I move: "That the Bill be now read a Second Time."
I propose to share time with Deputies Burton and McManus.
Private Members’ Business.
Planning and Development (Amendment) Bill 2005: Second Stage.
Is that agreed? Agreed.
I hope the Planning and Development (Amendment) Bill 2005 will receive the support of the House. This is not the first time the House has considered a Bill to force private developers to finish housing estates properly. My Labour Party colleague, Deputy Seán Ryan, introduced a Bill on the issue of unfinished housing estates on 11 May 1999. The Bill was defeated on Second Stage by 65 votes to 58, but the Government promised to address the issue in a major planning and development Bill that was being prepared. The Government's Bill, which was published in 1999 and eventually became the Planning and Development Act 2000, acknowledged some of the work that had been done by Deputy Seán Ryan but fell short of what was required. More recently, Deputy Noonan published a Fine Gael Bill that addresses the need to refuse planning permission to developers who do not complete estates satisfactorily.
Numerous housing estates throughout Ireland, particularly in counties Dublin, Meath, Kildare and Louth, have been left unfinished by developers. I refer, for example, to estates in the commuter belts around Dublin and the other large cities. In their rush to proceed to their next building projects, builders and developers often fail to complete estates by leaving roads, footpaths, walls, fencing and landscaping unfinished. Builders often leave new homes surrounded by rubble, litter and the remains of their work because they are so keen to move to the next estate and the next job. In many cases, they do not complete essential parts of the estate such as footpaths and play areas for children.
Many new home owners have been robbed and conned by the developers who built their homes. I say they were robbed because they had to pay extortionate prices for modest homes and I say they were conned because they bought their homes on the basis of plans advertised by builders and developers. When they move into new houses on building sites, they are often abandoned by builders who fail to complete the estates. The glossy brochure that advertised a dream home as being located in immaculate landscaping and idyllic neighbourhood bliss gives way to a reality of malfunctioning public lighting, poorly surfaced roads, incomplete footpaths and block rubble where open space should be. Unfinished estates are the scourge of suburban Ireland. People are expected to live and raise their families in an unsatisfactory environment in which footpaths, security fencing and play areas are often left incomplete.
I visited Duleek in County Meath last week with my colleague, Councillor Dominic Hannigan, who is the Labour Party candidate in Friday's by-election in Meath. Councillor Hannigan has been active for some time in highlighting the issue of unfinished housing estates in his local area and throughout County Meath. He took me to visit one of the new housing estates that are sprouting up throughout the county and the rest of the Dublin commuter belt. The housing estate looks well on one level — the houses are well-built and the estate is generally aesthetically pleasing. I would describe half an acre of land adjacent to the estate, right beside some of the new houses, as a dump, however, because the remains of a speedily abandoned building site are scattered across it. Rubble, blocks and mortar have been strewn across a muddy field, a rusty digger has been abandoned and broken glass and other forms of rubbish have been scattered yards from the new houses. I do not doubt that children play beside this rubbish dump. I do not know who built or developed the estate, but I know he or she did not finish it properly. The residents of the estate, who walk past rubbish every day and worry about their children playing in such an environment, deserve better.
It is unjust that under the existing law, the residents of the estate have little recourse to rectify the situation. In such circumstances, the residents are almost completely powerless before the law. The normal contract into which a home buyer enters is for the house and its grounds alone. A normal house purchase contract does not extend to the common or public areas of the housing estate in which the house is built. Issues such as the completion of housing estates, roads, footpaths, boundary walls, open spaces and public lighting are the subject of conditions in planning permission. Home buyers depend on local authorities to enforce the conditions of the planning permission to ensure the facilities are completed to satisfaction. It can be a protracted and frustrating experience for all concerned.
A local authority will give a developer a list of outstanding works before it agrees to take charge of a housing estate. The list may be disputed or the local authority may not have the resources or the will to follow it up. Stand-offs between local authorities and developers often last several years, while those who paid large sums of money for houses are left as spectators in the tussle. In many cases, developers or builders move to another site under the guise of a new development or company, having received planning permission from the local authority with which they are in dispute about the unfinished estate. In such circumstances, frustrated and angry home buyers are left to wonder why the builder, who left them with rubble where a playground should be, an unsurfaced rumble strip where a road should be and dilapidated chain link wire where a boundary wall should be, can get planning permission from the local council for a site down the road, where he will presumably do the same to a new cohort of buyers.
Local authorities have limited powers under the Planning and Development Act 2000, which provides that they have to apply to the High Court for authorisation to refuse planning permission on the ground of a track record of non-completion of an estate. The Labour Party thinks the existing law, which places the onus on the local authority to seek to refuse planning, is unfair. Why should the burden be placed on the local authority, which may not have the time or resources to pursue High Court action to prevent the granting of planning permission? There should be an onus on developers and builders to prove they will meet their obligations.
The Bill before the House obliges a planning authority to serve on an applicant a notice of its decision to refuse planning permission if it believes there is a real risk of non-completion by the planning applicant and if the applicant has a track record of non-completion. The notice takes effect within 21 days, unless the planning applicant appeals the decision to the High Court. Under the Bill, residents who live in or move to an unfinished estate will have recourse to the law to seek damages if the estate is left in an unsatisfactory condition. In this way, the Labour Party's Bill will empower local authorities to deal effectively with developers who have a track record of non-completion and empower the affected communities and residents to seek legal recourse, if necessary, through the courts.
Let me deal with the specific content of the Bill. Its explicit purpose is to amend the provisions of the Planning and Development Act 2000 dealing with unfinished estates. Section 1 is a standard provision dealing with the short title and collective citation and construction of the Bill. Section 2 amends the Planning and Development Act by substituting a new section for section 35, which concerns the refusal of planning permission for past failures to comply. The new section provides that where, having regard to any information available to the planning authority concerning development that was carried out by the applicant or certain connected persons pursuant to a previous permission, the planning authority is satisfied that they are not in compliance with the previous permission or any condition of that permission, it may form the opinion that there is a real and substantial risk that the development in respect of which permission is sought would not be completed in accordance with the permission or a condition, if granted, and that planning permission should not be granted to the applicant.
The planning authority is required to consider only those failures to comply that are of a substantial nature. Where the planning authority has formed the opinion that there is such a real and substantial risk, it is obliged to serve on the person to whom the opinion concerned relates a notice of its decision to refuse planning permission for that reason. The notice takes effect in accordance with its terms 21 days after the day on which it is served unless, within that period, the person to whom the opinion concerned relates applies to the High Court, by motion on notice to the planning authority, for an order setting aside the notice. The High Court, on hearing the application, may confirm the decision of the authority to refuse permission for that reason, may set aside the decision of the authority to refuse permission for that reason and shall remit the application to the authority for decision, or may give such other directions to the authority as the court considers appropriate.
It is provided that the deadlines for deciding an application for planning permission set out in section 34 of the Act of 2000 do not apply where application to the High Court is made under this section. Where the decision of an authority to refuse permission is confirmed by the court, no appeal shall lie to An Bord Pleanála from that refusal. The section applies not only in cases where a previous permission was granted to the applicant but also where it was granted to a partnership of which the applicant is or was a member. Where the applicant for permission is a company, the section applies to cases where the previous permission was granted to a related company within the meaning of section 140(5) of the Companies Act 1990, or a company under the same control, within the meaning of section 26(3) of the Companies Act 1990. Where the previous permission was granted to a company, the section applies where the present applicant controlled that company or was a shadow director of that company.
The existing section 35 enables a planning authority to refuse permission on "track record" grounds, but the authority must first apply to the High Court for authorisation to do so. Under this Bill, the authority will be obliged to refuse permission on track record grounds and it will be up to the applicant, within 21 days, to apply to the High Court against that decision.
Section 3 provides for a duty owed by a person granted planning permission that is made subject to conditions requiring the satisfactory completion of the development within a specified period. The duty is also owed by all other persons involved in the direction, management or funding of that development and it obliges those persons to take all reasonable steps to ensure the satisfactory completion of the development in accordance with those conditions. The duty is owed to those who acquire an interest in the development or any part of it. A person who suffers loss or damage by reason of a breach of the duty may bring and maintain an action for damages, in any court of competent jurisdiction, in like manner as any other action in tort.
In summary, this Bill has two effects. It shifts the onus of proving that a developer has a good track record on completion of housing estates from the local authority to the developer. It thereby gives greater powers to local authorities to combat this problem. Second, it empowers people who move into a new estate or who are living in an estate to sue the developer for damages if work has not been completed on their estate. This Bill is a real commitment to consumer power. If enacted, it will combat a blight on the Irish landscape, namely, the unfinished housing estate.
Yesterday the Minister of State at the Department of the Environment, Heritage and Local Government who is responsible for housing and urban renewal told the country of the record number of house completions last year. We all welcome this but the completion of houses is only one part of the story. In many cases the completions of which the Minster of State spoke are in housing estates that are not completed in themselves and may not be completed for very many years. The builders or developers may have already left to commence work on other projects on foot of other planning permissions.
We all know of the very high prices house buyers, particularly first-time buyers, are now paying for their homes. We know that, in most cases, they will be paying for those houses for most of their working lives. It is simply unfair that they are conned in the purchase of their houses. They respond to an advertisement in a newspaper, pick up a glossy brochure about a development with a very grandiose title, turn up at the show-house, see a set of plans on the wall and pay their deposit. A little red sticker is placed on the plans indicating where their house will eventually be built.
In some parts of the country people pay on an ongoing basis for the construction of their house through the system of staged payments. They move in when the house is completed but in many cases they are literally moving into a building site, namely, the estate in which their house is being built. They entertain the hope that within a reasonable period that building site will eventually measure up in some respects to the picture they saw on the brochure.
It is only after a period that the penny begins to drop. They find that the builder has gone, the roads, footpaths, planting, screening and boundary walls are not completed and it is not safe to let children play in the open spaces because they are still full of builders' rubble and bits of steel sticking out of the ground. The residents then form a residents' association, call a meeting and go to see somebody, such as a Member of this House, to find out what is happening. They discover that the planning permission guidelines were such that all the aforementioned works should have been completed by the builders. There is a taking-in-charge process through which the local authority must go. Notices are served and the outstanding works are listed. It sometimes takes several years before the estate is completed. Meanwhile, the builder or developer from whom the affected individuals bought their houses has gone, having pocketed their money and commenced the same kind of project elsewhere.
It is time to put an end to this. The only way to do so is to give the local authority the very clear power to refuse planning permission to a developer who does not finish off a housing estate, irrespective of whether that developer is developing again under the same name, company or title. A legal duty must be placed on such developers not only to meet the requirements of the local authority but also those of the people who bought the houses. At present, the developer's only obligation to comply with the planning conditions is to the local authority. The developer should be legally obliged to complete not only the house, its grounds and curtilage but also the estate, to the satisfaction of the home buyer. On the one hand, this would give the local authority power to refuse planning permission and on the other give the buyer, making the biggest purchase of his or her life, the right, if necessary, to sue the builder for not completing the housing estate.
This is a reasonable Bill to propose on Private Member's business. It will protect the home buyer and I ask the Minister and the Government parties to accept it and allow it to proceed to Committee Stage where it can be considered in greater detail.
I congratulate my colleague, Deputy Gilmore, on putting forward this badly needed Bill, whose purpose is to enable us to punish builders and developers who leave housing estates unfinished. The Bill will enable residents to sue developers where estates are not completed properly. I represent the constituency of Dublin West and Dublin 15 where unfinished housing estates are a blot on the landscape. This leads to endless distress and frustration for residents.
There are several estates in the area where developers make millions of euro and walk away leaving residents to pick up the pieces after them. This Government does not seem to care about the problem. I can give four examples of this, plucked at random from Dublin 15. I could give the Minister 100 such examples from my files.
Mount Symon in Clonsilla is an estate of expensive family homes where the builder chose to develop the green space in the middle of the estate over an unauthorised dump of building material. This was pointed out repeatedly to the developer and to Fingal County Council but it has taken almost two years to have the space excavated.
Tonnes of building waste have been removed, including a whole abandoned car and other machinery belonging to the developer. The residents were very confident of their allegations about the green space because they took photographs throughout the building process. They were powerless, however, to do anything about it in regard to this developer.
Most of these residents are struggling to pay their mortgages as well as child care. Instead of the State and local authority coming to their aid, they have been left to lobby and campaign for almost two years to reach the point where a large green space is half excavated. The campaign will continue probably for the rest of this year to get the other half excavated and whatever is there taken away.
The Village in Porterstown is a typical Dublin 15 estate whose completion I and other public representatives in the area have pursued for almost seven years. We receive letters telling us that it is about to be taken in charge but the builder has effectively absconded. Some estates in Dublin 15, with expensive homes, have not been taken in charge even after 20 years because the developer did not complete the estate.
It is no accident that Dublin West, and Dublin 15 in particular, was the stamping ground of former Deputy, Liam Lawlor. Consequently, it often seemed as though developers had an open hand to fling up an estate in any condition then walk off leaving the residents to their fate. Prior to the recent local elections, which seemed to spur Fianna Fáil to take some action, I could have invited Deputies to walk through certain estates where the wires were still sticking out of the ground for lamp posts never installed, 20 years after the houses were built.
When one sees the sacrifices people make to purchase a home one wonders why we have a culture, particularly prevalent in Fianna Fáil, in which developers call the shots and residents can be left to their fate. The recent development of affordable housing is welcome, specifically in the Fingal area. When I was leader of the Labour group on Fingal County Council I pushed strongly for this. The affordable housing, however, has often been completed in conjunction with developments by builders working on behalf of the local authority and maybe building the affordable housing off-site from more expensive developments.
Although the local authority arranges these developments, residents have no recourse when they experience serious problems. For example, Hillbrook Woods is a small new estate of affordable houses built on former local authority land, in a deal with a private builder. In this case it appears the gas appliances and central heating installed in the houses are highly unsatisfactory. As a result Bord Gáis has disconnected many gas fires on grounds of danger yet the residents have no recourse.
Unproven charges against an identifiable person should not be made in the House.
I refer to a case in which Bord Gáis has issued notices to residents of new homes to disconnect their fireplaces because the board deems them to be dangerous. As a public representative acting on behalf of these residents I have yet to receive a satisfactory answer on where the residents purchasing under affordable housing arrangements can find recourse. Does the recourse lie to the developer or does the local authority have a duty of care because it was involved in arranging the affordable housing for residents?
It is time in areas such as Dublin West and Dublin 15, where there is mass housing development, that developers came under some control. They have had a bonanza in the past ten years making money hand over fist yet many are not prepared to give buyers a fair deal.
Apartments and management companies pose another significant problem in Dublin 15. The Minister must be aware of the numerous complaints about poor and shoddy workmanship in apartments, particularly in regard to noise insulation. It is a delicate issue because there are multiple owners on the same site. Private developers and county councils use the device of a management company widely. These companies charge high fees, in some cases up to €1,500 a year. Very often the management company is the builder's brother or other relative of the builder or foreman who developed the housing. In practice, there is very little recourse if something goes wrong as often happens in apartments. There is neither law nor regulation for this area. I wrote several times to the Minister's predecessor about this. People who buy privately are afraid to complain publicly in case it depresses the market value of their homes. That is an additional problem. The Labour Party Bill would restore some balance.
I received another typical letter just before coming here. It refers to Rusheeney Grove in Dublin West. According to the letter, the dumping on waste ground on this unfinished estate, "seems to have gotten 10 times worse. ... Since Halloween the waste ground has become an illegal dumping ground". Children spray graffiti on the walls. "The walls were supposed to be re-painted and the waste ground was supposed to be landscaped" as per the planning permission.
This person has bought a house at great expense and wants to invite parents and other relatives to tea but they must drive through this waste ground to get there. Many residents are delighted to have their own homes and keep them beautifully but the standard of upkeep on estates is appalling. I saw the Minister and some of his colleagues in Dunboyne on Sunday. I do not know if he knew what happened to residents of many estates in Dunboyne who had been trying to pursue builders for years. I hope the by-election brings a sense of reality to what is happening in Dublin West and the areas surrounding Dublin where young people, in particular, are getting a very raw deal from the Government. I commend the Bill to the House.
I congratulate my colleague, Deputy Gilmore, on bringing forward the Bill. It proposes practical changes to legislation which will alleviate an enormous amount of frustration and protect consumers.
Buying a house is the biggest investment most of us ever make. A legislative change such as this would deal with complaints of which many of us are conscious from canvassing in Meath and Kildare where there has been a great deal of expansion. The Minister and I represent County Wicklow, which has seen its share of very rapid growth in towns such as Blessington, Arklow, Greystones and Bray. These towns have experienced rapid growth and new houses being built, sometimes without the proper infrastructural amenities. Sometimes there are defective roads, no roads and problems with water and sewerage schemes. Very often the basic infrastructure does not exist to accommodate new housing developments and consequent growth in population.
There is a particular characteristic among a number of developers — it does not apply to all developers — many of whom are serial offenders. There is a pattern of developing estates, companies changing from the original developer, who then transfers to a building company, who transfers to someone else, and each time it is more difficult for individual householders to get developers to comply with planning permission conditions. The difference between the initial point of contact between potential house buyers and the people developing the housing scheme is quite stark. There are advertisements, including glossy brochures and flags, where estates often look much better than they are in reality. At the end of the experience, individual householders are left trying to have footpaths and lighting put in place. When all the razzmatazz is over, one is left with a mobile phone number, and a developer who very often does not answer the phone. There is a great deal of chasing of phantom developers, which is a frustrating experience for householders trying to get their estates completed.
We all have our stories. I would like to think the Minister is aware of a small estate in Tinahely called The Tyndles. The last time I visited the estate, there were major problems, including no public lighting and footpaths that had not been completed. The hazards in the estate, particularly at night, make it extremely difficult for people to manoeuvre in the dark because of a lack of public lighting. These are mainly people who have moved to the area from Dublin. They like Wicklow and want to settle down there. Some of them are retired and some have young families. They put up with the commuting experience in order to rear their family or retire to a quiet place like Tinahely, which is a very attractive village in south Wicklow. These people are left with cavities outside their homes and no public lighting, which is unacceptable. When people chase up mobile phone numbers, promises are made which never appear to be kept. Very often local authorities and builders tend to blame each other and it is very difficult for people stumbling around in the dark to find out what is going on, how it will be sorted and, more important, when it will be sorted. Each week more promises are made, and each week that follows, there is more disappointment.
I can give many examples in County Wicklow where the situation is not as stark as it is in The Tyndles. There are larger housing estates in Bray and Greystones, along the Southern Cross, where people have tried to get the basic conditions complied with. These include landscaping and open spaces being brought up to standard, as required under the planning permission conditions. This is not just an aesthetic matter. People are conscious of the fact that because an open area has not been upgraded and landscaped, there are brambles and it is overgrown, it becomes a haven for anti-social behaviour. There are complaints about the dangers that can accrue from discarded hypodermic needles and anti-social activities. This irritates people who move into a nice estate and end up in a situation which is not of their making and makes them feel powerless.
The role of local authorities needs to be beefed up. Someone may be given the task of dealing with developers but they do not have the clout to threaten them with action if the completion works are not carried out. I have often been in contact with residents who have found the local authority less than effective and the developer less then accommodating. I have advised residents to find out where the showhouse is open in the developer's next port of call, to get in their cars and picket the showhouse. This is the most effective course of action to take. Nowadays one does not even have to find the showhouse, one just has to advise the developer that the picket will be on the showhouse if he does not get his act together. The expression often used to me when I meet residents is "Fianna Fáil is the developers' friend", which is not said without reason.
If the Government accepts the Bill, it will be a step forward and an indication of good intent. While the cost of housing is very high, generally speaking, the standard has improved immensely compared to the bad old days of the 1960s and the 1970s. However, the completion of estates is not being dealt with properly given the amount of investment people are making. The Bill shifts the onus on to developers, which is a neat solution to many people's frustration. It alters the relationship with regard to a developer receiving planning permission without having his track record taken into account. This will put the responsibility on developers. From that point of view, it is important legislation which, I hope, the Minister and the Government will take on board. The Minister now has an opportunity to make his name by dealing with these serial offenders who are causing so much grief and getting away with so much.
I am pleased to speak to the House on this Bill and on the important issue of the completion of housing estates. I have already extended to Deputy Gilmore my personal sympathy with the objectives of the Bill.
The primary responsibility to build good developments and finish them to a high standard rests with developers. Builders are building and selling record numbers of houses — nearly 80,000 last year alone. They are selling a product, the most important that people will possess, and it is incumbent on them to make that product the best it can be. As in every walk of life, builders and developers range in terms of performance. Some are excellent while others fall far short of excellence, and this Bill focuses on the latter.
People buying their homes are making too important a purchase to leave it up to the industry alone to set standards. Over the past few years this Government has brought forward measures that will ensure that people do not have to put up with the misery of living in a half finished estate. We are willing to consider any reasonable measure that will effect further improvements, including this Bill.
An important aspect of the measures which we have introduced is that they do not put the burden on individual house purchasers to go to court to ensure that estates are finished. Instead, they ensure that house purchasers can call upon public authorities to help them when they need help. I want to touch on some of these measures before discussing in detail the Bill proposed by Deputy Gilmore. We have widened and strengthened the powers of local authorities in dealing with unfinished estates. Local authorities were expressly given powers to attach specific conditions about finishing estates. Developers can also be required to ensure that estates are managed or maintained until they are taken in charge.
Of course, attaching conditions will not help unless they are enforced. Here too, the Government has moved to give local authorities a full range of powers to deliver completion of housing estates. There was a considerable strengthening of enforcement provisions in the planning Act 2000. A major concern of the review of the whole planning code which took place in the preparation of the Planning and Development Act 2000 was to promote a culture of compliance with planning law, backed by a considerably strengthened enforcement regime. The introduction of a culture of enforcement is critical to ensure that the planning control system works properly and for the benefit of the whole community.
The changes which were introduced to the enforcement regime in the 2000 Act simplify existing statutory procedures and strengthen the powers available to planning authorities. These changes included fines that were greatly increased, with a maximum penalty on conviction on indictment of €12.7 million and two years imprisonment. Planning authorities now charge for the cost of taking enforcement action and are entitled to retain fines imposed by courts for planning offences to help finance more active planning control. The period within which enforcement action may be taken has been extended from five to seven years. An application for retention, or even a grant of retention permission, is no longer a valid defence to enforcement action and fees for an application for retention permission were increased. If people attempt to hide behind a corporate identity, this can be prevented.
The Government also introduced the provision on which this Bill is based. In law, planning authorities can refuse to grant planning permission, subject to the consent of the High Court, to any developer who has seriously failed to comply with a previous permission. I will go into more depth on the implications of the proposed changes to that provision shortly. Some planning authorities have responded to these provisions and have begun to resource their enforcement sectors and take a proactive approach to this area. That was exactly the result the 2000 Act was aimed at and I welcome that development. I want to see better performance in this area across the country.
Apart from enforcement of planning control in general, I wish to say something about the specific measures put in place by the Government to address the matter of the completion of housing estates. The 2000 Act contained a significant new policy change on the responsibility of local authorities to take in charge estates. The way in which this policy has been introduced has given substantial incentive to developers to finish estates properly.
Where an estate has been completed to the satisfaction of the planning authority, it must, if requested to do so by the developer or by the majority of the qualified electors who are owners or occupiers of the houses involved, initiate the procedures to take the estate in charge. This gives an incentive to the developer to finish the estate properly and without undue delay. The decision on whether to take the estate in charge is ultimately one for the elected members, an important responsibility for them.
Where estates have not been completed to the satisfaction of the planning authority and the authority has not taken enforcement proceedings within seven years, the Act also provides that the planning authority must, if requested to do so by the majority of the residents, take the estate in charge. The section also provides that the provision in section 11 of the Roads Act requiring the authority to consider the financial implications of taking the estate in charge can be disregarded. This provision also clearly incentivises planning authorities to ensure that estates are fully completed by developers in compliance with their planning permission. Where authorities fail to do so, they may face the problem of financing completion of the estate. Planning authorities can of course seek bonds from developers that can be offset against these costs but it is still a major incentive for local authorities to move to address failures by developers before they develop into major problems. This provision applies to all estates that have received planning permission under the modem planning code. As I said, I have sympathy for the aims of the Bill but there are issues that must be teased out on Committee Stage.
A significant new enforcement in the planning Act 2000 was the provision, contained in section 35, to permit authorities to refuse planning permission to an applicant who is not in substantial compliance with a previous permission. Section 35 of the Act provides that where a planning authority is satisfied that a person or company to whom the section applies is not in substantial compliance with a previous permission, it may form the opinion that there is a real and substantial risk that the development would not be completed in accordance with such permission if granted and that the planning permission should not, accordingly, be granted to the applicant. Where the planning authority forms this opinion it must apply to the High Court for an authorisation to refuse planning permission for a new development. This is the core issue in Deputy Gilmore's Bill.
Obviously, we were concerned to ensure that developers would not try to avoid this provision by setting up as a new company. Section 35 of the Act applies to any related company or company under the same control which carried out the previous non-compliant development. This provision obviously does not solve all the problems of unfinished estates but it is a useful additional weapon in the planning authority's armoury where it is trying to come to grips with someone who persistently fails to finish developments.
Section 2 of the Bill would amend the above provisions by providing that where the planning authority forms the opinion that there is a substantial risk of non-compliance with a planning permission and that the planning permission should not, accordingly, be granted, it must serve a notice on the applicant of its decision to refuse permission. The notice will take effect within 21 days unless the applicant applies to the High Court for an order setting aside the notice.
The effect of this section is to provide that the planning authority may refuse permission, subject to the applicant's right of appeal to the High Court. This reverses the current position whereby the planning authority must apply to the High Court. I am sympathetic to the attempt in this Bill to place the onus on applicants, rather than on the planning authority, to apply to the High Court in the case of a refusal of planning permission because of a substantial risk of non-compliance. This was the effect of the provision included in the original draft of the Planning and Development Act 2000 when it was still in Bill form. However, the Attorney General's office identified possible difficulties with this provision and, following consultation with that office, the provision was modified to the current section 35. I have already mentioned to Deputy Gilmore my personal views on the Bill but it is important to give some further and deeper consideration to these issues.
Giving a planning authority power to refuse planning permission based on previous non-compliance could possibly be construed as an attack on constitutionally protected private property and an attack on the right to earn a living. After all, we are talking about refusing someone planning permission, who may never have had an enforcement action taken against them. While I am sympathetic to this idea, it needs some further thought. There may also be an issue as to whether this procedure could constitute the administration of justice by a planning authority, which would be unconstitutional. I certainly will have to obtain further legal advice on this matter before going further with the Bill and I suggest that Deputy Gilmore does so, although he has already taken legal advice on these issues.
I am not entirely convinced that the proposed amendment will effectively address the matter of unfinished estates. The concern of residents in housing estates is that those estates be finished in accordance with the terms of the planning permission and the 2000 Act contains many provisions to ensure that this will happen. We need to be looking at how to make planning authorities more effective in using the powers they already have. That will be a major focus of mine over the coming months.
I have even more concerns in relation to section 3 of the Bill, which purports to give a right of action to any person who has acquired an interest in a development and who suffers loss or damage due to its non-completion in accordance with the planning permission, against the person who was granted planning permission for the development, and all other persons involved in the direction, management or funding of the development.
The person who obtained planning permission could subsequently sell the land to which the permission attaches to another person. In such a case it would obviously not be right that the person who obtained the permission would owe any duty of care in relation to the completion of the development, provided this device was not used as a way of avoiding responsibility. I am advised also that there are doubts about the inclusion of the words, "all other persons involved in the direction, management, or funding of the development", as these would appear to include not only the developer but any company that provides management and financing for the development, most notably banks which may provide loans. I do not think this was Deputy Gilmore's intention but it could be an unintended effect of the current wording.
Also, I am not entirely convinced that the amendment would have major benefits for residents in unfinished housing estates. Such residents would wish to see the current provisions in regard to the completion of estates being fully utilised by planning authorities in the first instance, rather than to obtain the right to take court actions themselves. That process can be stressful, expensive and time consuming.
Notwithstanding these reservations I am not opposing the Bill. Everyone in the House is sympathetic to its aims. The major responsibility for completing estates should primarily rest on the builder and the building industry needs to promote the highest standards for its members when completing new estates. Many builders build good estates and behave honourably, but some, unfortunately, do not. Local authorities need to be equipped with a range of mechanisms to ensure the highest standards when completing new estates. They need to be resourced to do so, and their performance needs to be measured so that all will achieve a high standard. This is one of the areas I am looking at specifically. I do not believe the primary responsibility should be laid on individual house purchasers to get estates finished and, to be fair, I do not think that is Deputy Gilmore's intention either.
The aims of the Bill may well be noble but good intentions are not enough in themselves. Before putting any draft statute through the Oireachtas it is imperative that the Bill be constitutional in every respect and we all accept that view. While I have no question whatsoever as to the good intentions of the Bill I advise the Opposition, and in particular Deputy Gilmore, to give some further consideration to the implications of the proposals. I intend to consult the Attorney General on the issues it contains due to the significant changes that will be required in current law.
In due course, however, we can look at all of these issues on Committee Stage and this could well be a case where the House bringing all its talents together could address a scourge that has been with us for far too long. I congratulate Deputy Gilmore on tabling the Bill. He is dealing with an area which is close and dear to my heart, that of the proper completion of housing estates.
As Deputy McManus said both she and I represent a constituency where in the past we have had more than our fair share of examples of bad practice by builders and developers. The statutory changes introduced in the Planning and Development Act 2000 were intended to move in the same direction as this Bill. Significant additional arms have been given to local authorities to improve the position. I am sympathetic and willing to look at any suggestion to introduce a further improvement.
I wish to share time with Deputies Connaughton and Neville.
Is that agreed? Agreed.
Like other speakers I welcome the tabling by the Labour Party of this timely Bill. Those of us who have been canvassing during the past few weeks — the Cheann Comhairle has been spared that honour — will have got muck on our boots but this is one of the few nights I do not have muck on my boots. When canvassing in some of the newer housing estates in County Meath, and I am sure the same is true in Kildare North, one finds that footpaths disappear and that one gets covered in muck and dirt because of all the unfinished estates. Not only are they unfinished, but they have inadequate lighting, inadequate services and as many houses as possible are built with the least possible value for residents. That is a planning issue rather than a finishing issue. Many of the residents in Meath, Kildare and all over the country suffer because of the lack of enforcement of the planning permission that has been granted.
In Drogheda an estate of one builder, whom I will spare the embarrassment of being named in the Dáil, after 20 years has not yet been finally taken over. Time and again the local authority asks what are the outstanding works that need to be carried out. Yet this builder has moved from one estate to another. He is not a John A. Murphy becoming a John P. Murphy and he does not change his name, district or guise, yet he gets away with murder. Enforcement of the law has been particularly weak. One reason is that the amount of money, the bond as mentioned by previous speakers, is totally inadequate. We have learned from experience from the 1970s and 1980s and we were lucky to get people to build houses at a good price. The local authority was pleased to get action in its local area and probably did not have the staff to enforce the regulations. Advantage was taken of there being little or no enforcement.
One can see estates in one's county or area completed by good builders who exceed the legal requirements. One such estate which I visited is The Lords in east Meath, which is fabulously well finished. Its roads and lighting are perfect and even the walls which are removed from the Houses have been painted. This estate is built as it should be to a high quality build and design. That is the aim of this Bill.
An issue arises where cowboy builders who have planning permission build a certain number of houses and sell them. Suddenly, the semi-detached houses are changed to terraced houses which sometimes end up squeezed into the green space. When the green space has disappeared the local authority is under pressure and the environment and quality of the estate which people initially expected is downgraded and in a much less attractive position. Given the number of variations to the permission people get tired of following them and in the meantime the builder gets away with murder. That issue must also be addressed.
I am pleased the Minister has agreed in principle to this Bill. It is the collective wisdom of us all that makes it possible to change things.
I refer to a wonderful estate called Kilnamanagh in Tallaght which in the 1970s was the fastest developing satellite city in west Dublin. The Irish Times informs me that Kilnamanagh was Brennan and McGowan’s most notorious project. This company was one of the biggest builders in Dublin in the 1970s and 1980s. The company was the target of more litigation by Dublin County Council than any other developer for breaches of the planning codes over unfinished estates. Kilnamanagh was to be a landscaped garden suburb, a wonderful place of 1,600 houses with plenty of open space and numerous other facilities, including play lots. The sales motto was, “When you buy a home in Kilnamanagh, you get more than just a nice home, you buy a whole community, shops, supermarkets, a bank, pub, garage, schools, churches, a community club and even 50 acres of open space.” We have all read such advertising blurbs for housing estates in our communities.
Background music.
It is background music. The music was in the builder's pocket as the money rolled in. It certainly was not in the community that was left.
The legal term is "auctioneer's puff".
That is a good name. Six years later county councillors were calling for an inquiry into the mess that had been created. It was one huge unfinished housing estate. Roads were unsurfaced, some of the houses were defective and the open space was spoiled by heaps of rubble. What most angered the councillors at that time was that there seemed to be no way of taking effective action against Brennan and McGowan because the matter could not be sorted out. A famous gentleman who happened to be an assistant county manager, Mr. Redmond, whoever he was, admitted he had received substantial payments over the years from Mr. Brennan of the Brennan and McGowan company. A little corruption was creeping in and this has been uncovered by the tribunals. The relationship between politicians and builders is one of which we should be very careful. It is to be hoped that the corrupt nature of some relationships has diminished because it is not desired by anybody.
We hope that Shane McEntee of the well-known famous football family will be here in the House the week after next — not next week because the Government is taking another holiday. He told me about an estate in Enfield in County Meath and unfinished estates such as Moyfinrath and Rathdale which blight the lives of those who live there.
The issue of unfinished estates was raised by the previous Ombudsman, Mr. Kevin Murphy, who stated in 2000 that local authorities were reluctant to force developers to finish housing estates and to meet other conditions attaching to planning permission. The Ombudsman stated that county councils could penalise developers by making them forfeit the bond if they failed to finish an estate, but the bond was often for an amount which was far less than the cost of carrying out the work. He stated that to make developers comply with planning permission, county councils would have had to take them to court, and county councils were increasingly reluctant to do that. It is unfortunate that this lack of follow-through, determination and commitment has persisted up to the present day.
That famous company, Brennan and McGowan, and many more large building firms operated through a maze of front companies, each set up to carry out a specific development and forming a separate legal entity. The Gallagher Group, for instance, consisted of 50 companies when it went into receivership in 1982. It is an important point to be considered on Committee Stage that while company A may have obtained planning permission, there is a legal change for company B which may have no connection with company A. It is very important to get to grips with this issue and to follow through. I am not a legal person but the Minister will need to find a mechanism to deal with this issue because it is critically important. The Fine Gael Party welcomes this Bill and looks forward to the next Stage.
I wish to share time with Deputy Neville.
I congratulate Deputy Gilmore on this Bill. He has a great interest in this kind of business. I was delighted to hear the Minister say that he accepts the Bill in principle, and that is very reasonable. As the Minister said, all Members wish to create a situation whereby when a couple pay money for a house that they will not own for the next 35 years, at least they will be able to enjoy what they thought they bought. That is the important part of the story.
I represent a rural constituency. I see some of this sort of trouble in towns like Tuam and Ballinasloe but nothing like what happens in the Minister's constituency or that of Deputy Gilmore, or in other constituencies with a high population density. This is a very clever way of dealing with the issue. This is like the old section 35. The onus is put back on the builder or developer. If they are not satisfied with the manner in which they were treated by the local authority, let them bring the local authority to the High Court. I believe this is the basis of what is proposed.
We appreciate that the Minister will need to examine this Bill closely, and there is many a slip between the cup and the lip. In my view, all 166 Deputies will agree that this provision is badly needed.
I sometimes wonder about the question of bonding. I will refer to an estate in Tuam called Millstream Park which has been an issue for the past 20 years. The builder did not carry out his duties the way he should have. For some unexplained reason, as the years went by and despite all the residents' association meetings that took place and countless deputations to the county council, the estate is still as bad as ever. As every year goes by, the bill for taking over the estate rises. If something had been done 15 years ago, the cost of putting the estate right would not be nearly as exorbitant as it is now. As I understand it, the builders as such cannot be identified and a writ cannot be served on them. It could now take €300,000 approximately to put right. It is a small estate by the Minister's standards, but the residents are very upset. If this matter drags on for another five years, that €300,000 could become €500,000.
In the event of the new legislation being enacted, if nobody can be regarded as being to blame, would it be possible, as in the world of motor insurance, to have an overall fund to which estates like this could apply?The local authority cannot be expected to take over the estate because the cost will eat into its budget. I assume such estates exist in other parts of the country. I suggest that the CLÁR or RAPID programmes could be used. It is not right under any circumstances that more than 60 families would have to negotiate roads into their houses, in a developing town as big as Tuam, every day for 20 years. Irrespective of how one views the matter, the residents are innocent of all charges. It is against that background that it may be necessary to consider such an extreme measure and I ask the Minister to do so. I do not know if such a fund is in place but one will be required, otherwise we will be left with an atrocious estate.
I welcome the opportunity to discuss this timely Bill and congratulate Deputy Gilmore and the Labour Party on introducing it. I represent a rural constituency and while we have experienced some problems with estates, notably in east Limerick, they have not been of the scale experienced in more urban areas.
I will raise an issue related to the Bill. In some senses the problem my constituency faces with regard to development is at the other end of the scale from those described by other speakers. The policy on once-off housing enunciated by the previous Minister for the Environment, Heritage and Local Government appears to have disappeared after the local elections. In my constituency a number of individuals are interested in developing our towns and villages but we do not have the necessary sewerage facilities to do so. One person applied to develop houses in Shanagolden in County Limerick at a cost of €17 million. He proposed to purchase land and build 80 to 90 houses on it and his own land but the sewerage scheme could not sustain such development. Another applicant was prepared to develop a smaller number of houses. Increasingly, people are prepared to develop areas 15, 20 or 25 miles from Limerick city but the villages cannot sustain development because of the sewerage schemes.
Shanagolden-Foynes has been promised a sewerage scheme for many years. In discussing the issue with the planners, members of the local authority indicated that if we were confident the scheme would be in place in the next five years, we would give developers planning permission on condition that they wait for the sewerage scheme. I was amazed that the planning authority was not confident that the scheme would be developed in the next five years.
From tabling parliamentary questions and in discussions in the county council, I have found that the Department nit-picks with regard to the submissions made by the council. In other words, instead of settling matters across a table or in a telephone call, new applications, investigations and reams of paperwork are required. For example, in the case of the proposed Shanagolden-Foynes sewerage scheme, the Department questioned the cost of the consultants dealing with the proposal. While this is legitimate, I have been informed it will delay the process by six to eight months. Surely the Department should have lifted a telephone and sought an explanation.
The Minister's replies to parliamentary questions frequently state that the Department is awaiting A, B or C from the county council. The council, on the other hand, states that the issues concerned are minor. The Department is engaged in a delaying exercise. If it does not wish to invest, it should say so or tell us when moneys will be allocated so that we can plan. Similar circumstances have arisen with regard to the Glin, Bruff, Kildimo and Pallaskenry sewerage schemes. The Minister has highlighted other schemes which, if developed——
I have allowed the Deputy considerable latitude. He should address the Bill before the House.
This is an important issue.
I have no doubt it is important but it is not relevant to the Bill.
The Minister's presence affords me an opportunity to make a point.
Unfortunately, that is not provided for in Standing Orders.
My door is open to the Deputy.
We have an opportunity to ease the number of once-off houses by facilitating people to move into towns and villages, yet we are prevented from doing so. This is extremely frustrating for those of us who observe what is happening and local authority officials who have done a great deal of work in making the case for schemes.
While the Minister expressed support for the Bill, I presume he will vote against it.
That is not the case.
Will he accept it?
Yes, I have said so.
That is very good. I was not present for his statement.
It is an unusual decision but wisdom does not reside on one side of the House.
As the Minister will probably be aware, it is not unique.
Will he resign from the Government and join the Opposition?
I believe the former Deputy, Mr. Alan Shatter, had five or six Bills accepted by the Government.
The Deputy should not get carried away. It is Deputy Gilmore's Bill, and Deputy Neville should not seek credit for it.
I look forward to the remaining Stages and enactment of the Bill in law.
Under Standing Orders a Government speaker is due to contribute but because the Bill has——
If the Bill is not opposed——
Normally, the House will adjourn and the debate will reconvene at 7 p.m. tomorrow with a Government speaker.
Debate adjourned.