Dáil Éireann debate -
Wednesday, 8 Apr 1992

Vol. 418 No. 5

Private Members' Business. - Local Government (Planning and Development) Bill, 1991: Committee Stage.

SECTION 1.

Mr. Howlin

I move amendment No. 1:

In page 3, subsection (1), between lines 29 and 30, to insert the following:

" `Council Directive' means Council Directive of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (85/337/EEC);'.".

This amendment seeks to add a new definition to the definition section of the Bill. Although reference is made in the body of the Bill to "Council Directive", it contains no definition of this term. Therefore, for the purposes of clarity, I ask the Minister to accept that "Council Directive" means the Council Directive of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment. The appropriate EC reference code is given.

Minister for the Environment (Mr. Smith)

The Deputy's amendment seeks to include a definition of the term "Council Directive" which is used in sections 1 and 8 of the Bill. I am advised however that this definition is not necessary. Article 5 of the European Communities Environmental Impact Assessment Regulations, 1989 inserted a definition of this term along similar lines to those proposed by the Deputy in section 2 of the Local Government (Planning and Development) Act, 1963. Because this Bill, when enacted, will be construed together with the Local Government (Planning and Development) Acts, 1963 to 1991 that definition will apply here also. Accordingly, I ask the Deputy to agree to withdraw his amendment.

Mr. Howlin

As we have many amendments to deal with, I do not want to labour the point, but those of us who contributed to the debate on the Environmental Protection Agency Bill during the past few weeks agreed that there was a need to ensure clarity in legislation. Even for those of us who are reasonably proficient at reading legislation it is difficult to accept that when we come across a phrase in legislation such as "Council Directive", we are supposed to be inspired that we should look up the 1963 Local Government (Planning and Development) Act to see what the definition is. I do not think it is too much to ask, when specific terms are mentioned in the body of legislation, that they be defined. It is neither here nor there that it is already defined in the 1963 Act and, for the purposes of clarity, this amendment should be accepted. We should strive as far as practicable to make the legislation clear not only for practitioners but for members of the general public. There are probably umpteen precedents to explain why this is not done. Perhaps we could have some degree of clarity in this legislation and proceed on that basis to a number of other amendments that will arise.

Mr. Smith

The Deputy will have to accept that legislation like this must be construed in the context of existing legislation dating back to 1963. If we were to go down the road the Deputy is suggesting we would have to include other areas in the same way. It has never been the practice to specify what is already clearly specified in the body of legislation dealing with the same general area.

Mr. Howlin

I am disappointed in the Minister. If that is to be the attitude we will not make the progress we made in parallel legislation. However, we are always in the hands of the Minister piloting the legislation. I have exhausted my argument and will withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. J. Mitchell

I move amendment No. 2:

In page 4, subsection (1), between lines 19 and 20, to insert the following:

"(d) any person who, having met the statutory requirements, had lodged an objection to the appeal,".

I consider this an important amendment. In the definition section of the Bill, section 1, "party to an appeal" proposes to cover three categories of people. The categories are: the appellant, who presumably would be the person who applied for the planning permission in the first place, the planning authority against whose decision the appeal is made, and the applicant for any permission or approval in relation to which an appeal was made by another person other than a person acting on behalf of the appellant; and "party" is to be construed accordingly. I want to insert here an addition to those categories, that is, "any person who, having met the statutory requirements, has lodged an objection to the appeal". I would like the Minister to clarify what categories are covered by (a), (b) and (c) and whether he would not consider it better for clarity to include the extended definition which I now propose.

Mr. Smith

This amendment would mean that any person who made submissions or observations to the board about the appeal would be regarded as a party to the appeal. Under the Bill there would be two or three parties to any appeal, depending on the identity of the appellant. In the case of an appeal by the applicant for planning permission there would be two parties — the applicant and the planning authority. Where the appeal is by a person other than the applicant there would be three parties — the appellant, the applicant for planning permission and the planning authority. The definition of "party" in section 1 of the Bill is essentially similar to the existing definition in planning law and I do not consider that it would be appropriate to confer formal party status on any other participant in the appeal.

I would like to remind Deputies that, for the first time, in cases not involving environmental impact assessment, the rights of persons who are not direct parties to the appeal to make their views known and to have those views considered is specifically provided for in section 8 of this Bill. The board will have to take account of submissions made by such persons, including any further submissions that they may make as a result of requests from the board under section 9 of the Bill. I therefore do not propose to accept the amendment.

Mr. J. Mitchell

I am disappointed with the Minister's reply because I consider that a person who has met the statutory requirements in objecting to an appeal being granted, including lodging any fees necessary, should be entitled to be considered a party to that appeal for the purposes of communication and consideration. Notwithstanding section 8 of this Bill, I do not think a person who has lodged an objection is treated equally with other parties to an appeal, and that would further diminish the rights of individuals to object to planning applications or planning appeals which might have a material effect on their interest. I would therefore ask the Minister to reconsider accepting this extended definition.

Mr. Gilmore

There is a great deal of merit in the amendment proposed by Deputy Mitchell. A situation can arise where the party making the appeal is the developer. As it stands at the moment the party to the appeal is defined as the appellant, who in some cases may be the developer, the planning authority and if the appeal is by a third party, the applicant. However, where the developer is submitting the appeal and where there may be considerable local interest and community interest in opposing an appeal lodged by the developer — for instance, an appeal against certain conditions which might impinge on a local community or a local neighbourhood — the local community should have the rights afforded to a party to an appeal if they put in an objection to that. As things stand, parties to an appeal have certain rights built into this Bill that other persons who are not party to the appeal do not have. If Deputy Mitchell's amendment is not accepted then local communities, in situations where the developer is making the appeal, may find themselves at a disadvantage in the appeal process.

Mr. Smith

What the Deputies are asking me to do here is to confer the same status on somebody who has an observation in relation to the planning appeal as that conferred on the parties who are directly involved. The Bill as proposed does not limit in any way the rights of individuals in that area. To confer the same status on both would be entirely unacceptable. However, if individuals in that category feel so strongly with regard to the matter there is nothing in this Bill which prevents them from becoming a party.

Mr. Howlin

I want to add my support to the amendment. It is patently obvious that there would be cases where a formal objector would have every right to be a party to a process and have the same rights. I see no merit in excluding such a person. I am not swayed by the Minister's argument that he would be conferring rights on somebody who would not be entitled to such rights. If an objector has paid the statutory fees and is properly entitled to be considered as such, it is right that he would be considered as much a party as the applicant and the local authority. There is great merit in the amendment.

Mr. Smith

As I explained in my earlier reply, for the first time we are conferring statutory rights on people in that category. Deputies should accept in that context that that is about as far as I can go to meet these considerations. In the final analysis these new provisions accord new statutory rights on people who are submitting observations in relation to appeals. If they wish to go further than that, there is nothing in this legislation which prevents them from becoming full parties.

Mr. J. Mitchell

I beg to differ from the Minister and I would refer him to section 7, which says:

(1) The Board shall, as soon as may be after receipt of an appeal, give a copy thereof to each other party.

(2) (a) Each other party may make submissions or observations in writing to the Board in relation to the appeal within a period of one month beginning on the day on which a copy of the appeal is sent to that party by the Board.

(b) Any submissions or observations received by the Board after the expiration of the period mentioned in paragraph (a) shall not be considered by the Board.

(3) Where no submissions or observations have been received from a party within the period mentioned in subsection (2), the Board may without further notice to that party determine the appeal.

This section gives parties to appeals rights to documentation, but it does not give an objector that right, perhaps a person who lives beside a proposed chemical factory. The Minister is from Tipperary and knows the famous case. Is the Minister saying that a farmer who lives next to a proposed chemical factory should not have rights to documentation in an appeal? Of course he should, and he should be considered to be a party to the appeal. The Minister would be wise to accept this amendment.

Mr. Gilmore

I support the argument that Deputy Mitchell has made. I was dealing today, in a planning committee of Dublin County Council, with an application for an intensification of industrial use, changing one unit into three for light industrial use in an area backing onto a housing estate. The residents, for very understandable reasons, object. A planning authority can decide to grant permission but attach conditions to that permission relating to boundary treatment, hours of use, noise or whatever and the residents association, having made their case to the planning authority, may be happy with the planning permission granted. However, if the developer is unhappy with the conditions attached and decides to appeal to an Bord Pleanála, he can do so and become a party to the appeal. But the residents association are not a party to the appeal.

The Bill provides a very restricted format for the exchange of documents between parties to the appeal. There is only one shot at it. Once one has sent in the appeal and the other side has replied, there is only one shot at answering the reply and that shot is only open to a party to the appeal. Somebody who is not a party to the appeal cannot as of right see the case that has been made by the developer and is entirely dependent on the planning authority. They should have a right to see the documents that are being exchanged and to comment on them. They should have the same rights as a party to the appeal. The definition the Minister provides for here excludes that possibility; Deputy Mitchell's amendment includes it. The Minister should at the very least give this further consideration before the next Stage of the Bill.

Mr. Garland

Having listened to the debate, I have definitely come to the conclusion that this amendment is worthy of support for the reason which the Deputies have put forward.

Mr. Smith

I do not have good news for the Deputies in the sense that where we have a consistent situation with regard to identified parties, where we for the first time give new statutory rights to people who have observations to submit with regard to appeals, and where I intend in the context of the regulations to make everything that is applicable here as transparent as possible, I do not know how much further I can be expected to go. In the final analysis the persons whom the Deputies seem to represent, who conceivably could have an injustice done to them, have the fundamental right to become appellants.

Mr. Gilmore

The Minister is forcing them to become appellants.

Mr. J. Mitchell

The Minister is clearly not in command of his brief. There is a major void in this Bill and those organisations which have criticised this Bill as curtailing the rights of individuals and organisations are absolutely correct. In a case where an Taisce or some other organisation — for instance, a residents association — lodged an objection to a planning application and were successful and the applicant appealed, the applicant would be treated as a party to the appeal, as would the local authority. But the person who succeeded in getting the planning permission turned down will not be considered to be a party. Does the Minister not see that he is creating an anomaly here? The amendment was drafted so as to give the Minister an opportunity to put in statutory requirements with regard to third parties. I would urge the Minister to take this on board as a reasonable, sensible amendment. The Minister would be well advised to accept the amendment in this form or to indicate that he will put forward an amendment to the same effect on Report Stage.

Mr. Howlin

The Minister has not addressed the issues in any of his comments. Deputies on this side are arguing that there are people who are quite properly party in some circumstances to an appeals process but under the definition they will be excluded from participation. The Minister has not addressed either of the two instances which have been put from this side of the House. The first instance is one with which I am familiar — where permission is granted but conditions are appealed by the developer. The people who insisted on the conditions in the first instance would not be parties to the appeal. Surely that is an injustice. It will cause great aggravation and frustration if we do not allow such people to legitimately have their say and have sight of the documents within the very tight timeframe and to put their side of the argument, particularly if their side of the argument was the convincing one when the local authority made their initial decision. If the Minister addressed the point put from this side of the House we might see why he is not accepting the amendment, but the Minister has not made any case for his position.

Mr. Gilmore

This Bill was introduced ostensibly to speed up the planning process. No doubt in the course of the Committee Stage debate we will have plenty of time to air that proposal, but the effect of turning down this amendment may well be to slow down the appeals procedure. The Minister is in effect encouraging additional appeals. If a third party wish to guarantee that they will be a party to an appeal they will themselves have to lodge an appeal. If I as a member of a residents' association lodge an objection against a certain development and the planning authority turn it down or attach conditions. I then have to make up my mind as to whether the developer will appeal. If he does so, I no longer have right of access to documentation and so on. The only way I can get that access is by putting in an appeal of my own. This will put third parties to unnecessary expense since fees for making an appeal have reached an exorbitant level. People will be forced to lodge safeguard appeals to protect their rights in the event of the developer making an appeal. This is encouraging the lodging of unnecessary appeals which could be avoided if the Minister put into the legislation the rights we are seeking for third parties.

Mr. Smith

It has become an established practice for third party observations to be taken into account in planning appeals. For the first time I am providing statutory rights for these people. Section 8 specifies the conditions. The board are obliged to take account of these observations. There is ample scope in those provisions without extending them to the degree Deputies wish. On the basis of any knowledge that I can gather in connection with planning appeals procedures in most parts of Europe, we have a very open, fair and balanced system which takes account of all considerations. The conferring of new statutory rights on the people whom Deputies seek to represent is a welcome step forward. That is as far as I can go in this regard.

Mr. J. Mitchell

I can well understand the Minister's not wishing to extend the status of party to everybody who makes a submission in relation to a planning appeal. There can be vexatious or incidental submissions which are not central to the issue. However, I cannot understand why he should wish to exclude a person or group who were a major party involved in the original application, either for or against.

Mr. Smith

In what way am I excluding them?

Mr. J. Mitchell

The Minister is refusing to give them the status of party. I cite the case of An Taisce who may have successfully lodged objections to a planning application. The case is appealed and because they are not a first or second party they will not be treated as a party at all. They will not have the rights of a party as provided by section 7. That is a major mistake.

A group like An Taisce, a residents' association or an individual who may live next to a proposed project and whose property, lifestyle and amenity could be adversely affected by that proposed development may have successfully lodged objections at planning application stage, but in the event of an appeal the objector does not have rights as a party. The Minister must know that he is wrong. I accept that he might want to distinguish between that category of person and other individuals or groups who may not have been central to the original planning application and any objections thereto. I would ask the Minister to reconsider, otherwise he will be giving a very large benefit to applicants as distinct from objectors.

Mr. Howlin

We can all cite specific cases. I am familiar with a light industry in my home town which causes quite a problem in relation to noise. It applied for planning permission in a largely built-up area and received permission with certain conditions regarding working hours, operations and noise output. Should that company appeal those conditions the residents who successfully raised the original objections need not necessarily be aware of the appeal. They would have the right to make submissions under section 8, but not the right automatically to have the documentation. There is a very strict timeframe of one month from the date of lodgement of the appeal for any submissions to be received. They should have the documentation as of right if they were formal objectors in the first instance. I do not see that this would be difficult from an administrative point of view. We are not talking about people who have made observations. The amendment is quite clear in that it refers to people who have made formal objection in compliance with the statute.

Mr. Smith

I covered Deputy Howlin's problems in an earlier reply when I stated that in the context of the regulations I wanted the greatest possible transparency. That must involve the notification process and the granting of information to people who lodged an original objection.

Mr. Howlin

Will that be in the regulations.

Mr. Smith

Of course. People will be alerted to a decision, whether in their favour or not. It would be totally unacceptable if an individual who submitted an objection to the local authority were not informed of any later developments in regard to appeals. I intend to cover that comprehensively.

Mr. Howlin

They would not necessarily know the content of the appeal and would not be able to rebut it. They would not have sight of the documentation submitted by the developer.

Mr. J. Mitchell

That is precisely the point.

Mr. Smith

The information which will be available to a person in that category will be comprehensive. There is no question of a person not being in a position to make decisions on foot of the notification process and the information available.

Mr. J. Mitchell

Section 7 and 8 create two categories, parties and those who make submissions. Parties are entitled to copies of all the documentation; those who make submissions are not. People who are party to an objection to a planning application in the first place will not be party to an appeal and will not be entitled under this Bill to get the new documentation submitted at the appeals stage. Therefore they will not be able to rebut or comment on the submissions made by the appellant or the local authority. That is manifestly wrong.

Mr. Smith

I will certainly consider between now and Report Stage, the circumstances in which an individual is unable to procure sufficient information about a planning decision by a local authority, and I will see what changes can be made in that regard. At this stage I am very strongly of the view that any changes I would make would be in the context of how this matter is dealt with by regulation.

Mr. J. Mitchell

At least it is some chink in the Minister's armour to say that he will consider the matter on Report Stage, but it is a very weak commitment. I urge the Minister to see the merit of the point I am making. I suggest that a distinction be made between the submissions of those who do not object to a planning application and the submissions of those who are successful in their objection.

Amendment put.

The Committee divided: Tá, 48; Níl, 64.

Tá

• Ahearn, Therese.
• Barrett, Seán.
• Belton, Louis J.
• Boylan, Andrew.
• Bradford, Paul.
• Browne, John (Carlow-Kilkenny).
• D'Arcy, Michael.
• Deasy, Austin.
• Deenihan, Jimmy.
• Dukes, Alan.
• Durkan, Bernard.
• Ferris, Michael.
• Finucane, Michael.
• Flaherty, Mary.
• Flanagan, Charles.
• Foxe, Tom.
• Garland, Roger.
• Gilmore, Eamon.
• Harte, Paddy.
• Howlin, Brendan.
• Kenny, Enda.
• Lee, Pat.
• Lowry, Michael.
• McCartan, Pat.
• Byrne, Eric.
• Connaughton, Paul.
• Connor, John.
• Cosgrave, Michael Joe.
• Cotter, Bill.
• Currie, Austin.
• McCormack, Pádraic.
• McGinley, Dinny.
• McGrath, Paul.
• Mitchell, Jim.
• Moynihan, Michael.
• Nealon, Ted.
• O'Brien, Fergus.
• O'Shea, Brian.
• O'Sullivan, Gerry.
• Owen, Nora.
• Quinn, Ruairí.
• Reynolds, Gerry.
• Sheehan, Patrick J.
• Sherlock, Joe.
• Spring, Dick.
• Taylor, Mervyn.
• Taylor-Quinn, Madeleine.
• Yates, Ivan.

Níl

• Ahern, Dermot.
• Ahern, Michael.
• Aylward, Liam.
• Barrett, Michael.
• Brady, Gerard.
• Brennan, Mattie.
• Brennan, Séamus.
• Briscoe, Ben.
• Burke, Raphael P.
• Calleary, Seán.
• Callely, Ivor.
• Clohessy, Peadar.
• Collins, Gerard.
• Connolly, Ger.
• Cowen, Brian.
• Cullimore, Séamus.
• Daly, Brendan.
• Dempsey, Noel.
• Dennehy, John.
• de Valera, Síle.
• Ellis, John.
• Fitzgerald, Liam Joseph.
• Fitzpatrick, Dermot.
• Flood, Chris.
• Flynn, Pádraig.
• Gallagher, Pat the Cope.
• Geoghegan-Quinn, Máire.
• Harney, Mary.
• Hyland, Liam.
• Jacob, Joe.
• Kenneally, Brendan.
• Kirk, Séamus.
• Kitt, Michael P.
• Lawlor, Liam.
• Lenihan, Brian.
• Leonard, Jimmy.
• Leyden, Terry.
• Lyons, Denis.
• Martin, Micheál.
• McDaid, Jim.
• McEllistrim, Tom.
• Molloy, Robert.
• Morley, P.J.
• Nolan, M.J.
• Noonan, Michael J.
• (Limerick West).
• O'Connell, John.
• O'Dea, Willie.
• O'Donoghue, John.
• O'Hanlon, Rory.
• O'Keeffe, Ned.
• O'Kennedy, Michael.
• O'Leary, John.
• O'Malley, Desmond J.
• O'Toole, Martin Joe.
• Quill, Máirín.
• Roche, Dick.
• Smith, Michael.
• Stafford, John.
• Tunney, Jim.
• Wallace, Dan.
• Wallace, Mary.
• Walsh, Joe.
• Woods, Michael.
• Wyse, Pearse.

Tellers: Tá, Deputies Flanagan and Boylan; Níl, Deputies Dempsey and Clohessy.

Amendment declared lost.

An Ceann Comhairle

Amendment No. 2a, is in the name of Deputy Eamon Gilmore. Amendments Nos. 16c and 18a are related and amendments Nos. 17 and 18 are alternative amendments to amendment No. 18a. I therefore suggest that we take all of these amendments together. Is that procedure satisfactory? Agreed.

Mr. Gilmore

I move amendment No. 2a:

In page 4, subsection (1), between lines 25 and 26, to insert the following:

" `publication' means a notice published in a newspaper which has general circulation in the area of the proposed development.".

The amendment defines the term "publication" as being a notice published in a newspaper which has general circulation in the area of the proposed development. It relates to amendments Nos. 16c and 18a, which deal with the section of the Bill that prescribes the appropriate period within which an appeal may be made.

The general idea under the Bill is that an appeal must be made within a month. A full statement of appeal under other sections of the Bill that will be debated later must be made in the initial statement of appeal made to the board. However, there are several problems in relation to the period of a month. The amended section 26 (5) (f) contained in section 3 (a), defines "the appropriate period". In the case of the applicant the period of one month dates from the day of receipt by him or her of the decision of the planning authority. In other words, the developer has a clear month from the time of receipt of notice from the planning authority of the planning authority's decision. However, in the case of third parties, the month dates from the day of the giving of the decision by the planning authority.

In the submission most Members present in the House will have received from An Taisce an interesting point is made in relation to the length of time it normally takes local authorities to get their planning lists back out to the public. I might quote from the An Taisce submission which states:

Local authority planning lists often in the case of a large planning authority like Dublin Corporation — which issues a weekly list — do not reach An Taisce until 17 days after a particular decision.

Some local authorities such as Wicklow County Council only compile a monthly planning list. For example its January 1992 list only reached An Taisce on 7 February 1992.

Therefore, third parties do not have a month within which to prepare their appeal. In the case of many individual citizens it might be right up to the month before they become aware that the planning authority have taken the decision. In the case of people dependent on local authority planning lists being issued to them, as has been pointed out here, two weeks or more may elapse after a decision will have been taken. If I may use the phrase, we do not have "a level playing pitch" here as far as developers and third parties are concerned. Indeed, it is a feature of this Bill that the balance of advantage is being tilted significantly in favour of the developer and significantly away from communities, residents' associations, community organisations and individual citizens.

At the very least this period of one month should be the same for both the developer and for third parties. The formula I propose is that there should be a requirement on the planning authority to publish their decisions in a newspaper generally circulated in the area of the proposed development. There is already an obligation on applicants to publish a notice in newspapers; that is just at the application stage. It is now fairly common for many local newspapers, as a matter of routine, to carry a report on planning decisions or very often publish a list of planning decisions taken by local authorities. However, this is inconsistent, sometimes they do and sometimes they do not. Sometimes they carry the more significant ones and so on. For example, many community organisations make arrangements, through newsletters and so on, to circulate to their local communities the decisions of the planning authority. In many such cases by the time an individual citizen gets to read the list the month will have expired. This period of one month is critical in that if one has not lodged one's appeal within the month, one has no rights; not only that, if one has not made one's full statement of appeal within the month one does not have any rights.

Therefore, this period of one month is very important for both the developer and the public in that they should both have the same starting point. The month should be exactly the time for the developer and for the public. It is very unfair that a developer, who will already have undertaken all his professional work on an application will then in the event of an appeal, probably have the bulk of his case already prepared. However a member of the public or a community organisation, when they discover the decision has been taken, may have to search for a planning consultant, an engineer or somebody else to help them put their case together. At the very minimum, a developer should not have an advantage in that his month begins from the date he receives notice of the decision of the planning authority, while the month in the case of everybody else is the date from which the decision is made. At the very least a developer automatically has a few days advantage in that formula; in practice, a developer probably has two to three weeks' advantage, in most cases. In addition, he will also have the advantage of knowing what is the score whereas a member of the public may not be so aware at all.

It is very easy for people not to spot a planning application advertisement in a newspaper. I came across a case recently of somebody who found a factory literally being built onto their garden wall. They had not spotted the planning notice when it was published in the paper for the very good reason that they were on holiday at the time. For that reason also there should be an obligation on the planning authority to publish a notice of their planning decisions. It would not be very costly. It need not be a full page advertisement or anything of that nature, but a simple, standard notice in the statutory notices columns of whatever papers are circulated in the locality clearly setting out the planning decisions taken.

Mr. Howlin

There are three amendments to section 3 which endeavour to address the same issue, all of the same import, that is, as Deputy Gilmore said, first, to try to adhere to the spirit of everybody having the same length of time in which to prepare for or respond to an appeal. The timescale set out in the Bill is one month, a very tight timescale, one I am not convinced is wholly justified. We are anxious to help the Minister in relation to the whole application of appeals which is what the Bill is all about. We want to set the tightest timescale consistent with fairness and good planning.

It is important that, in the actual lay out of the regulations and procedures to be followed, we should be seen to treat all people in like manner. Quite clearly there is a discrepancy in the lay out in section 3 in how a developer is notified, in that the time starts ticking from the time he is notified, and the time a third party is notified and the time starts ticking. In the Minister's phraseology in any other case the period of one month begins on the day of the giving of the decision which might not be the same date as that on which the third party is made aware of it. An Taisce and other such groups are very concerned because they meet monthly and weeks might elapse before they might become aware of a planning decision. I would be concerned to ensure that any third party would have the same timescale, reasonably, to prepare their response to any such appeal.

The mechanism by which the actual decisions are made public is a very important issue. I am minded to support Deputy Gilmore in his amendment No. 2a in which he defines the term "publication" which he then uses to amend section 3 in his amendment No. 18a, which is better than my amendment No. 18, which uses the term "making public" as opposed to defining clearly what "making public" means which is publication in a newspaper circulated in the relevant area.

We will all be aware of the lengths to which some people will go, even in terms of the normal planning application process, to render it as inconvenient as possible for anybody to be aware of their development intentions. For example, sometimes they print notices in evening newspapers that might not be popular in one part of the country or another, in national newspapers that might not have a great circulation in one part of the country or another, or even print them in Irish. This used be popular at one stage and, of course, not everybody is conversant with the first official language. It is a ruse sometimes used by people to blunt others awareness of it. In terms of making people aware of planning authorities' decisions it is a very useful suggestion that there be a column, which I do not think would be all that expensive, in which planning authorities would publish their planning decisions on a weekly basis.

Most people would welcome that practice. I know that in one of the two planning authorities of which I am a member, we circularise members with planning decisions on a fortnightly basis, broken down into areas, with a nice little chart, with cross-references, so that we can clearly ascertain what is involved. If that is done for members of a local authority it should be done for the public as well without undue cost.

There are two strands to the amendment now grouped together. First, planning decisions should be published and that information made available to the general public. Second, all parties to an appeal should, within reason, have the same amount of time to respond to any such decision.

Mr. J. Mitchell

I hope the Minister will be able to accept the intent of this group of amendments. The wording proposed by Deputy Gilmore in his amendment is perfectly acceptable to me and I am prepared to accept his amendment and withdraw mine, if that is acceptable to the Minister. I agree with Deputies Gilmore and Howlin that we should be seeking to include in planning legislation the right of people potentially affected by planning applications to know about such applications in good time. We need to clarify and expand the requirements in regard to publication of notices of proposed developments in newspapers and at the sites. Later amendments deal with the requirement to place notices at the site of the proposed development. My amendment No. 51 proposes that the planning authorities should publish on a weekly basis in a local newspaper with wide circulation a list of planning applications and appeals received. I hope the Minister will accept one of the amendments.

Mr. Garland

I am glad Deputies Howlin and Mitchell have indicated their preference for the wording proposed in Deputy Gilmore's amendment which is the best proposal for dealing with this issue. I agree totally with the points made by the Deputies. I hope the Minister will adopt a commonsense attitude to this issue. A very strong case has been made by the previous speakers for acceptance of one of the amendments by the Minister. It is a very reasonable request. I will be very disappointed if the Minister does not accept Deputy Gilmore's amendment.

I wish to refer to the definition of the word "publication" proposed by Deputy Gilmore. I am not well versed in planning matters as I am not a member of a local authority and I am competing here against people with immense experience in these matters. Nevertheless, I am aware of a general dissatisfaction among people about the way notices are printed in newspapers. One could argue that the placing of a notice in one newspaper is not sufficient. It is a question of striking a balance. If we decide that a notice should be published in four newspapers some people who buy the fifth newspaper may not see the notice. I am not sure where the balance lies but one could argue that the notice should be advertised in two newspapers. I am interested in hearing if there is support for my suggestion. I may consider tabling a suitable amendment on Report Stage.

Mr. Smith

I appreciate the concern which underlies the amendments proposed by the Deputies, that persons other than the applicant for planning permission should know about the planning application in good time and the need for them to have in their possession the decision of the planning authority within a certain time. Apart from notifying the applicant, a planning authority are also required, by regulations, to give notice of their decision to any person who makes submissions to them about the application. I have noted the strong views of the Deputies in regard to the procedures for notification and the need to improve them. However, this is not a matter which should be included in primary legislation. I am advised that this matter should be dealt with by way of regulations. In my review of the planning regulations I will bear in mind the views expressed and ensure, as far as I possibly can, that persons in that cetegory will receive from the local authority at the earliest practical time all of the information necessary to enable them to make their appeal.

Mr. J. Mitchell

Will the Minister elaborate on the present procedure? There seems to be varying practices between local authorities. Is the procedure covered by regulations or law? If it is covered by regulations, what are the regulations? Why do local authorities have different requirements?

Mr. Smith

I do not have the precise information with me but I understand that local authorities are generally obliged, by regulations, to inform persons in that category about planning decisions within seven days.

Mr. J. Mitchell

Is there any requirement on them to publish their decisions?

Mr. Smith

They publish their decisions within seven days but not necessarily in newspapers and so on, as the Deputies have proposed.

Mr. Gilmore

I thank Deputies Howlin and Mitchell for their support. It shows a degree of generosity and willingness by Members on this side of the House to take on board other people's points of view. Perhaps the Minister will take note of this.

I take some encouragement from the Minister's statement that he will take note of the points made during the course of the debate when reviewing the regulations. However, I do not agree with him that this is not a matter for primary legislation. Two situations are described in section 26 (5) (f) of the primary legislation which provides that the applicant will get a full month's notice of the proposed development and everyone else will get less than a month's notice. That is the issue we are here to address. I presume the Minister is not suggesting that the primary legislation should be amended by way of regulation. I do not see how that can be achieved. The problem created in the Bill will have to be addressed by way of amendment. At the very least everybody will have to be given a month's notice, and not a full calendar month for applicants and a lunar month or some other kind of month for everybody else.

The second issue which arises is publication, an idea which should be taken on board. I take the point made by the Minister that persons who have made submissions, observations or objections to a local authority about a planning application are notified by the local authority. At the very least the Minister should accept an amendment which would provide that people who have made submissions or observations should receive a month's notice of their decision. This would put them on the same footing as the applicant. If they are getting notification from the local authority it should not be, in their case, the date from which the month starts. I will be delighted if the Minister when reviewing the regulations takes into account whatever views are expressed in this House. However, he still has to address himself to the fact that the provision in the Bill is unequal as between the applicant and everybody else. It is an unjust, unbalanced decision and it will have to be amended. I put forward one formula and Deputy Howline and Deputy Jim Mitchell also put forward a formula each. If there is another way of doing it I am open to suggestions, but it will have to be done because it would not be right to pass legislation through this House which confers an unfair advantage on the developer to the detriment of third parties.

Mr. Smith

I will deal first with the question put by Deputy Jim Mitchell in regard to the 1977 planning and development regulations. Section 24 of the regulations states that notice of every planning application and the date of its receipt shall be published by a planning authority by inclusion in a weekly list. Section 32 states that where a planning authority have given notice of a planning application to a body in pursuance of Article 25, the authority shall notify the body of the decision of the authority in respect of the application within seven days.

Mr. J. Mitchell

I was asking about notices in newspapers regarding planning applications. I know it is required in the Dublin local authority area, but it varies round the country. Is there a regulation or power at present requiring that?

Mr. Smith

My information is that there is no such regulation on power in relation to publication in newspapers, but we are talking about what we will try to achieve in future. In the context of the new planning regulations I hope to introduce a uniform set of regulations which will take account of this.

Mr. J. Mitchell

Does the Minister have the power to do that by regulations?

Mr. Smith

That brings us back to the fundamental question of whether matters like this can be dealt with in the context of primary legislation or through regulations. I indicated to Deputy Gilmore and others in an earlier reply that I would take on board the strongly expressed views of Members of the House in this context and that I hope to be able to address them to the fullest possible extent in the context of the regulations. For that reason I am not disposed to accept the amendment.

Mr. Howlin

This matter is not clear. The Minister said that he accepts the principle of what the Deputies on this side of the House want to achieve but that he wants to do it by way of regulations and not by altering the primary legislation. The proposal in my amendment is very modest, simply to take away "giving" and substitute "making public". As far as I am concerned, it is not really adequate and that is why I support Deputy Gilmore. If we leave it as it is it will be the law of the land and the Minister will not be able to change it by regulation. There are two mechanisms for starting the clock, if you like, for two different categories of parties to an appeal.

Mr. Smith

In the context of the Bill as a whole we are trying to get a proper balance and to be as fair as possible in every type of situation which one can envisage. We are seeking to streamline planning, not to take away any fundamental rights. There is broad agreement in the House that we should try to achieve these broad objectives because there is a real need for development. A great number of applications are under consideration at various stages at local authority level and by the planning appeals board. The question of ensuring that we get proper decisions will be maintained, but the speed at which we get them will very largely determine how we address the question of employment in many parts of the country. I am satisfied that we have, in the context of the provisions in the Bill or in the regulations which will follow, achieved a balance. I do not accept that the developer will have any undue advantage. The board will be obliged to take account of all the objections and submissions and there will be ample time for everybody concerned to make a case, appeal, lodge objections and have them considered in a fair, broad and open-minded way.

Mr. Gilmore

I must take issue with something the Minister said. He is greatly mistaken if he takes the view that there is broad agreement in the House about the nature of this Bill. Certainly, I regard it as very dangerous legislation, the purpose of which is not so much to streamline the planning process and the planning appeal system but to seriously infringe the rights currently enjoyed by third parties in relation to appeals. The motivation for this Bill has come from developers from the construction and industrial side of development who have put pressure on the Minister to reduce and limit the opportunities for third party appeals.

The Minister referred to the need for development, which indeed I accept; but if you look at the facts the arguments made about the need for this Bill have been greatly exaggerated. For example, in 1990 there were 42,000 planning decisions by local authorities; only 7 per cent, 3,000, were appealed to An Bord Pleanála; only 30 per cent of the appeals were made by third parties; in fact, over 70 per cent of the appeals were made by the applicant in the first place. In other words, we are talking about 2 per cent of all planning decisions being appealed by third parties. It is interesting to note that, of that tiny amount of planning decisions appealed by third parties, in 90 per cent of the cases the planning authority's decision was either overturned or significantly changed. Only a tiny fraction of third party appeals did not make some progress at the planning appeal stage. A huge campaign then evolved suggesting that the big obstacle to development was third party planning appeals. That is a load of nonsense. The big problem in regard to delays at the appeals stage, as the Minister knows, was the shortage of staff and resources with which An Bord Pleanála had to cope for a very long time. Despite that evidence, this massive campaign developed and the Bill has now been introduced. Its purpose is to limit the right of third parties. They must make the appeal within a month. First, they must lodge the appeal within one month; they must state their case in full and they get one opportunity only to refute the reply from the developer. The rights of people other than parties to the appeal are very seriously infringed and the whole process must be over and done with in a period of four months no matter how large or complex the application may be, or whether an environmental impact study is involved. On top of all that, the number of days in a month for the applicant is different from the number of days in a month for the third party. In my amendment I am seeking to have the same length of time applied to everybody.

It is not acceptable for the Minister to say he will deal with this by way of regulation. The Minister has put into the primary legislation a different number of days for the applicant and for the third party and I want to see this ironed out before it gets past this stage. I want to see the same number of days in a month applying to everybody and that is hardly an unreasonable request. It has not been clarified whether a 31-day month or a 28-day month is involved but for argument sake let us say it is a 28-day month. A 28-day month will apply to the developer and if the postal system is good and the planning authority get their list out on the same day, it might at the very best be a 25 or 26-day month for third parties. In all probability, for most third parties it is a 14-day month. We should get this point right before we proceed because this is not a matter for regulations. It is in the primary legislation and it will have to be sorted out in the primary legislation. My amendment is a lay person's attempt to try to deal with it. Members on this side of the House do not have the assistance of parliamentary draftpersons and we have to make the best stab we can at it. That is my best stab at it. If the Minister has a better solution to deal with that problem, I am open to it, but if he cannot offer us a better solution this evening, I will certainly wish to press my amendment.

Mr. Howlin

I am concerned at the Minister's previous comments. We have said that the developer or the applicant, where they are the appellant, will have a calendar month to make their case but in fact it could be as long as they need because if the applicant is on holidays in the Costa del Sol, I presume the month does not start until they receive the notice. If they are out of the country for weeks, will the month start when they receive the notice? How long will their month be? The other party's month, however, is very curtailed indeed. It starts the day the notice is received by them.

Mr. Mitchell

In another section it states it starts on the day it is posted.

Mr. Howlin

I am concerned that the two categories of parties to the appeal process would actually have the same length of time to deal with the matter. There is a very clear argument being put from this side of the House for this. As I have said, our amendments are not exactly revolutionary in their impact and I do not think they will do a huge amount to address that imbalance, as they only go one small step of the road to address the imbalance between the two categories of parties. I hope the Minister will be able to accept this amendment to the primary legislation.

Mr. Smith

I want to reject the implications in Deputy Gilmore's contribution that the provisions contained in this Bill result in some way from the pressure from groups, industrial commercial or otherwise.

Mr. Gilmore

They were.

Mr. Smith

There is widespread agreement on all sides of the House and we experienced this when we were debating the Second Stage of the Bill on the need to streamline the planning system——

Mr. Garland

No.

Mr. Smith

——and to seek to improve the system while at the same time not interfering in any way with fundamental rights. I said earlier this evening that we have, and hopefully will always have the type of planning appeals system which many countries are not prepared to provide.

Deputy Gilmore tried also to convey the impression that there was a small number of applications about which we may be concerned. Approximately 1,100 applications are before An Bord Pleanála at any one time. If we translate that into development in the country, having regard to the number of applications passed by An Bord Pleanála, we will begin to see the extent to which they are interwoven with development and employment. Let us get that point out of the way. There is no pressure from any one group trying to influence the Government in the context of what we are trying to achieve. Indeed there is very broad agreement in this House, in the main, in reaching decisions which facilitate that streamlining.

I said earlier that I would try to ensure that the regulations which will follow the passage of this Bill meet the expressed needs of Deputies in giving the fullest possible opportunity to anybody who wishes to lodge an appeal. However I have decided on the force of argument and my normal goodwill to the Deputies on the other side of the House and my wish to facilitate them wherever I can, to reconsider this provision to ensure that the same starting time applies to both categories. I will come back to the more detailed analysis of this and how it will be achieved on Report Stage.

Mr. J. Mitchell

I am glad to hear that the Minister is yielding on this point. It makes a lot of sense. However, on the question of streamlining, there are other aspects of the Bill which also need to be streamlined, for example section 6, although I do not want to go into the substance of it now. That section provides that it will apply from the day it was sent by the board to the planning authority. That could take five or six days by post and at least seven days over Easter or Christmas. It should be the day on which it is received by the planning authority. I hope that when the Minister is considering streamlining he will consider points like this.

When using the word "sent" the Minister should look at the means of communication by modern technology and require for instance that it should be sent by fax so that it is received on the same day. There are other methods by way of modern technology which will eliminate avoidable delays so that if it was sent by fax, the local authority would receive it the same day it was sent.

Mr. Smith

We will come to that at a later point.

Mr. Gilmore

I am very glad that the Minister has agreed to reconsider this issue before Report Stage. In view of that, I am prepared to withdraw my amendment and perhaps retable it on Report Stage should I not be entirely happy then.

Amendment by leave, withdrawn.

Section agreed to.

SECTION 2.

An Leas-Cheann Comhairle

We come now to amendment No. 4.

Mr. J. Mitchell

What has happened to amendment No. 3?

An Leas-Cheann Comhairle

Amendment No. 3 has been ruled out of order.

Mr. J. Mitchell

I do not believe I have been notified to that effect.

An Leas-Cheann Comhairle

The Chair regrets that. Normally that is done. It is out of order in so far as——

Mr. Howlin

It is on the circulated list.

Mr. J. Mitchell

It is a pity it was ruled out of order. Perhaps the Minister would look at it and he may wish to expand on it on Report Stage.

Mr. Smith

I am in a generous mood.

An Leas-Cheann Comhairle

The amendment was ruled out of order on the basis that it was not entirely relevant to the provisions of this legislation.

Mr. Howlin

I move amendment No. 4:

In page 4, subsection (1), line 40, after "may be" to insert "subject to proper planning and environmental considerations".

Section 2 defines the duty and objective of the board. Subsection (1) states:

It shall be the duty of the Board to ensure that appeals and other matters with which it is concerned are disposed of as expeditiously as may be....

That is the nub of the Bill. I have no fundamental disagreement with the Minister in trying to dispose of appeals expeditiously so long as that expedition does not trample on the rights of ordinary citizens and that justice and common rights are vindicated in it. To make that crystal clear I am seeking to insert in the section the simple phrase "subject to proper planning and environmental considerations" so that the expedition would not be the be all and end all, that there would be a qualifying break put in for proper planning and environmental considerations. This particular clause is an aspiration, or what our American cousins would call a "mission statement". It seeks to set out the purpose and raison d'etre of the board. It should be tempered in the way I suggest to ensure that the expedition — I think there would be agreement to this from all sides of the House — should apply to appeals and always be subject to proper planning and proper environmental considerations.

Mr. Garland

I would like to support that amendment; indeed, it is one I should have tabled myself. Deputy Howlin, who has much greater experience in these matters, beat me to it. The environmental aspects are absolutely essential and I am sure other Deputies on this side of the House will enthusiastically endorse this amendment.

Mr. Gilmore

I rise to support this amendment. I do not think Deputy Garland should consider he has a monopoly on environmental concern or a patent on all potential amendments to this Bill. Deputy Howlin's amendment is a very good amendment. He is correct in saying there is a need to state the raison d'etre because much concern has been expressed. I know the Minister responded by saying there are 1,100 appeals at any one time before An Bord Pleanála. However, I recall that the explanatory memorandum to the Bill — I do not have it with me — stated very distinctly it was not intended to provide any additional staff or resources to An Bord Pleanála as a result of this Bill. As I said earlier, the problem with the large number of appeals before An Bord Pleanála at any one time has to do primarily with shortage of staff and shortage of resources.

There is a public concern that this Bill is the product of pressure — the Minister refuted this earlier. I have in front of me a chronicle from the Cork Environmental Alliance describing a campaign conducted in the media over a period between June and November 1991, a short time before this Bill was actually published. In it is listed a number of very prominent people in public life, industrial life and so on making calls for changes in he planning appeal process. They talked about the number of appeals and the delays. Significantly, many of these calls are now essential features of this Bill. For example, the four month idea surfaced time and again in the public statements made by many people calling for changes in the planning appeals system. There is documentary evidence to show that, and I do not think there is anything necessarily wrong in that. It is perfectly in order for an organisation representing industrialists or whatever to make their case publicly and to lobby and apply pressure — there is nothing wrong with that — but in all honesty we should acknowledge that this is where this Bill had its origins. Because of public concern it is important to insert in the Bill a statement that the expedition of appeals is subject to proper planning and environmental considerations as contained in Deputy Howlin's amendment.

Mr. Smith

In general I am against clogging up legislation with words which, though they may sound attractive, are not necessary for the purposes of establishing law. It is clear from the Planning Acts that An Bord Pleanála must deal with any appeal by reference to the proper planning and development of the area in question. This obligation will not be prejudiced or affected by the board's general duty under section 2 (1) to deal expeditiously with cases. I should add also that this provision simply restates the board's existing duty under section 4 of the Local Government (Planning and Development) Act, 1983. In these circumstances I am unable to acept the Deputy's amendment.

Deputy Howlin and others will appreciate that proper planning and environmental considerations have to be part of how any board would deal with these and other matters and merely adding these words is unnecessary. If it is considered that An Bord Pleanála would act in any other way, then the provisions we are enacting here would make an awful lot of nonsense. It is fundamental that that is and will be the case. Deputy Howlin is smiling; he knows he is gilding the lily. The inclusion of those words is unnecessary. I want to assure him, and indeed all others, if there is need for further assurance, that these considerations are properly enshrined already. It is the duty of the board to deal with appeals by reference to the highest standards in all these areas.

Mr. Howlin

These few words of clogging are very important. What the Minister has set out in section 2 is the reasoning behind this Bill. As I have said, it is the mission statement, the purpose. What this House is telling An Bord Pleanála is that their duty is to expedite planning appeals — that is what is spelt out in the section. I say that is not the intention of this House, rather that they expedite and deal with planning appeals but that they consider always proper planning and proper environmental protection and concern.

I do not think we would gild any lily or clog the Bill if we spell out clearly on what the House has reached a consensus — even the Minister has indicated that the House has reached a consensus. There should be no ambiguity, therefore, and the Minister should accept those few words as they give clear expression to the intent of the House so that the board and their successors would be under no illusions and would know that what we want them to do is deal expeditiously, fairly and properly with all planning appeals.

Progress reported; Committee to sit again.