Deputy Garland was in possession.
Local Government (Planning and Development) Bill, 1991: Second Stage (Resumed).
Question again proposed: "That the Bill be now read a Second Time."
We all concede the necessity to provide some balance in the need to process appeals within a reasonable time to facilitate development. However, having given the matter great thought, I have no doubt that this Bill does not provide that balance. The Bill is weighed very much in favour of developers and against objectors. It gives insufficient time to enable major projects to be properly evaluated. Accordingly, I will be opposing this Bill.
Ba mhaith liom, ar an gcéad dul síos, mo bhuíochas a ghabháil leis na Teachtaí uile a labhair i bhfábhar an Bhille seo. Ní raibh ach Teachta amháin a labhair ina choinne.
I thank the Deputies who have taken part in the debate, which I have found constructive and informative. Deputies' contributions have raised a number of important issues relating to the Bill and, as far as possible, I will endeavour to respond to them. Reference was made in the course of the debate also, to some very general planning matters. I would remind Deputies, however, that the Bill is intended, as indicated by its Long Title, to deal only with the legal framework within which An Bord Pleanála operate and legal proceedings relating to planning matters. It would not be appropriate, therefore, to address all these general matters in the present context. Neverthless, I have noted the various views expressed and they can be considered in the context of any future proposals for change to planning law.
Deputy Mitchell suggested in his contribution that the Bill takes short-cuts and that its constitutionality might accordingly be open to question in certain respects. I do not accept that this is so. Every effort has been made to ensure that the streamlining measures proposed in the Bill will not interfere with the essential fairness and thoroughness of the appeals system nor with the rights of participants and I am advised that the proposals are acceptable in legal terms.
Deputy Gilmore contended that the Bill will tip the balance of the appeals process in favour of development interests, and Deputy Cosgrave suggested that the new procedures might put voluntary bodies in difficulties. However, we have sought to strike a fair and just balance between all relevant interests. I am satisfied that the Bill will not confer an unfair advantage on any particular sector and that it will not inhibit the exercise of the right to appeal to the board.
Deputies expressed differing views about the proposed requirement to submit the full grounds of appeal within the appeal period. Deputy Ferris was of the opinion that such a requirement would aid the effective operation of the appeals process, but Deputy Gilmore thought that it would be too onerous. This requirement is a necessary element of a streamlined appeals system. It was not put into the Bill lightly and I am satisfied that it will be possible to make a full and detailed appeal within the period allowed. I would remind Deputies that the Bill takes account of the effects of the new obligation by proposing to increase the appeal period for "third parties" from three weeks to a month.
A number of Deputies referred to the question of resources for the board, and suggested that it might be necessary to remove the ministerial control over staffing levels. I would point out, however, that section 10 of the 1976 Planning Act is simply the standard form of provision in relation to the staffing of bodies such as the board. Moreover this ministerial power has not given rise to problems for the board in practice because any staffing proposals received by my Department in recent years have received a favourable response.
As for the specific resources implications of the Bill, it is true that the new four-month time objective for determining appeals will place certain additional pressures on the board. However, these will be offset to a large extent by the reduction in the amount of work in individual cases caused by the Bill's streamlining measures. The expectation is, therefore, that the board are not going to need extra resources because of the Bill. Nevertheless the position will be kept under review to ensure that the board are in a position to operate the new appeal procedures effectively.
Deputy Gilmore expressed the view that current delays in the board can be attributed largely to lack of resources. I cannot accept this, because the board have been very well treated in terms of resources in recent years. The unavoidable fact is that there are aspects of the legal framework governing appeals which inhibit expeditious decision making. Undue delays will not be eliminated unless the law relating to appeals is modified in the manner proposed in the Bill.
I should like also to put the record straight about the board's staffing in 1988 and 1989. The board's annual reports for those years show that there were 59 employees at the end of 1988 and 61 at the end of 1989. Contrary to what a number of Deputies suggested, the board's staffing actually increased over the two years.
Deputy McGrath voiced concern that the proposed new procedures might not allow an appellant to clarify matters arising on an appeal. Section 9 would give An Bord Pleanála a discretionary power to request a participant in an appeal to make a further submission on any matter which arises during the appeal, exercisable where the board consider it appropriate in the interests of justice to do so. This power could be used, for example, if the board thought it appropriate in the circumstances of a particular case to offer some person a further opportunity to address a specific issue.
Deputy Ferris inquired about the intent of section 2 (4) which allows the Minister for the Environment to vary or suspend the four-month time objective for determination of cases by the board. I can assure him that this is merely a reserve power, designed for wholly exceptional circumstances which would disrupt the board's operations. In the normal course the four-month objective will apply and the board will be expected to comply with it in all but the most exceptional cases.
Deputy Mitchell and others dealt at some length with what they termed the accountability of the board and suggested, among other things, that the board should not have power to initiate material contraventions of a development plan, that the board should be generally answerable to an environment committee of this House, and that a planning authority should be able by a two-thirds majority to call on the board to account for their decisions.
As regards material contraventions, the position is that the board can, in accordance with section 14 of the 1976 Planning Act, grant permission for development even if the proposed development contravenes materially the development plan of the planning authority concerned. The board, must however, have regard to the plan and could only grant permission for a development which would contravene the plan if it was satisfied that the proposed development would nevertheless be in conformity with the proper planning and development of the area concerned. Planning authorities also have power to grant permission in material contravention of their plans and it would be unduly restrictive if the appellate body in planning matters did not have such power. Moreover, I do not believe that it would be appropriate to require the board to consult the body against whose decision an appeal is being determined before exercising this power.
On the general issue of the board's answerability or accountability, I would point out that the board are a statutory independent body whose powers and duties are clearly laid down by law. They must discharge their functions in accordance with the law and can be held accountable by the courts for any failure to do so.
Given the nature and role of the board, I am not convinced that an arrangement such as general answerability to a committee of this House would be appropriate. It would be wholly inappropriate, in my view, to require the board to appear before planning authorities to explain their decisions, when their principal function is to act as the appeals body in relation to decisions by those same authorities. Deputies will, of course, be aware that the law requires the board to give the reasons for their decision on an appeal.
Another matter raised by Deputies is the question of publishing inspectors' reports on appeals. I do not view it as necessary or appropriate to require publication of such reports. The inspector's report is an important input into the determination of an appeal but it has to be borne in mind that responsibility for deciding an appeal rests with the members of An Bord Pleanála. The board must consider the inspector's report but are not bound by it. I do not see what is to be gained by publishing these reports, especially since, as I mentioned just now, the board have to give the reasons for their decisions.
Some Deputies referred to the recent increase in the fees payable to An Bord Pleanála in respect of appeals. I would like to make it very clear that there was no ulterior motive for this increase — the fees were raised simply to ensure that persons taking part in the appeals process make a reasonable contribution towards the substantial costs of the process.
I cannot accept that the new fee levels are unreasonable, or that they will inhibit the exercise of the right of appeal to the board. I would point out also that, even after the increase, income from fees will meet only a quarter of the board's running costs.
Reference was made also to alleged suspicions of corruption in the planning process in certain areas. The planning process must, of course, operate in accordance with the highest standards of probity and integrity, and the Planning Acts make detailed provision for declaration of interests by persons involved in the process. I wish to add only that it is the clear duty of anybody with evidence of departures from the essential high standards to bring them to the attention of the relevant authorities.
Deputy Dermot Ahern referred to the need for speedy decisions at planning authority level as well as at the appeals stage. I am in complete agreement with the Deputy on this. I have recently conveyed to planning authorities my view that further information should be sought from applicants only where there is a clear need and that as many cases as possible must be decided within the statutory period of two months. I will be monitoring the position closely and will take whatever action may be necessary to ensure expeditious decisions at planning authority level.
Deputy Cosgrave emphasised the importance of special amenity area orders as a means of protecting significant amenity areas. The making of such orders is, of course, primarily a matter for planning authorities. If an order was made by a planning authority and confirmed by the Minister for the Environment, An Bord Pleanála would have to take account of it in dealing with appeals relating to the area in question.
Deputy Howlin and others felt that the power to grant permission for retention of development is undesirable in some respects, and that it might encourage some developers to "try it on", by building first and seeking permission afterwards. A survey of planning applications in 1986 undertaken by the environmental research unit showed that 12 per cent of the applications in that year were for retention. The environmental research unit's report indicates that many of these applications arose from solicitors' inquiries at the time of sale of a property, or were to regularise a situation where a development was not constructed in full conformity with the permission granted. I feel that a power to grant permission for retention is valid in principle for minor instances of non-conformity. It is not to be seen as a licence for developers to build first and seek permission afterwards. I would point out that any developer undertaking development without the necessary permission leaves himself open to an order under section 27 of the 1976 Planning Act and to prosecution under section 24 of the 1963 Act. As I have already indicated, I will be proposing on Committee Stage that the maximum fine for conviction on indictment should be raised from £10,000 to £1 million. This will represent a very real deterrent to developing without the required permission.
Deputy Mitchell, and Deputy Gilmore also, mentioned the importance of good public notice arrangements for planning cases. I agree fully with them on this and would like to inform the House that this matter is currently being examined as part of a review of planning regulations that is in progress in my Department.
Deputy Doyle questioned whether the holding of an oral hearing of an appeal should be at the absolute discretion of An Bord Pleanála. I consider that it should, because it is only the board who can decide by reference to the facts of a particular case whether the holding of a hearing is necessary or appropriate. It is for this reason that the Bill proposes to drop the Minister for the Environment's power, which has not been used to date, to make regulations specifying types of cases for which hearings must be held.
Deputy Roche illustrated well the reason why the measures proposed in the Bill are so necessary for the effective operation of the appeals process. He went on to question the openness of the appeals system, which allows any person to appeal against a planning authority's decision. The Irish planning system is undoubtedly particularly generous in the opportunities that it allows for public participation. However, I view this as a good thing, because it ensures that all relevant interests can be heard before important decisions about proposed developments are made. As I made clear at the outset of the debate, it is not my intention to curtail existing rights of appeal to the board in any way.
Deputy Garland questioned the Bill's underlying approach of trying to speed up the appeals process. Nevertheless, Deputies generally have indicated their acceptance of the principle that the planning process has to operate in accordance with reasonable timescales. I would emphasise once more that the new procedures will not compromise the fairness of the process, and that all interests will continue to have a reasonable opportunity to make their case to the board.
I am heartened by the general acceptance by Deputies that legislative action is essential to ensure that An Board Pleanála can give decisions on appeals within an acceptable period. I believe that the measures proposed in the Bill are a practical and realistic response to the difficulties posed for the board by the current statutory framework for appeals and I look forward to the continuing co-operation of Deputies in the passage of the Bill through the House. I am heartened by indications from Deputies that we will be able to put this legislation on the Statute Book at an early date.
Question put and agreed to.
When is it proposed to take Committee Stage?
Next Tuesday, by agreement with the Whips.
Committee Stage ordered for Tuesday, 3 March 1992, subject to agreement by the Whips.