Before inviting the Minister to comment, let me suggest that it strikes me, bearing in mind that we are on Committee Stage, that there might be an over-concentration on weaknesses, real and alleged, in the planning and other legislation and that where we should be homing in here on the whole question of compensation, maybe we are dwelling to an unnecessary extent on the weaknesses we see in respect of section 4 contraventions. We might deal more correctly with Committee Stage if we stay with compensation and deal with points that have been made very well, without the elaboration that has been given to them.
Private Members' Business. - Local Government (Planning and Development) (No. 2) Bill, 1988: Committee Stage (Resumed).
Debate resumed on amendment No. 62:
In page 17, between lines 27 and 28, to insert the following paragraph:
"2. Any development that is in material contravention of the development plan adopted under Part III of the Principal Act.".
—(Deputy Gilmore.)
Except it is very often these mechanisms that give rise to or prevent the compensation.
Maybe the mentioning of them and the weaknesses we think exist would be sufficient to make the point in respect of compensation without giving ourselves a licence to stray, as all members of all local authorities will, in respect of weaknesses that exist in other legislation.
Are you asking us to stick to the point and get on with it?
Multum in parvo, put very correctly.
We are sticking to the point. This is the point.
Maybe so. Having said that, I hope the Minister will not accuse me of trying to constrain or constrict him.
No, I will not. I say to Deputy Gilmore, and I do not mean to be hurtful in any way, that he has preached one philosophy throughout the whole of this discussion today and last week, that he does not want compensation to apply in any circumstance whatever. We had this argument and I said that in virtually every situation I do not wish compensation to apply, but I named one circumstance and that is the circumstance of down-zoning. I thought we had cleared that last week, but the Deputy is seeking to get back to the very same situation. Having been defeated on that issue last week, he is seeking by this mechanism to bring about the same result where there would be no compensation ever, in any circumstances. I do not accept that.
When development plans are being renegotiated or reviewed certainly a land owner has the right to appeal against any suggestion of rezoning his property. He gets obvious notice, advance notice, and it is published and all that goes with it, but it does not guarantee that local authority members in reviewing their development plan will react in a positive way to the wishes of the appellant. They never do. In down-zoning, the only situation where I say compensation can be paid and in very tight circumstances even in down-zoning which I have outlined previously is particularly when local authority members are deciding to down-zone deliberately a piece of ground for amenity, leisure or open space purposes. Such members might feel compelled to pursue their objective in full knowledge, but in my opinion they cannot sterilise that piece of land without paying for the privilege. The person who has ownership of that land in the circumstances of ownership that I have set out is entitled to compensation. Deputy Gilmore does not agree with that and I cannot convince him. Consequently he is not going to accept my point of view as stated now.
Once an objective has been published — this is very important — in draft in any form, then purchasing land by any speculator, developer or anybody else after that date is useless in qualifying for compensation. Whatever way the information is made known or officially signalled in the first draft, even though that draft is subsequently changed a thousand times, renders compensation impossible from that date. That is as tight as any legislative framework can go.
I also accept that local authority members are entitled to pass material changes to their own plan. I regard that as their democratic right. It was local authority members who decided on their plan in the first instance, so they are entitled to change it in the democratic way. Many material changes have taken place, particularly in the jurisdiction around this administrative area and a great many of them are simply because local authority members did not give sufficient time or had not the time to do an early review of their development plan, because this is like language, it keeps developing and there should be pretty constant reviews of their plans to accommodate what they, the local authority members, feel collectively is the right requirement for the development of their own area. Therefore, I am not condemning material changes out of hand. If I were to accept Deputy Gilmore's amendment I am virtually making it impossible to keep control on that in the local authority members' own interest.
Deputy Quinn has referred to the possibility of material contravention of the development plan being obtained by means of a section 4 process and resolution, and Deputy Nora Owen has a good understanding of this. In point of fact section 4 of the City and County Management (Amendment) Act, 1955, cannot be used to procure a material contravention. The procedure for effecting such a contravention is governed by the special provisions of section 26 (3) of the 1963 Planning Act as amended. While the procedure involves voting requirements similar to those in the section 4 process, it is still a separate procedure. Section 23 (3) provides that where section 4 purports to effect a material contravention the procedure of section 26 (3) must instead be set in train. Material change cannot be effected by the section 4 process and must be subordinated to the other section of the other Act.
It is not easy to convey the message to Members except to summarise it. I only want compensation to be available in the one circumstance of down zoning in certain special circumstances and I think the landowner is entitled to that under the Constitution.
The Minister refers to the first draft. Is that the first draft brought by the planners before the council or the first draft which goes on public view?
Anything officially published is regarded as the first draft. From that moment onwards change of ownership or whatever cannot accommodate a compensation claim. That is going to the ultimate in protection.
The council are circulated with maps even now.
The first draft is whatever is signalled to the public as the indication of what might or might not be concluded. It might be changed a hundred times before it comes to be reviewed.
Once it is circulated to councillors it is in the public domain.
Yes.
That is a form of publication.
There is a technical difficulty because it is slightly at variance with what the Minister was saying. Once it goes into the public domain by being made available to public representatives there is a process to be gone through before it goes on public display.
Yes, but once something is officially landed on a councillor's desk it is an official signal of what may be considered.
If that was the case, then it would meet my amendment No. 3. I am not sure it is the case under the Minister's amendment. As I understand the Minister's draft, it refers to a notice being published, in accordance with section 21 of the Principal Act, of the proposed development plan. That is the formal procedure which starts after the council have considered the variation. In the normal proposal to vary or to contravene a development plan the period between the making available of the proposal to the elected members of the council and its publication to the general public may be very short, but in cases where the development plan is under review the period may be very long. In Dublin County Council we have already received maps and drafts in respect of the new development plan but these have not yet been made available to the public, except perhaps through us. If it is the case that as soon as the maps and the draft statement come from the manager's office to the councillors that is the cut off point, then I am happy. I seek clarification on that point.
We will not get to a situation where we can penalise a landowner on account of something he has not seen. It is reasonable and prudent that authorities should indicate publicly what they propose doing, even if the councillors have not considered it at all. Subsequently the members may decide to go whichever way they wish in their consideration of what is proposed by the official side. The official side propose certain things and quite often they are not taken on board by the members in the review of their development plan. Once the official side have indicated publicly that they are going to do a certain thing, a stop comes to the compensation elements that would be applied thereafter by way of subsequent transfers of land or purchase. It cannot penalise the humble landowner for something he has not seen. God bless him, he has gone through a fair torment here for the past couple of weeks.
There are a few developers out there who are not so humble.
It is prudent that there should be an early indication given to the general public. That would be fair.
The Minister has given us an assurance of a particular interpretation which, if it stands up, is most welcome. Reading section 21 of the Principal Act, that would not be my interpretation, much as I would like it to be. I suggest the point might be clarified on Report Stage. I do not intend pressing the amendments in my name.
That is the way I would like it to be. My understanding is that it can apply that way. The making of the plan is a reserve function. The publication of anything connected with it in advance of that is not. Really it is a question of practice and how local authorities do their business.
The humble landowner may say he is so humble that he never talks to county councillors.
I know very few landowners around the city of Dublin who are illiterate.
Or humble.
Humility is the preserve of West of Ireland Deputies and Ministers. I think the point of view which has been expressed is adequately covered.
As a humble West of Ireland Deputy, albeit in exile——
There is no room for the Deputy.
——I think I will stay where I am. I would not fancy my chances in East Mayo. I would support the suggestion made by Deputy Quinn. It is advisable that this whole area should be looked at before Report Stage.
The interpretation of section 21 of the Principal Act, not the whole Act. The Deputy should not ask me to look at the whole Act again and resume this tortuous debate. It can only happen in the most unusual set of circumstances which I do not ever envisage subsequent to the passage of this legislation. Deputy Gilmore is dragging it out and I do not know why.
I really do not know what provoked that outburst.
I appeal to you, Deputy, not to tell us why but rather would you agree, with a certain satisfaction, not to press your amendment at this stage on the assurance given by the Minister that the point will be clarified on Report Stage in respect of section 21 of the Bill?
If I had not been interrupted, that is exactly the point I was about to make. I am prepared not to press the amendment but to wait until Report Stage.
Amendment, by leave, withdrawn.
Second Schedule, as amended, agreed to.
THIRD SCHEDULE.
I move amendment No. 63:
In page 18, paragraph 1 (b), line 13, after "Act", to insert ", an undertaking under Part VI of that Act".
This is essentially a technical amendment to make good a drafting omission. Paragraph 1 (b) of the Third Schedule, in dealing with the preservation of water capacity, mentions prospective developments covered by planning permissions or by a planning permission in principle given by notice under section 14 of the Bill. Logically, there is a third possibility here and this is development covered by an undertaking under section 57 of the 1963 Act. While this category is unlikely to be very important in practice, it is better that the drafting should cover it at this stage and therefore I recommend the amendment.
Amendment agreed to.
Amendments Nos. 65 and 66 are related to No. 64 and No. 74 is consequential. It is proposed, therefore, to take Nos. 64, 65, 66 and 74 together for discussion purposes. Is that agreed? Agreed.
I move amendment No. 64:
In page 18, paragraph 1, between lines 21 and 22, to insert the following new subparagraphs:
"(e) any existing deficiency in the road network serving the area of the proposed development, including considerations of capacity, width, alignment, or the surface or structural condition of the pavement, which would render that network, or any part of it, unsuitable to carry the increased road traffic likely to result from the development,
(f) any prospective deficiency (including the considerations specified in subparagraph (e)) in the road network serving the area of the proposed development which—
(i) Would arise because of the increased road traffic likely to result from that development and from prospective development as regards which a grant of permission under Part IV of the Principal Act, an undertaking under Part VI of that Act or a notice under section 14 exists, or
(ii) would arise because of the increased road traffic likely to result from that development and from any other prospective development or from any development objective, as indicated in the development plan, and
(iii) would render that road network, or any part of it, unsuitable to carry the increased road traffic likely to result from the proposed development.".
The purpose of the amendment is to amplify and refine the reasons relating to road capacity and road planning whereby planning permission may be refused without liability to compensation. Private development can entail significant external costs, notably in the area of impact on the public road network. It is proper that planning authorities should be able, through the refusal of planning permission, to decline, on behalf of the community, to accept these costs without liability to compensation.
Amendment No. 64 articulates the various possibilities whereby development may be considered premature by reference to the state of the road network. Essentially this amendment reiterates for roads the various considerations already set out for water and sewage services by subparagraphs (a) to (d) of paragraph 1. Amendment 65 is a more accurate reflection than the original paragraph 2 of the Schedule whereby a road lay-out is determined. An Bord Pleanála have no functions in this matter, contrary to what was provided in the 1963 Act, as amended.
Amendment No. 66 provides that, independently of any question of the pre-maturity of development vis-á-vis roads, planning permission may be refused without compensation where development would adversely affect the use of an existing national road or other major road by traffic. An example of this could be ribbon development along a major route which could diminish the rate of feasible vehicle flow along the route. This reason will be applicable whether the adverse effect on road use would come from the particular development by itself or by the precedent which it could set for similar development. Again, this provision is justified on the basis that compensation should not obtain where development would compromise the effectiveness of public expenditure on major roads.
This is a very welcome addition to the Bill. I would just seek clarification in relation to a reason for refusal of planning permission. Again, turning to the book that was circulated today, the ERU Development Control System, 1989, it states that planning permission was refused in 52 cases by a planning authority because it would create a traffic hazard. Can I take it that refusal of planning permission for egress onto a national primary road system is non-compensatable——
That is right.
——and that a traffic hazard or danger to the traffic is incorporated in the proposed new section as outlined in amendment No. 64?
That is right.
I, too, welcome this addition to the Third Schedule. It will solve some of the difficulties in refusals of planning permission. Obviously the provisions in the main Schedule regarding the capacity of water and sewage are very welcome indeed, as is the fact that compensation will not be paid if one can prove there is still capacity. I am particularly interested in subparagraph (f) (ii) of the amendment whereby a local authority might have already granted planning permissions that have not actually been implemented because the capacity on the road is already spoken for. My understanding of what the Minister is doing here is that we cannot pay compensation if we refuse planning permission on the basis of road capacity because obviously a developer could say there is capacity on the road. If that clause existed already we would not have given the planning permission that was given recently for a very large development between Swords and Malahide, because undoubtedly that road is unable to take the added burden of traffic. This provision will tighten the legislation very much. There is another claim for £2 million in the Portrane area. The reason An Bord Pleanála took out the non-compensatable clause — which the council had put in — was deficiency of road infrastructure. Unfortunately in taking out that clause, An Bord Pleanála left the way open for a compensation claim. It is good to know that that will not happen again.
Many people have forgotten, in the conversations that have gone on, about the down-zoning situation. There is a whole raft of reasons for refusal with non-compensatory clauses over and above that particular one and we are inclined to forget those. The question of roads capacity, services and so on, can also be applied. To my way of thinking, this is the tightest legislation to restrict compensation that was ever contemplated. I made the comment during the day that it was as close as one could sail to the constitutional wind and I still think I am right.
Thank God the Minister saw the light after the initial publication of the Bill.
It was a good Bill.
The present one is better.
It makes it that much more difficult to get compensation in very select circumstances but the other Bill would have made it very difficult as well. If a set of circumstances were applied all together and if somebody was clever enough to put them all together, as seems to have been the case around this town, it might have been possible to get compensation but I still do not concede the point made; I think the Bill was good enough for the job.
On the basis of what the Minister has said, there is no doubt in my mind, and I am sure in the minds of the Deputies here, that this provision tightens the legislation considerably. I presume this will apply in relation to An Bord Pleanála. The most controversial developments which have been rejected in the greater Dublin area in recent years were rejected on the basis of a deficiency in the road network. At present most of them could be turned down on the basis of the inadequacy of the road network. This is due to a lack of finance and a lack of plans for the roads. Can the Minister assure us that this provision will apply in relation to An Bord Pleanála.
These are reasons for refusal and are as applicable in the primary decision-making process as they are in the appeal process. The Deputy can be quite happy with that. They apply at both levels of activity in the planning process.
Amendment agreed to.
I move amendment No. 65:
In page 18, lines 22 to 25, to delete paragraph 2 and substitute the following:
"2. Development of the kind proposed would be premature pending the determination by the planning authority or the road authority of a road layout for the area or any part thereof.".
Amendment agreed to.
I move amendment No. 66:
In page 18, between lines 30 and 31, to insert the following paragraph:
"5. The proposed development, by itself or by the precedent which the grant of permission for it would set for other relevant development, would adversely affect the use of a national road or other major road by traffic.".
Amendment agreed to.
Ceapaim go bhfuil Uimhir 67 agus Uimhir 68 le chéile.
Those two amendments will be taken together.
I move amendment No. 67:
In page 18, paragraph 6, line 35, after "water pollution" to insert ", noise pollution".
Amendment No. 67 adds serious noise pollution to the other considerations mentioned in paragraph 6 of the Third Schedule which will count as a non-compensatable reason for refusing planning permission. Deputy Shatter asked me to include that and I am pleased to do so. I am proposing it in response to suggestions made by a number of Deputies on Second Stage.
Deputy Gilmore's amendment No. 68 would also refer to noise pollution and vibration but it brings in as well a reference to odour. Odour although not explicitly mentioned is regarded as coming within the definition of air pollution set out in section 4 of the Air Pollution Act, 1987, and paragraph 6 already covers air pollution generally so that specific reference to adour in this new paragraph is not necessary and I would ask Deputies to accept that.
I move the amendment No. 1 to amendment No. 67:
Amendment to amendment No. 67
1. In the last line after "pollution" to insert "or vibration".
—Alan Shatter.
Amendment to amendment agreed to.
Amendment No. 67, as amended, agreed to.
Amendment No. 68 not moved.
I appreciate the fact that the Minister has taken on board these amendments. Many of the changes made in the Bill are being made in response to approaches by a number of Deputies. The Fine Gael Party in particular made very strong cases for these changes. I welcome the Minister's openness and the manner in which he is dealing with these.
Amendment No. 69 not moved.
I move amendment No. 70:
In page 18, paragraph 7, line 36, to delete "comprising" and substitute "including".
Amendment agreed to.
I move amendment No. 71:
In page 19, paragraph 7, before line 1, to insert the following subparagraph:
"(v) endanger or interfere with the safety of aircraft or the safe and efficient navigation thereof,".
Air navigation requirements can be regulated by the Minister for Tourism and Transport under the Air Navigation Acts but they may also arise in practice in the context of particular planning decisions. It is consistent with the general approach of paragraph 7 of the Schedule that should planning authorities wish to refuse a planning permission in the interests of air safety, they should not be at risk of having to pay compensation. This amendment provides accordingly.
Amendment No. 77, which we will deal with shortly, allows planning conditions to be imposed without liability to compensation, to protect air safety, and I recommend that as well.
Amendment agreed to.
I move amendment No. 72:
In page 19, between lines 5 and 6, to insert the following paragraph:
"9. The proposed development would injure or interfere with a historic monument which stands registered in the Register of Historic Monuments under section 5 of the National Monuments (Amendment) Act, 1987, or which is situated in an archaeological area so registered."
Amendment agreed to.
I move amendment No. 73:
In page 19, lines 6 to 11, to delete paragraph 9 and substitute the following:
"9. The development would contravene materially a development objective indicated in the development plan for the use solely or primarily (as may be indicated in the development plan) of particular areas for particular purposes (whether residential, commercial, industrial, agricultural or otherwise).
10. Paragraph 9 shall, subject to paragraph 11, not apply in a case where a development objective for the use specified in paragraph 9 applied to the land at any time within the five years immediately prior to the date on which the relevant application was made for permission under Part IV of the Principal Act to develop the land, and the development would not have contravened materially that development objective.
11. Paragraph 10 shall not apply in a case where a person acquired his interest in the land—
(a) after the development objective referred to in paragraph 9 has come into operation, or
(b) after notice has been published, in accordance with section 21 of the Principal Act, of a proposed new development plan or of proposed variations of a development plan indicating in draft the development objective referred to in paragraph 9.
12. For the purposes of paragraph 11, the onus shall be on a person to prove all relevant facts relating to his interest in the land to the satisfaction of the planning authority.".
Amendments Nos. 1, 2 and 3 to amendment No. 73 not moved.
Amendment agreed to.
I move amendment No. 74:
In page 19, between lines 11 and 12, to insert the following paragraph:
"10. In this Schedule, each of the terms `road authority' and `national road' has the meaning assigned to it in the Local Government (Roads and Motorways) Act, 1974.".
Amendment agreed to. Amendment No. 75 not moved.
Third Schedule, as amended, agreed to.
FOURTH SCHEDULE.
I move amendment No. 76:
In page 21, paragraph 25, lines 19 and 20, to delete "air pollution or".
Amendment agreed to.
I move amendment No. 77:
In page 21, after line 20, to insert the following paragraphs:
"26. Any condition prohibiting the demolition of a habitable house.
27. Any condition relating to the filling of land.
28. Any condition in the interest of ensuring the safety of aircraft or the safe and efficient navigation thereof.".
I have already dealt with the rationale of the provisions on demolition of a habitable house and on air safety when we were speaking on amendments Nos. 2 and 71 respectively. The new paragraph No. 27 relating to land fill is in response to a suggestion made by a number of local authorities that planning conditions requiring land fill should be non-compensatable. I would respond positively to their recommendations and representations in that matter.
Amendment agreed to.
Fourth schedule, as amended, agreed to.
Title agreed to.
Bill reported with amendments.
When is it proposed to take Report Stage?
Next Tuesday, subject to the agreement between the Whips.
Report Stage ordered for Tuesday, 27 February 1990.