Dáil Éireann debate -
Thursday, 10 Feb 2000

Vol. 514 No. 2

Planning and Development Bill, 1999 [ Seanad ] : Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Ms M. McGennis

Before the debate adjourned, I said I welcome section 12 (15) which provides that if a development plan is not made within two years, the manager would adopt the amended plan.

I wish to bring to the attention of the Minister my experience prior to and during my membership of Dublin County Council where the first development plan was laid before the members in 1972, the revision commenced in 1977 and it was eventually completed in 1983, a period of six years. During my period as a member of that local authority, the review of the development plan commenced in 1988 and was completed in 1993, a period of five years. That was a very large local authority which has since been broken up into three smaller and more relevant local authorities. It is unbelievable that the review process of a development plan would have taken 11 years, therefore I welcome the fact that the Minister proposes in this legislation a two year period for dealing with this process. I would like the Minister to refer to the Athy case, which deemed that any representations made, regardless of whether a motion was tabled, would have to be considered by the members. This would slow up the review of the plan.

Section 15 refers to the development plan achieving its objectives. I was involved in one review of a development plan and when we looked at what had been laid down in the previous development plan review – those of us who were new members at the time had lofty ideas for our areas – we discovered that these objectives were enshrined in the previous development plan. However, the objectives had not been achieved and the manager simply rewrote them into the plan. I do not know how we can ensure that objectives are achieved but it seems they can be repeated year after year. If finance is available, they can become a reality and, if it is not available, nothing happens.

Section 19 refers to area action plans. We had area action plans when I was a member of Dublin County Council. I am now a member of the corporation and I am not sure if these plans exist. I am not sure if the stipulation that these must be made within a two year period is achievable given the volume of work in the eastern region. It would be difficult for planning staff and council staff to ensure area action plans are completed within two years of the date of the adoption of the plan.

Deputy Broughan referred to regional planning guidelines and development plans. He mentioned he was a member of a regional authority. It was thought at the time that they would be a good idea. I know nothing about how they work, despite the fact that I am currently a member of the corporation and a former member of Dublin County Council. The Deputy said they were just talking shops. It is time we addressed this issue. I do not know whether they are achieving anything or are managing to harmonise or regulate development in the eastern region. Perhaps they work better in other areas.

I wish to put on record that in stating objectives local authorities must provide for a number of things. One is the provision of accommodation for travellers and the use of particular areas for this purpose. This is an area where most local authority members have been found to be very lacking. On becoming a member of a local authority in 1985, I said to the then Minister for the Environment – I have said it since to his predecessors, including the current Minister – that some sanction should be applied to local authorities which do not provide for traveller accommodation in their areas. This happens in the area of housing whereby if an allocation is not used, it is lost. This should also apply to the provision of accommodation for travellers. This issue is always long-fingered and needs to be dealt with given the leap in house prices. In the meantime, more and more travellers are ending up on the side of the road. The Minister should consider placing sanctions on local authorities which do not live up to their responsibilities.

Section 34 seems to be a new section. Under the 1955 Act, the manager has the right to bring forward material contravention. It is proposed that if a resolution referred to in subsection (4) is duly passed, the manager shall decide to grant the relevant permission. I presume "shall" means he must. There may be a slight change to that. The change to section 4 of the 1955 Act, which required that three quarters of the members had to be present when voting in favour, also required, where the material contravention was being brought forward by members as distinct from the manager, that it had to be three quarters of the members from the local ward. I do not see that in this section, therefore I wonder can a material contravention now be brought forward by any member of a local authority in any ward or council administrative area.

I am pleased with the provisions in section 34(11). This provides for the first time that a local authority can take into account the track record of a developer or applicant. Deputy Broughan said this was not as strong as the proposed Labour Party Bill. However, it gives a local authority the right to refuse to grant planning permission where an applicant has failed to comply with previous planning permission. There could be a difficulty with, say, Marian McGennis, Building Contractors, putting in an application, not complying with the conditions laid down and simply re-applying as MMcG. Will the local authority be able to enforce the provisions of this section where a company changes its name? Can the company's track record be followed up? If so, this is a worthwhile provision. The section also proposes that where an applicant has not complied, he or she will not have the right of appeal.

There is mention of acquisition for open space and land for housing is also dealt with. Section 47 refers to financial contributions. This posed a difficulty for local authority managers who found themselves in court on a regular basis with developers who would not complete estates. Very often cases were settled on the steps of the courthouse. My experience as a member of a local authority was that this resulted in absolute misery for people who lived in estates built by these people. Does the financial contribution requirement replace a bond and make access to the courts easier? I am concerned that we should not do away with the bond requirement.

I have little or nothing to say about An Bord Pleanála. I must admit that I did not go through this in any great detail because I find it difficult to figure out how the board reaches its decisions. In some instances where the local authority, for good reasons, refuses planning permission, the board then seems to grant it for the oddest of reasons.

Something must be done to make affordable housing available for those who cannot provide housing for themselves and those who are trying to buy their first house. I am not sure if the 20% allocation will work. I believe that builders will pass on the cost to those buying in the higher price bracket.

I know this development because it was in Dublin County Council's administrative area and the land was bought at a particular price at a particular time. In 1995 the houses cost £65,000, in 1996 £69,000, in 1997 £95,000 and in 1998 £120,000. In July 1999 they cost £135,000 and this year they cost £160,000.

An Ceann Comhairle

Will the Deputy state from what she is quoting?

Ms M. McGennis

I am quoting from the Property section of today's Irish Times. There is no justification for that type of leap in the price of the houses. The land was purchased prior to 1995 and, therefore, did not increase in price even allowing for the increase in wages of construction workers.

I will deal with section 196 on Committee Stage. I am concerned that the Minister is giving the right to local authorities to purchase land outside their administrative areas. This created much trouble when it happened in Dublin.

Mr. Higgins

(Dublin West): The explanatory memorandum states that one of the effects of the Bill will be to facilitate maximum participation in the planning process. Unfortunately, the Bill includes provisions which have the opposite effect. Many aspects of the Bill are welcome, but I must dwell on the provisions which are wrong and need to be corrected.

A number of key measures do not facilitate maximum participation in the planning process. They restrict the existing rights of citizens to have an input into planning matters. Section 33(2)(c), which provides for a prescribed fee which shall be levied by a local authority on anybody or any group making an observation on a planning application, is regressive in the extreme in terms of the rights of citizens. The interests of individuals and residents associations are often seriously affected by planning applications. In the context of natural justice, they should have the right, without being penalised, to make their views known to the planning authority on the implications for them of a particular proposed development.

Aside from the new fee to make an observation on a planning application, it is already costly for individuals and residents groups to put together observations, recommendations and perhaps objections to a particular proposal. They sometimes have to pay fees to people with expertise in planning issues. They spend time and sometimes money drawing up their observations and submitting them. The Minister's proposal that there should be a fee, which is unspecified, is totally unjust.

We do not know the amount of the fee and I am concerned about what I detect from Government and business sources as a certain tendency to want to railroad the planning process in such a way that the rights of people are severely curtailed. Various arguments are advanced for this and it would then be possible to pitch the prescribed fee at a level which would be prohibitive for people to make observations.

Ba mhaith liom a chur in iúl don Aire go bhfuilim go mór in aghaidh an rud seo atá curtha isteach aige sa Bhille seo, sé sin go mbeadh ar dhaoine agus ar eagraíochtaí an phobail táille a íoc anois chun an dearchadh atá acu a léiriú ar iarratais ar chead pleanála. Cuireann seo isteach go mór ar an cheart ba chóir a bheith ag gach duine agus ag gach eagraíocht phobail sa tír. Ba chóir go mbeadh an ceart acu a ndearchadh a léiriú don údarás áitiúil gan táille a íoc. Cuireann seo isteach ar cheart daonlathach na ndaoine ó thaobh an méid atá á phleanáil ag comhlachtaí agus ag daoine eile don áit ina bhfuil comhnaí orthu.

Section 36(1) restricts the right to appeal to An Bord Pleanála to individuals or groups who have made an initial submission at the planning application stage to the local authority. This is an appalling restriction and entirely unjustified. The explanatory memorandum states that one of the effects of the Bill will be to facilitate maximum participation in the planning process. However, this measure is directly counter to that and may severely inhibit proper participation by people.

I have been a county councillor for almost ten years and I am aware that on occasions residents or residents associations do not hear about an application that could have severe ramifications for them until planning permission has been granted. The Bill will now deny them the fall back position of being able to make an objection to An Bord Pleanála. There are also cases where applications for projects which could have national significance in terms of planning, the environment or other aspects may only become known after the planning authority has given permission for them. To deny non-governmental organisations or individual citizens the right to appeal to An Bord Pleanála is regressive. The Minister must explain himself in this regard and I hope the provision will be dropped on Committee Stage or on Report Stage.

Dá bhrí sin, sé an rud gur mhaith liom a rá i dtaobh alt 36(1)(a) ná nach gcuirfear bac ar dhaoine nó ar ghrúpaí achomhairc a dhéanamh chuig An Bord Pleanála mar nach raibh aon ní istigh acu nuair a bhí an chéad chuid den iarratas pleanála ag dul faoi bhráid an údaráis áitiúil. Cuireann sé sin isteach ar cheart dhaonlathach na ndaoine agus ar cheart dhaonlathach eagraíochtaí. Tarlaíonn sé go minic nach mbíonn fhios ag daoine nó ag eagraíochtaí go raibh iarratas éigin istigh agus go raibh cead pleanála tugtha ag an údarás pleanála. Tá súil agam go ngearrfaidh an tAire agus an Rialtas an méid sin amach as an mBille seo níos déanaí.

Section 48(4)(b), which prohibits application for a judicial review of a grant of permission unless the applicant has a substantial interest in the project is extremely sinister. There is no attempt by the Minister to define what a substantial interest is. This leaves the interpretation open to the courts and many of us fear that “substantial interest” would be interpreted by the court as a property interest. That view could be taken of this section and it would severely limit what is regarded as a democratic right by every citizen to appeal to the courts. Unfortunately, the right to appeal to the courts is already severely inhibited for many people by virtue of the inordinate costs of actions coming before the High Court or Supreme Court. There are examples of individuals and groups who have gone to the higher courts on planning matters and who have had to risk substantial amounts of finance to do so. Some people have had to make pledges to underwrite costs if they were awarded against them.

People and organisations do not go the courts lightly, but to insert provisions in the Bill that bar people from seeking a judicial review is very regressive and there is no defence for it. The Minister is obliged to explain in detail what he or his Department meant by "substantial interest". For example, there is now a rash of applications for major incinerators to burn waste. Communities near these proposed incinerators – and those further away – are concerned by these developments because of justified health fears about what may be put into the atmosphere. In the event of a property-based interpretation of "substantial interest", an adjacent community or voluntary group with a particular brief to look out for the environment could find, even if they felt they had a legal basis to go to a judicial review, that they were prohibited from so doing. The Minister must explain this matter.

Dá bhrí sin, deireann alt 48(4)(b) go gcaithfeadh “leas substainteach” a bheith ag duine nó eagraíocht sular féidir leo dul os comhair cúirte. Tá sin ag dul siar i bhfad ó thaobh cearta daonlathacha daoine agus grúpaí pobail nó timpeallachta. Ba cheart nach mbeadh aon cheist ann faoi cheart daoine dul os comhair cúirte uachtaraigh dá gceapfadh siad go gcaithfeadh siad é sin a dhéanamh chun ceart a bhaint amach. Caithfidh an tAire míniú a thabhairt faoi cad is brí le “leas substainteach” agus caithfidh sé a rá go cruinn cad tá i gceist.

Section 84(c) has been the subject of much comment and media coverage. It provides that 20% of land zoned for residential use be set aside for affordable housing at the cost for land before the zoning took place. I fully support this section, but it is a pathetic, limp, half-hearted and unconvincing attempt to make up for the gross failure of this and previous Governments to take on the real problem in this regard. That is the untrammelled right that has been given to speculators and developers to inflate building land prices outrageously and thereby create a situation where housing is now out of the reach of hundreds of thousands of ordinary working people. It is an incredible scandal that four years ago a worker on the average wage could purchase a home, which I regard as one of the basic, fundamental human rights. A mere four years later that is now impossible because a cabal of speculators, developers and construction bosses were allowed to profiteer outrageously in land and housing without any meaningful measures being taken against them.

The major political parties have constantly yielded to the development, speculator and building lobbies. That has had severe implications for the rights of ordinary people. Instead of this provision, why did the Government not tackle this problem head on and bring in some of the measures discussed as long ago as 1973 in the Kenny report? Justice Kenny of the High Court – not a raving Bolshevik by any means – laid out provisions by which the price of building land could be controlled having regard to the rights of all citizens. Action could have been taken as long ago as that, but no Government has had the courage or political will to take on these lobbies on behalf of ordinary people who are suffering so much from speculation and profiteering. On a number of occasions the Constitution has been raised as a barrier to taking land out of the control of these people and putting it under the control of a local authority, where it could be let out at fixed prices in one form or another. If the Minister, under this section, can provide for the limited control envisaged regarding the price of building land, the same principle should apply to a more general provision to stop speculation in its tracks.

Facilitating maximum participation in the planning process is a laudable aim, but the Abbotstown project intimately affects the area I represent here and on Fingal County Council.

The way in which the Government has proceeded by way of consultation and participation does not give me confidence in its bona fides . It is incredible that the Pricewaterhouse report, on which it based the sports stadium, advocates the rezoning of 275 acres for residential and commercial purposes in what was to be, and was seen by the planners, including elected Members to be an essential green break between the massive built up areas of Blanchardstown and Finglas. What is not said outright but is implied in the Pricewaterhouse report is that that area could be rezoned, thus breaking the green area, and sold for up to £80 million. In other words, the State is becoming a speculator in building land, presumably to assist the financing of the stadium envisaged. That does not give me any cause for confidence in the goodwill of the Government in regard to participation because nobody so far in greater Blanchardstown or Finglas has been consulted about that provision.

Mr. Callely

I congratulate the Minister on achieving yet another of his objectives. When he took over in the Department of the Environment and Local Government he indicted that one of his objectives was to address the planning and development issue. He has done so in a relatively short period. We all welcome any measure intended to consolidate Acts. The purpose of this Bill is to consolidate Acts and provide for the proper planning and sustainable development of all areas. It is long and complex. I welcome the Minister's open approach inviting constructive debate and submissions to help improve the Bill.

I welcome the principle that the local authority development plan will continue to be central to the planning and development process and that there will be a defined role for local area plans and regional development guidelines. I support the provisions for the co-ordination of development plans of a region but, in particular, that the development plan must set out an overall strategy for the proper planning and sustainable development of that development plan. The statutory recognition of local area plans will give the neces sary impetus to such plans and the planning authority and An Bord Pleanála will have regard to the local area plan when making planning decisions. I congratulate those who have been successful in bringing forward local area plans. A number of activists in my constituency have been successful in bringing forward plans which were adopted by the city council.

I acknowledge the role of the local authority of which I am a member, Dublin Corporation. I pay tribute to and applaud the good work being carried out by Dublin Corporation planners. While it is dangerous to name people it is important to acknowledge the role of the city manager, John Fitzgerald, the principal officers of the planning department, Christy Geoghegan and Gerry Folan, the development officer, Vincent Norton, and planners such as John Murphy and others who are very involved in such development plans. I thank them for their support and encouragement to members of the council, local activists and community groups alike to put together area plans.

As chairman of the Eastern Health Board I had the pleasure today to participate in the Darndale-Belcamp local plan devised by Dublin Corporation and the Eastern Health Board with an input from a large number of community groups, individual community activists and individuals in the communities. The Eastern Health Board is investing £1.7 million in a village centre health centre, catering for day, family, nursery and other needs. This project was promoted and prompted by the local community, the initial stages of which came to fruition today. This shows the commitment of the two statutory authorities in the area, Dublin Corporation and the Eastern Health Board. Following the required prompting by the local community and other activities the commitment to proceed was there.

I support the provision whereby the local authority manager is required to undertake widespread public consultation when preparing draft development plans and to report to local elected members. The only way forward, a theme used by my party for some time, is through partnership.

The long-term strategic framework and the regional planning guidelines should be hugely helpful in achieving balanced development. I understand the regional planning guidelines will cover issues such as population trends, housing strategy, location of developments, transport, waste and the protection of the environment. The Bill provides for greater emphasis on pre-planning issues and puts in place a tiered structure in the decision-making process.

One of the criticisms that I and most Members have come across is the current planning process. This criticism can come from an applicant, an objector, a speculator, an investor. For all, the current planning and appeal process seems to be a difficult process with no certainty or any regard for important matters such as the local development plan.

As chairman of the Joint Committee on Enterprise and Small Business I am deeply concerned at the current difficult planning process which with current planning regulations, extensions of time and appeals to An Bord Pleanála can create many difficulties for project sponsors. Due to such difficulties some projects are lost or reduced. That is not in the best interest of our communities or society.

On the domestic front I do not agree with some of the proposed changes particularly the proposal that people exercising their right to make a submission on a planning application will have to pay a fee and that the right to appeal will be restricted to the applicants and those who made a submission to the planning authority on the original application. As a member of and having been involved in a local authority over a number of years and representing Clontarf at Dublin City council level and Dublin North-Central I have come across many people who need guidance when making a legitimate objection to a planning application. Through our offices they may receive that guidance. I know from a number of those people that the imposition of a fee would result in great hardship if they were to lodge an objection.

There should be some leeway or consideration for them. Perhaps they could obtain the fee from the local supplementary welfare officer if they could prove to him that they were not in a position to pay it, or perhaps they would not have to pay it if they were in receipt of an adjudicated benefit, such as a medical card. A person living on a restricted income, be it a pension or social welfare income, or receiving a benefit from the State should not be required to pay a fee when exercising his or her legitimate right to object to a planning application.

I ask the Minister to find a mechanism that addresses both this issue and the one where a person fails to make an objection on the original application to the local authority which is then appealed by either party to An Bord Pleanála. If a person wishes to contribute to this process but was not privy to the planning application for whatever reason – he may have been out of the country – a way should be found to accommodate him. I look forward to the Minister's proposals on Committee Stage.

The Minister's proposal to strengthen enforcement and the placing of a greater onus on local authorities to follow up complaints about breaches of planning matters is welcome. I ask him to elaborate on his views on the possibility that developers may be financially penalised in connection with unauthorised development and on the proposal to increase fees for retention on unauthorised developments. The latter aspect is straightforward. Many people probably take the view that it is pragmatic and logical to have different sets of fees. Those who proceed in the normal manner should pay the stipulated fee while those who proceed in the absence of going through the normal procedure should pay another set of fees.

In this regard what does the Minister mean by "developers"? Is it the owner of the property, the person who requested the work to be carried out or the builder? Could it be the subcontractor, architect or engineer? Who exactly could be financially penalised?

I support the ethos underlying the proposal. For example, an enforcement officer may find that a legitimate or illegitimate builder is involved in an unauthorised development. He should be penalised, and this should include cutting off the supply. Some builders get these jobs through architects or other contacts. It is a simple matter to check on because they will check with plans and specifications and would be au fait with the procedures. Given this, it is not unreasonable to expect them to ensure that their project complied with appropriate planning procedures.

The Minister proposes similar measures against those who are contracted to complete an estate but who leave either the local authority or the residents to finish outstanding work. I welcome this because I have had direct experience of the hardship caused in such circumstances. I ask him to elaborate on this proposal.

Many tradespeople undertake work in occupied houses, some of which is illegal but if they were aware that there was a penalty clause if they carried out such activities they might not proceed. It may also mean that the householder will have to proceed through the proper channels, but at least this would ensure that misleading figures and values do not get in the way of a fair assessment of supplies – such as electricity – to an area. For example, a dishwasher or washing machine could be wrongly connected to the main supply of the house. A person engaged to effect that type of connection will take the nearest lead, but the imposition of penalties which cut off the supplies would act as a deterrent.

The social housing proposal has caused the most controversy. The Minister has made a genuine effort to address the relevant issues associated with the provision of houses. Part V proposes to fully integrate housing supply into the planning system. The local authority development plan must provide for housing for the present and future population and must ensure that adequate land is zoned for this purpose.

Everybody must support these provisions because they will lead to increases in the housing supply in the short-term and in the long-term they will ensure that there are sufficient houses at affordable prices to meet demand. They will also encourage social integration. The favourable changes in the economy are fuelling increases in land prices, material costs, contract and labour costs, together with onerous increases in development levies, other levies and charges. All these issues are component parts of the current crises in house prices.

It is very easy, as the previous speaker has done, to cherry pick the marketplace and blame one sector or group who appear to be creaming it. Those of us who have had the opportunity to engage in lengthy debate with people in the mar ketplace have been told that even if they bought land at low cost four years ago, the land they are buying today has risen in value to today's prices.

I welcome the formal submission on the Bill by the Irish Home Builders' Association to the Oireachtas Joint Committee on the Environment and Local Government. It supports the main thrust of the Bill. I acknowledge its concerns about certain aspects, especially on section 82, as amended, which it says is unworkable, inappropriate and will cause an adverse impact on the overall housing market. I have a high regard for the IHBA. It has its finger on the pulse of the house market. I only received its submission before I attended the Chamber. It outlines alternatives to the Minister's proposals. I am not sure if he has received the document, which is dated February 2000.

I look forward to these issues being teased out further in the debate on this Bill. Together with the participants in the housing market we can work to achieve social and affordable housing. Page 6 of the IHBA submission refers to the shared ownership issue. People born and reared in Dublin who wish to reside in their own area find it very difficult to do so. I have come across many people in my constituency of Dublin North-Central who find it impossible to purchase a new house and avail of the first time buyers grant and other such benefits.

If they purchase a previously occupied house they have no grants but rather additional charges such as stamp duty etc. I have communicated with the Department on the issue and given it statistics showing that the price of new houses bought by first time buyers averaged £96,000 nationally and £125,980 in Dublin, compared with average prices of £122,048 and £156,967. This endorses the case for Dublin. I ask the Minister to increase the shared ownership cap for Dublin to give it special recognition because of house prices in the Dublin area, and to delete the charges on previously owned houses.

Mr. Neville

The Bill introduces a number of substantial changes and is intended to accelerate the processing of planning applications, which must be welcomed. Another major feature is the restriction on the rights of objectors. This will mean that An Bord Pleanála will not entertain third party appeals unless the people making them first make their objections known to the local authority and have paid the fee of £20. I understand what the Minister is attempting to do in this regard, including the financing of additional paper work. However, wide-ranging doubts have been expressed about the constitutionality of the removal of the appeals by third parties. For example, a person affected by a proposed development could be on holidays or ill and would fail to see the site notice or announcement in the newspaper. A site notice is supposed to be in place for a statutory period of one month, but invariably when we complain to planners about notices not having been posted, they will say they were unable to visit the site within the month and had no evidence that it was not in place. People who have not made an appeal at the planning stage cannot, therefore, appeal to An Bord Pleanála due to factors outside their control. This is not just unfortunate for the people involved but removes their constitutional right.

I have difficulty with the prospect of a fee for making observations or submitting objections to planning applications in terms of the principle and the practice. The applicant, not the objector, proposes to change the status quo. For example, somebody might propose building a workshop across the road from a householder who is happy and enjoying his property, perhaps interfering with the natural light of the existing house. Naturally, the householder will be concerned and will want to make an observation to the planning authority about it. Why should somebody with serious concerns about the continued enjoyment of their property have to pay a fee to object or make a submission? We have the usual concerns about introducing a fee.

Debate adjourned.