Vol. 398 No. 5
I move amendment No. 1:
In pages 5, between lines 2 and 3, to insert the following:
"`woodland' means an area planted, for commercial purposes, since 1922."
We discussed this matter on Committee Stage and there were extensive arguments for its inclusion in the Bill. I should like to know whether the Minister is in a position to accept this amendment.
This is a definition amendment. My recollection of Committee Stage is that there was not a very extensive debate on this issue. It is, however, an important amendment and I should like the Minister to seriously consider it. It relates to section 21 of the Bill which, like section 45 of the Principal Act, refers to four categories of trees — any tree, trees, groups of trees and woodlands. The problem is that the term "woodlands" is not defined in this Bill or in the Principal Act. I am advised that, in certain circumstances, a woodland may be confused with a group of trees and that where consent is given to fell trees which are regarded as a woodland, in some circumstances they might be regarded as a group of trees which might leave a local authority open to claims for compensation. The definition provided for in the amendment would tighten the Bill to limit the possibility of compensation in those circumstances.
The amendment states that "woodland" means an area planted, for commercial purposes, since 1922. I hope the Minister, on reflection, will agree that this is just a technical tightening up of the description in the Bill, particularly in view of people's increased awareness of their environment which the Minister shares. I am sure he would not like a good Bill to be lacking because of a simple technical amendment of this nature and I hope he will be generous in accepting it.
The 1963 Planning Act did not provide for a definition of "woodlands", although the term occurs in section 45 of that Act dealing with tree preservation orders. The absence of an express definition does not appear to have affected the operation of that section. For this reason, I do not believe that a special definition of "woodlands" is required in this Bill; I have sought the parliamentary draftsman's advice on this point and he agrees that a definition is unnecessary. I should also point out that English planning legislation; like ours, uses the term "woodlands" without according it a special definition.
In any event, I would have to regard the definition proposed in the amendment as too narrow; under it, the sole criterion for regarding an area as woodland would be the commercial purpose of the planter — and plantation would have to have occurred since 1922.
In the absence of an explicit definition, the normal rules of legal interpretation would require "woodlands" to be construed according to its ordinary dictionary meaning. The Oxford Concise Dictionary defines "woodlands" as "wooded country", or "woods", and the latter is defined as "growing trees occupying fairly densely a considerable tract of ground".
Deputy Gilmore was good enough to write to the Minister in advance about his intention in proposing this amendment. As he has again explained today, this was to give planning authorities greater protection against compensation where they refuse or attach a condition to an application for a felling consent under a tree preservation order. For reasons which I will now explain, I do not believe that providing an explicit definition of "woodlands" can significantly affect the compensation position.
Section 45 of the Planning Act, 1963, empowers planning authorities to make tree preservation orders where this is expedient in the interests of amenity. For this purpose, it distinguishes between "woodlands" on the one hand, and "a tree, trees or group of trees" on the other hand.
Restrictions imposed under a TPO on "a tree, trees or group of trees" are non-compensatable where the order declares that the trees are of special amenity value or special interest. Refusal or attaching conditions to a felling consent for woodlands under a TPO is, in principle, compensatable. The 1963 Act made only one exception from this general principle, this was where a TPO required replanting of woodlands as an essential condition in the interests of the amenity.
Section 21 of the Bill adds two further substantial non-compensatable circumstances which will apply to trees comprised in woodlands: it allows a TPO to provide, without compensation, that, as an essential condition of the order because of special amenity or special interest, a consent may require that up to 20 per cent of the trees should be preserved, and it allows a TPO, on the same basis, to provide without compensation that the felling or extraction of trees shall be phased over a period of up to 20 years. These measures strike a balance between reasonable amenity interests, on the one hand, and the requirements of commercial forestry operations on the other.
This issue arose centrally in the debate on the Local Government (Planning and Development) (Trees and Woodlands) Bill, 1987, sponsored by the Labour Party. My contribution to that debate in the Official Report of 27 May 1987, columns 3081 — 3082 advised the House of the view of the Attorney General that legislation which would amend the Planning Acts so as to abolish compensation in the event of a refusal of consent to fell woodland trees would be found unconstitutional.
I am satisfied that this Bill goes as far as possible to protect the powers of planning authorities to preserve trees without undue exposure to compensation. I do not believe that an artificially narrow definition of woodlands will resolve the constitutional issue identified by the Attorney General and, accordingly, I do not consider the amendment necessary.
If the Minister feels the amendment is too narrowly defined, would he have an objection to putting into this Bill the same definition which is in the 1963 Bill?
There is no definition in the 1963 Bill?
There is no definition but there is certainly an indication of what "woodland" means in that Bill according to what the Minister said.
Anything in that Bill applies to this legislation.
I move amendment No. 2:
In page 5, between lines 18 and 19, to insert the following:
"(3) Section 25 (8) of the Local Government (Planning and Development) Act, 1976, is hereby amended by the deletion of the words `and the matter falls to be determined by arbitration in pursuance of section 68 of the Principal Act, the following provisions shall apply:' and the substitution of`, the claim shall, in default of agreement, be determined by arbitration under the Acquisition of Land (Assessment of Compensation) Act, 1919, in the like manner in all respect as if such claim arose in relation to the compulsory acquisition of land, but subject to the proviso that the arbitrator shall have jurisdiction to make a nil award and to the following provision:',".
This is a technical amendment designed to protect the existing provision for arbitration in section 25 (8) of the Planning Act, 1976. Section 25 of the 1976 Act contains a procedure whereby a planning authority may acquire land for open space where a landowner is failing to maintain that open space in accordance with the conditions of the planning permission. Section 25 (8) provided for arbitration on the acquisition price involved in accordance with section 68 of the Planning Act, 1963 and, in turn, section 68 simply provided that compensation claims under the Planning Acts should, in default of an agreement, be dealt with under the arbitration procedures of the Acquisition of Land (Assessment of Compensation) Act, 1919.
Section 68, along with the other provisions of Part VI of the 1963 Act, is now being repealed by section 3 of this Bill. This amendment preserves the procedure of arbitration under the 1919 Act for cases under section 25 of the 1976 Act without reference to the repealed section 68. I recommend the amendment to the House.
This is an interwoven technical amendment but can I take it that its intent, where the condition of a planning permission was for a developer to maintain a certain amount of open space in, say, a residential area and he or she has manifestly failed to do so, is that the local authority can serve an acquisition notice under CPO procedure and can acquire the land without paying any compensation?
Compensation would be payable. This is an acquisition procedure and does not apply to the compensation element.
In what way does it improve the acquisition procedure?
We were inadvertently abolishing the arbitration element attached to the acquisition——
Hence, the question of constitutionality.
Amendment No. 3 in the name of Deputy Gilmore. Amendment No. 4 is an alternative and I suggest, therefore, that we discuss amendments Nos. 3 and 4 together. Is that agreed? Agreed.
I move amendment No. 3:
In page 5, between lines 18 and 19, to insert the following:
"(3) The provisions of this Act shall apply to a claim for compensation made, or which has arisen, prior to the coming into operation of this Act—
(a) where no determination has been made, as to the sum, if any, payable in respect of such claim, and/or
(b) where the claim for compensation was made after October 20th, 1988.".
We had a lengthy debate on Committee Stage on a number of amendments tabled by me and Deputy Shatter on the transition period. At the conclusion of that debate the Minister gave an undertaking to give some consideration before Report Stage to the transition period. Therefore, I had expected the Minister to put down an amendment on this issue and I am somewhat disappointed that he has not done so.
On Committee Stage I sought to include a provision in the Bill so that it would apply to compensation claims which have already been served on local authorities. I was informed that there would be a constitutional difficulty with that because it would mean applying the Bill retrospectively. I take that point.
Deputy Shatter in his amendment sought to draw a distinction between the different stages a compensation claim can be at — the stage when a claim would be made on a local authority; the stage when the court would actually decide that compensation should be paid and the final stage when the amount of the compensation would be determined presumably by arbitration.
Amendment No. 3 is a repeat of Deputy Shatter's original amendment but with the further proposal that it should also take account of claims which were made after 20 October 1988. I have proposed 20 October 1988 because it is the date on which the Bill was originally published and anybody who made a claim subsequent to that date would have been aware that new legislation was being contemplated and the position in regard to compensation claims would be different.
My motivation for dealing with this issue has been strengthened somewhat since Committee Stage. I am a member of Dún Laoghaire Borough Council and Dublin County Council. Since Committee Stage, claims totalling £20 million have been served on Dún Laoghaire Corporation, in my view, for the express purpose of the claimants getting in before the new legislation comes into effect. The first claim is for £2 million in respect of the Ibex site in Dún Laoghaire which had been zoned as industrial and was in use as an industrial site for many years. A planning application which was made for commercial and other developments on that site was refused by Dún Laoghaire Corporation. There was an appeal to An Bord Pleanála and an oral hearing was held recently. The outcome of that appeal is not yet known and the developers concerned lodged a claim with Dún Laoghaire Corporation for £2 million. Dún Laoghaire Corporation gave an undertaking to grant a certain type of planning permission for industrial purposes on that site but the claim has not to date been withdrawn.
The second claim which was in two parts related to the St. Helen's lands in Booterstown. The first claim was for £6 million in respect of a half acre reservation for a travellers' halting stop which was being made on the 71 acres site. The owners of the site felt that a travellers' halting stop would devalue the property which they intended to develop and sell for £6 million. The net result of that aspect of the claim is that Dún Laoghaire Corporation have now abandoned their intention to put a halting stop for travellers on the site. At a meeting of the borough council last Monday evening I was informed that the legal advice available to the borough manager and the advice from valuers was that while the claim was for £6 million the corporation might ultimately have to pay in the region of £500,000 compensation for that site.
The second part of the same claim was for £12 million in respect of a road reservation which is being made through the grounds. I have to confess that I have somewhat mixed feelings about this claim because I opposed the making of the road reservation in the first instance. Nevertheless this decision was arrived at democratically by the borough council and I do not think the owners of the site should claim in the order of £12 million for it.
I want to put this total claim of £12 million in context. St. Helen's lands were sold three years ago by the Christian Brothers for £6 million and resold, I understand, for around £10 million. Yet a claim for compensation has been made for three times the amount for which the land was sold originally. I believe those two claims — I am speaking of those two; I do not know whether there are others which have managed to slip in under the wire since we began debating the provisions of this Bill — were lodged at this time, one before the decision of An Bord Pleanála is known, the developer having participated in an oral hearing, the other in circumstances in which we are dealing only with outline planning permission. I believe those claims were lodged to beat the deadline in the Bill. There is a necessity to build into the Bill a provision to deal with the transition period which will endeavour as far as possible to protect the public purse against claims already in the pipeline.
I appreciate there are legal difficulties involved, particularly in regard to the application of legislation retrospectively. The amendment originally tabled by Deputy Shatter, having listened to the debate on Committee Stage, perhaps constituted a better approach than my original amendment. I was seeking to extend that somewhat in the amendment I have tabled on Report Stage.
I support Deputy Gilmore's amendment. Fine Gael, for their part, have not tabled many amendments on Report Stage because, on Committee Stage, a great number of changes were effected to the Bill which we welcomed. The Minister himself had tabled a total of 50 amendments which means the Bill has been radically changed since its publication. Like other Members of this House, we are anxious to get this Bill on the Statute Book as quickly as possible. It would be our hope that it will be passed today, sent to the Seanad and then signed by the President.
In agreeing to the Minister's request not to push this amendment on Committee Stage — he gave us an assurance that he would re-examine the position with regard to claims in the pipeline — I am very disappointed he has not devised some means of tabling an amendment to meet the very valid points being made, which are the subject of a great deal of worry. I agree with Deputy Gilmore that we are buying ourselves a load of trouble if we do not amend the Bill in this way. Already in County Dublin there are claims in the region of £18 to £20 million outstanding. I might remind the Minister that very many of these are at the initial stage — no arbitration, no talk about money, no assessment; they constitute no more than a letter notifying the local authority that a developer intends lodging a compensation claim. If the Minister does not heed our warnings what will happen is that local authorities — if the provisions of the Bill do not cater for very early stage compensation claims — will be subjected to enormous pressure to give in and allow development in order to avoid massive compensation claims calculated under the terms of the old Bill. The Minister should remember that it will be on his head that all the flak will fall. It will mean that local authorities will be pressurised into granting permission in order to avoid paying these massive compensation claims.
We have only to remember the row there was about the £2 million claim for the Bovale development between Swords and Malahide when the local authority gave in, resulting in 509 extra houses being built, along with their attendant services, people do not want that in a green belt area. That will be a common occurrence unless the Minister re-examines this amendment in order to ascertain whether there is a way round the problem. We will not be doing anybody with a valid claim out of compensation if we include them under the provisions of this Bill. We will not be doing anybody out of their right to seek valid compensation. Rather we will be ensuring that planning permission will not be given because of threats or guns being put to our heads vis-á-vis compensation.
We will be pressing this amendment, as I am sure will Deputy Gilmore. However, because of the numbers probably we will lose. We shall not leave it at that. The Minister having heard again today of our concerns might perhaps get his officials to re-examine the position ascertaining whether there is any way of inserting a provision in this Bill to ensure that all claims which have not reached assessment and-or compensation stage will be covered by its provisions. If the Minister can see his way to doing that, he will be doing local authorities, councillors and people generally a good service preventing development where it is not wanted. If the Minister cannot see his way to re-examining it now, perhaps he would do so in the Seanad.
The Labour Party support both amendments. We regret the Minister has been unable to come forward with an amendment. The conventions of this House clearly signal that, in the absence of a ministerial amendment on Report Stage after extensive debate, the prospects of success are not great. The credibility of this Bill, indeed of this House to legislate for a problem which constitutes a scandal of enormous proportions, will be damaged severely if, two years hence, massive compensation claims are paid even though, since October 1988, the House has attempted to deal with this problem in a relatively radical way subject to the amendments the Minister himself has tabled. If I cannot appeal to the Minister's good legislative sense, then I might appeal to his political acumen. I suggest that he will do himself and his party no good if, having legislation for this problem, it continues to surface.
What we are dealing with is nothing short of environmental blackmail. Effectively the entirety of Dublin city and county is being held up — in the manner described by Deputies Owen and Gilmore — to initial claims where there may not be legitimate grounds for compensation but which nevertheless have the instantaneous effect of sending frightened bureaucrats down their administrative corridors. The easiest way to avoid the problem is to give in which has been manifested in relation to the halting site at the top of St. Helen's. It is a pity the Christian Brothers did not make it a condition of their original sale that a halting site be provided. That is perhaps for another day.
I concur in Deputy Owen's sentiments. I anticipate the Minister will not be in a position to accept this amendment since he has not brought forward an amendment of his own. I suspect there is a legal opinion available to him which, despite the judgement of Deputy Shatter who is a lawyer, claims there is retrospection involved here, that a person filing a claim for compensation is entitled to expect that the rules applicable on the day of the first shot was fired will be those which will apply when the final shot is fired.
That I suspect is a legal opinion. Nonetheless the Minister has seen fit to ignore legal opinion in the past with a courage for which I must commend him. I invite him to do the same again allowing the courts decide what should be the ultimate position. It now amounts to a balancing game between the courts, ourselves and some legal advisers who, since the early seventies in relation to property rights, consistently have given extremely cautious, conservative advice to successive Ministers for the Environment.
If the Minister cannot accept this amendment this House is obliged to bring it to a vote which we will be supporting. I suspect our respective parties in the Seanad will engage in the same debate. In, say, two years' time when the women and gentlemen of the press berate us legislators for having made a mess of the Bill — notwithstanding all the debate and the numerous Bills which have been introduced — it will be clearly seen that some people have been able to make more money in an afternoon than others can make working all their lives by virtue of having been able to manipulate the law. That is not our intent. We are putting the Minister formally on notice in this House, that, if he does not see fit to accept this amendment, that will be the possible outcome. It constitutes a loophole which as far as we are concerned, should be closed.
If there is a constitutional matter involved it is one of opinion. In the final analysis, it will be for the Supreme Court to decide where the fine line is to be drawn between the constitutionality of compensation claims or at what point the sum of money to be determined or the rules applicable thereto should be altered.
This Bill is a vast improvement on its predecessor in an area in which massive amounts of compensation are likely to fall due in the greater Dublin area. I say with sadness on the basis of what we have heard already this morning and what is well known in the Department, that this may be a classic historic case of slowly, ponderously closing the stable door long after the horse has bolted.
I share the view of Deputy Owen and other speakers that there is a need to dispose of this matter as quickly as possible as this would be in the interests of all of us. I know that we are going to be facilitated in that aim today. In many ways there has been a very mature debate on this matter and the legislation has been vastly improved.
I undertook on Committee Stage to look at all aspects of the transitional arrangements involved with a view to making any possible improvements, and I should say to Deputy Quinn that it was looked on in that way. I do not have the same latitude that members of the Opposition have in this regard, but on occasions I have cast aside what was regarded as good legal advice to do what I felt was right and proper in the circumstances. It was with that attitude that I considered this matter as I said I would on Committee Stage. I would like to assure Deputies that the question was fully examined in the Department and also by the parliamentary draftsman who has not found it possible to devise any workable or worthwhile improvement of the arrangements already proposed.
These arrangements follow the general principle of section 21 of the Interpretation Act, 1937, that the repeal of a previous statute should not affect any right accrued under that statute. Given that the right to planning compensation arises from an adverse planning decision, the provision of Part VI of the 1963 Planning Act would apply to any claim arising from a planning decision made before the enactment of this Bill. The new Act will apply to all claims arising from a planning decision made after this. I should emphasise that a planning decision in this context means the final or definitive planning decision. If the decision of a planning authority is under appeal to An Bord Pleanála — and one case in particular was referred to — it is the decision of the board and the date of this decision which would be relevant for planning compensation purposes.
There is a fundamental difficulty about any attempt to legislate for retrospective application of the new compensation provisions. Any measure of this kind would not have legal force until the commencement of the new Act and pending this, persons would be entitled to submit compensation claims and have them processed under the 1963 Act. The retrospective provisions would only achieve their objects in so far as, for administrative reasons, claims could not be processed to finality before the enactment of the Bill. Clearly, this could be individious as between different claimants and would not be an equitable basis for the application or non-application of the new non-compensation provisions.
The amendments put down by Deputy Gilmore and Deputy Shatter would discriminate between planning compensation claims on the arbitrary basis of whether or not they had been processed to finality. As I said, this could permit a relatively recent claim to remain subject to the 1963 Act and disallow or compromise a claim of much longer standing merely because it had been affected by administrative delay. Deputy Gilmore's amendment would also apply absolutely to any compensation claims made after the original date of publication of the Bill, 20 October 1988. It would be possible, of course, for a person to have claimed and actually received compensation between that time and the date of this Bill's enactment, and the amendment does not make it clear how this possibility would be dealt with.
As I said, the problem with applying the new compensation provision retrospectively is that the rights under existing legislation may continue to be exercised and must be respected until this Bill's enactment. In these circumstances I cannot accept the amendments and ask that they be withdrawn and that people understand that there are good solid reasons why the Minister makes this request at this time.
Deputies Gilmore and Owen rose.
I have to remind the House that we are now on Report Stage of this Bill and Members, other than the mover of the motion who in this case is Deputy Gilmore may speak only once but the Chair will use its discretion and permit relevant questions. I observe Deputy Owen is offering and if she has a question I will facilitate her.
I appreciate the Minister has a difficulty with retrospection but our difficulty centres on the use of the word "assessed" in the Bill which states that this Bill will apply to every case other than a case where any compensation assessed will be payable by a planning authority or any other local authority. This is too loose an interpretation. My interpretation of the word is that someone has already decided what is going to be paid and means much more than a person has submitted a letter, having failed to obtain planning permission, in which they state they are going to claim compensation. If the Minister can tighten up the definition he may get around any legal and constitutional problems which may arise. He should insert a new subsection in which he defines the meaning of "assessed". Our amendment reads:
The provisions of this Act shall apply to a claim for compensation made or which has arisen prior to the coming into operation of this Act where no determination has been made as to the sum, if any, payable in respect of such claim.
That is our interpretation of the meaning of the word "assessed" and if the Minister can come up with a better definition before this Bill is dealt with in the Seanad he may get around this difficulty.
This is purely a technical matter and has nothing to do with compensation cases.
It is the kernel of the section.
It is not, it preserves the old compensation rule in relation to the way in which CPOs may have to be dealt with subsequently, and is necessary.
It must now be understood that Deputy Gilmore is about to reply to the debate on amendments Nos. 3 and 4.
The Minister compared the advantages of being in Government with those of being in Opposition when it comes to the proposing of amendments. One of the disadvantages we on these benches face is that we do not have the legal and technical advice which is available to the Minister. Therefore we have to give the amendments we put before the House our best shot.
That is no reason for not putting them down.
It will not stop us from putting them down.
That is what Oppositions are for in democracies.
It is important that we put what we are seeking to do into context. The Minister may dispute this figure but there are claims for compensation in the order of £70 million outstanding against local authorities. There is an obligation on the Oireachtas to protect the taxpayer against having to pay out sums of that order. The general public find it very difficult to understand the rationale behind paying out such compensation claims and are opposed to such payments.
The difficulty the Minister is describing here is this question of applying the new Bill retrospectively. There are a couple of points to be borne in mind in that regard. There seems to be a nervousness about the constitutional position on this and I think that, for a couple of reasons, the Minister is being overly cautious in not taking any steps to deal with the outstanding claims: first, because the constitutional issue is a debateable issue and a number of Supreme Court judges have given their opinion that the existing legislation, the 1963 Act, in so far as it tilts the balance in favour of the rights of property as against the needs of the common good, may itself be unconstitutional. I understand that in amending the legislation in this area there is a degree of sailing close to the wind but I think the Minister is being exceptionally cautious is not taking any steps in this area at all. There is a degree of latitude that he could have taken to try to protect the public purse aginst outstanding claims.
I felt that the original amendment I had on Committee Stage sought to make this Bill cover all outstanding claims and I was told that that was too crude, that it was too risky and that it would probably be found to be unconstitutional. I felt that the Minister was nibbling at the amendment that Deputy Shatter had proposed on that day. That is why I based my amendment on Report Stage on what Deputy Shatter had to say the last day when he drew the distinction between the different stages at which a claim might be made.
I understand the Minister's point that if we go down that road there are anomalies that arise between claims that have been processed quickly and those which have not been processed so quickly. Nevertheless the principal objective of the Oireachtas should be to try to protect the public against having to pay out money and, if money does have to be paid out in claims which are already in the pipeline, to try to limit, as far as possible, the amont of money that has to be paid out. Otherwise we will be in a situation where local authorities can be bullied. Dún Laoghaire Corporation was bullied, by a claim of £6 million for the travellers' halting site, into abandoning the site. That will have a serious knock-on effect for the whole programme of settling travellers not just in Dún Laoghaire but all over the country where the idea is now abroad that if a compensation claim is lodged because a halting site would devalue property and dwellings which have not even been built yet, it is creating a new precedent which is very dangerous.
I move amendment No. 4:
In page 5, between lines 18 and 19, to insert the following:
"(3) The provisions of this Act shall apply to a claim for compensation made or which has arisen prior to the coming into operation of this Act where no determination has been made as to the sum, if any, payable in respect of such claim.".
I observe that amendment No. 10 is consequential on amendment No. 5 and amendment No. 6 is related. I therefore suggest that, by agreement, we discuss amendments Nos. 5, 6 and 10 together, with separate decisions if required. Is that agreed? Agreed.
I move amendment No. 5:
In page 6, lines 4 and 5, to delete "a reduction in the value of an interest in land" and substitute "the actual loss incurred by the claimant".
Again, this is an issue which was debated at considerable length on Committee Stage. It was my understanding that further consideration was to be given before Report Stage to tightening up the way in which compensation is to be calculated. I am somewhat surprised that there is no amendment from the Minister to deal with this matter. The debate centres on how much compensation should be paid. There were two points of view. First, in deciding on compensation to be paid, account should be taken of the development potential of the property. The amended version that is included in the Bill, as opposed to the provision in the 1963 Act, would tighen it up somewhat but would still allow for the development potential of the property to be taken into account. What I am seeking is to ensure that if compensation is to be paid, the only thing that should be compensated for is actual loss. That is a principle that applies generally right across a whole range of legislation and public policy. I do not see why the compensation of property interests in this case should be treated more favourably than compensation for criminal injury or injury where actual loss is suffered by an individual.
In the course of the debate there was a great deal of talk about whether the approach I was taking was constitutional and about what would happen where a local authority would down-zone a property from, say, residential to agricultural or amenity, and there would be a loss in respect of the property as a result. Deputy Quinn raised the case of a person who inherits property and who, in order to be able to pay the inheritance tax involved, needs to develop that property but is refused planning permission and yet must pay the tax. Quite clearly if someone makes a payment of inheritance tax or of any other charge against a property, that would be taken into account in consideration of actual loss and consequently, in determining compensation.
There is a reverse side to the argument about down-zoning, that is, that if we were to allow compensation in cases where property is down-zoned, effectively we would be preventing local authorities from down-zoning property at all. I cannot imagine many local authorities running the risk of down-zoning property which might be very much in the public interest, and as a result being hit with a compensation claim. If we were to leave that provision in the Bill we might well be inviting compensation claims. Let us say that a local authority decide to zone from residential to amenity a particular plot of ground. The owner of that plot of ground might never have intended seeking planning permission for it but now finds that, with the decision of the local authority to down-zone, there is a possibility of claiming compensation. Therefore, by allowing for compensation in cases of down-zoning we might be inviting further compensation claims.
The down-zoning argument is one that does not hold up when compared with other areas of public policy. If, for example, a hospital is down-graded, the general public have no right to claim compensation if, as a result of that downgrading, they suffer a loss. I will use an example from my own constituency. The maternity unit in Loughlinstown Hospital was closed down some years ago — that was a public policy decision — and women from as far south as Gorey are told now that they should go to Holles Street hospital to have their babies. If, say, somebody suffers injury or loses a baby travelling between Loughlinstown and Holles Street in heavy traffic, that person cannot claim against the public purse for compensation even though the decision which would have given rise to the problem in the first place was a public policy decision. Still the argument is made that if beside it a property which is currently zoned residential is zoned amenity, the property owner, as a result of a public policy decision, would have a right to claim compensation. I do not think there is consistency in that argument.
I hesitate to interrupt the Deputy. I wish to give him quite a lot of latitude but I must dissuade him from making what I consider to be tantamount to a Second Reading speech on the Report Stage. I appeal for brevity and relevance in respect of the amendments we are discussing.
There are two other points I would like to raise. The first has to do with the Constitution which was argued in respect of this particular issue on Committee Stage. The Constitution is clear in relation to the rights of private property. Article 43.1.2º states:
The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.
I think that is accepted by everybody in this House. It does however, make very clear statements in relation to qualifying the rights of private property by the needs of social justice and by the exigencies of the common good. The common good is decided in the case of planning by the democratic decision of local authorities adopting their development plans. To impose the restriction we now have on local authorities, that if they down-zone property they leave themselves open to compensation claims, is undermining that process.
The final point I should like to make relates to amendment No. 6. This provision exists in other legislation where the amount of compensation payable is not limitless. There are many examples of other legislation dealing with matters, other than property, where if compensation is payable there is an upper limit paced on the amount of compensation which may be paid. That provision should also apply in the case of planning compensation. At present there is no limit whatever. I consider that a limit should be imposed.
Before the Minister replies I have a question which might facilitate all of us. Since Committee Stage and the sensitive discussions we had at that time, no doubt some of the Minister's officials have been able to quantify the net difference between actual loss incurred and reduction in value. That is a semantic point at this stage. If that information is available to the Minister perhaps he could clarify what is the difference between the two positions as put forward in the amendment.
My colleague, Deputy Shatter, addressed this section in great detail in his Second Stage contribution. I am happy to see that several of the suggestions he put forward have been accepted by the Minister. Fine Gael believe that this section has been strengthened immeasurably since then. We are satisfied with this section and the Minister's amendment.
These amendments are concerned to make the actual loss suffered by the claimant the key factor in determining the amount of planning compensation. As the Bill stands compensation is to be determined by reference to the reduction in the value of the person's interest in the land. The First Schedule makes it clear that in general the principle involved is open market value. I have already argued on Committee Stage that the notion of actual loss to a person is too relative, that it does not have the objective character of open market value and that it is not acknowledged as a principle of land valuation. The amendment, incidentally, offers no definition of the precise meaning intended for actual loss.
Deputy Gilmore made clear his view on Committee Stage that compensation must be closely related to the price which a person actually paid for the land and that if a person inherited or received a gift of the land he should not receive any compensation — although he has now slightly qualified that view this morning. He conceded in the course of the Committee Stage debate that actual loss could not reasonably be calculated by reference to the historical price paid for land, but he did not indicate how historical price should be updated, by indexation or otherwise. It seems to me that once Deputy Gilmore has agreed that we cannot entirely rely on historical land values he is accepting in some way or other the need to assess land in terms of its current value. If this is so, there might be little difference in practice between his concept of actual loss and the principle of open market value. The Fine Gael members have seen that, and that is their position as stated by Deputy Lowry.
Compensating a claim for actual loss could be unsatisfactory from another point of view. Under the Bill as it now stands, the relevant principle of valuation is what the land might have been expected to realise if sold in the open market by a willing seller before and after the planning decision. If a person, say a speculator, has paid a price in excess of this open market value in anticipation of certain gains, the Bill's rules do not allow compensation to be based on that excessive price. That is in answer to Deputy Quinn's point.
Under the amendment a speculator would be able to claim higher compensation on the basis that his actual loss relates to the excessive price he had paid in the first instance for the land. I do not believe Deputy Gilmore intends this consequence but it follows from the relative and personalised nature of the concept of actual loss. I am satisfied that the concept is not workable either practically or technically from a valuation point of view. I suggest that Deputy Gilmore, on consideration, might withdraw the amendment.
I do not want to continue the debate on this amendment. We had a long debate on Committee Stage and our respective positions are clear. We established on Committee Stage that there is a difference between the two concepts. I hope that the differences are not as great as I fear, but only time will tell. I am thinking, for example, of the St. Helen's case — to which I have already referred — where, as I understand it, under the existing Bill the reduction in value would be calculated between the antecedent and the subsequent value at the time the planning decision was made and that it would be open to the owners of the St. Helen's land to claim that as a result of the local authority or An Bord Pleanála putting a condition into their planning permission that there be a travellers' halting site located on the lands, under the present Bill it would still be open to that developer to claim that that reduced the value of the property. The distinction is where they would be able to say that at the time the decision was made the antecedent value would be X because that is what we would expect to get from the disposal of the property with planning permission. The subsequent value, because of the loss in value as a result of the halting site, would be so much less even though in that case the amount being claimed is out of proportion to the amount which was actually paid for the property and to any loss which would be suffered by the property owner in that case.
I do not want to prolong the debate because we had a long debate on Committee Stage. There is a difference of opinion and I hope that the differences we identified do not prove to be as costly as I fear they may be.
Is the amendment withdrawn?
No.
Amendment No. 6 was related.
I wish the amendment to be put formally. I move amendment No. 6:
In page 6, between lines 15 and 16, to insert the following:
"(d) the proviso that, notwithstanding any other provision of this Act, the amount of compensation payable shall not exceed the financial loss which is incurred by the claimant, and which is attributable to the decision.".
Amendment No. 7 in the name of the Minister. Amendment No. 8 is an alternative, in the name of Deputy Gilmore. I suggest, therefore, that we discuss amendments Nos. 7 and 8 together.
I move amendment No. 7:
In page 10, to delete lines 26 to 31 and substitute the following:
"(3) A notice under subsection (1) shall continue in force for a period of five years commencing on the day of service of the notice unless before the expiration of that period—
(a) the notice is withdrawn by the planning authority, or
(b) a permission is granted under Part IV of the Principal Act to develop the land to which the notice relates in a manner consistent with the other development specified in the notice, subject to no conditions or to conditions of a class or description set out in the Fourth Schedule, or
(c) the notice is annulled by virtue of subsection (5).
(4) Compensation shall not be payable on a claim made under section 11 where—
(a) a notice under subsection (1) is in force in relation to that claim, or
(b) a notice under subsection (1) was in force in relation to that claim but has ceased to be in force by reason of the expiration of the period mentioned in subsection (3) and an application for permission under Part IV of the Principal Act to develop the land to which the notice relates in a manner consistent with the other development specified in the notice has not been made within the said period, or
(c) a notice under subsection (1) was in force in relation to the claim but has ceased to be in force by virtue of paragraph (b) of subsection (3).".
Both amendments place a five year time limit on the "life" of a notice served by a planning authority under section 13. My amendment No. 7 also provides that where a person on whom a notice was served does not apply for permission for development in accordance with the terms of the notice within the five years, he will not be entitled to compensation when that period has expired. I think that is an improvement on what was suggested on Committee Stage and I am taking that on board.
Deputy Gilmore proposed on Committee Stage that a five year limit should be put on section 13 notices. I indicated then that I saw some merit in this proposal, and undertook to examine it before Report Stage. Amendment No. 7 has been brought forward in response to that.
The Minister has made my day and made me feel that my election to this Assembly was worth while when it can have such an impact on legislation. I thank the Minister for taking on board the amendment I made on Committee Stage. I wish to withdraw amendment No. 8.
Everything said on Committee Stage and Second Stage is taken on board by the Minister in the argument subsequently. If it improves the legislation it should be accepted.
Amendment No. 9 in the names of Deputies Gilmore, Quinn and Shatter. The amendment arises out of Committee proceedings.
I move amendment No. 9:
In page 15, to delete lines 12 to 18 and substitute the following:
"(3) (a) The owner or occupier 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:
(i) that he applies to that authority in the prescribed form and receives permission to do so;
(ii) that he pays the contribution required by that authority for making such a connection; and
(iii) that he complies with the regulations of that authority in respect of the mode in which the connection between such drains and sewers are to be made and with the directions of any person who may be appointed by the authority for the supervision or inspection of the work.
(b) 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 developoment plan made in accordance with Part III of the Local Government (Planning and Development) Act, 1963.”.
We had a brief discussion on this on Committee Stage and it is quite technical. The amendment tabled in the names of myself and Deputies Quinn and Shatter was originally recommended by the Irish Planning Institute in their submission on the Bill. They consider it strange to withdraw a statutory entitlement under the sanitary services legislation without repealing the relevant section of that legislation. They consider their proposal in their report to be superior to the drafting that is in the Minister's amendment and they suggested that the form of words which I have proposed should replace lines 12 to 18. In relation to structures they raise the question whether the reference in the section to "any structure" refers to structures which have already been built or to proposed structures. posed structures.
The Minister said on Committee Stage that there really was nothing between the two forms of wording in practice except in relation to the provision that charges could be made for connecting to a sewer, and he felt that was provided for already under the 1983 Financial Provisions Act and could be dealt with by way of the development levy. I have put the amendment down again in order to give it another airing, because the discussion on Committee Stage was quite brief. I would like to hear the Minister's clarification on the couple of questions I have raised.
This area over the years has been fraught with difficulties where local authorities plan their drainage systems with a development in mind that might be phased over five or ten years, and then find they are being forced into allowing connections into such drains just because the drain ran over people's land. The Minister knows this came to a head under the Nora Shortt case where a major pipe was supplied by Dublin County Council to service the Tallaght area and it happened to run over her land. She applied for planning permission, which was refused. She put in a claim and on the basis that she could validly show that she could make a connection and there was capacity in this pipe, she was entitled to either permission for development or compensation. It resulted in the local authority paying a very high sum of money, anything from £50,000 to £100,000 an acre, for land for amenity purposes just because there was a pipe on it. There are other instances of pipes going on to people's land. In my constituency a pipe was extended, in the Kinsealy-Feltrim scheme, on to lands in the neighbouring area.
The fear always is that once the provision in the 1963 Act is there allowing people the right to connect in, local authorities' development plans might as well be shredded and thrown away because in reality planning was being done by drainage and the pipe network where the development was to go rather than through any other consideration. Like Deputy Gilmore, I feel what we are doing in our amendment is probably covered in different words under the Minister's own section 25 (5) and under the Third Schedule. Here I feel we must strike home. If a local authority with taxpayers' money provide drainage to take into account the development to be carried out that drainage is sacrosanct until the development is carried out. If and when at the end of that there is still found to be capacity, it is up to the local council to decide whether they want to zone land to take into account spare capacity. A local authority must have the right to strike a development plan and decide where they want the development to go. If in the course of deciding that, because they cannot put sewerage pipes through the air, they decide the pipes must go through somebody's land, I am very pleased that in this Bill now there will no longer be the possibility of claiming massive compensation. That is what has been happening. It was an intrinsic part of the Bovale £2 million compensation claim. There is still capacity in the Swords treatment plant for that development, and it was not possible for local authorities to say there was not. An Bord Pleanála accepted that, and for that reason refused permission without this crucial non-compensatable claim. I will wait to hear the Minister and if he satisfies me that the Bill already covers everything we have in our amendment, I will act accordingly.
As Deputy Gilmore has said, this amendment is the product of a professional input made available to all Members of this House and, I presume, to the Department. On previous occasions we observed that unless local authorities have the steps explicitly set out for them they seem to lose courage and fall by the wayside. I respectfully suggest to the Minister that the amendment in our names seeks to elaborate the section. Subsection (3) of section 25 states:
...in whose functional area the premises is situated except with the consent of the sanitary authority, which may be given subject to such conditions as the sanitary authority consider reasonable.
Getting a sanitary authority to formulate conditions they consider reasonable can in some cases be a very difficult task which, upon completion, may merit a Nobel Prize. We are suggesting the steps that need to be taken and they are based on the experience of planners. We are suggesting that those steps should be taken so that a local authority will be able to say "No" to an applicant. Those steps are clearly set out in our amendment. We are suggesting that an applicant apply to an authority in the prescribed form and receive permission to do so, that he pays the contribution required by that authority for making such a connection and that he complies with the regulations of that authority in respect of the mode in which the connection between such drains and sewers are to be made.
Our amendment also states that 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 1963 Act. We have set out the conditions for some local authorities who may lose heart after they are threatened by some form of compensation claim. I respectfully suggest to the Minister that this is not a partisan amendment. It has come from a professional source and I should like to encourage him to take it on board.
This amendment would replace subsection (3) of section 25, dealing with connection to sanitary authority sewers, but would leave the remainder of that section unaltered. Subsection (3) as it stands already provides that there will not be an entitlement to connect to a sanitary authority's sewer without the authority's consent, and that this consent may be given subject to such conditions as the sanitary authority consider reasonable. Accordingly, I do not believe that paragraphs (a) (i) and (iii) in the Deputy's amendment add to what is already in subsection (3).
Paragraph (a) (ii) of the amended subsection proposed by the Deputies relates to the making of a contribution to the sanitary authority by the person making the connection. I have already explained on Committee Stage that I was not concerned in this Bill to effect a fundamental overhaul of public health and sanitary services legislation. We are principally dealing here with the land use regulation aspect. In accordance with the Report of the Joint Committee on Building Land, section 25 is designed to prevent developers evading normal planning controls through the use of earlier rights laid down in sanitary services legislation.
Against this background, I believe that this issue of charging would more appropriately be dealt with under existing powers to require contributions from developers or otherwise, and I do not consider it appropriate to include this kind of provision here.
Subsection (3) (b) in the Deputy's amendment appears essentially to repeat what is in subsection (8) of section 25 but does not attempt to clarify the intended linkage with that provision. Accordingly I could not accept that there is a need for the proposed clause. All in all, therefore, I cannot see that the Deputy's amendment would improve on the existing subsection (3) and I would ask that it be withdrawn. I should like to tell Deputy Owen that the concerns she has expressed are covered by section 25 as it stands. Deputy Quinn asked about setting out the catechism for local authorities and I should like to tell him that I will cover that in the guidelines that will follow the passing of the Bill.
Will the Minister explain the word "reasonable"? Is it "reasonable" to the local authority, to the applicant or to An Bord Pleanála? The matter is left hanging.
I would have to say "reasonable" to the local authority in the first instance.
From what the Minister has said it appears that what we sought in the amendment is covered in the Bill. I am satisfied to withdraw the amendment.
I am satisfied to withdraw it also.
I move amendment No. 11:
In page 18, to delete lines 1 to 4.
We had a long debate on Committee Stage on the First Schedule and, inevitably, in the course of that debate some aspects of the provisions in that Schedule were dealt with in great detail. I have received professional advice on the amendment to the effect that the subsection should be deleted. The subsection states:
(a) it shall be assumed, subject to sub-rule (2), that, after the refusal, permission under Part IV of the Principal Act would not be granted for any development of a kind specified in section 13 (2),
It is felt that the rules as drafted could give rise to a planning application being so constructed as to make it difficult to refuse planning permission on non-compensatable grounds and to use a refusal of permission as the basis for a compensation claim based on a scale of development permission which could have been refused for non-compensatable reasons. What is behind that is the Owenabue case in which an application was made for three houses on 30 acres of land and the claim for compensation was based on the development potential of the land at normal density which in that case was ten to the acre. The view is that that rule in the First Schedule could give rise to an application initially being for a low density of housing and if permission is refused for the low density the claim for compensation being based on the maximum potential density for that property.
Rule 4 (1) (a) of the First Schedule, which the Deputy's amendment would delete, simply provides that in calculating the value of land after the adverse planning decision, the property arbitrator must assume that planning permission would not be forthcoming for any further gainful development of the land. The logic behind this provision is that if this kind of gainful development was possible or could attract planning permission, then the planning authority would have stated this in the form of a section 13 notice. Where they have not issued such a notice in response to a compensation claim, or where they have subsequently drawn back from the notice by refusing a planning application brought within its ambit, it will be assumed that no further gainful development of the land is possible.
I am satisfied that the valuation rules in the First Schedule will ensure a more realistic and conservative estimate of land value reduction than the 1963 Act. I do not see any basis for the suggestion that Rule 4 (1) (a) could facilitate higher compensation claims than would otherwise be possible, and I am unable to accept the Deputy's amendment.
If the local authority simply neglect to serve a section 13 notice, is it open to the developer to claim compensation in the way I described? In other words, would this rule leave the local authority exposed to compensation if, by mistake, they did not serve a section 13 notice? I understand that serving such a notice is the method by which a local authority, when they see a compensation claim looming before them, can head it off. As I understand what the Minister said, instead of the local authority using their discretion in relation to serving a section 13 notice, a virtual obligation is being put on them to serve these notices to prevent, not the compensation claim which they anticipate, but a potential further compensation claim which might be based on something different from that for which planning permission was sought in the first place.
The short answer is "no". Of course it would be unwise for the locall authority to neglect the option open to them. The only reason they would serve a section 13 notice is that they felt there was no gainful development available from the property. For that reason, it does not arise.
If a section 13 notice is not served, the arbitrator, in making a decision about compensation, would have to take into account that the local authority did not think there was a beneficial value on this land——
He would be making the same assumption. Deputy Owen understands that perfectly.
I am a bit slower than Deputy Owen and I want to tease this out a bit more.
I will allow the Deputy to ask a specific question.
In the Owenabue case, which I quoted earlier, an application was made for three houses on 30 acres. Presumably, if the planning authority were serving a section 13 notice it would be in response to that application, not in response to the possibility that housing development of a higher density might be possible on that land. I do not know if I am making myself clear.
That is a different case because it referred to density of housing.
Does the Deputy wish to clarify a point?
I think he understands.
Amendment No. 12 arises from Committee Stage proceedings and amendment No. 13 is related. Is it agreed that amendments No. 12 and 13 be taken together? Agreed.
I move amendment No. 12:
In page 18, between lines 39 and 40, to insert the following:
"2. Any development that is in material contravention of the development plan adopted under Part III of the Principal Act.".
We had a fairly lengthy debate on this issue on Committee Stage and it was agreed then that we would return to it on Report Stage. The amendment relates to developments which would be in material contravention of the development plan adopted by the local authority. In this case we are dealing with the Second Schedule which involves developments in respect of which a refusal of permission will not attract compensation. There is a general view among planners, members of the local authorities and the public, that compensation should not be paid in cases where the refusal of planning permission was because it would be in material contravention of the development plan. The reason for that is to protect the development plan.
In Dublin county, where Deputy Owen and I are members of the local authority, there have been over 100 cases since the 1985 local elections where planning permissions were sought and granted in material contravention of the development plan. This amendment seeks to ensure that where a local authority refuse planning permission because it is in material contravention of the development plan, it will not attract compensation. That is to protect the integrity and importance of the development plan.
Amendment No. 13 deals with the section in the Bill which imposes a five year cut-off point within which refusals, because they are in contravention of the development plan, would not apply. Obviously, amendment No. 13 will fall if amendment No. 12 is unsuccessful.
The combined effect of these amendments would be to establish the principle that all contraventions of the development plan should absolutely exclude compensation. This suggestion was considered and effectively rejected on Committee Stage.
The Third Schedule, as amended on Committee Stage, already provides that compensation is not payable where permission is refused because the development would materially contravene the zoning objectives of the development plan. It makes only limited exception to this rule — where land has been "down-zoned" from development to nondevelopment zoning.
These provisions give appropriate weight to the zoning objectives of the development plan while providing safeguards for persons who might, bona fide, be adversely affected by down-zoning. Deputy Gilmore's amendments lack this safeguard already agreed by us on Committee Stage and I could not accept them.
To deal with this matter in more detail, paragraph 11 of the Third Schedule establishes the general rule that refusal of permission for development which would contravene a current zoning objective of the development plan will be non-compensatable. This is a very substantial and comprehensive defence for planning authorities against compensation claims.
However, the absolute application of this rule could have created a situation where planning authorities could, in theory at least, arbitrarily change the zoning of land without any regard to the financial implications for landowners who might have made a recent investment on the basis of a different zoning. While I did not believe that planning authorities would wish to bring about such unjust results, I felt that the legislation should not leave open the possibility of these consequences. For this reason, my Committee Stage amendment built in the safeguard that compensation will not be excluded on zoning grounds where the land had a zoning in the previous five years with which the development proposal would have been compatible and where the person claiming compensation acquired his interest in the land before the new restrictive zoning came into operation or was formally notified in draft.
I believe that the limited safeguard afforded by paragraph 12 is both necessary and reasonable, and that it must be seen in the context of the substantial limitation on compensation which paragraph 11 will bring about. For this reason, as I have said, I cannot accept Deputy Gilmore's amendment. I had hoped after the Committee Stage debate, which was exhaustive and on which there was general consensus, that Deputy Gilmore might withdraw his amendment and I hope he will do so now.
We had a very exhaustive debate on these two amendments on Committee Stage. I have a certain sympathy with Deputy Gilmore's amendment in so far as he is trying to get at, if I could be so bold as to suggest it, the abuse of a material contravention, which is where the problem lies, rather than the use of it. I do not believe the Bill should be so restrictive that it would not allow at times a valid material contravention which very often is the best way to plan a particular development; for example, someone may want to get a package deal on a particular bit of land without necessarily bringing in the acres of lands surrounding it. I am thinking of a particular case in North County Dublin that we dealt with in the past 24 hours where the Motorola factory are seeking planning permission for a development but there is not an industrial zoned site large enough to allow for such development. We are prepared to consider a material contravention which will enable that desirable development to go ahead without making any changes to the surrounding land. That is a good way of using a material contravention and I would not like any Bill to prevent it.
The Minister should look again at the main planning Act under which section 4 appeals are dealt. This issue has been raised time and again in this House. We have to try to stamp out the abuse of section 4 appeals. When such appeals are tabled a manager has no choice, if it is a material contravention, but to commence the procedures even before councillors are given a chance to decide whether they want it to proceed as a material contravention. The law says that once a material contravention is tabled the manager has to put an advertisement in the newpapers. Perhaps the Minister will take on board the proposals in this amendment so that we can get rid of some of the abuses which have given rise to much heated debate both in the media and in council chambers throughout the country.
I agree with Deputy Owen that there is a need to deal with the abuse of section 4 appeals and the abuse of material contravention motions. In reply to a Dáil question during the course of the past week the Minister said that this matter is being considered by the committee or committees the Government have established——
Plural, Deputy.
——to re-examine local government.
This amendment deals with the problem in the context of compensation. Many pressures are put on local authority members when a planning application comes in which is a material contravention of a development plan. This amendment seeks to at least remove the possibility that a decision to refuse planning permission which is material contravention of a development plan could subsequently attract compensation.
As the Minister rightly said, we have been over the argument about down zoning a number of times. The nub of this amendment is as follows. The manner in which public and elected representatives can control and influence the way in which their environment and community are planned is through the making of a development plan. A local authority might want to set many objectives in a development plan, that is the democratically elected representatives of the people deciding — if we can get back to the constitutional issue which has dominated the whole debate on this Bill so far — what is in the common good. If a local authority refuse permission because of a provision in a development plan I do not think that should subsequently attract compensation. That is really what this amendment is about. The Minister has made his view on this issue known, we were over it on Committee Stage, and we should dispose of it at this stage.
Amendment No. 14. Amendment No. 15 is an alternative and I suggest, therefore, that we debate amendments Nos. 14 and 15 together. Is that agreed? Agreed.
I move amendment No. 14:
In page 21, to delete lines 24 to 28 and substitute the following:
"(b) after notice has been published
(i) in accordance with section 21 of the Principal Act, of a proposed new development plan or of proposed variations of a development plan, or
(ii) in accordance with section 21A of the Principal Act, of a material alteration of the draft concerned,
indicating in draft the developments objective referred to in paragraph 11.".
Does Deputy Gilmore wish to make a point before I speak?
It is the Minister's amendment.
I thought the Deputy might want to make a point first as he is associated with these amendments.
No.
The issues dealt with in these amendments were discussed on Committee Stage and I gave an undertaking then that the matter would be examined further. As a result of my examination I am proposing amendment No. 14 which will clarify the position as regards further amendments of a draft development plan or draft variations published in accordance with section 21A as distinct from section 21 of the 1963 Act. The effect of this amendment will be to preclude the payment of compensation also where land is purchased after notice of a material alteration of a draft plan or draft variation indicates the restrictive development objective. This change will add greater precision to paragraph 13.
Deputy Gilmore's amendment has a different purpose. It seeks to go behind the publication of draft development plans or draft variations to the earlier and less formal stage of the evolution of the development objective. The difficulty with this approach is that, unlike my amendment, it does not relate to the formal mechanism for publishing new development objectives. In fact, it is likely that at the stage of earlier consideration referred to in Deputy Gilmore's amendment a number of possibilities for new development objectives would be under contemplation by the planning authority. If a planning authority are particularly concerned to avoid possible advance public disclosure of a new zoning objective it is surely open to them to organise that this is published formally from the beginning of the review process and that any subsequent changes are handled through the use of section 21A of the 1963 Act.
Sections 21 and 21A of the 1963 Act set out the procedure for communicating draft plans or variations on them to the public. When a draft development plan or proposed variation has been prepared by the planning authority they must publish notice of that fact. It is only at this point that a clear picture of the planning authorities purposes is intended to become available and, of necessity, paragraph 13 (b) has to be based on this statutory procedure. This is why I cannot accept Deputy Gilmore's amendment.
The Minister has adequately summarised the difference between our respective positions about which there was some confusion on Committee Stage. We are dealing with the Third Schedule and the reasons for refusal of permission which exclude compensation. Here we are dealing specifically with that aspect pertaining to the provisions in a development plan. There is a specific reason we should relate this to the point at which the review of the development plan commences, that is, that the period from the commencement of the review of the development plan to the time, under section 21, when the draft development plan is published and under section 21 (a), when the draft development plan is notified to various authorities which may stretch over many years.
The Minister has given the impression that within that period — there is a great deal of uncertainty, it is almost as if it is all up in the air — there are no proposals or whatever. The reality is that, from the point at which the review of the development plan commences, it is quite clear what are likely to be its broad parameters. For example, maps are available. If the local authority planning manager has particular proposals in relation to the zoning of an area, those are available on maps. Members of local authorities can and do communicate with their constituents and others who might have an interest in the likely zoning of areas. Within that period, from the commencement of the review of the development plan to the point at which the draft plan is published, there is scope for a great deal of property speculation, some of which may be engaged in anticipation of possible zoning changes and so on.
It would be a much safer provision if the cut-off point were stipulated to be the point at which the review takes place. Up to that point everybody knows they are operating under the existing development plan with which they are familiar. Once the review process commences the likely shape of the new plan begins to unfold. The stage at which the draft plan is published and circulated is a formal one; at that stage 95 per cent of the work on revising the development plan will have been done.
The point at which the cut-off occurs should be that at which the review actually commences.
We endeavoured to tease out this matter on Committee Stage principally because, from experience, we all know that development plans do stretch over a considerable period of time; one does not announce that one is undertaking a development plan and then have it adopted over two or three local authority meetings. In larger local authorities its adoption can take up to three or four years.
I disagree with Deputy Gilmore if his contention is that because somebody may speculate in property they will be able to lodge a compensation claim later to the effect that they had bought the land which had been zoned for a certain purpose which was subsequently changed.
I want to ensure that the provisions of this Bill preclude somebody from lodging a compensation claim in respect of land he might have acquired during that long drawn out process. It may have been land somebody will have bought on the basis of more than a rumour that its zoning would be changed, say, for industrial purposes. The individual may have purchased that land paying an industrial price, in my view foolishly, thinking that, at the end of the day, it may be rezoned. It will be only at the final adoption of the plan that its zoning will be confirmed.
I want to ensure that somebody who engages in speculation in that long drawn out period cannot make a case — at the final adoption of the development plan — that there had been a reasonable expectation that it would be rezoned because the manager had so proposed, contending that he, the speculator, had got himself caught by purchasing that land in that interim period. That is where my concern lies.
Already maps will be available, any suggestions for rezoning will already be publicly known before formal press publication that the draft development plan is to be displayed. I want to be sure that the Minister is clearly telling the House that this type of speculation in which somebody might engage within the two or three years it takes to put a development plan on display will not leave them eligible far compensation; such a speculator might just as easily be caught by buying land in the hope of its being rezoned.
Can the Minister assure the House that there is a safeguard against somebody lodging a compensation claim, having bought land on the basis that its zoning would be changed which in the end is not changed? Deputy Gilmore appears to want to ensure that, in this interim period——
Speculation in up-zoning carries no possibility of compensation. The only compensation that will arise under the new Bill will be in respect of down-zoning.
Equally a speculator who may buy land on the basis that it will be down-zoned will have no guarantee, cannot lodge a claim for compensation, if it is not subsequently down-zoned.
He takes his chances.
Therefore nobody can lodge a claim for compensation if they find themselves caught?
If it is not down-zoned the value is reduced.
This is a clear indication to local authorities that, at a very early date, they should give an indicaton of the review of their plans because once they have done so, nothing can happen, no speculation can subsequently ensue. It might take a long time to carry out that review as the Deputy says, but that does not matter to them vis-à-vis any subsequent compensation claims.
Acceptance of that amendment means that amendment No. 15 falls.
Amendment No. 16 is out of order.
We have had a very reasonable debate here. Perhaps, Sir, you would allow me to read this amendment into the record:
In page 23, between lines 37 and 38, to insert the following:
"24. Any condition prohibiting, restricting or controlling development on land designated by a local authority for the settlement of travelling people.".
It is important that we be given an opportunity to ask the Minister to deal with this during the passage of the Bill through the Seanad. I respect the decision to rule the amendment out of order. This could not have arisen on Committee Stage because this issue had not then raised its ugly head. I would appeal to the Minister to introduce an amendment to cover this issue in the Seanad. As Deputy Gilmore said earlier, local authorities are now afforded no latitude in deciding a development strategy for travellers. I hope the Minister will give the House an assurance that he will rectify or eliminate this anomaly.
I have to allow some latitude to other Deputies.
I support Deputy Owen's request.
We are stretching your patience——
You certainly are.
——but since it is likely you will also rule amendment No. 18 on the same subject out of order let me say that I agree with Deputy Owen for the reasons I mentioned earlier in the debate.
In respect of amendment No. 17 recommittal is necessary as it does not arise out of the Committee Stage proceedings.
I move amendment No. 17:
In page 23, after line 47, to insert the following:
"29. Any condition determining the sequence in which works shall be carried out or specifying a period within which works shall be completed.
30. Any condition restricting the occupation of any structure included in a development until the completion of other works included in the development or until any other specified condition is complied with or until the planning authority consents to such occupation.".
This is a provision rarely used but which is provided for under Standing Orders. I thank the House for agreeing to recommit the Bill in respect of this amendment. In reviewing the Bill following Committee Stage we felt it appropriate to put beyond any doubt that a number of further important matters for which planning conditions may provide should be protected from the possibility of compensation.
I want to add to the list and this may be important. These further matters are (1) the sequence in which works should be carried out, (2) the period within which works should be completed and (3) restrictions on the occupation of structures until other works are completed, other conditions are complied with or the planning authority otherwise consent to the occupation. These matters could be particularly important in securing proper completion of housing estates and it would not be resonable in any possible circumstances that a claim for planning compensation would arise from them.
In summing up I should point out that this is the first time I have been in the House for all stages of a Bill. Never having been a Minister or a Front Bench spokesperson this has been a great experience.
It is important to note that this Bill is long overdue and all of us must accept blame for this. The Minister has acknowledged that when the Bill was first published in October 1988 it was very flawed. Deputy Shatter in his Second Stage contribution indicated that the Bill needed to be radically changed. Many amendments were tabled, including 50 ministerial amendments on Committee Stage. This has to be a record. I have no doubt that this will go into The Guinness Book of Records as the greatest number of amendments made by a Minister to a Bill introduced by him. However, we must commend him for taking on board all the points made here and because of this we have a good Bill which will tackle the problems dealing with compensation that have arisen over the years.
I appeal to the Minister to introduce this Bill in the Seanad as quickly as possible. I wish to remind him that we will look to him for a guarantee that outstanding claims, a problem we raised earlier, will not become a big stick to beat us with, and that he will take on board my suggestion that he bring forward an amendment in the Seanad to allow local authorities to keep the powers they have to settle travellers. In conclusion, I thank the Minister for his co-operation.
I commend the Minister for the way in which he has put this Bill through the House. However, the problem is much older than this attempt at resolving it. Members on this side, including myself, are of the view that because of present constraints more than the lack of political will, and I refer specifically to the Interpretation Act of 1937, the problems to which Deputy Gilmore referred in great detail will not go away. It is a sad reflection on this House that a problem first identified in the sixties — which resulted in the establishment of the Kenny committee by the Minister's much respected colleague, the Minister for Energy, Deputy Molloy, as far back as the early seventies and who was barely long enough in office to receive its report — is only now being resolved.
During the period since then eight Ministers have attempted to deal with this problem and it is to the credit of this Minister that he has brought those efforts to fruition. As legislators we should be aware that large sections of suburban Dublin and other parts of the country have been forcibly built, developed and distorted not in accordance with the wishes of the planners and local representatives or with proper or sensitive planning, which has resulted in many people who were not entitled to it, making vast sums of money at the expense of the community. We are slowly but surely dealing with this problem but in doing so we should recognise that we have responded with too little far too late in the day, that the problems of compensation and compulsory acquisition in relation to areas not subject to planning permission remain to be dealt with and that in relation to a recent major announcement by the Minister on urban redevelopment and designation, the problem of outrageous property values that bear no relation to real market conditions or existing use value remains with us and will continue to haunt us unless we do something effective about it.
It has already been indicated that this Bill is long overdue and that the problem of planning compensation has been around for a very long time but it is worth remembering that during the years when many people, including journalists, the general public and members of local authorities, raised the issue of planning compensation in general, two answers were given. The first was that one could not do anything about planning compensation as it would be unconstitutional. I recall a number of prominent members of Dublin County Council telling me during a debate on a motion on this issue about four years ago that nothing could be done because it would be unconstitutional and one could not restrict the rights of private property by abolishing or limiting the right to planning compensation.
We now know that that is not the case. This debate has focused public attention on what is contained in the Constitution rather than on what people think is contained in the Constitution. It is unfortunate that successive Governments have read the Constitution in such a way that they believed it conferred an unrestricted right and did not see the qualifications in relation to social justice and the needs of the common good contained in it.
The second excuse given by successive Governments for not dealing with this issue is that it is too complex. It is fair to say that it is probably one of the most complex pieces of legislation to have been dealt with here in a long time. Nevertheless, it has been dealt with although we have, at various stages, had some difficulty because of its complexities, and it does improve the position with regard to planning compensation.
Before we lose the run of ourselves, however, we should bear in mind that this Bill will not solve the problem of planning compensation. It limits but does not abolish compensation for refusal of planning permission or for conditions attaching to planning permission. It does not deal with the outstanding claims, and there are something like £70 million in claims outstanding against the taxpayer on planning compensation issues. Like other speakers I had hoped the Minister would address this before Report Stage. I hope he addresses it in the Seanad.
I am not entirely happy with the way planning compensation is to be calculated. The Minister has certainly given a number of assurances that his position and mine are not radically different. I hope he is right. I am making an act of hope rather than an act of faith in this Bill.
A bit of charity too.
I hope it will deal with the problem of compensation being awarded and of local authorities literally being blackmailed into granting planning permissions and giving undertakings to grant planning permissions when faced with large compensation claims. At the back of my mind, however, is a worry that the defects that are still in the Bill will leave local authorities open to substantial claims and that it may still be necessary for a future Minister to deal more effectively with the issue of planning compensation.
I would like to say a few words on this legislation before it goes to the Seanad. I want to thank the Deputies for their co-operation in what was a long debate on the passage of this legislation through the Dáil. We have had a worthwhile and substantial debate on the many important issues raised. This has demonstrably contributed to the Bill's improvement as is borne out by the extensive number of amendments we made to it. I would have thought Deputy Gilmore could be a little bit more generous to the Minister in view of the generous way I responded to so many of the points made both on Second Stage and on Committee Stage.
The Minister will have to settle for hope.
Other points made on Committee Stage were adequately responded to by me and were shown to be flawed. However, Deputy Gilmore will learn more generosity as life progresses.
The Bill establishes a stronger community bias within our planning system, as it is intended to do, to enable planning authorities to deal with the vast majority of planning cases free from any threat of compensation and to act more resolutely in the public interest. At the same time limited and necessary provision for planning compensation is being retained for cases where a property owner is required to accept an exceptional degree of restraint on his development rights in the common interest. I would have hoped, after the discussion that took place here, that that principle would have been agreed by all, it seems still not to be accepted by Deputy Gilmore. It was never intended to remove compensation from every case. That would be unfair, unjust and unconstitutional and Deputy Gilmore should, even at this stage, recognise that. We had long discussions about the down-zoning and people who have rights in property and that it would not have been appropriate to pursue the matter in the way Deputy Gilmore tried to do. He has his point of view, however, and in a democracy he is entitled to it.
I lost.
It is wrong and he knows it. He need not be distressed about the question of compensation. I think his contribution today was much more conciliatory and understanding than it was on Committee Stage. Obviously he has recognised that there is a point to what the Minister is seeking to have incorporated in the Bill.
Apart from that, his contribution and those of Deputies Quinn, Shatter and Owen were welcome and have added significantly to improving the Bill. I have recognised that and have adjusted the Bill where I could to accommodate their views.
The Bill is one of the measures targeted for enactment under the Government's environment action programme and I will be pleased to see it on the Statute Book. I thank the Deputies again for their co-operation in its passage. While it was Deputy Molloy who commissioned the report, it was Deputy Tully who received it. Everything the Deputies have said will be taken into account.
