Dáil Éireann debate -
Thursday, 11 Mar 1999

Vol. 502 No. 2

Local Government (Planning and Development) Bill, 1998: Second Stage.

Minister for Defence (Mr. M. Smith)

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

Cuireann sé áthas orm ar mo shon féin agus ar son an Aire Comhshaoil agus Rialtais Áitiúil an Bille tábhachtach seo a chur os comhair na Dála. Bille stairiúil atá anseo, a thabharfaidh cosaint cuimsitheach d'ár n-oidhreacht tógtha. Tá an chosaint sin tuillte go maith ag an gcuid sin d'ár n-oidhreacht. Is cuid lárnach é an Bille seo den obair atá curtha i gcrích ag an Rialtas seo chun cabhrú le slanú na bhfoirgneamh suntasach sin a d'fhág ár sinsear ina ndiaidh mar bhronntanas orainne agus ar na glúnta atá le teacht.

On behalf of my colleague, the Minister for the Environment and Local Government, I am pleased to introduce this important Bill to the Dáil. It forms a central part of the package of measures this Government has put in place to ensure the protection and survival into the future of our built heritage. The Bill on the National Inventory of Architectural Heritage which the Minister for Arts, Heritage, Gaeltacht and the Islands has introduced will complement the provisions of this Bill to ensure comprehensive legal protection for the architectural heritage. In addition, the Government has ensured the legislation is backed up with adequate resources in terms of financial assistance and conservation expertise to enable the legislation to work effectively. The Bill has already been passed by the Seanad where it was warmly received by all sides. I am sure it will receive a similar welcome in this House.

Every generation carries a great onus to ensure that its heritage and culture are preserved and passed on to future generations. So it is with our built heritage. It is often said that architecture is the mother of all arts. The Bill will ensure that we live up to our responsibilities to protect that built heritage.

There is widespread agreement that we need to have a more effective regime if we are to properly fulfil our responsibility to our own and future generations to protect our architectural heritage from the threats against it – threats that can arise from lack of resources, carelessness, ignorance and greed. This new regime decided on by the Government for the protection of our architectural heritage can be said to comprise three pillars: modern robust comprehensive legislation, dedicated financial resources and the employment of adequate expertise and knowledge.

The first pillar consists of this Bill, which will transform the legislative protection afforded to the architectural heritage. It has been drafted following comprehensive consultation and consideration of all the issues involved. Many of the provisions derive from the report of the Interdepartmental Working Group on Strengthening the Protection of the Architectural Heritage which was published in September 1996. The committee had consulted widely before reporting and many observations were received following publication of the report. This Bill expands and improves on the working group's recommendations. It has been through careful scrutiny in the Seanad, where a number of improvements were made to its provisions thanks to contributions from Members on all sides.

I take this opportunity to correct recent reports in the media that the Bill does not fulfil the promise of the 1996 report. All of the major legislative recommendations in that report will be implemented by the two related Bills which are currently before the Oireachtas. As recommended in the report, the statutory obligation on local authorities to protect the built environment is included. The respective roles of the Department of the Environment and Local Government, local authorities and Dúchas are precisely as recommended in the report and the extent of the protection afforded to those buildings which are protected under the Bill is yet again as recommended in the report. Those criticising the Bill are more intent in causing mischief than in making constructive contributions to strengthening the legal protection afforded to our built heritage.

The Bill introduces a systematic approach to the protection of buildings. Local authorities have been criticised in the past for widely divergent approaches to listing buildings for protection in their development plans. Some local authorities have very comprehensive lists, some have none; some authorities have one list, others have six or seven. Distinctions are often made between objectives to preserve buildings and objectives to consider their preservation.

The Bill will bring uniformity to the way in which buildings are protected in the future. The formal record of protected structures created under the Bill will be kept in a standard format common to all local authorities. It will remove the distinctions between lists. If a building is worth placing on the record of protected structures then it is worth protecting.

This new systematic approach to protecting the built heritage will be enhanced by using the resources of the National Inventory of Architectural Heritage which is administered by the Department of Arts, Heritage, Gaeltacht and the Islands. The inventory will be used as a national database to record Ireland's built environment. It is intended that those buildings which are identified by the inventory as being of international, national or regional significance will be recommended to local authorities for protection.

Local authorities will continue to have an ongoing role in identifying buildings for protection independently of the inventory. They will have to determine the buildings which are of significance to the local community and, therefore, deserving of protection. Guidance will be given to local authorities to help them carry out these functions in a consistent manner. Once buildings are identified for protection they will be subject to comprehensive protection. The protection extended to buildings under the Planning and Development Act, 1963, was too narrow and too many interiors have been lost because they were not specifically listed. The Bill will ensure that where a building is protected, the whole building, interior and curtilage, will be subject to that protection. Any works which would affect the character of the building will require planning permission. It is recognised that this proposal could be quite onerous on owners of protected buildings. Therefore, the Bill provides that owners and occupiers of protected buildings will be entitled to a declaration from the planning authority which would determine the types of works which the planning authority considers would affect the character of the building.

Another key issue in providing comprehensive protection is the need to protect buildings independently of the statutory five year review of development plans. The Bill facilitates the addition of buildings to the record of protected buildings as the need arises. Furthermore, it tackles the issue of protected buildings being allowed to become dilapidated due to the neglect of the owner or occupier and will allow local authorities take a proactive role in ensuring protected buildings are not neglected. These provisions are modelled on the Derelict Sites Act, 1990.

The Bill also responds to the need to identify and make provision in development plans for special streetscapes or other areas of interest which need to be protected. This will allow planning authorities to apply local planning policies to these areas in a way which will ensure that any development is compatible with the character of the area. For example, this will facilitate protection of an entire square rather than just individual buildings.

Legislation in itself is not sufficient to ensure the protection of the built heritage: it needs to be backed by resources. This brings me to the second pillar – money. The Government announced last May that it would provide a new budget line of £5 million per annum from 1999 onwards to ensure that the package of measures can be fully implemented. Out of this around £4 million will be available for grant-aid for protected buildings.

The new scheme of grant-aid will be administered by the principal local authorities as it is the local authorities who will have the statutory function of protecting buildings under this Bill. An advisory group made up of representatives from the Departments of the Environment and Local Government and Arts, Heritage, Gaeltacht and the Islands, the Heritage Council and the County and City Managers' Association is finalising recommendations on the detailed terms and conditions of the new grant scheme for protected structures. We are aiming for effective and consistent administration of grant aid throughout the country. It is expected that, in the initial years at least, those buildings most at risk will be a priority.

Local authorities are also being provided with £300,000 per annum to assist them in employing the necessary conservation expertise to ensure that all buildings worthy of listing are identified, the legislation enforced and the grant scheme operated effectively. It is hoped the local government service could employ 15 to 20 conservation officers to enable it carry out its functions fully. This new cadre of conservation experts will constitute part of the third pillar – the expertise to which I referred earlier.

The provision of proper conservation advice is fundamental to the success of the Bill. I am certain, therefore, that the deployment of conservation expertise in the local authority service will bring such expertise to local authorities. This local expertise will, in turn, be backed up by comprehensive guidelines drawn up at central level by Dúchas, the heritage service of the Department of Arts, Heritage, Gaeltacht and the Islands, in consultation with the Department of the Environment and Local Government. Dúchas will also act as a central unit providing day to day advice to conservation officers and local authorities regarding their functions. This system will bring a consistency of approach to the conservation of the built environment in Ireland which has been lacking up to now.

I will turn now briefly to the main provisions of the Bill. A very comprehensive explanatory memorandum has been provided, therefore, I will concentrate on the essential features. The definitions of "structure" and "protected structure" in section 1 are crucial to the understanding of the Bill. The effect of these definitions is that when a building is included in the record of protected structures, the interior of the protected structure, including its fixtures and features and the land and structures immediately around it – the curtilage – will be automatically protected and will no longer require specific listing. This marks a major advance on the present limited provisions. Other features in the grounds of the structure beyond the curtilage – for example, a folly or ornamental fountain – which add to the architectural interest of the building may also be included for protection if specifically identified on the record. The term "protected structure", as a legal term, will replace the term "listed building". This is in line with common international practice.

Section 2 provides that planning authorities will be obliged to have a record of structures of special architectural, historical, archaeological, artistic, scientific, social or technical interest which will form part of the development plan for the area. This constitutes a wider definition of "architectural heritage" than the reference to buildings of "artistic, historic or architectural interest" in the existing legislation. The record of protected structures will continue in existence, even where a review or a variation of a development plan is made under Part III of the 1963 Act.

The requirement to establish a record is linked to the mandatory provision to include objectives in the development plan for the protection of the architectural heritage which is provided by the amendment of section 19 of the Planning Act, 1963, by section 33 of the Bill. This amendment also obliges planning authorities to include objectives in the development plan to protect groups of structures and places, including townscapes.

Section 3 provides that the Minister for Arts, Heritage, Gaeltacht and the Islands may, after consulting the Minister for the Environment and Local Government, issue guidelines to planning authorities to assist them in carrying out their functions under the Bill in protecting buildings and townscapes. The guidelines will ensure a consistent approach to protecting the built heritage is adopted nationwide.

Section 4 provides that, in addition to the above guidelines, the Minister for Arts, Heritage, Gaeltacht and the Islands may recommend the inclusion of structures in the record of protected structures. This will be based on the information contained in the national inventory of the architectural heritage.

Section 5 provides that a planning authority may add a building to the record of protected structures where it considers such a building warrants protection or may delete a structure where protection is no longer warranted. The making of a deletion from, or an addition to, the record of protected structures may be carried out when reviewing the development plan as part of the statutory five year review or in accordance with the provisions laid down in section 6.

Section 6 sets out the procedure for amending the record of protected structures independently of the development plan review process. This will allow buildings to be protected as the need arises without having to wait for the five year development plan review process – a weak point of the old system. The final decision on what structures are to be accorded protected status will rest with the elected members of the authority.

Section 8 provides that planning permission will be required for works on a protected structure which affect its character. As the protection will extend to the interior of structures, permission may be required for interior decorating activity, such as plastering, if it would affect the character of the structure. To clarify for owners and occupiers of protected structures exactly what works they are permitted to do without permission, they may request the local authority to indicate those works in a declaration. For example, a declaration could state that works to the interior would not affect the character of the building and, therefore, would not require permission where redecoration was being contemplated. Planning authorities will be required to issue the declarations within three months of a request, although provision has been made in the transitional arrangements to extend the time if a large number of requests for declarations are made when the Bill is enacted.

Special consideration is given to structures used for religious worship. Planning authorities will be obliged to respect liturgical requirements and consult the relevant Church authorities when issuing a declaration. The same will apply to a planning application that affects the interior of a protected church.

Section 9 provides that it will be an offence to deliberately damage a protected structure, with fines of up to £1 million on indictment. Owners and occupiers will be under a duty to ensure a protected structure is not endangered, either through their actions or neglect.

Section 10 provides that, if a protected structure is endangered, planning authorities may issue a notice to the owner or occupier requiring works to be carried out. The planning authority may, at its discretion, assist the owner or occupier in carrying out the works, either financially or otherwise.

Section 11 provides that the planning authority can require the owner or occupier of a protected structure to carry out works to restore the character of a protected building. This could include, for example, the removal of incongruous signs on a protected building or street, even if such signs were erected lawfully. The planning authority will, however, have to pay the full cost of works to be carried out under this section.

Sections 22 to 29, inclusive, give a power to planning authorities to purchase a protected structure which is endangered, if necessary compulsorily, and set out the procedures to be followed if this happens.

Section 30 requires sanitary authorities, before issuing a dangerous buildings notice in relation to a protected building, to consider instead whether a notice to carry out works under the Bill or the Derelict Sites Act would be appropriate. This is not an attempt to circumscribe a sanitary authority's powers, merely to oblige it to consider that it may be dealing with a protected building which should be preserved, if possible.

Section 38 provides for transitional arrangements for buildings currently listed for protection or preservation under a development plan. These will automatically become protected buildings under the Bill. Owners and occupiers of these buildings will, however, be consulted and entitled to make representations to the planning authority on whether their building should remain a protected structure.

The Bill marks a major advance in the way we preserve and look after the precious heritage of buildings which we are lucky to possess. It is a mark of our maturity as a society that there is widespread support for devoting some of our increased wealth to preserving our physical history for our edification and those who come after us.

Taispeánann an Bille freisin go bhfuil muid dáiríre i dtaobh úsáid agus athnuachan na bhfoirgneamh atá againn, i dtreo is go dtig linn iad a úsáid sna blianta atá le teacht sa gcaoi chéanna inar úsáideadh iad leis na blianta a chuaigh thart, thar na céadta bliain in ammana. Foirgnimh bheo atá iontu, ní seoda iad atá coinnithe faoi ghlas i músaem. Athraíonn siad agus athraítear iad de réir mar a athraíonn an saol agus an tsochaí thart orthu. I commend the Bill to the House.

Mr. Dukes

The Long Title of the Bill indicates that it is intended "to make better provision for the protection of the architectural heritage in the interests of the common good and to provide for related matters." According to the explanatory and financial memorandum, it is intended to provide for the greater protection of buildings and structures of special architectural, historical, archaeological, artistic, scientific, social or technical interest.

No one would oppose the intentions of the Bill. Many hold the view that a more vigorous approach to its objectives is long overdue. Much of our built heritage, which goes back centuries, is in great danger, despite being built of stone. In many parts of the country it is crumbling and little is being done to preserve or conserve it. I do not criticise those directly involved, they are part of a culture which has chosen to ignore much of our built heritage which is in danger from neglect and carelessness as well as the competing demands of new development.

There are numerous examples, including recent examples in Dublin, of a cavalier attitude to our built environment and architectural heritage, not just on the part of developers but on the part of planning authorities. I will not refer to some of the more celebrated cases. An Bord Pléanala and some planning authorities can be criticised for decisions they have made which have impacted severely on the built environment. Insensitive and uncaring development has already robbed us of many significant structures. For that reason what remains is to be cherished all the more.

It is significant that the Minister should have found it necessary to refer to the precious heritage of buildings we are lucky to possess. We are lucky to possess some of them, and it has been more by luck than judgment that some parts of our built heritage still remain with us. Many parts have been demolished or obliterated by an uninformed and uncaring approach to development.

This is a cause of concern because there is probably a smaller element of architectural record in Ireland than in many other European countries. For much of our history the plain people lived in rather impermanent structures, many of which were repeatedly destroyed and replaced. While it is fair to say the prevalence of full-scale warfare here was less than in many other European countries, turbulent episodes in our history destroyed parts of the contemporary built environment. For much of our history the forms of economic and social organisation which prevailed produced a pattern of settlement very different from that to be seen in the medieval towns that are such a notable feature of the architectural heritage of many other European countries.

All of these considerations render the protection, preservation and conservation of our built environment all the more important. For that reason the Bill needs to be reinforced in some respects and to be made more explicit in others. For the sake of completeness I urge that the definition of architectural heritage included in the Heritage Act, 1995, should be inserted into the definition section of the Bill. Provision should be made to include buildings of cultural and political interest within the scope of the Bill. The definition is not sufficiently widely drawn and there should be a specific reference to buildings of cultural and political interest. In this respect the episode involving the Carson house in Harcourt Street underlines the importance of including it in the defining provisions of the scope and ambit of the Bill. I would argue for the widest and most comprehensive definition of the areas to be covered.

I welcome the fact that the Bill sets out to give a more comprehensive framework to local authorities for the actions they take within the ambit of their development plans to pursue the objectives of the Bill. Here again, I would argue for a more comprehensive and muscular approach. There are several reasons for concern in this regard. It is not clear, for example, what the effect of the Bill will be on current List 2 or List B buildings in existing local authority development plans. They comprise the majority of listed structures in these plans. If they are omitted – it appears they may be – there could be a threat to their continued existence. The Bill must explicitly include those buildings. The Minister briefly referred to this when he said:

The Bill will remove the distinction between lists. If a building is worth placing on the record of protected structures then it is worth protecting.

I agree with the sentiment, but I would like an assurance – I do not find it in the Bill – that this means that all of the List 2 and List B buildings in existing local authority development plans will be covered by the provisions of the Bill.

We will separately debate the legislation on the national inventory of architectural heritage, which is the responsibility of the Minister for Arts, Heritage, Gaeltacht and the Islands. That this legislation, which overlaps with the provisions in this Bill, is the responsibility of a different Minister indicates a lack of consistency and congruency in policy in these areas. We must ensure that both provide for mutually supportive and reinforcing policies.

The Bill repeatedly provides a measure of discretion to the Minster for Arts, Heritage, Gaeltacht and the Islands in issuing guidelines to planning authorities. It also provides for discretion on the part of local authorities in the integration and implementation of those guidelines in their development plans. The Minister referred to this when he pointed out that there are differences, indeed widely divergent approaches between local authorities and that the Bill will bring uniformity to the way in which buildings are protected in the future. He went on to state: "The formal record of protected structures created under this Bill will be kept in a standard format common to all local authorities." That is fine, as far as it goes. However, the provisions of the Bill contains words such as "may", "guidelines", "have regard to" and so on. There appears to be nothing constraining or compelling about the actions of the Minister, his recommendations or the guidelines.

I worry that this may not be a sufficiently strong approach because if Ministers may issue guidelines they may equally choose not to, and if local authorities have regard to guidelines, what is the limit of their regard for them? There are questions to be answered here and the more discretion there is the less satisfactory the situation will be.

There are many areas in planning laws and in current legislation to deal with listed buildings where discretions are available to Ministers. There are powers provided to Ministers in existing legislation which have not been used. One wonders why. One also wonders if it is wise to continue to leave that margin of discretion open. I do not argue for the hands of the Government or of Ministers to be tied, but provisions should be included that adopt a more muscular approach to the implementation and execution of a settled policy. Regrettably, some of the drafting in this Bill does not give me the confidence that there will be that kind of certainty.

Nowhere does the Bill provide for a central body to advise the Ministers and the planning authorities on the implementation of the measures in the Bill, notwithstanding the fact that such a body was recommended in the interdepartmental report entitled Strengthening the Protection of the Architectural Heritage, published in 1996. Given the pressures that will inevitably be placed on Ministers and local authorities in favour of development, we should take the opportunity of this legislation to set in place a focus of countervailing power with the explicit mission of advising Ministers and of making it difficult, if not impossible, for local authorities to ignore, or only partially to execute the policies enunciated by Ministers, policies which should be more than simple recommendations.

In this regard the Minister, referring to what he called another innovation in the Bill, stated:

This new systematic approach to protecting the built heritage will be enhanced by using the resources of the national inventory of architectural heritage which is administered by the Department of Arts, Heritage, Gaeltacht and the Islands. The inventory will be used as a national database to record Ireland's built environment. It is intended that those buildings which are identified by the inventory as being of international, national or regional significance will be recommended to local authorities for protection.

There is nothing constraining about that, it leaves a margin of discretion to local authorities. If these buildings are included in the inventory of architectural heritage and are of international, national or regional significance, why should it simply be a matter of recommendation? Why should we not take it seriously and say these buildings must be protected?

It has been suggested to me from several quarters that all pre-1870 buildings and structures should be treated as if listed, unless it is agreed they should be delisted because of the existence of exceptional and extraordinary circumstances. Such a measure would protect many structures which are now at serious risk. It would, for example, protect a great proportion of all types of vernacular buildings. The date of 1870 was suggested since prior to that date construction in both rural and urban areas tended to use materials such as handmade bricks and cut stone which were later replaced by mass or industrial produced materials which are easier to replace.

Another question arises about the circumstances in which buildings may be chosen for protection. In his speech the Minister stated:

Another key issue in providing comprehensive protection is the need to protect buildings independently of the statutory five year review of development plans. The Bill, therefore, facilitates the addition of buildings to the record of protected buildings as the need arises.

I presume that is what is intended in section 6. Perhaps the Minister could clarify if section 6 provides for what is known as point listing of buildings. If it does not, it should be reinforced so that can be done.

The Bill includes the protection of townscapes among its objectives. That provision is welcome as far as it goes. However, it needs further consideration than is given to it in the Bill. The protection of townscapes should not concern itself only with facades. We tend to look at facades and the cumulative effect of a group of buildings on the ambience of a street. Far more consideration should be given to the integrity of the structures which make up townscapes than has often been the case in the past.

We tend to ignore the rear aspects of buildings, yet street plans or topography ensure the rear aspects of buildings in cities and towns have almost as much impact in the overall visual envir onment as the facades. In many of our towns and villages, an attractive streetscape – that is, one which is attractive when viewed from the street – can often produce an effect of appalling ugliness when viewed from a different vantage point in the town or from vantage points accessible to the public, not just car parks at the backs of buildings. A concentration only on facades is an incomplete approach to the preservation of townscapes.

We should consider making a specific provision for conservation areas. Such a provision would reinforce and support action already being taken by some planning authorities and put this action on a firm statutory base. The Minister referred to this when he mentioned the action the Bill proposes on streetscapes. He said:

This will allow planning authorities to apply local planning policies to these areas in a way that will ensure that any development is compatible with the character of the area. For example, this will facilitate protection of a whole square rather than just individual buildings.

I agree with that intention, which should be supported, but I am arguing for a more explicit approach. A whole square should be designated, for example, as a conservation area and a statutory base given to the action local authorities can take on such an area. Some local authorities have already adopted that approach in part of their work and they should be given statutory backing for what they are doing.

Enforcement is another issue which should be considered. There are discretions and powers in the current legislation governing the listing of buildings which have not been used. Where such a discretion is given to a Minister and not used, action by other parties is effectively precluded. That is unsatisfactory. Where powers are used, we must ensure they can be properly enforced. For this reason, we should make the enforcement mechanisms provided for in the Bill compatible with those in section 27 of the Planning Act, 1976. Such a provision would add a third party right to seek enforcement of the enforcement rights given by this Bill to local authorities.

This Bill should establish a clear presumption in favour of protection, preservation and conservation and it should oblige Ministers and local authorities to act on the basis of that presumption. To make sure this presumption is carried through, we must apply that same presumption to the framework within which An Bord Pleanála makes its decisions when it is called upon to do so. I will propose other measures in relation to An Bord Pleanála when we discuss the overall review of planning legislation later this year after the local elections, in spite of what the Minister for the Environment and Local Government has said.

There is a lot of work to be done in relation to An Bord Pleanála. This Bill should specifically address the role of An Bord Pleanála in the con text of the achievement of the objectives set out in this Bill. The matters dealt with in this Bill are important enough to merit separate legislation and special attention should be given to them in the riding instructions we give to An Bord Pleanála.

The Bill provides for certain obligations to be laid on the owners and occupiers of protected structures. We must pay detailed attention to the drafting of these provisions. It is clear that the owners and occupiers of protected structures have particular obligations to meet in the context of the objectives of this Bill. People who acquire or occupy such structures once this Bill is passed must be clear on the obligations they are de facto undertaking.

The provision in the Bill which deals with declarations is useful. The Minister referred to provisions which deal with the interiors of buildings. Those two sets of provisions are important. It is good that if an owner or occupier of a building wishes to carry out work on the outside or the interior, he or she can ask the local authority for advice on what type of work will be acceptable within this Bill's framework. We are presuming local authorities will be in a position to give that type of advice. I will refer to this matter later because I am not happy with the provisions in that regard.

There might be cases where the legitimate requirements flowing from this Bill, as set out and limited or defined in the declarations that will be given by the local authorities, will be onerous for such owners or occupiers. It provides that in those cases assistance may be given to the owners or occupiers. It further provides that where, for whatever reason, the necessary works cannot or will not be carried out, the local authority has the power to compulsorily purchase a protected structure.

The intent of these provisions is fine but their execution is a different matter. The explanatory memorandum points out that the Government has agreed an allocation of £3.9 million for grant aid for the conservation of buildings, commencing in 1999. The Minister said it is £4 million but we will not argue about £100,000 because we have no means of knowing or judging how far that money will stretch. We could legitimately use a great deal more than that annually and still be faced with a substantial annual requirement stretching a considerable distance into the future.

The interdepartmental working group suggested a provision of £10 million per annum, £5 million in the form of grants and £5 million in the form of tax incentives. This amount would cover 30,000 buildings per annum at £333 per building which, the group said, would be too small a sum. The Heritage Council recommends a minimum sum of £10 million per annum for grants alone. In the Bill the first provision for 1999 is £3.9 million. That indicates that these functions will be undertaken at a relaxed pace.

Most local authorities do not have the personnel resources required to fulfil the obligations that will be placed upon them by the Bill. According to the explanatory memorandum, the Government has agreed an allocation of £300,000 to the authorities for the employment of conservation officers to provide expert advice and guidance on their role in the protection of valuable structures. That is an inadequate provision. The document "Strengthening the Architectural Heritage" proposed the funding of a minimum of 40 conservation officers at an annual cost of £1.63 million. On that basis, the £300,000 provided by the Government would fund 7.3 conservation officers.

The Minister said the £300,000 would permit the employment of 15 to 20 officers. How will it be possible to fund that number of officers at an average cost of £15,000 to £20,000 per officer?

Mr. M. Smith

They would not be employed for the full year this year.

Mr. Dukes

That is neat. If that covers the employment for only a portion of this year, the cost of employing 15 to 20 conservation officers would amount to several times the £300,000 being provided for. I hope provision will be made accordingly. However—

Mr. M. Smith

The Deputy is not including co-funding.

Mr. Dukes

What co-funding?

Mr. M. Smith

Anticipated co-funding.

Mr. Dukes

From where?

Mr. Gilmore

That is only in Objective One areas.

An Leas-Cheann Comhairle

The Minister must allow Deputy Dukes to continue his contribution.

Mr. M. Smith

I am sorry, the Deputy provoked me. He loves causing consternation.

Mr. Dukes

I will deal with co-funding later.

Even the employment of 15 to 20 conservation officers compares badly with the interdepartmental working group's view that a minimum of 40 conservation officers is required. The Government produced a nice leaflet called "Protecting our Architectural Heritage" which is based on the report of the interdepartmental group but contains a watered down version of its key provisions, including the difference between 40 conservation officers recommended as a minimum by the group and the 15 to 20 mentioned by the Minister.

The explanatory memorandum informs us that in the event of the planning authorities having to acquire compulsorily a protected structure they will be liable to pay compensation to any person who has a property interest in the structure. The amounts concerned will be met from the auth ority's resources. That is either breathtaking optimism or an instance of culpable burying of heads in the sand.

The Minister said the Government has ensured that the legislation is backed up with adequate resources, both in terms of financial assistance and conservation expertise, to enable it to work effectively. Clearly, that is not the case. That is an outrageous piece of puff on the part of the Government. The resources have not been allocated.

The Minister proceeded to speak about the three pillars underpinning the legislation. Clearly, the pillar of wisdom is not one of them. He identified two of the three pillars as dedicated financial resources and the employment of adequate expertise and knowledge. The dedicated financial resources are inferior to the task at hand. There is no provision of financial resources to cover the eventuality that local authorities might compulsorily acquire buildings or provide grant aid under the Bill.

It is simply not on for the Government to devolve and allocate functions to local authorities without giving them the support required to provide the personnel and other necessary resources to carry out the functions assigned to them. Any other course of action cannot be taken seriously and as long as that continues to be the case, as it is in the provisions made in this legislation, we can only treat the Bill as a statement of benign intent by the Government that will not have the effects it should have and which our architectural environment deserves.

Mr. Gilmore

The Bill can be described as post-colonial legislation. For a long period since independence, this country had an ambivalent attitude to much of its architectural heritage.

It is worth reflecting on the vandalism and destruction which was inflicted on much of that heritage, particularly in the early years after independence. A mistaken view was taken by people, many of whom had good reason to resent the occupants of the big house. That resentment was taken out on the house rather than on the political and social system which produced the problems and inequalities which gave rise to the resentment in the first place. During those years a considerable portion of this island's architectural heritage was lost through the burning of large numbers of fine houses, the destruction of others and through neglect and dereliction.

That kind of attitude towards the big house prevailed very much into modern times. It was particularly evident in the 1960s and 1970s when we went through a period of so-called modernism. Large parts of our architectural heritage around this city were destroyed in the name of modern development. Large parts of Georgian Dublin and of the architectural integrity of this and other cities were destroyed to make way for office blocks and tower buildings of one kind or another, which 20 or 30 years later are considered by those who work in them as sick buildings and by those who have to look at them as buildings that should be taken down for aesthetic reasons.

On this occasion we should pay tribute to the people who flew the flag for our architectural heritage over recent decades. This Bill is catching up on the public view on our architectural heritage, which on many occasions was not a popular position to take. Members of this House 30 years ago spoke in derisory terms about the belted earls and the pinks and other descriptions were attributed to that category. Students occupied buildings in Hume Street to protect them. An Taisce also played a role. People marched in this city only two decades ago on the issue of Wood Quay. In many cases they were derided by people in power – they were often derided by Members of this House.

It is only through the efforts of those people, of organisations like An Taisce and the Irish Georgian Society and people who took an interest in our architectural heritage that we have managed, often in very hostile circumstances, to keep alive an appreciation of architectural heritage, its importance and the need to protect it and to do something about it. Many people, who may not belong to any organisation, often went out in the morning to protect a building which they considered important when they saw it about to be knocked by bulldozers in the so-called interests of progress and development. It is their efforts that have created an understanding and an appreciation of our architectural heritage which has led to the position of there being two Bills in this area before the Oireachtas. I refer to the Bill we are debating and the Bill from the Minister for Arts, Heritage, Gaeltacht and the Islands, which is complementary to it. To some extent these two Bills are only catching up on the public mood in relation to our architectural heritage and architectural matters.

I welcome this Bill. As it progresses through the House discussion on it will be very much a Committee Stage one. A principle underlining this Bill is the need for legislation to provide better protection for our architectural heritage, there is no doubt about that. There is no dispute about the principles underlining the Bill or the thinking behind it. I pay tribute to my predecessor, Deputy Howlin, who was Minister for the Environment when the working group submitted its report which has provided the basis for this legislation.

A great opportunity has been lost in this legislation. This Bill is very much a minimalist approach to the work that must be done. There are a number of weaknesses in the Bill which we will have an opportunity to address on Committee Stage, but which need to be examined in their totality at this stage.

The idea behind this Bill is to give effect to the Granada Convention, which we have ratified. It was referred to in the report. There is some doubt as to whether this Bill will give full effect to that convention. An Taisce's submission, which was circulated, states that this Bill does not comply and so leaves Ireland open to reporting, under Article 20 of the Granada Convention, by its committee of experts for failure to implement the principles embodied in the convention. That needs to be seriously considered in terms of whether this legislation enables us to fulfil our international obligations to protect our architectural heritage.

Article 3 of the Granada Convention, which we have ratified, states that each party undertakes to take statutory measures to protect the architectural heritage within the framework of such measures and by means specific to each state or region to make provision for the protection of monuments, groups of buildings and sites. The question must be posed whether the Bill fulfils that objective. The term "listing" has now been replaced in the Bill. The Bill places ultimate responsibility for the listing of buildings with the local authorities, which are required to do that on foot of recommendations that will be made by the Minister for Arts, Heritage, Gaeltacht and the Islands. They will be based on an inventory to be drawn up and subject to an enforcement regime that is defective, to which Deputy Dukes referred.

We must review the listing of buildings by local authorities. Under the 1963 and 1976 Planning Acts there are considerable powers in relation to the listing of buildings and the protection of architectural heritage, but those powers were not exercised. Until recent years many local authorities did not list buildings and where they were listed the list was not complete. Even where local authorities had done considerable listing, subsequent enforcement was defective. It is estimated that local authorities have listed only about half the buildings of architectural merit which would justify listing.

This legislation proposes that responsibility for the listing of buildings will remain with local authorities. The only obligation placed on them by this legislation is that they must take account of recommendations made by the Minister for Arts, Heritage, Gaeltacht and the Islands. There is no obligation on a local authority to implement a recommendation. Local authorities can ignore recommendations. They can send back a response to the Minister explaining why they have not listed a building as recommended. Where buildings or structures are identified for national reasons as justifying protection, a mechanism must be put in place to ensure they are listed. That is notwithstanding any view taken by a local authority that there should be some overriding provision whereby that can be done. In the existing legislative arrangement there is such an overriding provision. The Minister for the Environment and Local Government has power under existing legislation to require a local authority to list individual buildings, but I am informed that power has never been exercised.

There is no reason to believe the powers will be exercised because they are being transferred to the Department of Arts, Heritage, Gaeltacht and the Islands. Many of the organisations interested in this legislation have suggested that, rather than leave it to the Minister to recommend something to be implemented by the local authority, there should be an independent national body which would have responsibility for deciding which buildings are to be listed and which structures are to be protected, to deal with areas where there is a conflict between the local authority and the Minister, or when the priority given to the protection of our architectural heritage is not as great.

The basis for the protection of buildings will be in accordance with the inventory. We come again to the matter of resources. The inventory, based on the availability of money, will take between 12 and 25 years to complete. What will happen in the intervening period if local authorities are waiting for the recommendation to come from the Minister and the Minister is waiting for the inventory to be completed? There will be an interregnum where buildings which should be protected are not protected because they have not been listed in the inventory and the resources to include them do not exist. They will not be recommended by the Minister and the local authority will feel it can ignore them. That is a serious gap in the provisions.

Some attention will have to be given to a definition of buildings which deserve to be protected being included in the Bill. An Taisce has suggested that all buildings or structures with special artistic, cultural, architectural, archaeological or historical interest, historical associations, age, which use innovative technology or are of unique value should be listed. The Irish Georgian Society has also made some recommendations while Comhdháil Náisiúnta na Gaeilge has made a case that consideration should be given to linguistic matters in the protection of buildings – in particular the need to protect the Irish language in the Gaeltacht.

The Irish Planning Institute has drawn attention to two areas which raise questions of resourcing. It asked how practical a single list will be with the resources available and drew attention to the inclusion of the interiors of buildings for protection. The inclusion of interiors on a blanket basis is an understandable question in regard to the institute's professional experience of what happens throughout the planning system.

We will have good legislation, and there is no doubt about the aspirations behind this legislation, but it will not protect our architectural heritage if there are not sufficient resources. I agree with Deputy Dukes about the amount of money available. The Minister told us that £4 million will be available in a year for the implementation of this legislation. That is not enough. If one compares this with the considerable resources available through urban renewal schemes and incentives for new development, £4 million is a small amount of money when it is spread throughout the State and across all types of buildings which may need assistance.

The amount of money available for the employment of conservation officers is pathetic. Perhaps the Minister intends to employ the conservation officers on a community employment scheme. Unless he does so, he will not be able to employ 15 or 20 conservation officers with a budget of £300,000. That number of conservation officers will not be able to enforce this legislation anyway. That is not even an individual officer per local authority. It will mean that two or three local authorities will have to share a conservation officer. When one considers the wide area, the number of buildings which need to be protected and the amount of work which this legislation will impose on conservation officers, that will not be practical. The report on which this Bill is based recommended that there should be 40 conservation officers. Even that is being cautious.

We have experience in this State of legislation being passed and handed to local authorities without the resources and professional backup necessary to implement it. This Bill will fail and the aspirations of the Minister will fail unless the necessary resources and staff are provided to give it the strength it requires.

The proposed penalties will test the effectiveness of the Bill. They sound impressive – there will be fines on indictment of up to £1 million for serious breaches of this legislation. If, however, someone comes along and destroys an important architectural structure, what is the worst that can happen? He could get the wrong judge on a bad day and get the maximum fine of £1 million. As we know from experience, maximum fines are rarely imposed. The largest fine which can be imposed under this legislation is £1 million. I can think of many examples where it might be worth the while of the developer to demolish a building or architectural structure and run the risk of the anger of the judge who will eventually have to be faced under the terms of this legislation.

There are a number of questionable defences provided for in the legislation. As we know from our experience of existing law on the protection of buildings, there is a range of reasons which can be offered to justify the destruction of a building, ranging from safety; with which nobody will disagree although we all have to doubt whether buildings were unsafe at the time of their demolition; to people claiming some exceptional economic, environmental, or developmental reason.

In some cases, a £1 million fine will not be a great deterrent in preventing the destruction of a building, if, for example, the value of the site when it is cleared of the structure, is worth more than £1 million or where the value of the time lost to the developer or the cost of legal fees is in excess of that. The legislation needs to provide a process whereby, if damage is done to an architectural structure or if, in the worst case scenario, a building is demolished or destroyed, there is an obligation on the person who commits that offence to make good the damage in some way. There needs to be a means of recovery other than a fine which may not be a deterrent at all.

The legislation in terms of its aspirations is fine; we all want to protect our architectural heritage. I agree that we need a single Act which underpins that and a single listing system for buildings. I agree the interiors of buildings need to be encompassed in the protected category of buildings. There is probably scope for extending the range of structures covered by this legislation. For example, Deputy Dukes referred to vernacular buildings and structures built prior to 1870; that case has been made by a number of organisations and we can usefully pursue it on Committee Stage.

However, I am concerned that the practical mechanisms provided for in this legislation for the protection of buildings may not work; they are effectively giving to the same authorities who mainly have not been successful in protecting buildings under the existing regime, the same responsibility, under basically the same remit. The powers of the Minister are purely recommendatory and there is no evidence from past experience that Ministers exercise a great deal of authority in the protection of buildings.

An independent body has not been provided for, which was called for by a number of organisations and anticipated in the report on which this legislation is based. Insufficient resources are being provided in terms of money and grants and not enough conservation officers are being provided for in the legislation, as regards the money referred to in the explanatory memorandum. Unfortunately, the penalties provided for in this legislation, while they may sound impressive, ultimately will not be sufficient to act as a deterrent, where, for reasons of profit or greed, someone is determined to demolish a structure which is of importance. I will support the Bill on Second Stage but I intend to table a range of amendments on Committee Stage because this Bill needs to be strengthened considerably.

Mr. Fleming

I welcome this Bill. Deputy Gilmore spoke about the vandalism perpetrated on historical buildings over many decades. This Bill provides for that and is a sign of our maturity. It is long overdue and welcomed by everybody. I would prefer to look forward rather than backward on that issue. Deputy Gilmore referred to the penalties. Section 40 states that a person guilty of an offence under that section shall be liable, on conviction or indictment, to a fine not exceeding £1 million, together with, in the case of a continuing offence, a fine not exceeding £10,000 for every day on which the offence is continued – that could be up to £300,000 per month, in addition to the £1 million – or to imprisonment for a term not exceeding two years. This is a necessary deterrent.

Mr. Gilmore

I will believe it when someone is sent to prison.

Mr. Fleming

It is provided for in the legislation. It is a point of clarification and I do not want to argue about it.

Mr. M. Smith

Deputy Gilmore would not want to interfere in the judiciary like I do.

Mr. Fleming

The purpose of this Bill is to amend and extend the Local Government (Planning and Development) Acts, 1963 to 1968, to provide for greater protection of buildings and structures of special architectural, historical, archaeological, artistic, scientific, social and technical interest. Some protection has been provided under the various planning Bills to date through the process of listing them in the local authority development plan. The 1976 Planning and Development Acts extended the listing process to interior fixtures and features when they were specified in the development plan. Allied with the legislation to protect national monuments, this affords major protection to much of the built heritage around the country.

In recent years there has been a significant heightening of public awareness of the value of conserving our built environment. In that context, it has become clear that the current protection of our built heritage under the Planning and Development Acts is not sufficient. The programme for Government contained a commitment to introduce conservation legislation to protect and enhance our built environment. This legislation is part of that process.

I will summarise the main provisions of the Bill. It will place a clear obligation on all planning authorities to create a record of protected structures as part of their development plans. It will also ensure that where a structure is protected, the whole structure, interior and curtilage, will be subject to that protection. All works which will affect the character of a protected structure will require planning permission. However, owners and occupiers will be entitled to a declaration, in effect a guidance document, from the local authority, which will inform them of which works on their building will be considered as affecting its character.

Buildings may be added to the record of protected structures at any time, independently of the statutory five year development plan which is drawn up by each local authority. The Bill will place an obligation on the owners and occupiers of protected structures to ensure they do not become endangered. Planning authorities will also be able to take action, direct and indirect, to ensure protected structures do not become neglected. Planning authorities will also be enabled to require works to be undertaken to restore the character of protected buildings. The planning authority will have to pay for such works where the offending alterations were effectively carried out with the approval, through the granting of planning permission, of the said local authority. Planning authorities will be able to compulsorily acquire a protected structure where it is necessary to protect it.

The Bill also gives recognition to the protection of townscapes and streetscapes in a local authority development plan. This means a street, square or cul-de-sac which has some architectural significance can be protected. The buildings currently listed in development plans will automatically become protected buildings under this Bill, but the owners and occupiers will have to be consulted. When a local authority considers issuing a dangerous building notice in respect of a protected building, it will have to consider the protected nature of that building and will be obliged to preserve as much of the building as is safely possible.

This legislation is part of the Government's overall package to deal with conservation and archeological protection. The Architectural Heritage (National Inventory) and Historic Monuments (Miscellaneous Provisions) Bill, 1998, has passed through the Seanad and will come before the Dáil in the near future. There is a case for that Bill to be combined with this one. Both Bills deal with the same issue. The Minister for Arts, Heritage, Gaeltacht and the Islands and the Minister for the Environment and Local Government referred to each other's roles and responsibilities in the Seanad debates on these Bills. The explanatory memoranda are also cross-referenced, and the Minister for the Environment and Local Government said that he might have to look at a consolidated planning Bill in the future. That was an implicit acknowledgement of the need to bring these Bills together, though I do not know if he can do so now. I suggest he consider it seriously, as there is nothing more difficult than for local authorities to have to implement two different Acts which deal with the same topic.

There are three elements in this Bill which include to put conservation on a legislative footing and to provide finance and expertise. There has been much debate about the level of finance being provided, but that is slightly disingenuous, as £300,000 is provided this year for the employment of officers under this Bill. As we are well into the year, this will not be the allocation necessary for a full year and next year's Estimates will have a full year's Estimate included.

In the past buildings were referred to as "listed buildings", and they are now to be called "protected buildings". That is an important distinction that should be highlighted, as should the reference to a "structure", because it is important that people know what we are talking about when discussing the Bill. The Bill states:

"structure" has the same meaning as in the Principal Act but includes–

(a) the interior of the structure,

This has been mentioned by all speakers as being extremely necessary. Paragraph (b) refers to "the land lying within the curtilage of the structure,". One has to agree with this. In the case of fine big old houses, the ornaments, fountains and waterfalls that are part of the gardens and curtilage should also be protected. The Bill also refers to:

(c) any other structures lying within that curtilage and their interiors, and

(d) all fixtures and features which form part of the interior or exterior of any structure or structures referred to in paragraph (a) or (c);

Everyone agrees that is a good broad definition. It is not enough just to protect the basic physical structure, one must also look at the curtilage and monuments outside the walls of the house.

There is also a major change in this legislation in the move away from references in previous Planning Acts to "listed" buildings to "protected" buildings. This Bill refers to:

"protection" in relation to a structure, or part of a structure, includes conservation, preservation and improvement compatible with maintaining the character and interest of the structure or part;

This is very important and is a major strengthening of our approach to this matter. Up to this point we were putting buildings on a list, but we were doing very little with that list. Now there is a clear onus on the protected list and on protecting these buildings in future.

Although the definitions in the Act are very comprehensive, I seek clarification from the Minister on some issues. He might include the geological aspect of our heritage, for example, and the protection of various species of animals or plants. There are also old burial grounds covered by grass. Archaeologists are aware of their existence, but are they covered by this definition?

Dúchas will have a major role under this Bill, as will the Minister for Arts, Heritage, Gaeltacht and the Islands. The crossover of the two Bills is important in this regard. The Architectural Heritage (National Inventory) and Historic Monuments (Miscellaneous Provisions) Bill, 1998, includes a definition of architectural heritage as structures and buildings, together with their settings, grounds, fixtures and fittings, groups of such structures and buildings and sites which are of architectural, historical, archaeological, artistic, scientific or technical interest. The similarity between this definition and that of the Granada Convention has been mentioned.

It is also important that the Bill provides for the establishment on a statutory basis of a national inventory of architectural heritage. That is being done on an ad hoc basis without a legal format, and it is good that this will be put on a statutory basis and incorporated into the list that will be sent by the Minister to local authorities for inclusion in their lists of protected buildings. Both Departments should co-operate closely on the implementation of these two Bills.

There is an anomaly in the area of fines. We have mentioned the fines of up to £1 million and the jail sentences, but the Architectural Heritage (National Inventory) and Historic Monuments (Miscellaneous Provisions) Bill, 1998, refers to fines and the matter of a person restricting the access of an authorised officer to inspect a private dwelling who has a warrant from a district court. There is a fine of £1,500 on summary conviction, which I consider totally out of place with the £1 million fine in the other Bill. There is no point in having a fine of £1 million if something is done incorrectly when there is a fine of £1,500 for preventing the authorised officer from coming in to get access to basic information. That £1,500 fine should be revisited.

I will raise other concerns on Committee Stage, notwithstanding my overall support for the Act. Under section 10 a local authority can serve a notice on the owner or occupier of a house to take remedial action if it is becoming dangerous. The Bill later states that no planning permission is required for a notice to be issued under the Act. I question the approach of issuing orders and undertaking work on protected buildings without some planning process. There should be some consistency of approach here. I do not believe an order should be exempt from the planning process just because an order is issued under one section of this Act.

Owners have a duty not to undertake any action which will endanger a protected building and not to neglect such a building. I welcome the fact that inaction will be deemed an offence as well. Will negligence have to be proved if a protected building is damaged? There was a fire in County Laois, in De Vesci House, and the owners spent £4 million renovating it. It was a major source of distress to the owner that this protected building was damaged. I seek clarification on the legal obligations when negligence is involved.

The Bill refers to churches and places of worship. It has been a tragedy over the years to see the number of false ceilings in office blocks and churches which previously had high ceilings. False ceilings are installed to make them cheaper to heat, but that covers up the fine architecture, which is a tragedy.

Debate adjourned.