I am calling Deputy Quinn.

Mr. Quinn

I think we are in danger of opening up a Second Stage philosophical debate. Perhaps this is the type of debate being worked out on the streets of Eastern Europe at present but it is not particularly germane to what we are trying to do.

I fully understand the sentiments behind the amendment moved by Deputy Gilmore — I want to take a benign view rather than the politically malign interpretation taken by Deputy Shatter — but, in terms of a Committee Stage debate, Deputy Gilmore has effectively negatived his proposal by the inclusion of the adjective "any" in his amendment. The word "any" rules out any and all decisions. I want to put it to Deputy Gilmore and the House that the development potential of property is an inherent component of property itself and the development potential of privatelyowned property is an inherent characteristic of that property. The development potential of that property is part of the rights attached to property as enshrined in our Constitution. I agree with Deputy Gilmore that the right to education or a medical service is not, unfortunately, enshrined in our Constitution. Therefore, for the purposes of law making, which is what we are about, we have to observe the rules under which we make all the laws in this State. We are a law-bound State — this is a status most central and eastern European countries, including the Soviet Union, want to achieve — and ultimately the authority of the law is enshrined in our Constitution with all the processes of appeal. To rule out the payment of compensation in any circumstances, as is the legal and technical intent of this amendment, basically negatives that process, no matter how bona fide the Deputy's intentions are. In fairness to Deputy Gilmore, at no stage did he suggest in his proposition that there would be no compensation for property on which a CPO was placed for a road or whatever. That was not a fair assertion to make.

Whatever about his intentions, the Deputy legally fails to understand the complexity of property law and the correlation and interconnection between the development potential of property and its rights as protected under the Constitution. I want to give a specific example to illustrate this point. If, for example, Dublin County Council decide to change the zoning of land running down from a road to the sea or to a river in a built-up area from residential to amenity the value of the property will be affected automatically. If people need to lodge the deeds of their property with a bank in order to secure a mortgage the value of that property will be changed overnight as a result of a change in the zoning of it. In those circumstances people should have the right to seek compensation if they are materially affected. They may not automatically seek compensation——

Mrs. Owen

The point is that they will have to apply for planning permission and get a refusal.

Mr. Quinn

The wording used in this amendment is so sweeping in its impact and indiscriminate in its application that quite frankly it would not get past Áras an Uachtarán. Perhaps this was partly the reason for provoking the response from Deputy Shatter, which was not in the spirit of the progress we were making earlier today. This amendment would not get past the President's desk in Áras an Uachtarán and the Council of State would recommend that it be referred to the Supreme Court who would give a view in 60 days. The view of Mr. Justice McCarthy and others, who would rightly give their view on the constitutional balance between the exigencies of the common good and the rights of property, would be that, having gone from one extreme, we now appear to be going to the other. In all fairness to Deputy Gilmore, I do not think that is what he is trying to do.

Mr. Shatter

I will be very brief because in responding to me a moment ago Deputy Gilmore, in effect, confirmed what I was saying. If I were to adopt Deputy Quinn's benign approach to this amendment, as he so aptly put it, I would simply say that this amendment is based on a fundamental misunderstanding of how the Planning Acts work.

I want to refer to the very simple example I gave a short time ago about an elderly couple who own a piece of land which is zoned as residential and who intend to build a small cottage on it to which they will retire. If six months before they apply for planning permission the local authority zone the land as amenity space that couple, according to Deputy Gilmore, will not be entitled to compensation. The Deputy is saying this — he may not understand he is saying it — for the following reason. The zoning of land as amenity by the local authority does not of itself, even under current law, give rise to any compensation claim and if that elderly couple want to make a compensation application they will first have to apply for planning permission. They will assume that if the land remains zoned "residential" they will receive planning permission. If the land is re-zoned "amenity" and they make an application they could, under the welcome new provisions of this Bill, be turned down and they would not, in the context of Deputy Gilmore's approach, be entitled to claim compensation. Under this Bill they will be entitled to claim compensation. What will trigger that compensation entitlement is a refusal to grant planning permission. They will not be able to claim compensation without first applying for planning permission.

What Deputy Gilmore in effect is saying to the person or construction company who behave bona fide, who have proper business intentions and a good record and who purchase 20 to 30 acres of land, which is zoned “residential” at residential prices, knowing that they want to build a decent development on that land and six months later, find that a local authority, perhaps dominated by The Workers' Party, have rezoned it “amenity”, is tough, that if they put in an application it may be turned down on the basis that the land has been zoned “amenity” and they are not entitled to planning permission regardless of the fact that this decision may result in the financial bankruptcy of the construction company and the loss of jobs.

In relation to the small individual who buys a single site of a quarter or half an acre which is zoned "residential", he is saying that if, after it has been bought and residential prices paid, the local authority unilaterally decide under the planning process, without that individual's views being taken on board, to zone it "amenity" that individual should suffer the loss. They will suffer the loss because the only way they will be able to claim compensation under the Bill is to make an application for planning permission and to have that application turned down. What Deputy Gilmore is saying to all those people is that it is tough on them if the local authority change the zoning from "residential" to "amenity" or "agricultural" and that they will have to bear the loss. Taking Deputy Quinn's benign approach, perhaps Deputy Gilmore did not understand that that would be the impact of his amendment.

A natural corollary would be to deprive people of compensation in all the other circumstances I outlined. I did not misunderstand the Deputy's amendment. I know exactly what it says and the circumstances in which it would apply. It would be just as logical to say that if the local authority want part of a person's front garden in order to widen the road, that person should not get compensation either. That would not be the direct impact of putting this provision into the Planning Acts but it is the logical extension of the approach which says if the local authority make a decision on land use the person should not be entitled to compensation. Where one suffers a real loss as opposed to an artificial loss, which companies like Grange Developments tried to generate, the individual is entitled to compensation.

Mr. Gilmore

It appears as if the approach has been changed somewhat. Deputy Shatter has now shifted from attempting to bully me on this amendment to attempting to patronise me. I understand the planning process only too well. Let us tease out the argument concerning the old woman who buys a piece of land somewhere and a local authority dominated by The Workers' Party decide to zone it "high amenity" and look at it in the right of the present practice. The applications for planning compensation are not being made by little old ladies who own half an acre of ground somewhere——

Mrs. Owen

They could.

Mr. Gilmore

The Deputy invited me to look at the practice and that is what I am going to do. The claims for planning compensation are being made by and large by speculative developers. I have in front of me the current list of claims before the Dublin County Council and it indicates that there is one particular developer seeking £3 million in compensation, another £2 million and someone else £2.2 million. Therefore, it is clear that applications are not being made by one-off buyers.

It is my experience on Dublin County Council that when an application, of the kind Deputy Shatter and Deputy Owen have talked about, is made it is dealt with by way of material contravention and generally passed. Therefore, there are a number of options open to somebody who finds himself in that position and these options are frequently exercised. Let us deal with the question in front of us. I have to say I have not come across too many cases where land zoned "development" has been rezoned "high amenity". My experience is that the reverse is the case. Land zoned "high amenity" in the green belt has been rezoned "development". That is the practice in Dublin and I suggest that it is a practice which is more widespread throughout the country. I have not come across any case where the value of property owned by a person was reduced when land was rezoned "high amenity". I have come across several cases where the opposite has been the case. I am afraid that the old trick is being used, that where there is no justification a highly emotive hypothetical situation is produced and people hang their arguments around that. I am afraid that that just does not hold up. When it comes down to it, the Members of this House are either going to abolish planning compensation or they are not. My amendment seeks the abolition of planning compensation but it would appear from what is being said that it is not going to be successful. I hope that if it is not successful we will then go on and at least limit the circumstances where planning compensation is payable so that the taxpayer is protected against the type of claims being submitted at present.

Mrs. Owen

I have to reply to what Deputy Gilmore has said. His final statements are mischievous and he is trying to imply that in our opposition to the amendment we are somehow giving succour and consolation——

Mr. Gilmore

You are.

Mrs. Owen

——to potential, large scale developers. Deputy Gilmore should have listened to what his colleague sitting on his right said. Deputy Quinn has pointed out what is wrong with the amendment. I think I know what the Deputy is trying to get at and I agree with him that we should get to the nub of the issue. A developer as a result of the refusal to give planning permission can claim compensation. He does not automatically get it just because he is refused. Many other sections of the Bill tackle that, but the amendment is encompassing and is badly worded in the sense that it says it does not matter for what reason you are refused, you are not entitled to compensation. That is where the flaw is.

In anything the Deputy has said so far he has not tackled the instances — albeit they are not the normal instances we have in County Dublin and in other places. I am not as familiar with the local authorities outside Dublin and I suggest he is not either. I suspect there are far more cases of little old ladies looking for compensation where a local authority will take a decision that will lose for such persons the benefit of land they might have bought for residential purposes which is now dezoned and used for a road. He is trying to take a large sledgehammer to crack which is admittedly a very large nut, but he is not getting to grips with what he is trying to do, as Deputy Quinn says, by leaving in the words "of any decision made by a planning authority". He is throwing out the baby with the bath water. He is going to get rid of the concept of compensation.

In pushing his amendment he is, perhaps, giving himself the opportunity to send around a circular to the taxpayers in Dún Laoghaire to the effect that he has saved them millions of pounds in potential compensation claims. What is he going to say to the people of Dún Laoghaire or anywhere else when this section might prevent a decent developer or builder who finds himself or herself, because of some act of a local authority, no longer able to develop land bought in good faith? Is he going to say to that developer's workers: "I am sorry, we put it into the Bill. That is tough on you. You should have looked at it more closely and anticipated some action a local authority would take and you should not have bought that land in the first place"? Not every developer or builder is a gangster. A few are gangsters and we could name them here in the House but I will not do so. We all know which kind of developer we are trying to get at here. Not everybody who builds is out to cheat the State and seek compensation. There are those who start the whole process of a planning application for the prime and only purpose of taking it to finality and looking for compensation. I hope this Bill will prevent that ever happening again. I know where it is happening at present.

If Deputy Gilmore will not listen to us on this side of the House, or even to Fianna Fáil, he might listen to his colleague, Deputy Quinn, who I believe understands fully the danger of this amendment and the damage it could do.

Acting Chairman

Is Deputy Gilmore pressing his amendment?

Mr. Gilmore

Yes.

Acting Chairman

I am putting the question: "That the new section be there inserted."

Mr. Gilmore

Vótáil.

An Ceann Comhairle

The question is: "That the new section be there inserted." On that question a division has been challenged. Will the Members who claim a division please rise in their places?

Deputies Gilmore, Rabbitte, Mac Giolla, McCartan, Sherlock and Byrne rose in their places.

An Ceann Comhairle

As fewer than ten Members have risen in their places I declare the question lost.

Amendment declared lost.

An Ceann Comhairle

The names of the Members who rose in their places will be recorded in the Journal of the Proceedings of the Dáil.

We now come to amendment No. 8 in the name of Deputy Ruairí Quinn. Amendment No. 8 involves the insertion of a new section. I observe that amendments Nos. 14 to 16, inclusive, 33, 34, 43 to 47, inclusive, and 49 to 52, inclusive, might be discussed together. There are a large number of amendments which I have indicated to Members will be discussed together so that they can be clear as to our intentions in dealing with the amendments. Are Members satisfied with my proposal to discuss them together? Agreed.

NEW SECTION.

Mr. Quinn

I move amendment No. 8:

In page 5, before section 5, but in Part II, to insert the following new section:

"5.—Notwithstanding any provisions in the Land (Assessment of Compensation) Act, 1919, no person or company shall be entitled to compensation as a result of a decision made by a planning authority or by the Board arising from a refusal of permission to develop such land where such compensation would be in excess of the existing use value of the land for which planning permission was originally sought and where such claims had been made on the estimation of the increased value which would accrue if planning permission had been granted.".

I welcome your guidance, a Cheann Comhairle, on discussing these amendments together as it is a very complex measure. One of the intentions of the Bill was to try to codify and to put in one coherent Bill the rules regarding valuation and arbitration, which are an essential component of the law of the land in any society where the rights of property are protected. I have reason to believe that there is a number of technical reservations about the clarity with which the legislation will be interpreted by professional valuers even when it is ultimately enacted by the Oireachtas. I may come back to that point at a later date. I am not professionally competent to articulate the cogent reasons and concerns that have been expressed, but I can convey to the House from my knowledge of a number of different institutes and individuals involved in this area that there has been a lot of concern about the technical operation of the Bill since it was first moved by the present Minister in the previous Dáil. That is another point for discussion.

I want to confine my remarks on the next point to one of philosophy rather than practicality, but they interact and it may be necessary, having discussed this amendment, that a revised amendment which meets the technical requirements be moved by either Minister or myself on Report Stage. I say that by way of introduction to the intent of the amendment in my name.

Since the late seventies and the Kenny report on land prices, this House has been attempting to deal with the problem of the orderly transfer and valuation of property and the retention for the community of any additional value that would arise to a privately owned property which in the first instance was created by community action such as zoning, the building of a new road or whatever and which was not brought about by any action, passive or active, taken by the individual landowner.

The phrase used in valuations is "the existing use value of a piece of land as distinct from its development potential value". The scandal in relation to a number of planning decisions and subsequent claims for compensation has been manifested in the following examples. A person buys land that is zoned to agriculture, applies for planning permission for industrial or residential development and having been refused permission in the first instance by the local authority subsequently files a claim for compensation. When that claim is evaluated under the 1919 Act and the 1963 Planning Act, the value of the land for which compensation is being sought is not at its existing use value, that is as agricultural land, but the value of the land as if planning permission had been granted in the first instance for a residential estate. Compensation is paid out on the basis that they had forfeited a loss calculated on what they could have built on that site rather than what the site actually was in the first instance. I would like to amend the 1919 Act. This is the first time we have got to Committee Stage, despite numerous attempts to deal with this matter in the past ten years. I would also like to amend the 1919 Act in relation to compulsory purchase but I am precluded from so doing within the confines of this legislation. I am having a half bite of the cherry but I should prefer a full bite.

The Labour Party clearly recognise the rights of private property and the right to compensation where such property is being reduced in value or is being taken for the common good from the individual owners. The problem is the basis on which valuation is made. This attempt may be technically deficient in its wording because the legal drafting of such an amendment is complex. I would accept guidance from the relevant authorities. I am saying that notwithstanding any provisions in the 1919 Act, no person or company shall be entitled to compensation as a result of a decision made by a planning authority or by the board arising from a refusal of permission to develop such land where such compensation would be in excess of the existing use value of the land for which planning permission was originally sought and where such claims had been made on the estimation of the increased value which would accrue if planning permission had been granted. I understand what I am trying to say but when I read the legislation and the various Schedules I am not so sure I understand the precise wording. Ultimately professional lawyers will argue the minutiae of it in court. I certainly feel very competent to speak about the net point.

Unlike the previous amendment, this amendment admits the principle of compensation and accepts that it should on occasion be paid, subject to the law of the land. It is concerned exclusively with the value of that compensation. In the XJS case, which was referred to earlier, money was claimed by people who sought compensation in regard to Killiney Hill. Deputy Gilmore, who is a member of the authority concerned, may recall the case more clearly than I. In the arbitration award ultimately made, the original sum of money was of the order of £2 million, but it was discounted by the cost of development work which the developer would have to undertake by virtue of the nature of the site and the final amount was about £150,000. The starting figure was the hope value or the potential value. It started by saying that a rock on Killiney was worth £2 million, because of the value of property in the surrounding area, but because of the costs which the developer would have to incur he was only entitled to £150,000. I am trying to change the kind of law that enables the claim to be made that Killiney Hill is worth £2 million.

Coal importers have a coalyard in City Quay but when Coal Distributors Limited came into operation the coal business moved down river. The coalyard at City Quay was acquired in a famous CPO case which was cancelled and subsequently renewed by the then Minister, Mr. Tully. When the valuation was made it was zoned in the general business area of Dublin city. The owners of the coalyard were free within market conditions to apply for planning permission and to transform the coalyard into an office block. They chose not to do so. At that time it was considered that one would not get a willing tenant into an office block in that part of the city and that there was not much point in undertaking a speculative development. It has no real value other than its existing use; it was a semiused coalyard. However, when Dublin Corporation moved in with the reactivated CPO to acquire that land the price ultimately paid was not what a willing buyer would have agreed with a willing seller but was based on its potential development value. It is the City Quay-Lombard Street East area in which there are now local authority houses. It is that gap between existing use value and hope value which is at the nub of public outrage against the abuse of compensation claims in the general Dublin area. I am not familiar with such outrage elsewhere in the country but there may be examples.

My amendment may be technically incomplete and possibly could be improved in the drafting but that is a secondary point. In cases where compensation is legally and properly being granted, subject to a planning commission decision, the value of the compensation should not be based on the hope potential value of the property but on the existing use value. A person may buy agriculturally zoned land and apply for planning permission for some kind of alternative development. If that person is refused planning permission and seeks compensation, the amount of compensation he should get should correspond with the value of what he has, not what he would have got. That is a reasonable, balanced attempt at finding a balance between the rights of private property and the exigencies of the common good. This is what Mr. Justice McCarthy and others invited public representatives to do. Successive Attorneys General have advised successive Ministers for the Environment that any shift away from hope value would be deemed to be unconstitutional. I gather the Minister is accepting that body of advice. In other areas he has displayed considerable legislative courage in taking a risk and certainly the change in the amended Schedule would signal that.

I would invite the Minister to be even more courageous, subject to all the known constraints obtaining. I know from detailed experience, without in any way revealing confidentialities, that there is on file an overwhelming body of opinion which states, from the Attorney General's point of view — to which any Government officeholder must legally and constitutionally have regard — that, in the opinion of collective Attorneys General, interfering with the valuation in the manner I am suggesting would be deemed to be unconstitutional, taking one into a catch 22 position. I have put that point to Supreme Court judges. They have said that is an opinion of law officers given reasonably, as is their responsibility, but it has never been properly tested. As we know in this House the ultimate place of test — which has proved to be a very influential, progressive arm of State — in the past has been the Supreme Court.

Here I may be anticipating the Minister's reply but if his advice is that my amendment could be construed or deemed to be unconstitutional — on the basis of the legal advice available to him to which he must have regard — I would invite him to display the kind of courage he has shown in other areas and say: notwithstanding that there is a reasonable doubt expressed in other areas, on balance perhaps we should allow it be referred to the President; perhaps we should signal, in the conventional manner appropriate to this House, that if there is a doubt perhaps it should be resolved by the authority whose word will be final in such matters, the Supreme Court.

I do not want to take up any more time in the House. I know many other Members will want to go into this area in some detail. However, there are the technical operations of the valuation system and the philosophical basis on which compensation will be claimed. At the end of the day we must endeavour to strike a balance between the common good on the one hand and the right to private property on the other.

Whereas the previous amendment found no support in this House, because its impact would be so distorted as to render it manifestly unconstitutional, I would submit to the House — and this is a matter which has concerned me for over ten years now — that the intent of my amendment would be constitutional and would meet people's legitimate concerns. As people have said, taking the example of the Killiney case, in principle, an outrageous amount of money was being paid by way of compensation for something to which the developers were not entitled because they had not created that value; rather the potential value of that site had been created by acts of the community in general and not by the individual developer concerned. I hope I have made my point as clearly as possible. I will be happy to clarify any points that may remain unclear.

Mr. Gilmore

In some respect my amendments are amendments to the Minister's amendment. I do not know whether the Minister should move his first.

Mr. Flynn

The Deputy is correct, he should deal with his amendment to mine first.

Mr. Gilmore

We must remind ourselves that we are talking about public money. Over the past couple of years this House has repeatedly considered measures to restrict occasions and the manner in which public money is spent. Since we are here talking about public money it is incumbent on us to demonstrate the same degree of restraint in the expenditure of public money in areas like these as we would, say, in health or education.

As a result of the defeat of the last amendment it now appears that we will have legislation which will allow for compensation, albeit in more limited circumstances. As a democrat I fully accept the view of the House in that regard.

We should also now examine the size of any potential awards. The thrust of my amendments is that compensation should be based on the actual loss incurred. As Deputy Quinn has said, the problem that has obtained to date is that the compensation claimed, and that awarded, has been based on the full development potential of the relevant lands, perhaps in some cases offset by certain considerations. Deputy Quinn spoke of the XJS case in Killiney. That property was bought for £40,000 in 1981. When the developers were refused planning permission in 1983 or 1984 they lodged claims of £2.3 million. Eventually they were awarded £150,000, which represented a very substantial profit on the lands concerned. The lands at Redrock, with which Deputy Owen would be more familiar than I, were bought originally for £15,000. In that case the planning compensation claim amounted to over £2 million, the value of the undertakings given by Dublin County Council being £800,000. I do not know what was paid for the purchase of the property at Mountgorry but I would venture to suggest that the level of compensation paid — £2 million — was far in excess of the amount paid for the land and the loss incurred by the developer.

Mrs. Owen

They actually sought £6 million.

Mr. Gilmore

If compensation is to be awarded it should be based on the actual loss incurred by the developer concerned and should also take account of a number of other factors. For example, under the terms of the Minister's amendment it would remain possible for land to be used for exempted development. As I read his amendment, that would have the effect of increasing the value of the property concerned. I do not think account should be taken of that. If I am wrong in that respect, perhaps the Minister would correct me. It is my understanding that the intention there is that, when the calculations are being done, on the one hand, it would be assumed that the value of the property would be increased by the possibility that exempted development might take place on it——

Mrs. Owen

Would Deputy Gilmore allow me make a point of order? I looked at the monitor; I do not think we are on amendment No. 8; I think we are on Deputy Gilmore's amendment further down. Might I seek clarification?

An Leas-Cheann Comhairle

We are on amendment No. 8.

Mrs. Owen

I thought Deputy Gilmore was moving his amendments to the Minister's.

An Leas-Cheann Comhairle

Can we make this quite clear because we did have botheration before. There can be one amendment only before the House. Amendment No. 8 has been moved. The House has also agreed that, in respect of the other amendments related thereto, they would all be taken together for discussion purposes. That means that, if and when any of those amendments has been disposed of, they can be formally moved if the mover of the amendment is anxious that a question should be put on any of them. Meanwhile there is one amendment before the House which entitles discussion on all the others listed.

Mrs. Owen

I am sorry; I did not understand that.

Mr. Gilmore

In a sense that was the point I was raising when I inquired whether the Minister was moving his amendment first. All of these amendments deal with the same topic, that is, the amount of any potential compensation award.

I was making the point that I did not consider exempted development should be taken into account. It is also my contention that the price paid for the property should be taken into account in assessing any potential award. Quite clearly, if somebody has acquired a property for a very small consideration, it seems unreasonable that they should ultimately receive a huge compensation award purely on the basis that the property, had it achieved its developmental potential, would have amounted to considerably more.

The Minister's amendment refers to the value of comparable land being taken into account. I should like some clarification of that. It appears to me that, if one starts taking into account the values of other properties in the immediate area——

An Leas-Cheann Comhairle

Might I ask Deputy Gilmore to report progress?

Progress reported; Committee to sit again.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.