Local Government (Planning and Development) Bill, 1991: Second Stage.

I move: "That the Bill be now read a Second Time".

I am pleased to bring the Bill before the House. Its main purpose is to streamline and speed up the appeals stage of the development control process under the Local Government (Planning and Development) Acts so that planning appeals and other matters can be determined by An Bord Pleanála within a much shorter period than at present. It also proposes new procedural arrangements for legal actions challenging the validity of planning decisions, the aim of which is to facilitate the expeditious determination of such proceedings.

The essential function of the physical planning system under the Planning Acts is to bring about orderly development and appropriate and efficient land use which is environmentally acceptable. I believe that the system has by and large fulfilled this task well over the years by subjecting development proposals to detailed scrutiny by reference to considerations of proper planning and development in the context of planning authorities' development plans. Nevertheless, the operation of any system must be kept under review to ensure that it operates as efficiently and effectively as possible at all times.

One of the key tests of the effectiveness of the planning process is its ability to give final decisions on development proposals within a reasonable timeframe. While the need for rigorous examination of proposals is beyond dispute, a developer is legitimately entitled to expect that he will receive a final and conclusive decision on his proposal within a clearly defined period. Undue delays in the planning process cause understandable frustration for developers and can lead to the abandonment of worthwhile projects with consequent loss of investment and employment opportunities.

The need to avoid delays in the planning system is all the greater in Ireland because of this country's need for substantial new development in tackling the pressing unemployment problem. In addition, delays in the planning system or any perception that our system is ponderous or dilatory would would put us at a serious competitive disadvantage in seeking to attract internationally mobile projects.

There is some concern about the efficiency of the planning process, directed in the main at the length of time that it can take to process appeals against planning authorities' decisions on planning applications. The Government share this concern and the Bill addresses the problems in this area by proposing to redraw the appeals procedure in a way that will allow An Bord Pleanála to determine almost all appeals within four months. I am satisfied that this four months period is reasonable and that it will be achieved without undermining the essential thoroughness and fairness of the planning appeals process.

The Bill's proposals in relation to the appeals process arise from a comprehensive review of An Bord Pleanála's systems and procedures which was carried out with the board's co-operation and agreement. This review made various recommendations about the board's management and administration and these have largely been taken up by the board. However, the review also drew attention to features of the existing legislative framework within which the board have to operate which inhibit the speedy determination of appeals.

The board's performance has shown a marked improvement since the review was carried out. For example, between September 1990 and December 1991 the number of appeals on hands fell from 1,703 to 1,300 and the proportion of cases on hands for more than six months fell from 21.4 per cent to 2.8 per cent. This is a significant change for the better and the board are to be commended for it. Nevertheless, the time taken to deal with individual appeals still cannot be regarded as satisfactory. It has to be acknowledged, however, that the law as it stands at the moment inhibits the achievement of further significant improvement.

I should like to make it clear at the outset that the Bill does not diminish or curtail existing rights of appeal to the board. The present position is that any person may appeal to An Bord Pleanála against a planning Authority's decision on a planning application. This will continue to be the case — the Bill seeks only to create a more orderly and effective procedural framework for the determination of appeals by the board.

The approach in the Bill is to set out strict time limits for the various stages of the appeals process. These time limits will be reinforced by a clear statement of the rights of participants in appeals as regards submissions to the board and of their obligations in relation to the timeliness and completeness of submissions. It is because of these changes that it it possible for the Bill to propose a statutory objective of four months for the determination of appeals by the board.

The Bill's measures relating to court challenges to the validity of planning decisions will require these challenges to be taken only by way of the more expeditious judicial review procedure and will make the High Court's decision final, except in cases which involve a point of law of exceptional public importance.

I should like now to outline the provisions of the Bill. Section 1 is the interpretation section and defines certain terms used in the Bill. Section 2 will establish the board's duty and objective in relation to the determination of planning appeals and the various other matters which come before them for decision. I should explain that these other matters include references under section 5 of the 1963 Planning Act as to what is or is not development or exempted development land requests for determination of certain issues. However, these other matters constitute only a small proportion of the board's business and the Bill, apart from section 2, is generally concerned only with appeals against planning authorities' decisions on planning applications.

Under section 2 it will be the general duty of the board to ensure that all appeals and other matters are disposed of as expeditiously as possible and to avoid delays. This is a restatement of the board's existing duty under section 4 of the 1983 Planning Act. However, section 2 goes further and establishes an express objective for the board to determine any appeal or other matter within four months or such other period as the Minister for the Environment may prescribe by regulations. If the board considers that it will not be possible or appropriate to meet this objective in a particular case, they will have to notify the parties involved and specify the date by which they intend to give their decision. They must then take all such steps as are open to them to ensure that the appeal or other matter is decided by that date.

I am aware that it has been suggested from time to time that an absolute time limit should be laid down for the determination of appeals by the board. I have been advised, however, that such an approach would not be satisfactory or acceptable, given the nature of the board and their functions. Such a time limit could, for example, prevent the board from giving full and proper consideration to all relevant issues in an exceptionally complex case and would, therefore, be problematical in legal terms. For this reason I am satisfied that the objective proposed in section 2 goes as far as possible in terms of laying down time limits for the appeals process. I should add that the board will be expected to comply with the four month objective in all but the most exceptional cases and that their performance in meeting this objective will be monitored by my Department.

The new objective will apply to appeals and other matters received by the board on or after six months after the passing of the Act. In the intervening period the board will be expected to gear up their operations to meet the objective and to dispose of cases on hands.

Section 3 amends section 26 of the 1963 Planning Act, which is the basic provision relating to appeals to An Bord Pleanála against decisions on planning applications. The main change made is an increase from 21 days to a month in the period in which persons other than the applicant for planning permission, colloquially known as "third parties", can appeal to the board. This increased period is being introduced because of the stringent new requirements in relation to the grounds of appeal proposed in section 4. The appeal period will, therefore, be one month for all persons.

Section 4 lays down requirements for the making of an appeal. The central requirement is that an appeal must state in full the grounds of appeal and the reasons, considerations and arguments on which they are based. There is already a provision in planning law, in the 1977 planning regulations, that an appeal must state the grounds. However, the courts have held that this provision is directory only and that an appeal can validly be made by giving notice of appeal within the appeal period and submitting the grounds subsequently. This has caused problems in practice because of delays on the part of some appellants in submitting their grounds. Section 17 of the 1983 Planning Act was enacted in response to these problems and allows the board to serve a notice on an appellant requiring him to submit his grounds of appeal within a specified period. However, this mechanism places the onus for ensuring submission of the grounds on the board. I consider that it would be preferable and more conductive to the effective operation of the appeals process to establish a binding requirement that the full grounds of appeal must be stated in the appeal and to provide that an appeal will be invalid unless this requirement is complied with. I know that there have been some expressions of concern that the requirement to submit full grounds of appeal within a month may be unduly onerous for appellants. I am satisfied, however, that this period will allow appellants adequate time to prepare and submit appeals, and that it strikes a fair balance between the rights of appellants and the public interest in having conclusive decisions on development proposals within a reasonable period.

The section lays down also, in light of the new provision for setting out the full grounds of appeal when appealing, that there will be no right for an appellant to make a further written submission except where the board exercise their discretionary power under section 9.

Sections 5 and 6 place new obligations on planning authorities which will facilitate the operation of the streamlined appeals mechanism proposed in the Bill. Under section 5 a planning authority will have to make all relevant documents relating to a planning application, including any internal reports prepared on the application, available from the day they give their decision on the application. This is to ensure that all appropriate papers are available without delay to any person who wishes to consider appealing to the board against the decision. Section 6 requires a planning authority to submit all relevant documents to An Bord Pleanála within 14 days of being notified of an appeal and is intended to overcome certain difficulties that the board have experienced in this connection.

Section 7 regulates the right of the other party or parties to an appeal to respond to the appeal. I might explain here that where the appeal is made by the applicant for planning permission, the other party will be the planning Authority concerned. If the appellant is not the applicant for planning permission, then the other parties are the applicant and the planning Authority.

A period of one month, running from the day on which a copy of the appeal is sent to the party by the board, will be allowed for the making of submissions or observations to the board. The board will be prohibited from considering any submissions or observations received after that period has expired.

Section 8 deals with submissions or observations to the board by persons other than the parties to an appeal. It is well established in practice that such persons have a right to make submissions to the board, but this right is expressly stated in planning law only for appeals involving environmental impact assessment. This section thus puts the matter on a formal legal footing for all appeals and in most cases will require submissions to be made within one month of receipt of the appeal by the board. As in the case of section 7, submissions received by the board after the end of the specified period may not be considered.

Sections 7 and 8 both prohibit the making of further written submissions, except in the circumstances contemplated by section 9. This is because of the difficulties posed for the board and the delays which arise when they receive further submissions at an advanced stage in their consideration of an appeal. I am satisfied that this limitation is necessary for the effective operation of the appeals process and that these sections nevertheless afford parties and other persons a reasonable opportunity to make their case to the board.

Deputies will see from the foregoing that all participants in an appeal will be entitled to make one written submission to the board. Circumstances could arise, however, in which it would be appropriate to allow some participants an opportunity to make further submissions. for this reason, section 9 gives the board discretion, exercisable where they consider it appropriate in the interests of justice to do so, to request any participant in an appeal to make submissions or observations within a specified period on any matter which has arisen in relation to the appeal. If the person does not respond within the specified period, the board will be authorised by section 11 to go ahead with determination of the appeal.

Section 10, which replaces section 18 of the 1983 Planning Act, allows the board to require any person involved with an appeal to submit documents or other information which the board consider necessary for determination of the appeal. If the person does not do so within the period allowed by the board, the board will be able, under section 11, to proceed to determine or dismiss the appeal as it considers appropriate in the circumstances of the case.

Section 12 makes new provision for oral hearings of appeals and replaces section 15 of the 1983 Planning Act. It establishes a new requirement that any request for an oral hearing will have to be made at the outset of the appeals process to overcome the difficulties faced by the board when such a request is received at a late stage in their consideration of an appeal. An appellant's request for an oral hearing will have to be made when appealing and any other party will have to make a request during the period of one month allowed for making submissions to the board. The new section does not retain the Minister's unused power under section 15 of the 1983 Act to prescribe classes of cases for which oral hearings must be held, on the basis that it should be entirely a matter for the board to decide by reference to the circumstances of a particular case whether it is necessary or appropriate to hold an oral hearing.

Section 13 restates, with some procedural modifications, the board's power under section 17 of the 1976 Planning Act to take account of matters other than those raised by the participants in an appeal. If they propose to do so the board will have to allow an opportunity for comment, either at an oral hearing or by way of written submissions according to the circumstances of the case.

Sections 14, 15 and 16 draw together powers of the board under the 1982 and 1983 Planning Acts which facilitate speedy determination of cases. Section 14 allows the board to dismiss vexatious or ill-founded appeals. Section 15 allows the board to deal with an appeal which relates only to conditions attached by a planning authority without having to consider the entire casede novo. Section 16 gives the board power to declare an appeal, or an application to which an appeal relates, to be withdrawn if they consider that it has been abandoned.

Section 17 makes supplemental provisions relating to the time for doing certain things in the appeals process. It specifies,inter alia, that an appeal received by the board after the one month appeal period has expired will be invalid. However if the last day of the appeal period falls on a day when the board's offices are closed, the appeal will be considered to be in time if it is received on the next day on which the board's offices are open.

Section 18 empowers the Minister to make regulations prescribing supplemental procedural matters in relation to appeals or establishing procedural requirements in respect of other matters dealt with by the board. Any regulations made under this section will have to be laid before both houses for 21 days in the normal way.

The main provision of section 19 is an amendment of section 82 of the 1963 Planning Act which establishes new procedural arrangements for legal actions challenging the validity of decisions by planning authorities or An Bord Pleanála. As I indicated earlier, any such proceedings will now have to be taken by way of an application for judicial review. The existing two month time limit on the institution of proceedings is being retained. An application for leave to apply for judicial review will have to be by motion on notice to interested parties and the High Court will have to be satisfied that there are substantial grounds for contending that the decision challenged is invalid before it grants leave to apply for review. The High Court's determination on the application for leave to apply for review or on the application for review will be final unless the High Court gives leave to appeal to the Supreme Court and certifies that its decision involves a point of law of exceptional public importance.

Section 20 deals with repeals and revocations. Section 21 makes transitional provisions and section 22 contains the usual provisions relating to short title, commencement etc.

While concern about delays in the planning process has rightly focused on the appeals stage, it is of crucial importance also that the process operates effectively and without delays at the planning authority stage. Planning authorities are required to decide planning applications within two months, unless the applicant agrees to a longer period or the authority has to ask for further information. If the authority needs further information, the legal requirement is to determine the application within two months of receiving the information. My Department have indicated to planning authorities that it should be their objective to determine as great a proportion as possible of applications within the initial two month period and have conveyed to them the recommendation of the Special Task Force on Employment that cases where further information is requested should, as far as possible, be decided within a month of receipt of the information. I intend to monitor the performance of planning authorities in this regard and I will take whatever action is necessary to ensure that no avoidable delays arise at this stage of the development control process.

I should like to draw the attention of Deputies to a provision in the review of the Programme for Government, 1989 — 1993 to the effect that access will be granted for all parties to the Circuit Court for injunctions against unauthorised development. I propose to bring forward a Committee Stage amendment of the Bill to deal with this matter. The existing provision granting access to the High Court for orders against unauthorised or non-conforming development has proven to be very effective and allowing access to the Circuit Court for such orders will serve to enhance its effectiveness.

In conclusion, I would like to say that this Bill underlines the Government's commitment to an effective physical planning system. I believe that the measures in it will lead to a better ordered and more expeditious appeals process. I am satisfied also that these measures will speed up the appeals process without compromising the ability of the process to subject appeals to thorough and rigorous scrutiny in a fair and objective way. Furthermore, the proposals in relation to court proceedings will facilitate expeditious determination of such proceedings, thus ensuring finality and certainty as to a developer's right to proceed with a permitted development. I look forward to a positive and constructive debate on the Bill and I commend it to the House.

This is a welcome opportunity for the House to discuss in very general terms the whole issue of planning and development in this country. My sympathies lie with the idea of trying in so far as possible to expedite the decision making process. In doing so we must not provide a regime in which bad planning decisions are made, short cuts are taken and where the legitimate rights of people to scrutinise and, where necessary, object to planning permission are compromised.

The reality is that there are many more problems in the planning area than are addressed in this Bill. For instance, An Bord Pleanála's performance is not open to democratic scrutiny. I am very disappointed that the Bill does not provide for some form of answerability by An Bord Pleanála — I am not talking about answerability in specific cases but answerability to this Parliament for their overall policy and approach to planning matters and for the speed, efficiency and fairness with which they discharge their functions. An Bord Pleanála have power at present to grant decisions which are in breach of the county or county borough development plan. We have already circumscribed the powers of the local authorities to materially contravene their own development plans. Yet no provision is made in this Bill to circumscribe the much more wide ranging power of An Bord Pleanála to grant permissions which are in breach of the existing county development plans. I will be proposing on Committee Stage that this power of An Bord Pleanála be eliminated. An Bord Pleanála should not have power to initiate breaches of county development plans, at least not without some form of approval from the locally elected authority.

I shall be proposing in the course of the debate in this House that An Bord Pleanála be made answerable for their actions. In order that the planning appeals procedure be more efficient and fair I will be proposing the setting up of an environment committee of this House to which An Bord Pleanála will be generally accountable. Second, I shall be proposing that we remove from An Bord Pleanála the power to initiate material contraventions of county or of county borough development plans. Third, I shall be proposing amendments that give to local authorities the power to request by two-thirds majority the board of An Bord Pleanála and/or their inspectors to appear before the local authority to justify appeals decisions that vary decisions of the local authority.

Those proposals would bring a great deal of answerability and accountability to An Bord Pleanála and they would contribute greatly to the sharpening up of the performance of An Bord Pleanála in terms of time taken, of fairness and of good planning procedures.

Debate adjourned.