Local Government (Planning and Development) Bill, 1993: Second Stage.

Minister for the Environment (Mr. M. Smith)

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

The main purpose of the Bill is to introduce new arrangements for the operation of planning control in relation to future development by State authorities and to address, from the perspective of planning law, the position of development carried out up to now by these authorities. It makes provision also for new arrangements for public notice and public participation in relation to proposed development by local authorities. The measures proposed will establish an appropriate and effective framework for the regulation of development by Government Departments and the Commissioners of Public Works, and they will bring about greater openness and transparency in relation to development by those bodies and by local authorities.

The proposals in the Bill derive primarily from commitments on the control of development by public bodies and local authorities included in the Programme for a Partnership Government, which was published last January. The precise form in which the proposals relating to development by Government Departments and the Commissioners of Public Works have been framed takes account, however, of the recent ruling of the Supreme Court in the cases relating to the development at Mullaghmore, County Clare and Luggala, County Wicklow. Before proceeding to look in detail at these legislative proposals, it may be useful to put matters in context by looking briefly at the history of development by State authorities and its relationship with planning law.

State authorities have carried out a very large volume and variety of development over the years, including the construction of Government offices and other public buildings, piers and harbours, telephone exchanges and post offices, military facilities, works related to the preservation and restoration of historic buildings and national monuments, and civil engineering operations of various kinds. Much of this development has been carried out by the Commissioners of Public Works, acting in their own right or on behalf of Government Departments, but various Ministers of the Government have also, over the years, been responsible directly for development and construction work.

In recent years, the range of development carried out by State authorities has diminished somewhat, with the transfer of functions to State companies such as Telecom Éireann, An Post and Coillte Teoranta to which the Planning Acts apply in the ordinary way. Nevertheless, State authorities are still responsible for a substantial ongoing programme of construction and civil engineering works, employing a significant number of persons.

It is fair to say that most of the projects undertaken by State authorities over the years generated little or no controversy at the time. Those responsible for State development have striven to achieve high standards of development, and have succeeded in doing so in most cases. It would be wrong, therefore, if the impression were to be given that this Bill is, in any way, a reflection on the work of State authorities, particularly the Office of Public Works, which has served the country well down through the years. Instead, the Bill should be seen as part of a more modern approach to environmental and planning matters generally — an approach which responds to the demand for systems of public information and involvement and which leads to greater transparency in decision-making.

The starting point when one turns to look at the relationship between State authority development and planning law is the Town and Regional Planning Act, 1934, the precursor of the modern physical planning code. Section 16 of that Act permitted Ministers and statutory bodies to co-operate with planning authorities and enter into agreements with them, but did not impose any binding requirements. When the Act of 1934 was replaced by the Local Government (Planning and Development) Act, 1963, mandatory requirements for certain development by State authorities were introduced by section 84 of that Act. This required State authorities to consult the relevant planning authority before constructing or extending a building, other than a building in connection with afforestation by the State. It provided also for a form of arbitration role for the Minister for the Environment, requiring the promoting State authority to consult the Minister if objections raised by the planning authority were not resolved.

The general understanding until recently was that the consultation requirments under section 84 represented the full extent of State authorities' obligations under planning law and that planning permission was not required for development undertaken by or for them. Acting on this understanding, State authorities have not applied for permission for any development carried out since the 1963 Act came into operation on 1 October 1964.

Times have changed greatly since the 1963 Act became law. People now rightly demand more openness and accountability from public bodies generally and expect to have a greater say in relation to decisions which may affect their lives. It was against this background that a commitment to new provisions for development by public bodies was included in the Programme for a Partnership Government.

Specifically, the programme indicated that public bodies would be required by law to comply, in general, with the information procedures contained in the planning laws. The underlying intention was to ensure significanlty enhanced public information about, and involvement with, State development. However, when I came to consider how this objective could best be achieved, I concluded that State development should, in general, be made subject to planning controls in the same way as private projects. Accordingly, I proposed to the Government that, subject only to certain exceptions which I will outline later, State authority development should be subject to the normal planning permission requirements. The Government approved this proposal last March but the precise form the legislation should take had to await the outcome of the legal proceedings relating to the Mullaghmore and Luggala developments.

As I mentioned earlier, there was a general understanding until recently that State authorities' only obligations under planning law were those set out in section 84 of the 1963 planning Act. However, the question of whether development by these authorities needs planning permission was raised in the Mullaghmore and Luggala cases and, as Deputies will be aware, different rulings were given in the High Court. The matter was, therefore, brought to the Supreme Court on appeal to obtain a definitive statement of the existing law. This was essential so that the Government's proposals for the future regulation of State authority development could be finalised by reference to a correct understanding of the existing position.

The Supreme Court ruled on 26 May last that State authority development requires planning permission. This ruling did not affect the fundamentals of the proposals already approved by the Government for the regulation of State development, but it influenced the content of the Bill in two ways. In the first place, it made it necessary to address the position of development already carried out without planning permission by State authorities. Second, the fact that planning permission has been held to be required under existing law makes it unnecessary to include any provision in the Bill to apply planning controls to the general body of State authority development; the absence of such a provision may have led to some initial misunderstanding of the effects of the Bill.

Turning now to the development already carried out or in progress by State authorities, it would be wholly impractical and unreasonable to expect State authorities to apply for permission to retain all development since 1964. To do so would result in a diversion of scarce resources to searching through records to identify development carried out and to drawing up planning applications for retention permission. Such a course of action would also clog the planning process with applications which would be of purely historical interest at this stage, and frustrate the crucial objective of ensuring that current applications are dealt with as expeditiously as possible. The appropriate course is to wipe the slate clean by providing that planning permission shall not be, and shall be deemed never to have been, required for development completed before the relevant provision of section 5 of the Bill comes into operation.

As well as rectifying in planning terms the position of completed development, the validating provision in section 5 (1) will also regularise development which was in progress when the Supreme Court gave its ruling. It would not be reasonable to suspend work on such projects while planning permission is sought, because of the contractual problems, disruption and loss of employment which would, inevitably, arise.

It would not be appropriate, however, for a validating provision of this nature to extend to specific cases in which a court has already ruled that planning permission is necessary for development, or to any other case in which a court gives a ruling on the need for planning permission in proceedings which were initiated before the Supreme Court gave its ruling in the Mullaghmore and Luggala cases on 26 May last. The proviso in section 5 (1) will restrict the subsection accordingly. In practical terms, this means that the validation will not extend to the Mullaghmore and Luggala developments, or to any other case in which a court rules that permission is required and the proceedings in question were initiated before the Supreme Court ruling.

Deputies will be aware that the Government decided that applications for planning permission are to be made, following the widest possible consultation with all interested parties over a period of two months, in relation to the developments at Mullaghmore and Luggala and in the Boyne Valley.

Having outlined the effect of the Bill in relation to development carried out or in progress, I move on to look at the application of planning law to future development.

As I have explained, the fundamental proposal in this regard is that State authority development will generally be subject to normal planning permission requirements, with the same exemptions for minor works, repair and maintenance, etc., as currently apply to private development. There must, however, be some limited exclusions to take account of the special nature of some State development, as well as provision for a smooth transition to a new regulatory framework.

The proposed limited exceptions to the application of normal planning controls are provided for in section 2 of the Bill. This will give the Minister for the Environment power to provide, by regulations, that planning Acts will not apply to particular types of development by State authorities. There are specific limits on the use which may be made of this power; it can be availed of only in relation to development which is related to public safety or order, the administration of justice or national security or defence, or where development is subject to authorisation in accordance with another statutory process.

The reason for including a special provision in respect of development with a security dimension is, simply, that it would not be appropriate for development of this nature to be subject to the detailed requirements as to submission and public availability of plans and paticulars which planning law lays down. I am sure Deputies will recognise and accept this in the case of facilities such as prisons, courthouses and army installations. The fact that development may be taken outside the scope of normal planning controls on security grounds does not mean, however, that there will be no public information about, or involvement with, such development. Paragraph (b) of section 2(1) will allow the Minister for the Environment to establish, by regulations, procedures of public notice and consultation for development of this kind. Provision could be made, for example, requiring a State authority proposing a new security related development to give public notice in a particular form, to make general information on the proposal available to the public, to allow an opportunity for public comment and to take account, in deciding whether to carry out the development, of any views expressed. The precise nature of the requirements to be applied to a particular form of development will depend, of course, on the security considerations involved, but it is my intention that section 2(1)(b) will be used to ensure that there is as much public information and consultation as possible for development of this kind.

The other use which can be made of the power of exclusion under section 2(1) is to prevent the unnecessary duplication which could arise if planning permission had to be obtained for development which already has to be authorised through another statutory procedure. It is my intention that development will be brought outside the remit of the planning process on these grounds only if I am fully satisfied that the other statutory procedure provides adequately for public notice, information and involvement. An example of what I have in mind would be drainage works authorised in accordance with the arterial drainage Acts.

Subsection (2) of section 2 contains the other exclusionary power. It allows for an ad hoc decision to remove particular development from planning control or from any alternative public notice or consultation requirements that may have been applied to it by regulations under subsection (1)(b). Any Minister of the Government will have power to make an order bringing about such an exclusion, but only in the event of an accident or emergency or where development is otherwise necessary in the public interest. This power is intended to cater for situations where works have to be carried out urgently to protect people or property following a natural disaster such as a major storm, or where work, or a material change of use, are needed to provide accommodation without delay for refugees who are taken into this country or others made homeless by some disaster. It could be used also where a specific development is deemed essential and urgent because of vital national strategic considerations. The power is of a reserve nature; it will be called upon only in entirely exceptional circumstances and public notice will be given where it has been used.

The other way in which the Bill will qualify the application of normal planning controls to development by State authorities is through the provision of a transitional period. I mentioned earlier that there would be unacceptable disruption for projects which were in train when the Supreme Court gave its ruling if planning permission now had to be sought for all of them. The same considerations apply in relation to projects in respect of which contractual commitments have already been entered into or which are at an advanced stage of planning. Section 5 (2), section 6 and the commencement powers under section 7 (3) will, therefore, provide for this necessary transitional period.

Section 5 (2) (a) proposes that planning permission will not be required for any development by State authorities commenced during the period of one year after the coming into operation of section 5. I intend to bring section 5 into operation as soon as possible after the Bill is enacted. Planning permission requirements will, therefore, generally apply to State development from the middle of next year. Until then, State authorities will continue to operate the consultation procedure under section 84 of the 1963 Act. However, it is my intention at the end of the transitional period — that is, the middle of 1994 — to bring section 6 of the Bill into effect, thereby terminating the section 84 consultation procedure. Development by State authorities undertaken after the end of the transitional period which has undergone the section 84 consultation process by then will, under section 5 (2) (b) of this Bill, be authorised to proceed.

Before moving on to consider what is proposed in relation to local authority development, I should refer briefly to section 3 of the Bill. While the Supreme Court has now ruled that planning permission is needed for State authority development, the fact is that the Planning Acts were enacted on the understanding that State authorities would be bound only by section 84 consultations. This means that it may be necessary to make minor technical modifications and adjustments to provisions of the Acts to facilitate their application to the State, and section 3 will authorise the Minister for the Environment to make these modifications and adjustments by regulations.

As regards local authority works, the position at present is that local authority members already have power to make the final determination as to whether particular works are to proceed. The manager of a local authority is required, by section 2 of the City and County Management (Amendment) Act, 1955, to inform the councillors before works, other than repair or maintenance works, are carried out. This is so that the members can exercise, if they wish, their power under section 3 of that Act to direct that works are not to go ahead. My objective, therefore, is to reinforce this position, while at the same time providing for more openness and transparency in relation to local authority development proposals.

A local authority needs permission in the same way as a private developer for any development, other than road works, which it wishes to undertake outside its own functional area. Development within an authority's own area is exempted development for planning purposes and does not, therefore, need planning permission. This is a necessary exemption because, clearly, it would make no sense to require authorities to apply to themselves for planning permission. This does not mean, however, that local authorities have an entirely free hand in relation to development in their own areas, because section 39 of the 1963 Planning Act prohibits the carrying out of any development which contravenes materially the development plan, and the development plan, as we know, is adopted only after extensive public consultation.

There is already a system of public notice and consultation for certain major development in a local authority's own area, through the environmental impact assessment procedures set up to implement the EC directive on that matter. However, there are no such requirements for most other projects within a local authority's own jurisdiction.

Section 4 of the Bill will, therefore, give the Minister for the Environment power to make regulations laying down requirements as to the giving of public notice, the public availability of plans and particulars, an opportunity for public comment and the submission of a report on proposed development to the elected members. It is my intention that these requirements would apply to projects not already subject to public consultation requirements, other than minor works or works required by law or by court order to be carried out. I intend also that the new requirements will come into operation after a suitable transitional period, which will be essential to avoid disruption to projects at an advanced stage of planning. They will, however, come into operation not later than the end of the one year transitional period which section 5 will establish for State authority development.

The new requirement to submit a report on proposed development to the elected members which will be established through regulations under section 4 will, in my view, strengthen their position by ensuring that they will have all necessary information and thus be able to give balanced and careful consideration to all the issues involved.

The Bill is a clear demonstration of the Government's commitment to having open, effective and relevant procedures for dealing with development by State and local authorities. It constitutes a significant movement towards greater transparency and accountability in relation to such development. I look forward to contributions from all sides of the House so that when we have completed our work on this Bill we will have effective legislation.

Mrs. Doyle

The proper planning and development of our country, county by county, is one of the most important functions of local government. Together with programmes on housing, roads and sanitary services, the drawing up and reviewing of development plans rates as one of the most important areas of responsibility for the councillor. The development plan is the councillor's plan, not that of management or executives. The democratically elected members bring to the council chambers an intimate knowledge of their functional area and the needs and wishes of the electorate. This knowledge and experience, together with professional guidance of planners and engineers, results in plans that reflect the best way forward for the next five years or so for the proper planning and development of the functional area in question.

I have been a member of a local authority for 19 years and have been involved in several reviews of our development plan. There have been many contentious issues to deal with, not least of which was the zoning of an area for a nuclear power station. Many hours have been spent, even in recent months, thrashing out issues in our current review of the development plan. Councillors have proposed amendments to the draft development plan and in all cases compromise and agreement has been reached with planners and management. On some issues councillors bowed in favour of the technical advice from the professionals while on other issues management bowed to the express wishes of councillors and acknowledged the wisdom of councillors' local views on issues. This balance between professional advice from the top table and the coal face experience of local representatives is essential to the production of a development plan which charts the way forward for orderly planning and efficient development, with both public and private sectors in harmoney recognising the best interests of the functional area in question.

Autocratic management removed from the needs of the community and failing to understand the natural evolution of the village and town nuclei will not evoke co-operation from the local representative. Conversely, representatives who cannot accept the professional advice of management on certain issues have the added responsibility, as lay people, of making important decisions on critical planning and economic issues against the wishes of the Executive. This latter scenario is very rare in local government. I value the statutory functions and independence of the democratically elected councillors to formulate their own development plans and a lot can be learned from careful analysis when there is a breakdown of what should be a symbiotic relationship between councillors and their executive, planners, engineers and managers. My experience reinforces my view that it takes a lot to make councillors reject sound managerial advice on planning and development. When they do, searching questions need to be answered as to how that evolved, not least the question as to whether the advice in the first place was sound. I have no doubt that intransigence on both sides and failure to accommodate the other view is not in the best interests of proper planning and development of any area.

This Bill extends the application of the planning Acts from 1963 to 1992 to development by the State and State authorities. It also retrospectively validates all such development to date carried out on the understanding that planning permission was not required — that was until the recent Supreme Court judgment. The Bill excludes from this general validation any project which is or has been the subject of court action, such as the interpretative centres at Mullaghmore and Luggala. The Minister has taken upon himself the power to give an amnesty under the provisions of this Bill to any State development underway, to protect contractual commitments and jobs and to allow for what the Minister calls an orderly transition to the new arrangements.

While I sympathise with the Minister's rationale to a certain extent on this matter, he is not observing either the letter or the spirit of the Supreme Court judgment in this regard and as a result he could find himself involved in court proceedings with disgruntled objectors.

The Minister also provides in this Bill for his right to exclude certain developments from planning control — developments in the areas of justice, defence and security, or which is more sinister, developments which are subject to other statutory authorisation processes. The Minister retains the ultimate control in cases of emergency or accident, in that under the terms of this Bill he may make an order excluding a development from any planning controls. This power, the Minister assures us, will be confined to special cases where development would be necessary in the public interest. I cannot quibble with that provision.

The Bill introduces changes in the case of development by local authorities within their own functional area. I am less than satisfied with these changes, not least because an objector will not have the right to appeal the decision of the councillors to either An Bord Pleanála or the Environmental Protection Agency.

In section 1 there is an omission in that there is no definition of "the Minister", referred to throughout the Bill. As far as I am concerned, it is the Minister for the Environment and that should be amended on Committee Stage. In regard to regulations section 2 (3) reads:

"The Minister may by regulations modify or adapt any provision of the Acts...."

Here, the Minister is taking upon himself to proceed further down a road about which there is some doubt by virtue of the High Court judgment in March, the so called clenbuterol or angel dust judgment, in relation to whether we are in order in proceeding to repeal enactments or existing legislation by way of regulation. Perhaps when replying, the Minister will refer to present Government thinking as this whole issue of regulations comes into several sections. There is quite a lot of concern and confusion in the legal profession, apart from environmentalists, about whether we are in order in proceeding in this way. I hope the Minister will take some amendments on board; in any event this issue should be clarified.

Section 2 (1) (a) deals with, among other things, the exclusion from planning permission in certain areas of justice, national security, defence and public safety. The Minister will be going too far if he takes all those exclusions to himself. I agree that in relation to public safety or order the Minister needs some element of control in an emergency but the routine administration of justice, national security and defence, such as the construction of jails or military airports, do not need to be entirely excluded from the planning process. There is no reason outline planning permission should not be required for such constructions or developments. We do not need to know where every door, cell and safe is to be in each jail and we do not need detailed full planning permission for such constructions but outline planning permission dealing with the nature, character and the location of the development should apply. The public are entitled to be involved at least through the level of outline planning permission in the areas where the Minister would now ask for exclusion. An objector should have the right to appeal to An Bord Pleanála at the very least. There is omission from the appeal procedure in other areas. We must look again at An Bord Pleanála and the Environmental Protection Agency. At this point An Bord Pleanála would be the right avenue for appeal. I ask the Minister to allow for outline planning permission in the areas dealt with by section 2 (1) (a) (i) and to provide an appeal avenue for objectors generally.

The exclusion which relates to an area looked after by another enactment or authorisation process is a little sinister. I am not sure why the Minister needs this provision. He mentioned arterial drainage. Any development on the foreshore for example, would be excluded and it appears that all mining and extraction processes will be excluded. That is a hornet's nest. There are extreme views on both sides but there is a middle road which makes solid sense in respecting environmental concerns while allowing reasonable access to ore. Am I right in interpreting 2 (1) (a) (ii) to exclude all prospecting licences and all the authorisations already in place in relation to mining and the extraction of ore? It is unnecessary to have these exclusions. If environmental impact statements are needed we should not be concerned about duplication. The EIS could be prepared and submitted as part of the planning application. There will be no duplication as the planning authority will not have to go over the ground already covered by the EIS. I am not comfortable with the exclusions the Minister is allowing here.

Another subsection needs to be added after section 2 (1) (b) ensuring that all development is carried out in conformity with the current development plan. The Minister refers in his opening address to conformity with the development plan, but it needs to be stated in the Bill. An eighth paragraph expressly stating that there should be conformity to the development plan would be extremely helpful in this area.

I have dealt with section 3. The provisions of section 4 have to do with regulations being made in respect of any cases or specified classes of cases of development proposed. I am not comfortable about those provisions. The provisions of section 4 also omit any appeal process which I contend must be included when we reach Committee Stage.

On an initial reading of the provisions of this Bill and looking at the 1963 Act I felt the Bill would have been improved by an explicit requirement for planning permission. Nonetheless I accept the very neat point made in section 6 where, in one sentence, the Minister states and requires what might otherwise have needed several paragraphs if one inserted an explicit requirement for planning permission. Perhaps we can talk about that on Committee Stage when discussing this section. There are some who still feel that an explicit requirement for planning permission might strengthen the provisions of the Bill rather than just removing the requirement for consultation only. I will bow to the Minister's advice and wisdom in this area.

Section 5 (2) (a) refers to any development commenced by or on behalf of a State authority during a period of one year beginning on the commencement of this section, or in respect of which planning permission will not be required. Could we have a definition of "development"? For example, at what stage does a seminal thought in some developer's head become an actual development proposal? Is it when plans are drawn up? Is it when contractual commitments are made. This could be the subject of litigation unless the Minister can clarify what he means by "any development" within the context of this subsection. For example, if initial plans are on the drawing board, will a development be considered to have commenced? Will any plan on any piece of paper constitute the commencement of a development and so exclude the relevant developer from the requirement to obtain planning permission within this 12 month period? I do not know.

Mr. M. Smith

One could win the League Final if one stretched it that far.

Mrs. Doyle

These are issues for which senior counsel and the legal profession generally thank us. Lack of clarity in this House certainly helps others in different quarters earn a very good living. The time the contract is placed should be deemed to be the commencement of a development within the meaning of this subsection. Once contractual commitments are made it will be difficult to go back and apply for planning permission. Jobs will be at stake and a lot of money will already have been invested. It could complicate the position considerably. I would ask the Minister to clarify that position.

We shall be discussing detailed amendments on Committee Stage. We will be opposing this Bill because of its negation of the spirit of the Supreme Court judgment. If a law applies to citizens it applies also to the State. This Bill lacks democracy, transparency and accountability in too many areas. There are too many exclusions or get-outs allowed by the Minister within the areas of local authority development, security, defence, justice and, very intriguingly, in relation to development subject to other statutory authorisation processes.

Ms Keogh

Some people may welcome this Bill but they do not include very many on this side of the House. If this Bill were a well thought out proposal following on the promises given in the Programme for Government I would find it hard to fault the Government and would welcome at least some aspects of such a Bill. Unfortunately, as stated in the explanatory memorandum, this Bill has been introduced as an immediate response to the ruling of the Supreme Court that the controversial interpretative centres could not go ahead because the Office of Public Works did not have planning permission therefor.

I suppose many people would find it difficult to credit the political ineptitude which characterises this sorry episode in Irish political life. It is all the harder to credit bearing in mind the other political inept events of recent weeks, such as the proposed increased telephone charges and tax amnesty which caused an outrage across the spectrum of our society. Irish people do not believe that the end justifies the means and do not approve of rewarding rich law breakers. I should not like to be a member of the Government when people begin to receive their revised telephone bills in the near future.

I would describe this so-called partnership Government as morally tawdry and political inept; it is big but very definitely not beautiful. This latest example of how this Bill came about tells its own story. The Government sat on its hands until forced into action by the commitment of volunteers who challenged the decision to proceed with the interpretative centres all the way to the Supreme Court. The Government sat on its hands and watched, as the Minister admitted, as if this were a soap opera. Why was not the whole débacle sorted out in the course of the protracted negotiations for a partnership Government? How is it that, despite the Labour Party's general election manifesto commitment to “a reversal of current policy on interpretative centres” the suitors chose to ignore this highly contentious subject in their Programme for Government? How is it that nobody noticed that the Programme for Government actually contained a particular section entitled “Our Heritage”? Despite the certain knowledge that the siting of the controversial interpretative centres was being challenged, no effort was made to resolve the political differences of which we were then aware and which remain evident? In the case of the Burren National Park visitors centre costs incurred have reached at least £1.5 million. We are constantly being told by this Government that this or that cannot be done because of lack of money and so on, yet the same Government watched, like a cinema audience eating popcorn, while a sum of £1.5 million went down the tubes.

Then we had the Minister for Arts, Culture and the Gaeltacht engaging in his principled performance, pretending to want the Burren interpretative centre relocated. While he advanced an alternative proposal, work went ahead anyway. We learned subsequently from the Minister of State at the Department of Finance, Deputy Noel Dempsey that an alternative proposal would cost in the region of £7.3 million, excluding the purchase price of the land involved.

Many of our young population are currently sitting examinations to win the requisite points to gain access to third-level education or obtain jobs. On the performance of the past three months, neither the Minister for Arts, Culture and the Gaeltacht nor the Minister of State at the Department of Finance, Deputy Noel Dempsey, would gain the relevant points for Ministeries. Looking at their performance kindly, one might award them an E grade, or perhaps no grade in some instances. Who did the Minister for Arts, Culture and the Gaeltacht think he was fooling? Why did not the subject of interpretative centres figure on the agenda in the course of the protracted talks on the formation of this partnership Government? It never arose because this Government will not face up to political realities and does not have good judgment. Its arrogance is based on its numerical strength, though few of their Members are present to hear this debate today. This Government adds up to less than the sum of its parts — it is a case of adding two and two together and getting three and a half.

I welcome the decision of the Supreme Court on the interpretative centres as an indication of the democratic process and the people's right to open, accountable Government. Government and State agencies should be accountable for their actions. Despite its stated intentions the Government has been forced into transparency in its actions, but it has had to be forced.

I might give another example. The Minister for the Environment has within the last week or so introduced regulations to implement the EC Directive on Freedom of Access to Information on the Environment, to which Deputy Doyle has already referred. These regulations fall far short of what is needed. This halfhearted response appears to be based on some type of restricted "need to know attitude" rather than openness or so-called transparency. So far we have had no time to debate these issues, something to which I want to return. I agree totally with Deputy Doyle in her expressed doubts about the way the Government is operating by way of regulation. What is the Minister afraid of? Is this some type of paternalistic protectionism? From whom are we being protected? Is it from the so-called golden circle about which we hear so much?

Recently the Minister recently made statements in which he was critical of the planning process. In particular he voiced criticism of councillors from his own party for their developer-led consideration of the development plan for Dublin County Council. While I share these misgivings, I should point out that Dublin County Council is still engaged in its examination of the plan which was due to be submitted in 1991 and that the Minister has granted a number of extensions to allow the council complete its review. As recently as 14 May he granted an extension to 31 December. The Minister has emphasised that there is an urgent need to complete the review and I agree with him wholeheartedly but he is being disingenuous in criticising councillors at this late stage without first explaining what his views are and what the philosophy behind decisions should be so that his party's councillors will be under no misapprehension about what they should be doing.

I suggested recently that we should adopt the same mechanism in dealing with rezoning motions in relation to a development plan as was adopted at the behest of the Progressive Democrats in regard to decisions on material contraventions of an existing plan. The Minister dismissed this suggestion and said that such matters should be carried out on the basis of simple majority decisions. On the face of it that may amount to democracy but what about the fear of possible abuses? Why not give the public the reassurances they deserve? This is what the Progressive Democrats did when in Government. I am sure the guardians of political ethics, the Minister's partners in Government, would agree with a proposal that on rezoning motions a two-thirds majority should be required and that there should be a clause insisting that only councillors from the relevant area could propose such a motion given that planning is an emotive issue. There is a body of opinion which states that at worst it is open to corruption and at best bad decision making.

I welcome the decision of the Supreme Court that the planning laws apply to the Office of Public Works and other State agencies as much as to any ordinary citizen, company or organisation. The Bill acknowledges this but unfortunately it bears all the hallmarks of rushed, ill-considered legislation. It is fundamentally flawed and is a minimal reaction which the Minister has been pushed into by the Supreme Court judgment. In general, it is very permissive in its language. It gives wide discretionary powers not only to the Minister for the Environment but to any Minister and does not provide for any appeals mechanism in respect of decisions made by local authorities. It may also be unconstitutional.

A brief examination of the Bill will show its shortcomings. On Committee Stage tomorrow we will go through it in greater depth but I would like to give a number of examples at this stage. Section 2 refers to development by State authorities and provides that the planning Acts shall not apply to specified categories of development by or on behalf of State authorities and provides for a procedure of public notice and consultation. What does this mean? The section is very wide and open to interpretation. It is not enough for the Minister to give a vague promise that there will be a procedure of public notice and consultation or to talk in vague terms about regulations that may be made some time in the future. We need to know what exactly is being put before us.

I have my doubts also as to whether section 2 (2) (a) is constitutional as it appears that a Minister will be empowered to make an order that the planning Acts will not apply. Is the House being circumvented? Are we allowed to do this? Does the Constitution not forbid it? It is stated that it will be up to the Minister to decide but this flies in the face of the Constitution. This means that the Minister will have discretionary powers.

The wording of this section should be tightened considerably. I intend to table an amendment in this regard. Whatever about the need to exercise power, for the purposes of public safety and order and the administration of justice, why should a Minister be given wide discretionary powers? The Government is displaying arrogance. What will happen next — Government by decree? It is my intention to propose that section 3 be deleted.

One would think that, as a local councillor, I would welcome section 4, which deals with regulations made for development carried out by local authorities. This part of the Bill is very weak. As the Minister said, the local authorities are also the planning authorities. One cannot apply to oneself for planning permission. Provision has not been made for an appeals mechanism. To whom can one appeal against a decision? I suggest that if county councillors make decisions in the absence of an appeals procedure it is likely that those who are offended will have recourse to the courts. Councillors may base their decisions on well-founded reasons which may not be in keeping with strict planning criteria. Even though we try to comply with the criteria laid down, every councillor who has the best of intentions will be open to representations in respect of the sad, bad case. No allowance is made for this in the section.

Provision should be made for an independent appeals body, such as An Bord Pleanála or the Environmental Protection Agency. On foot of this the board could determine the adequacy of an environmental impact statement.

It is not clear if provision is being made for an oral hearing or a submission as part of the consultative process with a local authority. In normal circumstances this is a fundamental right where an environmental impact statement is being prepared. In the interests of transparency and openness, this should be part of the procedure. I intend to examine this matter in more detail on Committee Stage.

There is some doubt as to whether there is a need for section 5 in view of the judgment handed down on 12 February by Mr. Justice Costello and the subsequent enactment of the State Authorities (Development and Management) Act on 18 February. The Bill as drafted does not specify the State development that requires planning permission as held by the Supreme Court in its judgment of 26 May. On one reading it could allow the State to complete the development of the contentious interpretative centres.

Section 5 will also allow a year's grace in respect of development carried out or commenced by or on behalf of State authorities without permission. Any reasonable person would agree that there should be a period of grace to allow certain developments to proceed but the Minister should make it less open-ended. Why should we have to wait for a commencement order? Could the Minister not state a reasonable date — for example, from 26 May last? On a more positive note I am glad the Minister is repealing, in section 6, section 84 of the 1963 Act.

This is a short Bill but it is being hurried through as an instant response to the Supreme Court decision. It is flawed in many respects. It is permissive in its tone. The use of the word "May" must cause concern and there must be some doubt about its constitutionality. It is a bad Bill because it relies far too heavily on the Minister who will have discretionary power to enforce regulations. At the very least the Minister should give a commitment that these regulations will be debated and voted on in Dáil Éireann in an effort to be open on this matter. A great deal of concern has been expressed about the use of regulations. The Minister could defuse this concern if he agreed to give a commitment that the regulations will be debated in the House.

I ask the Minister to examine the planning laws in their entirely as the existing legislation is fragmented and there is a need for a comprehensive overview and overhaul of the legislation. It may be necessary in some circumstances to react but we should always look at the big picture. It is the intention of the Progressive Democrats to oppose the Bill for the many reasons I have outlined. I intend to table a number of amendments on Committee Stage which I hope the Minister will consider favourably as they would improve the Bill to some extent.

Mr. Gilmore

I move amendment No. 1:

To delete all words after "That" and substitute the following:

"in view of:

(a) the failure of the Bill to provide for equal application of the planning laws between State bodies and private citizens,

(b) the extensive exemption from the planning process for State bodies,

Dáil Éireann declines to give a Second Reading to the Bill."

This Bill pretends to require public authorities to apply for planning permission but does nothing of the kind. In his opening statement this morning the Minister stated:

The fundamental proposal in this regard is that State authority development will generally be subject to normal planning permission requirements, with the same exemptions for minor works, repair and maintenance, etc. as currently apply to private development.

That statement could hardly be more at variance with the general thrust of the Bill, which proposes to exempt development by State authorities on grounds of public safety, order, justice and defence. It also proposes to exempt any development which, under other legislation, requires a licence, consent, approval or any other type of authorisation. Under our centralised system of government and administration, this leaves out very little. It also proposes to exclude any development begun in the year following the commencement of section 5, but it does not fix a date for the commencement of the section itself. After all that, section 3 effectively enables the Minister to amend our planning laws without any further reference to the Oireachtas.

The Bill refers constantly to "consultation". It has all the hallmarks of the kind of compromise which is typical of this Government. Like so much else from the Government, the Bill pretends to go left and then swings right. Planning is supposed to be a positive process. The stated purpose of planning legislation is to provide for proper planning and development. This is reactive legislation to the latest planning crisis — the Supreme Court decision in regard to Mullaghmore and Luggala. Reactive piecemeal legislation such as this defies the principle of good planning. Yet for the past four or five years we have had a series of ad hoc piecemeal planning legislation, each one reacting to the most recent crisis.

This is the sixth Government Bill substantially covering the area of planning to have been introduced since I came into this House in 1989. These Bills were all reactive. The 1990 Planning Compensation Act reacted to huge compensation awards to speculative developers even though successive Governments had claimed for years that it would be unconstitutional to ban planning compensation. The Environmental Protection Agency Act changed the laws on licensing, it was a response to the controversies over industrial development such as Merck Sharp and Dohme, Merrell Dow and Sandoz. The 1991 Local Government Act, which changed the law on section fours and material contraventions, was a response to the abuse of these procedures by members of some local authorities. The 1992 Planning Act, which changed the appeals system, was a response to builder's organisations who wanted to speed up planning appeals and to make third party appeals more difficult. The State Authorities Act, which was brought before this House last February, gave retrospective approval to Garda stations and other public buildings following the High Court decision in the Mullaghmore case. Some of the secondary legislation, such as the regulation on environmental impact statements and access to information, were forced on a reluctant Government by EC law.

Virtually all this legislation was introduced in an attempt to put right damage already done. Today's planning Bill fits perfectly into this tradition. The courts found that the State needed planning permission for its interpretative centres and should not have started building without permission. The State, whose adherence to the law should be exemplary, has been found to be behaving no better than any bad developer who, without planning permission, decides to build and be damned, gets caught, is subjected to enforcement proceedings and has to stop work and apply for retention. This Bill is the biggest application for planning retention in the history of this State. This is done in a way which has become part of what we are. In this country an oath is not an oath if we do not mean it to be, last week we legislated for the sale of condoms by saying that they are not contraceptives and this week we will give retrospective planning permission to every school, Garda station, barracks, local authority house, road, bridge and every other building built by the State by providing in section 5 that they did not need planning permission in the first place. Section 5 states:

Permission under Part IV of the Principal Act shall not be, and shall be deemed never to have been, required for development carried out or commenced by or on behalf of a State authority before the commencement of this section....

Where does that leave Mullaghmore and the other controversial interpretative centres which have given rise to this legislation? This brings us back to the partnership side-step again — pretending to go left and then going right. Michéal Ó Hehir could never have foretold that the phrase he made famous would so accurately describe the modus operandi of this Government.

Section 5 (1) seems to suit Deputy Bhamjee and the Minister for Arts, Culture and the Gaeltacht. It appears to exclude developments which had been the subject of court proceedings before 26 May from the general planning amnesty which is being granted to the State by that section. Section 5 (2) proposes that any building started within one year of the commencement of section 5 will not need planning permission while section 7 (3) will enable the Minister to commence section 5 whenever he likes. If the Government wants to avoid applying for planning permission for the interpretative centres, the Minister for the Environment merely has to delay the commencement of section 5 until the promised consultation process is complete and then give the full year within which there will not be a requirement to apply for planning permission. The advantage in this case will be to the Minister of State at the Department of Finance and Deputy Killeen.

In its submission to the Minister, An Taisce has drawn attention to this point. It states:

If these two sub-sections of Section 5 are read together as worded in the Bill the effect would be to enable the State to recommence and complete the building of the contentious Office of Public Works Interpretative Centres before the Courts prior to 26 May without planning permission by utilising Section 5 (2) (a) and (b). The most the State would need to do in those circumstances would be to seek planning permission to retain the works already constructed at Mullaghmore and Luggala.

The effect of utilising these sub-sections in this manner would be to almost render null and void the practical effect of the Surpreme Court Judgment on 26 May 1993 for at least a year after the enactment of this Bill.

The Minister stated in his speech and publicly that there was a Government decision to apply for planning permission. I am very glad to hear that and I accept what the Minister says in this regard. However, it is remarkable that the Bill does not require the Government to do this. This was effectively acknowledged by the Minister in his speech in which he justifed the way in which section 5, as presented, will allow other types of developments which have been started to go ahead. He said it would be unreasonable to stop these and we have the word of the Government and the Minister that they will apply for planning permission for Mullaghmore and Luggala.

It is extraordinary that legislation which has been brought about by a Supreme Court decision in relation to Mullaghmore and Luggala does not expressly require the Government to make the planning application which the courts found was necessary. Instead, we have been presented with a Bill which will exempt the Government from the requirement to apply for planning permission if it chooses, to exercise that option.

It is a brilliant achievement for the Minister, confronted with a Supreme Court decision which stopped works and which required planning permission to be sought, to produce a Bill which states that everything which has been built by the State to date does not need planning permission. That will enable the Government, if it wishes to do so, to slip the noose in relation to Mullaghmore and Luggala and possibly not to have to apply for planning permission, which gives the Minister the minimum of a year's lead-in to start other developments which will not need planning permission if they are being carried out by the State; which exempts local authorities from the planning process and introduces a consultative process, which is quite long in the text of that Bill but which in reality, especially without a provision for an appeals procedure, may be found wanting in practice and which exempts a whole range of activities by State authorities from the requirement to apply for planning permission. On top of that, section 3 empowers the Minister to change the planning laws by regulation. This is not just a belt and braces Bill, it is belt, braces and garters legislation.

This Bill, which is supposed to require the State to apply for planning permission for developments carried out by State bodies, does the reverse as everything that has been built to date is deemed to have had planning permission, every development that will be started within a year following the enactment of section 5 — whenever that will be — will be exempted; everything covered by the term "public safety and order", which I presume are prisons and developments of that kind, will be exempted; everything covered under the heading "administration of justice"— which I presume covers Garda stations and courthouses and so on — will be exempted and everything covered by the heading "security and defence, barracks" and all the rest will be exempted. If it was left at that there might be some case for exempting certain developments and the Minister made the case, for reasons of security and confidentiality and so on, why it was necessary to have these exemption included.

What is the justification for section 2 (1) (a) (ii) which exempts every development covered by other types of legislation, for example, fish farms, mining activity and the development of marinas which require a foreshore licence? These developments will now be exempted from the requirement to apply for planning permission and what amazes me is that for the first time we will have effectively an exemption not only for State bodies but for private development if it requires a licence or authorisation from a Government Department. The range of developments requiring a licence, consent, approval or any other type of authorisation will become exempted developments. When one considers the way in which the local authorities, State bodies and so on are tied to the umbilical cord of centralised administration and that everything they wish to do has to be approved by the parent Department, there is virtually no type of development by a State authority which does not come under this exemption provision in regard to applying for planning permission. A Bill which we are told sets out to require State authorities to apply for planning permission has built into itself so many exemptions that it is virtually impossible to think of any kind of developments not covered by one or other of these exemptions requiring the State to apply for planning permission.

Section 3 is another extraordinary section that has been slipped into this Bill. Not satisfied with all the exemptions he has given to himself, the Minister may, by regulations, modify or adapt any provision of the Acts for the purpose of securing or facilitating its application to development by or on behalf of a State authority. In effect, this section allows the Minister to make regulations to change the planning Acts. I know that An Taisce in its submission on the Bill has already questioned the legality of building in a provision in the legislation which effectively allows the Minister to change the planning Acts without bringing amending legislation before this House. The situation which the courts have found to be unsatisfactory, is that the requirement to apply for planning permission did not apply to State bodies and there is simply a requirement on them to have a consultation. It is fair to say that the intention of the Supreme Court decision is that the State and State bodies should be required to undergo the same type of planning process as anybody else carrying out a development. This is not what happened. Instead of the present position where it is assumed that the planning laws do not apply to the State, we are being presented with a situation where one type of planning law will apply to the State and another to the individual citizen. That is a denial of the concept of equity in planning legislation.

The Bill complicates the planning process and adds a further degree of confusion and complication to our planning laws. The whole purpose of planning law is to have a democratic system of planning in the State in which the public as well as the professional planners and so on could participate. The intention of the law was to have a system clearly understood by the public. Increasingly, the planning system befuddles the public and it is now intelligible only to those with professional expertise or others who because of long experience, have become expert in the planning process. As well as the 1963 Act, the 1976 Act and various other laws to which I referred, with secondary legislation and regulations, had to be introduced following EC legislation.

The Bill presented us with an opportunity to make a positive statement requiring State bodies to apply for planning permission under Part IV of the 1963 Act. The simple way to do it is to make a positive statement that there is now a requirement on State bodies to apply for planning permission instead of the series of extractions and exclusions from the application of Part IV of the 1963 Act, which completely complicates the planning process and will become an area in which lawyers can make a windfall. It is time that some attempt was made to consolidate the planning legislation, we need a consolidated Act that incorporates not only the primary legislation but the various secondary legislation to make it more accessible to the public. It is very difficult at present for the public to understand planning law.

The controversy about the interpretative centres gave rise to the legislation. It is regrettable that this controversy has put the Office of Public Works into the firing line. It has done a great service to this country over the years in its work in restoration, maintenance and conservation of national monuments and public buildings and in making available to the general public areas of our national heritage which perhaps might not otherwise have been opened up.

It is unfortunate that a State body which has done so much for conservation and our heritage should have been involved in such controversies, pitted against people in the community who wanted to protect our heritage. The fault lies not with the Office of Public Works but with the fact that we did not have legislation which would have required public bodies — in this case the Office of Public Works — to engage in dialogue and open consultation with the public about its plans and intentions and have them subjected to the planning process in the normal way. Unfortunately, this Bill does not correct the fault. It does not provide for the kind of planning law that will require public bodies in the future to subject themselves to the planning process. If it were to do that then the controversies, the heat and the divisiveness which have arisen in connection with the interpretative centres might be avoided in the future. This Bill provides that developments will be covered by various types of exemption.

I had hoped, arising from the Supreme Court decision and the rather vague statement in the Programme for Government, that we would have legislation which would require State bodies to apply for planning permission in the normal way. When the State authorities Bill was before the House I proposed an amendment — which was voted down by the Government — seeking to require public bodies to apply for planning permission. I had hoped this legislation would have included such a provision in a way that was clearly understood by Members of the House and by the public. This Bill is designed to pretend to the public that there is a requirement on State bodies to apply for planning permission while providing so many exemptions and exclusions that, in practice, they will not have to apply.

Mr. D. Wallace

I wish to share my time with Deputy Killeen.

An Leas-Cheann Comhairle

Is that agreed? Agreed.

Mr. D. Wallace

This Local Government (Planning and Development) Bill, 1993 is the culmination of much public debate during the past year or more. The main thrust of the Bill is to be lauded in that it ensures that most comprehensive safeguards are put in place for future regulation by or on behalf of the State.

The hight profile cases of the interpretative centres at Mullaghmore in County Clare and Luggala in County Wicklow have brought the anomalies in our current planning system into virtually every home in the country. Despite the pub licity surrounding these cases there are other centres around the country con tributing the understanding of the local environment and boosting the coffers of local economies.

The Bill has come about due to the appeal to the Supreme Court in the Mullaghmore case which was taken to establish, without doubt, the extent to which existing planning laws apply to State developments. Two separate High Court cases had determined two different rulings on this issue. In the Programme for a Partnership Government there are proposals for new operating procedures in relation to State projects which take into account the amount of work underway already and the employment of people whose jobs are currently in suspension. welcome this Bill while also mindful of the concerns of those with environment reservations.

It is easy to pontificate about the pro and cons of preserving the natural environment from the comfort of our armchair. The realities of the issues is far different for the people living in the localities concerned. Emigration, stagnation, unemployment, empty school and an ageing population are endemic some of the areas earmarked for environmental development. While I am favour of protecting as much of our natural environment and heritage as possible I do not think that it is environment sabbotage to develop a natural resource in harmony with the ecology, providing much needed local employment in both the construction and the day to day administration.

The secret of success in this sphere is balance and proper monitoring a utilisation of the prized and respected resource. Under this Bill the State will be obliged to apply for planning permission like any individual or organisation for any development or construction. This is welcome. It obviously did not apply under the Planning Acts of 1963-92. It must be acknowledged that some mistakes were made. I should like to give two brief examples. We are all aware of the legacy of the National Building Agency development in the sixties whereby the Minister has to provide millions of pounds for the upgrading of these substandard dwellings in which thousands of our people live. I compliment the Minister on the amount of money he has provided and will continue to provide for the next couple of years. The second major error was the development of six blocks of flats at Blackpool in Cork, one of the most historic areas of the city. They were ugly and out of character with the area. If we had then some of the regulations, the openness and the transparency we will have following the enactment of this Bill, we would not find ourselves in that situation.

That was in a pre-environmental awareness era. Nowadays everyone from local school children to council representatives and Members of this House has acquired a heightened awareness and is more informed in relation to preserving and caring for the environment. This is why I find it difficult to comprehend the abdurate opposition of interested groups from outside the areas of Mullghmore and Luggala to the proposed developments. The Office of Public Works has an excellent track record in maintaining the highest standards in preserving our heritage. We have only to look at Dublin Castle, which several years ago was slipping into the moat, and at the Department of the Taoiseach. The old college of engineering was hidden and unnoticed by the thousands of people walking past it every day until it was taken in hand by the Office of Public Works and contractors. Can we not trust these guardians of our heritage to do the right thing?

In dealing with the whole area of interpretative centres we must be careful not to generate over-anxiety which would undermine the essence of preserving what we treasure so dearly. This Bill will go a long way towards attaining this objective. Not all of our national monuments are deemed to be under threat when opened up to tourism; a case in point is the new and highly acclaimed Céide Fields project in Mayo. This whole area will open up in tourism terms if all goes according to plan. New jobs will be created and the local economic infrastructure will be strengthened by the additional income generated. If the ecological balance can be safely maintained in Mayo it begs the question as to why it cannot be maintained in Mullaghmore. Surely it is highly preferable that tourists are brought in and educated about the surrounding natural domain instead of walking willy nilly all over the flora and fauna in a pair of hobnail boots. Inaccessibility is no longer a deterrent in these latter years of the 20th century.

Mr. Creed

Public liability is a deterrent.

Mr. D. Wallace

We will deal with that tonight. We live in the age of the jet plane, the four wheel drive and the scrambler motor bike. Nowhere is too far away, too difficult to reach, too remote or unapproachable. An out of the way place is an attraction to those who want to get away from everything. It would be better to control tourism to afford the utmost protection to the natural habitat of the area while adding to the wealth of the locality. I will highlight an example of controlled tourism benefiting the protection of a natural resource. In Kenya in Africa there is a famed coral reef with a fine ecological balance still intact which such reefs require to survive. Yet, this reef is situated in a prime tourist area of the Indian Ocean coastline. The area has been turned into a national marine park, no boats can drop anchor, nobody can walk on the reef and divers are subject to a levy of approximately £5 per dive. This princely sum, by Kenyan standards, goes back to the coffers of the marine park and is used to pay the marine police who patrol the area in highpowered speed boats, giving much needed employment to the locals in the surrounding area. The resource which needs protection there is the self-sustaining environmental success.

However, in Gambia on the west coast, uncontrolled tourism has led to the destruction of a similar reef. In that area there is a marine desert wasteland and tourists are going elsewhere. The people responsible for the destruction have moved on and Gambia is now targeting a different tourist market, the budget tourist, who cares little for the indigenous culture of the area and comes only to consume the basics. Surely we, in a developed country, can learn a lesson from a Third World country with limited resources and little education on environmental matters?

The local people in Luggala and Mullaghmore are in favour of interpretative centres and are more in tune with their environment than those outside the area who are perceived to be concerned about it. Their wishes must be taken into account when decisions are made regarding the natural habitat of their area. They are surrounded by a natural wealth on a daily basis and they are aware of the pain of broken families, lack of facilities and the emigration trail. Surely they would not jeopardise their economic future by destroying the means to maintain their families at home? Any properly managed resource is an asset to the community and the Office of Public Works and most other people are aware of that.

This Bill will facilitate the expansion of proposed works. Citizens from outside the immediate areas have a right to voice their concerns regarding issues and resources which belong to the nation as a whole. However, we must be mindful that such issues do not become the platform for the vested interests of pressure groups who want to maintain their high moral platform to gain leverage for their hobby-horse of the day. We must ensure that the planning process will not be usurped by groups with narrow interests making spurious claims in the form of litigation which would not be in the long term interests of the environmental movement. What benefits outweigh those serious consequences? Those litigants will, no doubt, claim that their efforts aim to save Ireland from pollution. However, by suggesting this they are also saying that the State's experts on environmental pollution assessment are wrong, which is a dangerous line of argument. Awareness of our environment and how to avoid destroying it is essential. Nevertheless, it is a mistake to think that the environment is independent of the other issues with which we are confronted. On the contrary, it must be considered as part of all national issues. The environment is an integral part of industrial and agricultural development, tourism, urban and regional planning, forestry and fisheries and many other aspects of our natural planning and legislative processes.

The Local Government (Planning and Development) Bill, 1993, will allow for greater transparency, a contribution to such decisions and each new State development will give public notice of the proposed project. The plans and details of the works to be carried out will be available for public viewing and members of the public or organisations will have an opportunity to make submissions or observations to the relevant local authorities regarding their concerns. The local authority will be obliged to submit a report relating to the proposed developments to the elected members of the local authority in addition to the normal environmental impact assessment requirements. With those structures in place and the goodwill of the local populace, there should be no reason genuine development of our natural legacy should not go ahead. The responsible members of the environmental movement realise that their cause is best served by ensuring that all our national authorities are fully aware of the environment and the ecological considerations are an integral part of their activities. This Bill encompasses all those matters and more. Therefore, I reiterate my support for the Minister in placing this Bill before the House.

Mr. Killeen

I welcome the Bill and the fact that it provides for public notice and greater public participation in the planning process, particularly as it applies to State developments. There is a commitment in the Programme for Government to have greater openness and transparency in the planning system. While the system has come under severe pressure and has been criticised, many issues have been mixed and planning has not been central to the problem in all cases. I am glad the Minister stressed that this Bill is not a reflection on the work of the Office of Public Works, most speakers so far have paid tribute to its personnel. The Office of Public Works will now have a far less stringent procedure to which it must adhere when applying for planning permission. I base that observation on my experience of the procedures under the section 84 consultation with Clare County Council which were stringently applied and it was difficult to know when they were completed.

As a member of Clare County Council, I have never seen an applicant for planning permission put through the hoops to the same extent as the Office of Public Works. To some extent that arose because the nature of the development became controversial and there was an onus on the people involved in the planning process to ensure that all angles were examined. It would be fair to say that at least that much was done. Seeking planning permission in the normal way would have been far less complicated, it would have been much easier to know at what stage the procedure was completed and to comply with the regulations.

An example is a case involving a group of people in the Burren area who applied for planning permission for an interpretative centre more than twice the size proposed by the Office of Public Works and which would have catered for approximately twice the number of people. The planning application went through the county council without any difficulty within a relatively short time. There was no controversy in regard to it because the fears based on financial considerations that appear to be in vogue in relation to Mullaghmore did not come into the process. It was fortunate for the developers that planning permission was sought when the finances required to construct it were available. If those developers had the ill luck to have applied for planning permission at a time when it was widely believed they would be in a position to complete the development they might well have faced some of the difficulties which the Office of Public Works faced in regard to Mullaghmore. In that instance much of the controversy seen to be centred on the planning process had its origins in considerations of financial gain or loss as perceived by people in the industry in the North Clare area. I thank Deputy Wallace for recognising the integrity of the local people in the Mullaghmore area. An unfortunate element of the controversy is that local people have begun to feel that their voice is ignored and have felt insulted by some of those who have opposed the development and placed very little store in their views. These people and their ancestors have preserved the environment in that area for countless generations. The least they are entitled to is that their view be given equal prominence with the views of people from the outside who might have the right connections in the environmental lobby but who might not perhaps, know as much about the area as the local people.

I am glad that the Minister does not intend that all State developments since 1964 will be required to apply for planning permission. Apart from the difficulty, in some instances, of finding out what has been done since then, the huge volume of applications would clog up the system, particularly where there were objections to some developments. I enjoyed Deputy Gilmore's commentary of how he perceives things. I am particularly grateful to him for his advice should I not be satisfied with the outcome of the planning process a few months from now.

Although I am not completely happy with section 5 (1), I am prepared to live with it. Having gone through section 84 procedure, the Mullaghmore project should get through the planning system as the same criteria are applied. There is much more involved there than the planning issue.

I am glad that section 3 has been included because it allows the Minister to make minor adjustments to the Bill, some of which will inevitably be required because all legislation since 1963 has assumed that section 84 applied to State authorities. That is bound to create some anomalies.

Obviously local authorities cannot apply to themselves for planning permission. I welcome the fact that the position of the elected councillor is very much strengthened by this Bill. Although it has generally been the procedure for management to refer major development matters to the council, it is right that this should be required by legislation and I am glad that has been included in this Bill.

Section 6 repeals section 84 and many State Departments will be pleased with that. I am sure that in retrospect they will feel they would have been in a better position had they had to apply for planning permission in the normal way from the beginning, because the section 84 procedure allowed for matters to be dragged out interminably and left them open to all kinds of accusations, most of them unjustified. In the general context of care for the environment it is important that extreme views should not be allowed to override balanced views. Although some of us may be fed up with some of the arguments emanating from that lobby, it is still incumbent on us to adopt good planning procedures. This Bill seeks to include provisions for doing that.

Mr. McGrath

With your permission and the permission of the House, I wish to share my time with Deputy Creed and Deputy Frances Fitzgerald.

An Leas-Cheann Comhairle

Is that agreed? Agreed.

Mr. McGrath

I welcome this Local Government (Planning and Development) Bill, 1993, presented to the House by the Minister for the Environment. The need for this Bill arose from the recent Supreme Court decision referring to the Mullaghmore and Luggala developments and I understand it was also included before that in the Programme for Government. This court decision ensures that all State developments will be required to have planning permission. This is something which I welcome. It is only reasonable that all planning proposals be treated equally whether from the public or the private sector. Any proposal for an industrial development, for a housing development or for an interpretative centre should be subjected to the same level of public debate and scrutiny. It is only reasonable that any Department or the Office of Public Works should have to apply for planning permission to the local authority where the development is to be carried out.

However, this Bill does not go far enough and I am concerned at the exclusions under section 2. Lest I appear to be condemning the Office of Public Works I wish to commend the tremendous work they have done in many areas around the country. Their sensitive restoration work is to be particularly commended.

Section 2 of the Bill excludes development for security reasons. What exactly does this mean? Does it mean that the erection of radar or satellite tracking equipment would be excluded? Does it mean the building of a military installation or the building of a military airport would be excluded? The Minister might clarify this when responding. I certainly have reservations about this section unless the development is very urgent. Deputy Avril Doyle suggested earlier than even in such cases at least outline planning permission should have to be sought. Perhaps that is a point the Minister will take on board.

Section 2 (1) (a) (ii) is undesirable because it fragments planning control. For example, if the State decided to build a national incinerator this would normally require an integrated pollution licence. The proposal under section 2 could mean that such a development could be taken out of planning control if the Minister of the day so decided. This contradicts the Supreme Court decision and departs from the comprehensive, integrated and transparent planning system that should apply to all developments.

Section 2 paragraph (1) (b) allows the Minister, if he feels it necessary, to create by regulation a system for publication and input by local authorities and the public in dealing with these developments which are excluded from seeking planning permission. However, the Minister may decide not to invoke these regulations; he may decide not to involve the local planning authority or he may decide not to seek an environmental impact statement in any such development. What happens if the local planning authority, who are only involved in any of these matters on a consultative basis, disapprove of the project proposed by the Department? Can there be an appeal against such a State decision and, if so, to whom would the appeal be made? What role would An Bord Pleanála have?

Mr. M. Smith

What kind of project is the Deputy talking about?

Mr. McGrath

I am referring to any of the excluded projects where the local planning authority would be involved on a consultative basis but the Minister could override the decision. I am asking if there will be an appeals mechanism. Section 2 (b) (vi) provides for reference to a specified person of any dispute or disagreement. Why not involve An Bord Pleanála, which is the body already in place for making decisions on disputed planning permissions? Why bring in somebody else? Is the Minister implying that a new tier of appeal mechanism should be created?

Section 2 (2) (a) allows emergency development to be carried out without recourse to planning regulations. Perhaps the Minister could give us some examples of the type of development envisaged. The Minister mentioned refugees or people who are homeless. Perhaps he would give us more examples along those lines.

Mr. M. Smith

There was a time when Fine Gael used to make a reasonable effort to keep the middle ground.

Mr. McGrath

The Minister will get his chance later.

Section 3 allows the Minister to modify or adapt, by regulation, any provisions of the Planning and Development Acts to facilitate development by a State authority. This is a far reaching power. Will the Minister give the House some indication of the nature and extent of the adaptation allowed under this section? The Minister is taking upon himself the power to change any part of any Act from 1964 to the present by regulation only. The Minister is shaking his head indicating that this is not so. The interpretation section, section 1 states that:

"the Acts" means the Local Government (Planning and Development) Acts, 1963 to 1992, and any instrument made thereunder.

Section 3 states:

The Minister may by regulations modify or adapt any provision of the Acts for the purpose of securing or facilitating its application to development by or on behalf of a State authority.

Under that section the Minister can change any provisions in the planning Acts by regulation. That is too far reaching a power to be given to the Minister without recourse to the House. I oppose it.

Section 4 refers to developments by a local authority. Those proposals, which provide for greater openness and accountability of local authority projects, are welcome. It should be noted that the county manager will remain the decision-maker in such cases. There is no appeal procedure for the public in relation to local authority developments and that is regrettable.

Section 5 (1) validates development commenced or carried out prior to the initiation of this Bill except in specific cases which were decided on or are before the courts.

Section 5 (2) postpones for one year the application of planning control to State authorities. The Bill is unclear in relation to the stage a development must be at before it will be exempt. Regarding a hospital or a State development——

Mr. M. Smith

Hospital development is subject to full planning control.

Mr. McGrath

The Minister should clarify that section.

This Bill is a step in the right direction in relation to the openness and accessibility of information on future State developments. It will give the public greater input into the planning process but, unfortunately, it does not go far enough. It is unclear from the Bill whether the Minister for the Environment or other Ministers will be in a position to act independently if he or she so desired. We will be opposing the Bill.

Ms F. Fitzgerald

When I spoke here on the Green 2000 advisory group report on the environment I referred to Rachel Carson. About 30 years ago Rachel Carson changed the way the world looks at the environment and raised the possibility that one year, if we did not take action in relation to the environment, we might have what she termed a silent spring — a springtime without bird song. In the intervening years the environment has become an international issue. Bird song may not be appropriate to the Bill——

Mr. M. Smith

I listened at home to the birds singing over the weekend.

Ms F. Fitzgerald

Our planning laws are an essential part of a good quality environment. This Bill has been produced because of a crisis in relation to one aspect of our environment, the interpretative centres. The Green 2000 advisory group report is important and it is critical that we should have a timetable for its implementation. It should be the environmental bible of this coalition Government. I hope its recommendations will begin to be implemented within the lifetime of this Government.

The Bill attempts to move towards greater transparency, democracy and clarity in the planning process and that is important. It is critical that we learn from the recent crisis in relation to the interpretative centres on this issue. They have been painful and difficult sagas and much can be learned from the issues that emerged and the groups who lobbied in relation to those centres.

I was somewhat surprised at the comments by Deputy Wallace on the intent of some of the groups concerned with the issues which arose in respect of Mullaghmore. We have learned a great deal and we can be grateful to the groups who took the time, interest and put in the energy to think through the issue. However, I am concerned about the divisions created; we must move on. I hope the round of consultations proposed will help to resolve the issues. If we spend money from Structural Funds or elsewhere carelessly and take careless environment decisions, we, our children and their children will pay dearly. I am aware that the Minister shares this concern.

Environmental issues cannot be hived off into one area of Government thinking. For example, it is regrettable that we did not have some environmental or green thinking built into the provisions of the budget. We did not have any such thinking in regard to unleaded petrol. Opportunities to address environmental issues ought to be taken and developed. It is unfortunate also that very often environmental issues are dealt with by way of fire brigade action. We are doing that again today by trying to roll back disasters.

In The Observer last Sunday there was a report on the use of pesticides and fertilisers and disturbing evidence emerged about their effects on children's health. We will have to consider that matter. There is a critical need for a coherent national plan for the preservation and development of our environment. The proposals in the Bill do not take us far enough along that road. The word “amnesty” was mentioned earlier; the Government appears to be getting fond of amnesties. We have had a tax amnesty, a social welfare amnesty and this Bill is a type of environmental amnesty.

The discretion the Bill gives the Minister for the Environment or any other Minister is too great. Sufficient safeguards are not built in in relation to that discretion. As a result we may not in the future avoid repetition of what took place in relation to interpretative centres. Does the Minister consider the discretion that has been built into the Bill so great that it does not concur with the spirit of the Supreme Court judgment.

I would have the same concerns about section 2 (1) (a) and section 3 — Deputy Doyle expressed her concerns in that regard. Will the Minister clarify section 5 (2) (a) which refers to development commenced by or on behalf of the State? What does "commencement" of development mean? What development will be allowed and at what point will the Minister assess that development has begun?

In relation to the Structural Funds, the European Commission requires member states to involve the relevant authorities in the different stages of programming. Those authorities must include in their plans an assessment of the environmental situation of the region concerned and its expected development. Will the Minister indicate if this has been done in relation to the programme which he has drawn up? Obviously, the Cohesion and Structural Funds will provide the impetus in the economic area and is it critical that this is accompanied by strong environmental awareness by environmental-proofing how we spend the money in so far as that is possible. I regret that this Bill does not move in the right direction, that it is not true to the spirit of the Supreme Court judgment and that the discretion allowed within it is too wide. I am concerned that we may have a recurrence of the difficulties we had because of the extent of the discretion that has been built into the Bill.

I wish to comment on what has been said in relation to the balancing of economic and environmental factors. This is a critical matter. We should pay a great deal of attention to it rather than dismissing people concerned about environmental issues. As we have seen from other countries, we do that at our peril and at the risk of life itself.

We are debating a serious issue here today which involves the quality of our environment, how we manage it and the effect of decisions taken today will have an impact for many years to come. We must encompass as much consultation, accountability and transparency as possible in our planning decisions. I hope that is the direction the Minister will follow in his ministry.

Mr. Creed

I would like to begin my contribution by referring to the point on which Deputy Fitzgerald concluded, that is, the necessity for tolerance in this debate. The genesis of the debate was the issue of interpretative centres as they related to Luggala and Mullaghmore. It goes without saying that in any political party there is consensus on those particular issues.

Deputy Dan Wallace, who is not here at the moment, made unfortunate references to "spurious grounds" and undermined the rights——

Mr. M. Smith

We want more unity in Cork.

Mr. Creed

——of those persons involved in court proceedings. The Minister and I may cross swords at a later stage on a different issue but I would like to make some use of my remaining four minutes without interference from him. Deputy Wallace's contribution was intolerant and has been a hallmark of this debate to date.

Many of us expected, on foot of the Supreme Court decision, the type of watershed in legislative terms referred to by Deputy Fitzgerald. Unfortunately, the Bill before the House does not meet that standard in any way. We should be particularly grateful to the environmental groups and, indeed, to other outside agencies who often brought the authorities here, kicking and screaming, to the altar of environmental protection. The effect of EC directives, the efforts An Taisce and other groups have been largely responsible for much of the environmental protection here. As a legislative body we have been rather lax in that regard.

The legislation before us today does not meet the spirit of the judgment handed down in the Supreme Court. We have heard much about partnership in Government, but there is no spirit of partnership in this legislation. The planning process should be about partnership between State bodies and the public. What we have in this legislation is a series of exemptions which are tantamount to tokenism to the spirit of the Supreme Court judgment and empire building for "Ministers", as referred to in the legislation. That Bill does not involve wider participation in the planning process but rather centralised decision making for a whole range of developments envisaged by the Act being carried out by public bodies. This is essentially a hasty, ill-considered and ill-thought out response. There is no credit due to the Minister for having brought it before the House in such an unprepared state.

I wish to place on the record my appreciation of the Office of Public Works in regard to projects they have carried out. Very often, in the face of much local opposition, they have been the guardians of our heritage and many of the difficulties they have faced were due largely to the political control to which they were subjected, particularly with regard to Mullaghmore. The record will show this to be the case.

The consultation and public notice aspects of the legislation is merely a cosmetic exercise. This legislation contains no legal safeguard for the public from unwarranted, unhealthy and environmentally unfriendly developments which local authorities foisted upon local communities in the past.

Mr. M. Smith

Nobody has done more to stop that than myself.

Mr. Creed

There is provision in this legislation to further exempt local authorities from accountability and responsibility. That is a regrettable feature of the legislation which, due to time constraints, I do not have time to debate at present but which I intend to do at a future stage.

Mr. M. Smith

I stand on my record.

Mr. Kemmy

I welcome this debate here today and listened with great interest to contributions made by opponents of the Bill. I agreed with many of the points made, although I felt many of the speakers were too negative in their contributions. It is important to criticise — that is the function of Deputies — but it is important also to put in place the legislation put forward by the Minister.

In relation to the Office of Public Works, Deputies want the luxury of criticising them on certain issues while praising them at other times. We would all like to have the best of both worlds, but——

Mr. Creed

The Deputy lived in it for long enough.

Mr. Kemmy

——that is not possible. I agree with the points made in regard to planning laws and the maze of piecemeal legislation enacted in this House over the years. I would not deny there has been far too much cobbling of items of planning legislation, which is unfortunate. There is a need for an overall planning law based on good criteria and planning enactments. I would support this, because planning is far too serious an issue to be left to this haphazard process. We need proper criteria at national and local level against which planning can be measured.

It is important for the country as a whole that we have proper planning infrastructure and, above all, that we have good planners. The human factor in planning has not been mentioned so far in this debate. Planning is not carried out by somebody from Mars or by automatic pilot. It is carried out by planners who are merely human beings and there is a need for improved education and training for these people at national and local level. I am always amazed at the divergence of opinion in planning at national and local level. How many times have we at local level disallowed planning applications for takeaways in the principal streets of our cities only to be overruled by an Bord Pleanála? If doctors, accountants and solicitors have a criteria to work from, planners must have some criteria also. Looking around our country one can see it is pock-marked with bad planning decisions. How can this be possible if these planners came from the same school and went through the same process? Surely they are as offended by these sights as myself. That is an issue that has not been addressed by any Deputies, namely, the need for good planners at national and local level.

The shadow of Mullaghmore and Luggala has been hanging over this debate today and the court judgments have been referred to also. It is natural that reference would be made to this, but I would never shy away from a debate regardless of how unpleasant, because democracy does not exist in a furtive cloak and dagger environment. Democracy in planning will only exiast by having debates such as this in this House, by achieving consensus and, above all, by seeking good planning criteria. That must be our objective in this debate and not simply to score points, which is useless and gets us nowhere. We must work towards the objective of good planning at national and local level.

I was pleased to see Deputy Killeen step back from his original Bismarckian attitude towards Mullaghmore. He was much more measured in his contribution today. He has been criticised in the past in regard to his views — and I have criticised him — but it is part of the educational process and he will learn from that. It is good for him to come here and listen to somebody giving the other side of the story.

I was making my way back from the Goldsmith Weekend yesterday where I had been speaking on Oliver Goldsmith. I took the opportunity of stopping off in The Burren and visited the House of the oldest family in that area, the O'Loughlin family. I do not know of any older family than the O'Loughlin's in the Burren region. This family was totally at one with me in my attitude towards this issue and were determined that I would not lose my resolve in my attitude towards the Mullaghmore interpretative project. What took place in regard to this project was wrong. It was illegal to commence the project, it was illegal to continue it, and that fact cannot be denied. Those who gave the go ahead for this project must take the responsibility for it. They acted illegally in going ahead with the project and there is no point in saying otherwise.

The question must be posed as to the purpose of buildings, especially public buildings such as interpretative centres, in our society. What is the purpose of an interpretative centre? That debate was never entered into before these projects commenced. Recently I visited Cobh where a very good interpretative centre in the old railway station was converted into an emigration museum. I advise Members to visit that museum which is one of the best of its kind in any country.

Debate adjourned.

Dáil Éireann debate - Wednesday, 9 Jun 1993

Local Government (Planning and Development) Bill, 1993: Second Stage.

Dáil Éireann debate -
Wednesday, 9 Jun 1993