On the question of a board or an authority, this is an interim mechanism and a board is suitable for it. The ultimate body can be an authority but a board is quite suitable in these circumstances.
Dún Laoghaire Harbour Bill, 1994: Committee and Final Stages.
Amendment No. a1 not moved.
Question proposed: "That section 1 stand part of the Bill".
I recognise that the board is of an interim nature but can the Minister say how long "interim" will be and at what stage does he expect the final authority to be set up? We all recognise the need for a short term board but we have many examples of interim measures which remain in place for years.
The legislation is well in course of preparation. It is expected to have it published for the autumn and, consequently, it can go through quite quickly. The formal board can then be set up. There is an interim board. The two can come together and the semi-commercial or commercial board will take over all the functions.
We are anxious that the Dún Laoghaire Harbour Board is set up. At this stage, everyone assumes the interim board is the board and has forgotten about the word "interim" because it has been going on for so long. Is the Minister saying the finance board will be subsumed into the new harbour board?
Yes. It is only a device to ensure the works can proceed, depending on the granting of planning permission. The House is facilitating this arrangement so that when planning permission is granted the work can get underway during the summer. Deputies can assume it will be in May 1995.
When the board is subsumed into the Dún Laoghaire Harbour Authority will that give it the facility enjoyed by the board to obtain guaranteed loans and non-refundable grant aid? Does it mean that the new Dún Laoghaire Harbour Authority will have powers and facilities not available to other authorities?
The authority will have the same facilities and powers as the port authorities in Dublin, Cork and other major ports. When I say the functions, guarantees and facilities of the interim board will be subsumed into the new authority I mean they will be transferred to the new authority so that they can be continued. The way in which this is done will be a matter for discussion at that stage. The interim board is limited in its scope and lifespan and some of its main functions will be transferred to the new authority once it is established.
The guarantees and facilities of the interim board to obtain grant aid are regarded as a way of giving the Dún Laoghaire project a kick start. Will these facilities remain in place under the new authority and, if so, will similar facilities be available to other harbour authorities?
It is a matter for other authorities to come forward with their proposals. When I was Minister for the Marine I made special arrangements for the development of Waterford port — the Waterford port authority put forward proposals for consideration by the Government and the Department of the Marine and special financial facilities were arranged. The guarantees and financial arrangements of the interim board are long term and obviously one has to provide for their continuation. When I say they will be subsumed into the new authority I do not mean this will be done on a line by line basis but rather they will be continued and subsumed in principle into the new authority. This will not happen for some time and there will be an opportunity to discuss how this should be done at that stage. By continuing this facility the Department of the Marine will be able to proceed with the work at the harbour.
Is it in order to move amendment No. a1?
Not at this stage.
I understood this debate would not start until 5 p.m.
The debate started prematurely. As is normal, it was taken when the other business was concluded. The Deputy may refer to his amendment.
I can refer to it during the debate on a later amendment. My amendment sought to insert the word "authority" for the word "board". Later amendments in my name propose that the Dún Laoghaire Harbour Authority should be established on a statutory basis rather than establishing a funding mechanism to raise a loan for one development. I say this for a number of reasons. The interim harbour board has already been in existence for a number of years and its membership is out of date — a number of members were nominated by the previous Dún Laoghaire Borough Council prior to the 1991 local elections and the establishment of the Dún Laoghaire-Rathdown County Council. I am not in any way reflecting on the ability of these members or on the way they carry out their duties — they are doing a very fine job — but it underscores the fact that the composition of the interim harbour board is somewhat dated.
There will be two interim boards in Dún Laoghaire. Dún Laoghaire Harbour is managed by the Department of the Marine. Policy for the harbour is being considered by the interim harbour board and the finance for the project will be raised by another interim board. It is the height of absurdity to have three different arms of State dealing with one harbour. The harbour authority should be established now instead of waiting for the more substantial legislation dealing with all the major harbours and the establishment of semi-State companies for them. Dún Laoghaire Harbour is in a unique position in the sense that it is owned by the Department of the Marine and the parameters for its future development have been under consideration for a number of years.
This legislation is being introduced to facilitate the development of the new ferry facility, which I support. However, the definition of development in section 1, which is fairly wide, does not relate specifically to a development for the new HSS vessel. Is it intended that this legislation will facilitate further developments in the harbour? I strongly agree with the development of new ferry facilities, but I would not be prepared to give a carte blanche agreement to other possible developments which might occur and which this legislation could be used to facilitate. Specifically, will it be possible under this legislation for the fund which is being established to be used effectively to give State guaranteed loans to the developers of private marina facilities within Dún Laoghaire harbour? During the term of office of the previous Taoiseach controversy arose about the development of a private marina in the coal harbour, the part of Dún Laoghaire harbour used by the general public. I would not like to see a situation arising whereby the very generous definition of development contained in the Bill could be used to facilitate the funding of developments in Dún Laoghaire harbour which were not intended by those of us who support the development of the ferry facilities. I would like the Minister to address that point and to put on the record that the sole intention of the Bill is to facilitate the development of the ferry facility.
The interim board has suggested various developments in the harbour generally. Any developments within the harbour area will be subject to full planning permission, so they will be totally transparent and subject to a fairly painstaking process of consultation. The Minister is being very forthright about that.
The purpose of this Bill is to establish a funding mechanism for development works at Dún Laoghaire Harbour. There is no point in endeavouring to limit or circumscribe the Minister in any way. The Deputy need have no fears in relation to development because of the approach of the Minister and his Department. That procedure is in line with the Government's policy generally to engage in maximum consultation and subject any proposed developments to full planning permission.
The purpose here is to allow us get on with the job. As we near the end of this parliamentary session, if the arrangements are put in place for this development and if planning permission is granted, we can move ahead. If planning permission is not given there can be no progress.
Deputy Gilmore mentioned the interim Dún Laoghaire Harbour Board about which we had had some discussion before he came into the House. The arrangements for the final board are nearing completion. I expect they will be dealt with in the autumn session. Certainly the Bill will be published by the autumn session. We can have the full, final board as soon as is desired.
Deputies can bear in mind the experiences of the interim board, even the experiences of people who were appointed representing local authorities. That presents the problem of when those representatives change and what one does in the new circumstances. The people who served on that board were dedicated local representatives, who put much time and energy into the development plan, in addition to overall consultation. Lessons will have been learned which can be discussed when finalising the arrangements for the establishment of the full board. I always had in mind that there should be representation of the local authority on that board. There may be people who would have a different view from mine on how that representation is arranged to ensure reasonable continuity. The Deputy raised issues which must be addressed when it comes to the establishment of the final board. For example, what will happen when somebody is no longer a member of the relevant local authority? All those matters can be discussed in full on the main Bill which will be published very soon.
Members on both sides of the House have said how much they appreciate the work undertaken by the interim board and what they have achieved in the overall process to date. There is no questioning the bona fides of the people who participated in that interim board.
In the case of the board we are now discussing, the Dun Laoghaire Harbour (Finance) Board, one possibility, when the Minister makes appointments, is that he will provide a link with the interim board. That arises on a later section.
In regard to the establishment of the Dún Laoghaire Harbour (Finance) Board there is mention in the Schedule that the board shall consist of not less than three nor more than five members which does not conform to the membership of the present interim harbour board. What guarantee do we have that the people who will be appointed to the Dún Laoghaire Harbour (Finance) Board will be members of the interim harbour board? There is no provision in the Bill to ensure that will be the case.
The three of us, for a start.
The history of the management of Dún Laoghaire Harbour leaves an awful lot to be desired. This harbour had been managed by the Office of Public Works. Then, for some strange reason, rather than establish a harbour authority, the management was transferred to the Department of the Marine which then established the interim board which has been in existence for a long time. Rather than introduce legislation establishing a harbour authority to perform the functions outlined in this Bill, we are to have another board called the Dún Laoghaire Harbour (Finance) Board and there may not be any link between the two. The reason there should be a link between them is that, in the definition of "development" the interim harbour board has acted as though it was set up statutorily. It has prepared a development plan which has been on public display, presented to the local authority and so on. The importance of having the interim harbour board responsible for the disbursement of moneys for development is evident because that board will guarantee that work will proceed in accordance with the development plan whereas, if there is to be a different group of people, they may not agree with the proposals of the interim harbour board. I should like the Minister to give the House a guarantee that the members to be appointed to this finance board will be members of the interim harbour board. This should be written into the Bill, therby ensuring continuity, with the harbour authority or harbour board being linked to the finance board, so that we will not have another body operating separately.
The Bill does not stipulate that this development will be confined solely to the building of the new ferry terminal facility. The Minister has accepted that it could relate to other developments. We want to ensure that any other developments comply with the development plan already prepared. There is not much point in stipulating that each application will have to come before the planning authority. The point is the manner in which the harbour will be developed and what exactly will be put in place. Will the Minister give the House a categorical assurance that the members of the finance board will be members of the interim harbour board and, if necessary, have this written into the legislation?
I must remind the House that many matters referred to would be more appropriate to other sections, for instance, section 3 which deals specifically with the establishment of Dún Laoghaire Harbour (Finance) Board. I make this comment simply to expedite matters, bearing in mind the time factor involved in dealing with this Bill.
We had some discussion on this last evening. This Bill is principally a device for raising the money to undertake the things the Minister wishes to do resulting from the plans prepared by the interim board. As time goes on and the board comes into being these functions will be subsumed.
In appointing members to the board the Minister would take into account its specialist financial function. To some extent it is like the National Treasury Management Agency. It is a separate body whose purpose is to raise moneys for the development of the ferry terminal project. The Minister would then consider people with the necessary specialist financial expertise as well as management expertise and would, presumably, take into account the fact that the harbour is owned and operated by the Department. He would also look at the linkage with the existing interim Dublin harbour board. It is only a short term arrangement.
I want to go back to the definition of "development". My understanding was that the purpose of this Bill was to facilitate the development of the new ferry facility.
I hesitate to interrupt the Deputy but it seems to me that it would be more appropriate to raise that matter on section 2 and indeed on other sections.
I am raising a very specific point about the definition of "development" because the term runs through the Bill. The proposed development of the new terminal facility is before An Bord Pleanála. In the event that An Bord Pleanála gives it planning permission, the Minister is anxious to proceed with the development because of the deadline of summer 1995 by which Stena Sealink wishes to commence the operation. I am happy to agree with that and to facilitate it. For a variety of reasons it is necessary to set up this mechanism to raise the loan and to provide the funds.
I have no difficulty with the ferry facility which is currently before An Bord Pleanála. What I am concerned about is that the mechanism we are establishing in this Bill could be used afterwards to provide funding for other development in Dún Laoghaire Harbour which might not enjoy the same degree of support from the general public and which certainly would not enjoy my support. I will strongly oppose developments of the type proposed some years ago when the area which is used by local boat owners and so on was avariciously earmarked by private developers for a private marina. I would like an assurance from the Minister, given the broad definition of development, that it is the intention to confine the use of this Bill to the ferry facility.
I appreciate what the Minister for the Marine has done in making a planning application for the ferry development. As the Minister for Social Welfare, Dr. Woods, has said, there was not a legal obligation on the Minister for the Marine to do that. That is appreciated and I acknowledge that it was an open way of approaching the matter. We should have some assurance that this Bill will not be used beyond the development of the ferry teminal facilities which will proceed in the next 12 months if approved by An Bord Pleanála.
All I can say is that there are no plans for anything else. That is the position at present. In the event of anything coming up both the interim board and the long term board have the facility to deal with it and the Minister has the power to put matters before the planning process. When you leave aside some powers you can create technical and legal problems. That matter will come up later. There may be small tasks to be done at the harbour occasionally. If you go out and look at harbours you will see all sorts of activities taking place which are relevant to the current state of the harbour. That is normal. There are no plans for anything else and the Minister has made it absolutely clear that as far as he and the Government are concerned any developments would go through the full planning process. Nobody need have any fears or worries about that.
Question put and agreed to.
SECTION 2.
Here we have amendment No. 1 in the names of Deputies Bradford, Gilmore and Keogh. I observe that amendments Nos. 1a and 1b are related. I suggest, therefore, that we discuss amendments Nos. 1, 1a and 1b together if that is satisfactory. These amendments can be found on the white additional list of amendments of 22 June 1994.
I move amendment No. 1:
In page 3, subsection (1), lines 8 and 9, to delete ", and be deemed always to have had,".
My amendment relates to the retrospective nature of the Bill and is at the kernel of my concern about the passage of this legislation. A person reading through the explanatory memorandum would be informed that section 2 confirms the development powers of the Minister in relation to Dún Laoghaire Harbour. When one examines the Bill in greater detail not only is it clear that the Minister's powers are confirmed but he is deemed "always to have had power to carry out ... development in Dún Laoghaire Harbour". In that regard it is major retrospective legislation. People are concerned about this section for a number of reasons, not least that the An Bord Pleanála jury is still adjudicating on the appeal. It would appear that certain parts of the argument before An Bord Pleanála relate to whether the Minister had or had not certain powers to do certain works.
The Bill is putting in place a section which will state that the Minister did have these powers. In a sense it could be seen as an attempt to second guess An Bord Pleanála and to put in place a mechanism whereby, regardless of what An Bord Pleanála may decide, section 2 will have taken care of the problem long before it occurs. My amendment proposes the deletion of the retrospective provision of the Bill, that we remove from section 2 the provision that the Minister always had the power to carry out developments and provide in its place that the Minister shall have powers for future developments. I am concerned about the retrospective nature of this section. Many people who have contacted me have also stated that concern.
The Minister has assured us that the purpose of this straightforward legislation is to put a mechanism in place to fund development works at Dún Laoghaire Harbour. If that is the case we should not insert a provision under which it will apply retrospectively. I appeal to the Minister to accept our amendment as this would reassure many of these who have doubts about the legislation and certain development works. It would also help remove any conspiracy theory.
We have complimented the Minister for the Marine on his decision to seek planning permission for development works at Dún Laoghaire Harbour, but in this instance he is adopting a belt and braces approach. One could argue that if An Bord Pleanála turn down the application for planning permission for this development the Minister could say he did not need permission in the first instance and proceed on that basis. That fear has been expressed. On the other hand, people may say that because the Minister did not need to obtain planning permission it is invalid and there is a fear that it may be challenged through the appeals process.
There is a suspicion about this section that there is a wish to circumvent the planning process. I do not necessarily hold the view but if we are to be assured that there is openness and transparency we need to have our fears allayed. The easiest way to do this is to accept the amendment and delete the offending phrase. I do not believe in conspiracy theories given that I am aware that the planning decisions of Dún Laoghaire-Rathdown County Council of which I am a member are subject to intense scrutiny. The Minister would go a long way towards allaying our fears by accepting this amendment.
I agree with Deputies Bradford and Keogh. As a matter of general principle, it is bad to introduce legislation which will apply retrospectively and which states that the Minister has always had a certain power. I am at a loss to understand what this is all about. The Minister applied for and was granted planning permission by Dún Laoghaire-Rathdown County Council for a development in Dún Laoghaire which is now the subject of a third party appeal to An Bord Pleanála. This will be decided in the course of time. The purpose of this legislation is to put a mechanism in place to fund that development if it is approved by An Bord Pleanála.
Under this legislation the Minister will have the power "to carry out, or procure the carrying out of development in Dún Laoghaire Harbour". I am seeking to amend that provision to ensure that the Minister would have to apply for and obtain planning permission from Dún Laoghaire-Rathdown County Council. While I appreciate the Minister for the Marine applied for planning permission for the ferry terminal development I am not sure that he did not have to, that it was a cut and dried case. I recall that there was a long debate on the question of whether planning permission would be required for a marine development. It centred on the question of whether the land ended at the high water mark. Absurd distinctions were made and it was claimed that planning permission would be required for the portion of the marina adjoining the land while it would not be required for the floating apparatus. There should be a general obligation on the Minister for the Marine to apply for permission for developments at this harbour.
Under the legislation it will be deemed that the Minister always had this power to carry out development at Dún Laoghaire Harbour. What work has the Minister carried out at the harbour for which he requires retrospective approval? I am not aware of anything the Minister might have done for which he requires retrospective approval from the Oireachtas. If there is something that is troubling his conscience I do not think this is the way to deal with it. We should not be asked to give carte blanche retrospective approval because, as Deputy Keogh said, it is fuelling speculation that there is a hidden agenda being pursued, that things are being done or have been done behind people's backs for which blanket retrospective approval is required.
The Deputy ought to cross to the other side of the city where they would love to have this development.
That is not the point.
We want this development. The Minister is not listening to me——
We can analyse this matter to the point where nothing will happen; there is no hidden agenda.
I am a member of the local authority which granted planning permission for this development. I still support it and want it to go ahead. That is the reason I am facilitating the quick passage of this legislation which was landed on our desks at short notice. However, I am not prepared to insert in it a provision which will apply retrospectively. I do not see what the purpose behind it is. I am not aware of any development carried out by the Minister at Dún Laoghaire Harbour for which he requires retrospective approval. I do not see the necessity for it and it is unhelpful in the context of the public debate now taking place to insert it in the Bill. It should be removed.
There is a need in the development of Dún Laoghaire Harbour for transparency and openness. Nothing should be done behind closed doors, it should be above board. The Minister is in a unique position in that the three Deputies on the Opposition benches, each of whom represents the constituency, support the development and want it to go ahead but I do not want this legislation to apply retrospectively. This provision is unnecessary, unhelpful and unwanted and should be removed.
I, too, am confused as to why this section was inserted. All five Deputies in the Dún Laoghaire constituency have publicly supported this development. I consistently fought for the establishment of a harbour authority that would produce a development plan which would be publicly displayed. I accepted that every development would have to be approved by the planning authority. That is what has happened in the case of the ferry developments. It is regrettable that some people found it necessary to appeal the decision of the Dún Laoghaire-Rathdown County Council to An Bord Pleanála. We cannot deny people their right in law to lodge an appeal in respect of a planning permission. However, we do not want whispering campaigns about the Dáil passing legislation to ensure that if it does not get its way with An Bord Pleanála the development will proceed regardless. In the past eight or nine years, we fought long and hard for the establishment of a harbour authority, for transparency and for local people to have an input into any development plan.
I do not see the necessity for the inclusion of section 2 because if power is transferred to the harbour authority in the future, it will submit the planning applications. At present the Minister is responsible for the management of the harbour because the interim board has not been put on a statutory basis and he has lodged his planning application. Why do we need this section? Will the Minister take into account the points we have made? We are not opposed to the development or trying to make life awkward for the Minister. We are trying to maintain something we fought long and hard to achieve, namely, a sense of openness and transparency.
There is no hidden agenda in this regard and Deputies should be clear about that. This is an open, up front and direct agenda for the speedy development of Dún Laoghaire Harbour. One could sit back and say to those who wish to invest in the area that legislation will be introduced later, but that is not the way I view matters. If the development can be completed by May 1995, we should endeavour to meet that deadline and introduce flexible arrangements if necessary. Great credit is due to the House for dealing with the issue in this manner.
I take the points made by Deputies Gilmore and Barrett in respect of whispering campaigns and so on. Members from both sides of the House must be clear that nothing underhand is taking place. Legislation is complicated and at the end of the day we do not want loopholes that will lead to difficulties later. Deputy Barrett referred to what people outside the House might say about the development going ahead regardless of whether we receive planning permission. The Government has made it clear that if planning permission is not granted the project will be taken elsewhere. I am a northsider and as Minister I fought to develop that corridor, and Dún Laoghaire as part of it. There has been a strong lobby in favour of this development in an area where there is an abundance of land and a new road network, as is the case in Dublin port. I have fought to bring about a harmonious development on both sides of the corridor which involves developing Dún Laoghaire Harbour mainly for passengers and cars as is happening. If planning permission is not granted the development will not proceed and we will not have a similar opportunity next May. That is the inevitable outcome.
The purpose of section 2, and the definition of development in section 1, is to put beyond any doubt that the Minister for the Marine may carry out development works at Dún Laoghaire Harbour. It will put beyond doubt that the Minister may undertake works on or under the seabed but, as Deputy Gilmore said, people will not be able to see what is happening. The first stage of the development is to drill holes in the seabed and that is covered under the Bill. We must be sure that there cannot be a challenge to works which are generally not challenged, but if people wish to be particularly legalistic, they can search Acts to find a provision that will put a doubt over an aspect of the project. The legal advice available to me is that the Minister has such powers. Nevertheless, it is felt that it would be prudent to ensure that any risks in this regard are removed so that the Minister may, subject to planning permission, proceed with development of the harbour. This is especially true in the case of the major project envisaged and the financial and economic risks involved for the harbour, the State and the economy in general.
Sections 1 and 2 relate solely to Dún Laoghaire Harbour and not to any other foreshore. The reference to foreshore in section 1 is merely a convenient means of defining the seabed as distinct from land in Dún Laoghaire Harbour. It also states that those provisions do not relate to the planning process or change the rules.
The phrase, "and be deemed always to have had", in amendment No. 1 which the Opposition wish to delete from the Bill should stand. This is a standard legal formula which appears, for example, in section 2 (1) of the State Authorities (Development and Management) Act, 1993 which states that a State authority shall have and be deemed always to have had power to carry out or procure the carrying out of development. This is not an unusual phrase in legislation. There is no element of retrospection involved. The subsection without this phrase would imply that a new power is being granted where none existed — this is not the case here — and rather than removing doubt it would introduce a doubt as to the validity of preparatory exploration and design work which underpin the project. This section provides that all actions taken by the Minister since 1990 towards development of Dún Laoghaire Harbour are valid and confirms beyond doubt that the Minister had and has power to undertake them. The section merely removes any doubt in that regard.
Deputy Gilmore's amendment would remove the temporary exemption enjoyed by the Minister for the Marine and other State authorities from the need to seek and obtain planning permission under section 4 of the Local Government (Planning and Development) Act, 1993. This transition measure applied only up to 15 June and now all new proposals are, by statute, subject to the requirement to first obtain planning permission. In view of the importance of the present project to Dún Laoghaire Harbour, to the local community and to the national economy, the Minister for the Marine voluntarily submitted himself to the planning process and undertook to abide by the outcome, although he was exempted by the 1993 Act. This he did in the interests of local democracy and transparency of action.
I am proposing instead amendment 1b which provides:
In page 3, between lines 13 and 14, to insert the following subsection:
"(3) A permission granted under the Local Government (Planning and Development) Act, 1963, for development in Dún Laoghaire Harbour shall not be, and shall not be regarded as ever having been, invalid by reason of the fact that the Minister was by virtue of section 4 of the Local Government (Planning and Development) Act, 1993, not required to apply therefor.".
The problem is that people will use any legal instrument to delay a project. Rather than amend the Bill to remove the Minister's exemption which he has voluntarily set aside I would propose instead the insertion of a new subsection (3) to ensure that any permission granted could not be regarded as invalid by virtue of the fact that the Minister was not required to apply for such permission under section 4 of the Local Government (Planning and Development) Act, 1993.
I propose this amendment solely to remove doubt because we are fully satisfied that in spite of the exemption he was legally entitled to apply for the permission in the way he did and that a permission granted on foot of that application would have full statutory validity. We are talking about major investment and a major development and this amendment is being moved in order to remove any element of doubt. There is nothing sinister about it. It is logical in the context of the size of the investment in the area and confirms that the Minister was within his rights in doing what he did and cannot be challenged for having so done.
It would have been easy to say that it was not necessary to go through this procedure. However, it was wiser to confirm that the Minister had the authority to waive his own right in regard to planning permission. Everybody outside the House can be assured that that is all that is involved and it does not take in any way from the planning permission that has been applied for, the outcome of which will influence the decision on the development.
I accept what the Minister said about amendment No. 1b which removes any doubt.
I accept also what he said about amendment No. 1a in the name of Deputy Gilmore. Amendment No. 1, tabled by me and Deputies Gilmore and Keogh, is important in the context of the need to pass the legislation quickly. I listened to what the Minister said about other legislation to give retrospective propriety to certain actions of the Minister. However, this Bill deals with a development which has caused controversy, the rights and wrongs of which I will not go into. We must signal clearly that this Bill is not designed to second guess decisions of the planning process. The removal of the Minister's retrospective powers would be helpful in that regard. I feel strongly that the amendment should, therefore, be agreed.
I accept what the Minister said in regard to amendment No. 1b. It would be ironic if somebody mounted a legal challenge to the planning permission purely on the basis that the Minister was not statutorily obliged to apply for the planning permission in the first place. It would be highly vexatious if that were to happen and it is wholly appropriate that that possibility should be closed off in the legislation.
In amendment No. 1a in my name, I am seeking to have it unambiguously stated in the legislation that in any future development at Dún Laoghaire Harbour the Minister for the Marine will have to apply for planning permission. I understood the Minister to say that that is the position from 15 June. However, it is six of one and half a dozen of the other. It could be omitted from the legislation on the basis that there is such a requirement on the Minister or, as we are dealing with a Dún Laoghaire Harbour Bill, the Minister could accept the amendment and make it clear to all and sundry that that will be the requirement specifically in relation to Dún Laoghaire Harbour.
I feel strongly about deleting the retrospective power contained in the first amendment. The Minister has made no case for including a retrospective power other than that it is not unusual. The only justification he offered was the 1993 Act dealing with developments by State bodies. That most unusual legislation was introduced after the Supreme Court case on Mullaghmore in which the court decided that the State did not have the right to proceed with the development of the interpretative centres and that it should have applied for planning permission. The Government then stated that it was in a new situation where every school or Garda station in the country might be found to have been constructed without planning permission and have to apply to each local authority for retention. It was to avoid this possibility that the Government introduced this legislation which gave retrospective clearance to works previously carried out by State bodies. It was, therefore, a highly unusual set of circumstances that gave rise to the 1993 Act which was passed after lengthy debate.
It does not follow that the same principle applies to Dún Laoghaire Harbour. I heard no specific reason that retrospective approval should be given to works already carried out in Dún Laoghaire Harbour. Works associated with the new development will be covered by the planning process under way and by this legislation when enacted — future works will be covered by section 2.
The Minister explicitly stated that if planning permission is not granted there will be no development. I share Deputy Barrett's regret, although I accept the right of all citizens to lodge a planning application, that the matter has been appealed to An Bord Pleanála. However, we must accept its decision and there can be no question of trying to circumvent it. Concerns have been expressed that the purpose of this phrase in the section is to circumvent a possible negative decision of An Bord Pleanála. However justified those fears may be, no case has been made here for this retrospective provision. It should be deleted and I appeal to the Minister to do so. The legislation is sufficiently strong without it and there is no necessity for it.
This amendment should be accepted. It would be ironic if the Minister did not have to apply for planning permission in regard to the development and a total negation of everything we fought for in the planning process. I sympathise with Deputy Gilmore's proposal in amendment No. 1a. I am glad the Minister stressed that from 15 June last planning permission will be required for developments. It is important to be as clear as possible in legislation. There are always difficulties inherent in the planning process and any provision that allays fears is welcome. I do not know whether we will put this amendment to a vote, but I ask the Minister to accept the principle behind it.
I already referred to fears of circumventing the planning process. I was surprised to hear the Minister say it is not unusual to include such a provision. I do not think it is usual to have a retrospective provision in a Bill because it raises fears which may be totally unfounded — as in this case. The planning process must be as transparent and open as possible. I do not know of any incident that resulted in this retrospective provision. Maybe deep sea divers carried out work at the bottom of Dún Laoghaire harbour in the distant past, but I do not believe in putting structures in place to deal with circumstances about which we are not aware. I do not believe anything has been done that requires this retrospective solution. We should allay the fears of those who appealed planning decisions — and others concerned about the planning process — by deleting this provision from the section. We should press this amendment if the Minister does not reconsider his views on it.
If there is a doubt about some matter it should be brought into the open. If trial holes were dug before it was decided to proceed with this development — maybe there is a doubt about whether the Minister was entitled to do that — we should hear about it and try to overcome that difficulty. There could be a legal loophole to delay development in the event of permission being granted and if that is the case it is better to say so openly because it would help us to answer the queries, suggestions and innuendos put to us. It appears from amendment No. 1b that there is no need for the retrospective provision in section 2. If there is a reason for it, we should hear it.
We are all racking our brains to know what development took place in Dún Laoghaire without permission being sought or contrary to existing legislation since the Department of the Marine took responsibility for it. I recall no such development. Perhaps the reason relates to the tests carried out and, if so, let us hear about it. I do not think the vast majority of people we represent would object to trial holes being dug or investigations carried out prior to deciding whether to go ahead with a development. That is part and parcel of normal development activity and is reasonable, particularly when it involves the investment of taxpayer's money. It would be wrong to undertake a development that would have to be undone in five or ten years' time because of a problem under the seabed. I have no difficulty about justifying the need to have such trials carried out but if that is the case we should hear about it.
I am not in the business of helping people to delay a development on technical points which will not stand up in a court of law. I am in favour of proceeding in accordance with the law, of going through the planning process and giving people the right to appeal against decisions if they wish, even though it may not suit me. We do not want to have to justify what is contained in section 2 unless it is necessary and deals with a technical point.
On legal advice, it is preferable to close the possibility of people challenging the legitimacy of design work and preparatory exploration work under the seabed. These works underpin the whole project and the provision is included to remove all possible doubt. One may say we need not worry, we are all reasonable people and if a major problem arises we will deal with it at that stage. However, when an investment of £15 million is involved it is a different matter.
Members will be aware that this investment is non-Exchequer funded. Section 2 confirms the Minister's development powers for Dún Laoghaire Harbour and that all actions taken by him for the development of the harbour since 1990 are valid. It confirms beyond doubt that the Minister shall have, and be deemed always to have had, power to carry out development. It does not introduce retrospective powers but confirms the power, which everybody understood the Minister to have. There is an element of doubt and legal advice is that it should be closed off.
The section does not try in any way to circumvent the planning process. It has been made very clear that the planning process is independent and that we will have to await its outcome. The legal advice is that it is preferable in the meantime to cover the works done under the seabed since 1990 in preparation for this development because they underpin the development. If someone wants to challenge them, they challenge also the development in the future. I ask Deputies to let it stand because it is wiser and safer from the point of view of the development.
The major question is the decision An Bord Pleanála will reach on the whole development in Dún Laoghaire Harbour. This issue may never arise, but very complex legal issues have been raised from time to time. It even goes back as far as seeking to define the foreshore, the high water mark, the seabed and other elements. We are trying to put that completely beyond doubt and give that underpinning to the project if it goes ahead.
Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 70; Níl, 39.
Tá
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Ahern, Noel.
- Bell, Michael.
- Bree, Declan.
- Brennan, Matt.
- Briscoe, Ben.
- Broughan, Tommy.
- Browne, John (Wexford).
- Burke, Raphael P.
- Byrne, Hugh.
- Callely, Ivor.
- Collins, Gerard.
- Costello, Joe.
- Cowen, Brian.
- Davern, Noel.
- Dempsey, Noel.
- de Valera, Síle.
- Ellis, John.
- Fitzgerald, Brian.
- Fitzgerald, Eithne.
- Fitzgerald, Liam.
- Flood, Chris.
- Foley, Denis.
- Gallagher, Pat.
- Haughey, Seán.
- Higgins, Michael D.
- Hilliard, Colm M.
- Hughes, Séamus.
- Jacob, Joe.
- Kavanagh, Liam.
- Kemmy, Jim.
- Kenneally, Brendan.
- Kenny, Seán.
- Killeen, Tony.
- Kirk, Séamus.
- Kitt, Tom.
- Lenihan, Brian.
- Leonard, Jimmy.
- Martin, Micheál.
- McDaid, James.
- McDowell, Derek.
- Moffatt, Tom.
- Morley, P.J.
- Moynihan-Cronin, Breeda.
- Nolan, M.J.
- Ó Cuív, Éamon.
- O'Dea, Willie.
- O'Hanlon, Rory.
- O'Keeffe, Batt.
- O'Keeffe, Ned.
- O'Leary, John.
- O'Shea, Brian.
- O'Sullivan, Toddy.
- Pattison, Séamus.
- Power, Seán.
- Quinn, Ruairí.
- Reynolds, Albert.
- Ryan, Eoin.
- Ryan, John.
- Ryan, Seán.
- Smith, Brendan.
- Smith, Michael.
- Stagg, Emmet.
- Taylor, Mervyn.
- Treacy, Noel.
- Wallace, Dan.
- Walsh, Eamon.
- Woods, Michael.
CLASS="CP">Níl
- Allen, Bernard.
- Barrett, Seán.
- Boylan, Andrew.
- Bradford, Paul.
- Browne, John (Carlow-Kilkenny).
- Bruton, Richard.
- Byrne, Eric.
- Carey, Donal.
- Connaughton, Paul.
- Connor, John.
- Crawford, Seymour.
- Currie, Austin.
- Deasy, Austin.
- Deenihan, Jimmy.
- Doyle, Avril.
- Dukes, Alan M.
- Durkan, Bernard J.
- Finucane, Michael.
- Fitzgerald, Frances.
- Flanagan, Charles.
- Gilmore, Eamon.
- Gregory, Tony.
- Higgins, Jim.
- Kenny, Enda.
- Keogh, Helen.
- McGahon, Brendan.
- McGinley, Dinny.
- McGrath, Paul.
- McManus, Liz.
- Molloy, Robert.
- Noonan, Michael.
- (Limerick East).
- O'Donnell, Liz.
- O'Malley, Desmond J.
- Rabbitte, Pat.
- Ring, Michael.
- Sargent, Trevor.
- Sheehan, P.J.
- Timmins, Godfrey.
- Yates, Ivan.
CLASS="CP">Tellers: Tá, Deputies Dempsey and B. Fitzgerald; Níl, Deputies E. Kenny and O'Donnell.
Question declared carried.
Amendment declared lost.