JOINT COMMITTEE ON THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT debate -
Tuesday, 10 Mar 2009

Business of Joint Committee.

Chairman

The minutes of the meeting of 3 March have been circulated. Are they agreed? Agreed.

The next item is correspondence. The first item is 2009/382, a press release on the accreditation of the Radiological Protection Institute of Ireland relating to a radiation protection inspection service. It is noted.

The next item is No. 383, the appointment of the chairman of the Dublin Docklands Development Authority. This has been in the public arena and it is noted.

The next item is No. 384, a ministerial press release on a book about the archeological excavation of Knowth in County Meath. It is noted.

The next item is No. 385, Europe's World newsletter No. 2. It is noted. The next item is No. 386, observations on the environmental impact aspect to some electronics and policy matters by Dr. Peter Thornes, radiologist. This is noted for further information.

The next item is No. 387, the EPA's national waste report. It replies to queries raised at the meeting between the EPA and the joint committee, particularly those relating to the Kyletaleesha landfill. The members will, I hope, excuse me if I examine this matter for a moment because Kyletaleesha landfill is in Portlaoise. I did not realise this response had come. We will note it and I will study it later. If members wish to comment on this they are free to do so.

The next item is No. 388, and environment policy update newsletter. Item No. 389 is a ministerial press release on a public lending remuneration scheme in respect of the public library service. The next item is No. 390, a reply to queries raised at the meeting of the joint committee on 10 February 2009 from the Dublin Docklands Development Authority.

Deputy Phil Hogan

Can the Chairman elucidate us on those replies?

Chairman

I had a glance at it and I noticed the annual report will be published in four to six weeks. When the representative of the Dublin Docklands Development Authority was before us three weeks ago he said it would be out by the end of February. It has been pushed back a month and we have been told we will get it when it is published.

The second matter mentioned was duplicate certificates referred to in the Mountbrook judgment. The authority says this was referred to in the court case about the planner's report. There were various drafts of the planner's report in the legal proceedings. The judge concluded by saying nothing turns on the issue of whether there were duplicate certificates. A draft report was produced by the planner and a final report was made by the senior planner. They were all on file and people were confused about which report was referred to. The judge said that in any event nothing turned on the existence of drafts of the report.

On the Irish Glass Bottle Company the authority says "as part of our ongoing negotiations with the bank all outstanding interest for 2008 has been paid". This relates to the joint venture company Becbay Ltd.

Deputy Phil Hogan

Was that paid by the time of the meeting?

Chairman

They made it clear it had not been paid by then but it has happened since. The valuation of the Irish Glass Bottle Company site will be dealt with in the annual report. That is the bottom line on what the authority says.

The correspondence concludes by inviting the members of the committee to visit the docklands. Tuesday, 24 March, Tuesday, 7 April, and Tuesday, 21 April, are all suggested dates. We said previously that we might be interested in visiting. If we are to visit the offices of the Dublin Docklands Development Authority, I suggest we do so before lunchtime. Is Tuesday, 7 April suitable? We will make provisional arrangements for that morning between 11 a.m. and noon. The visit should take approximately two hours.

The next item is No. 391, a letter again requesting that the joint committee investigate the planning department of Dublin City Council with regard to its decision in respect of the former Jury's Hotel site in Dublin. Deputy Creighton had written to the committee asking us to investigate how the council had granted planning permission which required a material contravention of the county development plan. We wrote to the county manager who sent a copy of a submission he had made at an oral hearing of An Bord Pleanála in which he considered adequately and fully dealt with all the issues. Deputy Creighton has asked us to invite Dublin City Council to come before the committee to discuss the matter in detail. Do members want to get into individual planning applications? I do not think we can.

Deputy Phil Hogan

We cannot deal with individual planning applications or we will become the planning authority. We can look at the policy and write to the council again for further information. The officials do not seem to be coming forward with anything new.

Chairman

No. They said all they had wanted to say to An Bord Pleanála. Will we postpone the matter for one week to consider if there is another way to deal with it? I do not know what else we can do.

Deputy Phil Hogan

There might be another way.

Chairman

The final item is a document from Esperanza Enterprises Limited which is organising a conference in Galway on building energy regulations. I do not know who is involved in the company or what they do; therefore, I suggest we note the document.

Senator Ciaran Cannon

It comprises a group of former senior local authority officials who have set up a consultancy firm to organise training seminars all over the country, mainly for members of local authorities.

Deputy Phil Hogan

Perhaps members of the planning section of Dublin City Council should go.

Chairman

I have a note stating funding might not be available owing to current reductions in expenditure. We will pass on this occasion but I do not accept that funding should not be made available for travel, especially to attend useful conferences in Ireland.

I draw members' attention to the short report on our discussion with the Minister last week on the Planning and Development (Regional Planning Guidelines) Regulations 2009. Is the report agreed? Is it agreed that we lay it before the Houses of the Oireachtas? We agreed to do so at the last meeting when the Minister was present.

Deputy Ciarán Cuffe

I have a query on the recommendations made on page 19.

Chairman

We have not come to the recommendations yet. This is to tidy up an item from the last meeting. The Minister was present last week to discuss the Planning and Development (Regional Planning Guidelines) Regulations 2009. The committee was asked to consider the report and we are now being asked to agree it. Is that agreed? Agreed.

I am skipping No. 3 on the library and research service to move to the main item on the agenda, a draft report on the application of ministerial directions to city and county development plans and related matters. Normally, draft reports are discussed in private session but that has always led to a member of a committee leaking reports to a journalist. Are members happy to hold our short discussion on the matter in public session? We will proceed to do so and if we clear the report today, we will launch it tomorrow. We can make amendments during the course of the meeting. We have provisionally booked the audio-visual room for the launch tomorrow. No copies of the report are being given to anybody, other than members of the committee present. They are not being circulated outside the meeting because the report has not yet been approved. I ask members not to disclose details of the document until we launch it tomorrow, which is standard parliamentary practice. Is that agreed? Agreed.

We will go through the report page by page but that will not be as cumbersome as people might think. It is necessary to do so, however, because the committee must approve it. Members will see from the table of contents that recommendations are made in the first 19 pages. After that there are appendices such as letters from the council, a presentation by the Department, details of planning legislation, observations from the Department on the County Mayo plans, the text of the Minister's direction and a brief report on our meeting. The appendices are included for the record.

We will briefly go through pages 1 to 19 but not on a line-by-line basis. It would be helpful if members took me up on any issues that might arise. The Chairman's preface is on page 5. There is a list of members on page 6 and, on page 7, acknowledgments of people involved in the preparation of the report. Page 8 contains the executive summary of the draft report, to which we can return. Page 9 contains the introduction to the report and how we came to look at the issue. We had received a letter from members of Mayo County Council following the adoption of its county development plan in 2008 on which the Minister had issued a direction under planning legislation and we agreed to investigate the matter. Information obtained by the committee during the course of its work and an outline of the various stages of development plans are shown next, followed by details of the issues as they pertained to Couinty Mayo and our findings and recommendations.

Page 10 explains the background and details the 13 stages involved in a development plan which takes a total of 99 weeks and involves public consultations, a manager's report and its consideration by members, the publication of a draft report, further consideration of the manager's report and any alterations. Then comes the finalising of the plan by the members. A simple majority of elected members is all that is required to pass a development plan. When the council publishes a plan, it forwards a copy to the Minister. Since the Planning and Development Act 2000, 112 development plans have been adopted, of which 106 have not attracted a direction from the Minister. Only five have attracted a ministerial direction, one of them at draft stage. The six plans involved were those from Dún Laoghaire-Rathdown, County Laois, County Monaghan, County Mayo, Castlebar and Waterford.

Deputy James Bannon

The Chairman said there were 13 stages to a development plan. If a plan is not adopted by a certain statutory date, does it automatically become the plan?

Chairman

That is specifically covered in the document. Under current legislation, at the expiry of the two-year period the manager adopts the elements of the plan which have not yet been adopted. There is an onus on councillors to operate within the timescale.

Deputy Pádraic McCormack

If an election takes place during the two-year period of the plan, there will be a turnover of between 30% and 40% of councillors and up to 15 members who were not part of the process in the early stages of the plan. However, they would have been involved in the adoption of the plan. Is there any provision whereby a council may continue to deal with a plan without being interrupted by a council election? This can create serious problems in some cases.

Chairman

There is no provision for that in the legislation. If the Deputy wishes, we can include a recommendation on that when we come to it. It seems a fair point.

Deputy Pádraic McCormack

I want to include a recommendation because I have had personal experience of that on Galway County Council and on Galway City Council when, halfway through adopting a plan, a local election was called and subsequently there were ten or 12 new councillors who, although they had not a clue what had happened previously, were obliged to adopt the plan when it came to its final stage on the basis of the manager's report and the members' conclusions. I would like some amendment in that regard.

Chairman

We will deal with that when we come to the list of findings and recommendations. That is a fair point which is not referred to in our report to date.

The report sets out that the Minister has an overall statutory responsibility to ensure sustainable planning and development throughout the State. Given that 112 different development plans have been adopted, there should be some mechanism for achieving overall consistency on a nationwide basis. The Minister is one of the persons who can make a submission as part of the preparation of a plan. In the last paragraph of page 11 of the report it is stated that the Minister, and by that I mean whichever Minister was in office at the time, made more than 300 comments or observations on more than 110 development plans and that in the majority of cases the Minister was satisfied that his submissions were adequately reflected in the final plan, with the exception of six to which we will refer. That is the overall legal position regarding development plans. It is stated that if a plan is not adopted within the specified time scale the county manager has the power to adopt the plan.

We do not need to read all of what is in the report about the Mayo county development plan. It states what the Minister said and what councillors said. We are looking at the process, whether the legislation is right, whether it needs improvement or amendment and so on. The nitty gritty of what is in the plan is subjective and everyone has an opinion on it. The Minister made his view very clear at different stages on two occasions, during the course of the development plan at an early stage and then at the draft stage. The Minister's case is set out on pages 12 and 13 and was well stated here by the officials from the Department. He was unhappy with the rural housing policy and the lack of a mechanism for phased development of residentially zoned lands across the county to support the strategic development of the national spatial strategy which designated Castlebar and Ballina as linked hubs. He felt that was not adequately reflected in the plan.

The details of the councillors' submissions and the ministerial directive are in the appendices. We must acknowledge that the councillors did a tremendous amount of work when the plan was being drawn up. They had six workshops and 14 council meetings. They put forward 182 proposals for various amendments. They accepted 117 of the manager's recommendations, amended 13 and rejected 31. Clearly a great deal of work was done in good faith to the best of their ability at local level. There was quite a dispute regarding issues such as rural decline. The issue of fears of pollution was also dealt with. There was concern that one-off rural housing could lead to water contamination. The members felt that a properly located suitable system for the safe disposal of domestic effluent was adequate. The Minister had a different view. We know the pros and cons.

I will now go through this committee's findings. The joint committee was grateful to the members of Mayo County Council for highlighting relevant issues and the debate generated tremendous interest within the Oireachtas as evidenced by the attendance of more than 40 people, between Oireachtas Members, officials and councillors from Mayo. The debate highlighted matters of critical importance for local and national democracy. It is clear that the process of drawing up development plans requires a higher level of commitment from elected members than in previous years. The fact that they had so many meetings is very important and we recognise that in our findings. We also found that the process of drawing up a new development plan can take up to two years and involves much public consultation at local level, together with elected members having to be aware of the contents of the national spatial strategy, regional planning guidelines, environmental impact assessments, housing strategies and a variety of other policy documents. We might insert here a finding along the lines suggested by Deputy McCormack who made the point that when there is a change in membership of a county council because of an election it can be difficult for the new members to know how to proceed. The Deputy might give us the gist of his recommendation.

Deputy Pádraic McCormack

A plan would have to be prepared two years in advance. Local elections are now fixed on a statutory basis and must take place every five years. No development plan should be started within a year before a council election because the council will not be able to complete the plan. The council that starts the process of adopting a new development plan should finish that process and that process should not be interrupted by a council election. Members put a great deal of work into development plans. In the Mayo case the members held six workshops and 14 council meetings and proposed 182 amendments. Those meetings sometimes go on all day and night and the councillors involved have an absolute grasp of the issues. However, when a new council is elected, some of the members may have been elected for the first time to a local authority and may never have been through the process of adopting a county or city development plan. It is impossible for them to legitimately finish a process that has already begun. Some recommendation is, therefore, necessary. We cannot say the process cannot be interrupted. We might say that the process of adopting a development plan should be completed by the same council.

Chairman

It could be indicated that the process should not commence within a specified time before holding local elections. I want to get the views of other members on this point.

Deputy Eamon Scanlon

It takes 104 weeks, so a development could not start two years prior to a local election.

Deputy Johnny Brady

We all started as new members at some stage and were confronted with this problem. Maybe when I and many others were elected to a council there was not much concern about development plans because not much development was taking place. There will still be people long enough in the tooth to advise new councillors. I am not very concerned about this, although I understand where Deputy McCormack is coming from. When one is new on a council one must be guided by councillors who have been there a long time. That happens in all parties. One is advised as to how the council works. A development plan is no different.

Deputy Pádraic McCormack

The new councillors would not have had the benefit of having gone through the early part of the process, of the manager's advice or that of the planners and others. It is great that there is a good turnover on councils but it would be unfair to burden them with having to complete a job that has been half done by somebody else.

Deputy Ciarán Cuffe

There is a very real challenge in so far as local elections must be held every five years and development plans must be provided every six years. I recognise the point Deputy McCormack makes. We might make a general recommendation that the Minister should examine the differing statutory time limits that apply to the holding of local elections and the adoption of development plans with a view to providing greater continuity in the adoption of plans. I was once an elected member of a local authority which adopted a development at the 11th hour. There was a sense of frustration among members at the fact that we were not present at the initial general briefing sessions.

Deputy Christy O’Sullivan

Deputy McCormack made a very good point. We must be very careful to respect local democracy. Councillors who come in mid-stream would not have been briefed to the same extent as councillors who were in place at the start but there would not be time to brief them. It takes a long time to put together a new plan so I support Deputy McCormack's call to address this problem in some way.

Deputy Phil Hogan

I think everybody would go along in principle with what Deputy McCormack says. The proposals of Deputies McCormack and Cuffe highlight another problem. If there are a series of amendments to a development plan in the two or three months before a local election, not many people will give them the required scrutiny. I have often heard, especially in larger urban centres, of officials doing what they wish as they rush to get the job finished, without any input from local authority members who are busy trying to get re-elected. Development plans are too important to rush and too important to leave to inexperienced councillors.

Deputy Ciarán Lynch

As Deputies Cuffe and McCormack said, this is a simple matter of sequencing. With a five-year schedule and a six-year schedule there will always be such a difficulty. It happened with the PRTB in a more dramatic way when the sequencing of the formation of the dispute resolution board and the appointments to the PRTB meant the board operated in an illegal fashion. Deputy Cuffe's suggestion is that we make a recommendation to the Minister to get the sequencing right.

I agree with Deputy Hogan's point. Officials, perhaps with the best of intentions, can insert additional paragraphs a month or two before a local election. In my own constituency of Cork South-Central, three areas earmarked for recreation and amenity were suddenly offered residential rezoning. Without attentive council members, not distracted by the local election process, the wishes of local residents could be undermined. Councillors are elected to represent their local area and to ensure the views of its residents are incorporated into a development plan.

Chairman

Members understand what Deputy McCormack is proposing but how do we get agreement? One suggestion is that the legislation should prevent the renewal of a development plan within 12 months of a local election.

Deputy Ciarán Cuffe

I propose that the Minister examine the differing statutory time limits applying to the holding of local elections and the adoption of development plans, with a view to providing greater continuity.

Chairman

Does the Deputy intend his proposal to apply to elected members?

Deputy Pádraic McCormack

We need a bit more than that.

Chairman

The first half of the proposal is fine but can the Deputy clarify the latter part?

Deputy Ciarán Cuffe

It would provide greater continuity and give greater attention to the views of elected members in the making and adoption of development plans.

Chairman

That is a good draft proposal.

Deputy Pádraic McCormack

I would like it to have more strength. It requires the Minister to do something about it but does not say exactly what should be done.

Chairman

The best way of phrasing a recommendation might be to suggest that the new planning and development legislation, which is due to be published this year, should deal with the issue.

Deputy Pádraic McCormack

Is it promisedlegislation?

Deputy Ciarán Cuffe

The Minister has referred to it several times.

Deputy Johnny Brady

I suggest we obtain better advice.

Chairman

I want to launch the report tomorrow because otherwise we will read about our draft report in the weekend newspapers. We have only two more pages to go.

Deputy Michael Fitzpatrick

We are asking the Minister to do something, but the committee should recommend that there be no carryover of development plans from one election to another.

Deputy Pádraic McCormack

That is exactly what I suggest. It would be better to abandon the process when an election is called and start afresh with the new council. The new council has exactly the same rights as the old. It should be allowed to go through the whole process without being asked to make decisions on something in which the members have not taken part.

Chairman

Essentially, we will say that the legislation should be amended to prevent the commencement of a new development plan within 99 weeks of scheduled local elections.

Deputy Pádraic McCormack

That will do for me.

Chairman

Councillors should not start the process if they cannot finish it.

Deputy Eamon Scanlon

The process takes 104 weeks.

Chairman

Yes. There is an allowance for an extra few weeks so it takes 104 weeks.

Deputy Ciarán Cuffe

Ideally the development plan process should not commence within two years of an election. Deputy McCormack also called for greater involvement of elected members in the making and adoption of development plans. That issue is as relevant in urban as it is in rural areas, and I suggest we include a recommendation to that effect.

Chairman

Would members agree to a finding that there is a problem with the existing arrangements? We can then make a recommendation along the lines suggested. Members will have to trust me to get the text right and can give out to me tomorrow if it is not.

Among the other findings were the fact that a simple majority of elected members voting on a motion is enough to pass a plan. The adoption of a development plan is one of the few functions reserved for elected members. However, this power can be restricted in certain ways. Where members do not complete the adoption of a development plan within the defined timescale, the county manager has the power to complete the process. The Minister for the Environment, Heritage and Local Government has the power to issue a direction under section 31 of the Planning and Development Act 2000, to vary a development plan. Members believe they have the sole power to pass a development plan but legislation states that if they do not complete it within the set timescale, the county manager can do so and, even if it is completed on time, the Minister has the power to make a direction to vary it, although that power has been used in only six cases out of 120. Some people are not aware of it but that is the current legislation.

In view of the fact that there are up to 88 planning authority development plans in existence at any one time it must be recognised that An Bord Pleanála is not bound by individual local plans. Many people complain about the fact that An Bord Pleanála does not follow local development plans but some plans can be inconsistent.

The Minister made two separate submissions to Mayo County Council as part of the public consultation process. Members of Mayo County Council obtained independent legal and planning advice separate to and following legal advice sourced by the council officials and financed out of their own personal resources because they felt it was necessary to assist them with their responsibilities. I will make a recommendation on that issue shortly. The current legislation does not set out any mechanism for a consultation with either elected members or the public in respect of directions issued by a Minister. The current position is that at the end of the process the Minister makes a directive which is binding. There will be a need for consultation at that stage.

Deputy Pádraic McCormack

Does the Chairman want to do something about that?

Chairman

We are making a recommendation. I am going through the findings. I will then go through the recommendations.

The legislation does not deal with the situation where members decide not to accept a ministerial direction. The normal process for making a variation to the development plan involves a period of public consultation, a report by the manager to the elected members and approval by them. The committee has noted that Mayo County Council and departmental officials have agreed to meet to discuss the issues raised. That meeting has not yet taken place. There is no time limit specified in the current legislation for a Minister to issue a direction where he or she wishes to do so.

I will move on to the recommendations. There are seven recommendations, or eight if we include Deputy McCormack's. If other members wish to include anything, they may let me know.

The committee recommends that the right of a Minister to issue a direction under section 31 of the Planning and Development Act 2000 should continue, but the Planning and Development Act 2000 should be improved and updated as follows. There should be a period of consultation involving the Department, the council and the general public before a ministerial direction under section 31 is finalised. This could be achieved by the Minister issuing a draft direction for discussion, while recognising the absolute right of the Minister to issue the direction. One of the problems was that this came out of the blue and there was no time for engagement. It is possible that public consultation at local level might improve the directive but the Minister is not allowed to do this, even if he or she wanted to do so. There should be a legal time limit after the adoption of a development plan by which time the Minister should issue a draft direction if he or she wished to do so. The reason I specifically say this is that in County Laois a plan was adopted on 4 January 2006, a directive was issued ten months later on 24 October and in the interim a lot of land was bought and sold as a result of rezoning. We are recommending, therefore, that the Minister should act within a fixed period. The Act should specify the process by which a development plan would be varied following a ministerial direction, especially where the elected members were not willing to make a variation to their development plan to include a ministerial direction. In some counties what happened was that when members refused to include a ministerial direction, the county manager could be given the power to do it.

The Planning and Development Act should be amended to require two thirds of all elected members of a local authority to vote in favour of the making of a development plan. Currently, it is 50%. Do members agree or disagree with this?

Deputy Pádraic McCormack

It can happen that a meeting may start at 11 a.m. and continue until 11 p.m. That may mean that towards the end of the process of drawing up the development plan there may not be two thirds of the members still in attendance. It would be impossible, therefore, to implement this recommendation, unless there was a limit on the duration of meetings.

Chairman

Are members happy with a figure of 50%?

Deputy Ciarán Cuffe

I have debated this issue with colleagues in my party. My personal view is that the adoption of the plan should be decided by a simple majority but a variation to the plan should require a higher percentage, namely, a two thirds majority. The principle is that every five or six years a council adopts a plan and should stick with that plan for five years. If it is necessary to change it, it should require a higher percentage of the membership.

Deputy Pádraic McCormack

Is Deputy Cuffe talking about changes between terms?

Deputy Ciarán Cuffe

Yes.

Deputy Pádraic McCormack

I would agree with that.

Deputy Ciarán Cuffe

My preference would be for a figure of 50%.

Deputy Christy O’Sullivan

The position is that a figure of 50% is required for a variation but 75% is required for a material contravention. What is the difference? It is not major.

Chairman

If it is 75%, it means nearly everybody must agree. It is strict. We can drop it and leave it at 50%, which is what is provided for in law.

Deputy Christy O’Sullivan

I think 50% is adequate. That system is okay.

Chairman

We will delete recommendation No. 2.

Recommendation No. 3 is that the Department of the Environment, Heritage and Local Government should carry out a period of public consultation in advance of publishing legislation to deal with the above issues and any other changes the Minister may have in mind. In regard to the announcement of legislation or the publication of White or Green Papers — I do not know what is planned — it would be useful to have some discussion on the matter before it was finalised by the Government to achieve a broader consensus. This is only a draft. It can be amended, or have something deleted or added.

Deputy Ciarán Cuffe

I am not overly enthusiastic about this recommendation. In an ideal world there would be consultation at every stage of a process. In recommendation No. 1 we have called for a period of consultation. If we go ahead with recommendation No. 3 and it is implemented, it could unduly delay legislation. I do not think that is what anyone wants.

Chairman

We will delete recommendation No. 3.

Recommendation No. 4 is that, in the interests of achieving a sustainable and consistent framework for planning and development throughout the State, members of local authorities should incorporate the views of the Minister for the Environment, Heritage and Local Government in their development plans. This should reduce the need for ministerial directions. When the Minister makes a submission, the members should be directed to take it into account rather than having an unseemly squabble at the end of the process. Is that agreed? Agreed.

Recommendation No. 5 is that there should be greater co-ordination of the periods covered by local development plans, regional planning guidelines and the national spatial strategy. We dealt with this issue last week and it is common sense.

Recommendation No. 6 is that the Department and local authorities should arrange regional planning seminars for elected members. This would help existing members refresh their knowledge and be important for new members elected to local authorities.

Deputy Ciarán Cuffe

In regard to recommendation No. 5, the time periods are hugely important. The content is important also. There is a need for greater co-ordination between the national spatial strategy, regional plans, development plans and local area plans.

Chairman

Does the Deputy want to include it as a recommendation?

Deputy Ciarán Cuffe

There should be greater co-ordination of the periods covered and content.

Deputy Johnny Brady

Lands in County Meath, all along the eastern seaboard, were zoned for housing. The zoning of land for community facilities, schools, football pitches, community centres and so on was forgotten. Should we, therefore, recommend that when zoning land, sufficient land must be zoned for community facilities?

Deputy Phil Hogan

We do this within the context of the regional planning guidelines which we discussed last week.

Deputy Johnny Brady

I mentioned it to the Minister.

Deputy Phil Hogan

In making recommendations about process——

Deputy Johnny Brady

It caused havoc in that county. The prices sought for land for schools and community centres were outrageous.

Deputy Phil Hogan

I agree with Deputy Brady. That should be taken into account in the content of local plans and the regional planning guidelines rather than the principle of what we are trying to achieve here. I agree with what the Deputy is trying to achieve but the time to do it was during last week's discussion and he did it.

Deputy Johnny Brady

I raised it last week.

Chairman

We will include the Deputy's earlier recommendation about not commencing the drawing up of a new development plan within 104 weeks of the scheduled date for a local election.

Deputy Ciarán Cuffe

Are we adding a recommendation on timing?

Chairman

Is it agreed that there should be greater co-ordination of the time periods and content? Agreed

Recommendation No. 7 relates to an issue of which all local authorities are aware. It is in response to what the Mayo councillors said. My recommendation in draft is that the Department and the local authority should ensure a mechanism is put in place, whereby elected members of local authorities would have access to independent legal and professional advice in discharging their very onerous and responsible duties. This could be achieved in relation to projects, where both the manager and the elected members have a role such as in drawing up development plans or waste management plans and so on, by the corporate policy group of the local authority engaging the legal and professional advice required. The corporate policy group in local authorities consists of the elected cathaoirleach, the elected chairpersons of the strategic policy committees and the manager. In other words, members should have an input in the seeking of legal advice on the basis of which they are asked to adjudicate because it can happen that the manager will arrive with legal advice based on questions he wanted to have answered and the members feel stranded. One set of advices should be obtained and both the manager and the members should be involved in setting out the issues on which advice is required.

Deputy Phil Hogan

This is a tricky one.

Chairman

It is. That is the reason I believe the corporate policy group is the correct body in this regard.

Deputy Phil Hogan

Yes. The position is that councillors do not want to use the legal adviser of the county council as that person usually provides legal advice for officials. In discharging their duties councillors must obtain legal advice at their own expense. The Chairman referred to the corporate policy group as a vehicle for addressing this issue. However, the source of advice would most likely be the local council's legal adviser or law agent. Where councillors require, say, specialist planning advice, the local authority should be charged with ensuring they receive it and should bear responsibility for paying for it. It might be necessary to stipulate this. The recommendation refers to councillors having access to independent legal and professional advice in discharging their duties. This could lead to something being open-ended. I could foresee a problem arising in regard to, say, a massive development in terms of a conflict of interest, with residents having one view and councils and officials having another. If this requirement were included in a recommendation, we could end up with an open-ended legal system.

Deputy Ciarán Cuffe

It could be a recipe for a blank cheque.

A Member

That is the danger.

Deputy Ciarán Cuffe

Also, at the heart of the matter is the need for a better working relationship between managers and councillors. We are speaking here about providing independent legal and planning advice for councillors. This could contribute to an adversarial relationship. I had my run-ins with the law agent and manager in the council during my 12 years as a councillor. Ultimately, everybody in the room will need to communicate with each other in obtaining legal advice. Otherwise, there will be challenges and higher costs involved. I am nervous about recommendation No. 7 and would be happier if it were not included.

Deputy Phil Hogan

It is a little open-ended.

Deputy Michael Fitzpatrick

Personally, I favour that councillors receive independent legal advice. How it can be organised or agreed with the manager is another matter. If councils take on board the professionals' legal advice only, they will not achieve what councillors are setting out to do. Councillors should at least have recourse to independent legal advice, regardless of whether such advice is taken on board. The facility should be available to them.

Chairman

I can clarify matters for members. Perhaps I did not word the recommendation properly. I wish to ensure that where legal advice is obtained for the council, members, through the cathaoirleach or the SAC, will have an input in the seeking of such advice. The questions one asks determine the answers one receives. In my experience, members are often unhappy about the questions asked and wish only to have an input in obtaining legal advice. I wish to ensure members will have an input so as to ensure their questions will be answered. I am not speaking about councillors obtaining advice separately. Members should have an input in regard to the questions to be put.

Deputy Ciarán Cuffe

Would the word "impartial" be better than "independent?"

Chairman

Yes. If members do not agree with my suggestion, that is fine. I want to ensure members will have an input in obtaining advice.

Deputy Phil Hogan

I sympathise with what the Chairman is trying to do and have no difficulty with it. I want to ensure the result would not be an open-ended legal system. One could have a major project on which a great deal of independent legal and planning advice was required. Ultimately, the council and taxpayer in the local authority area pick up the tab. If everybody is to bear responsibility for obtaining legal advice, it will not be long before the cost mounts up. How does one control this, while at the same time ensuring councillors have an input in regard to the advice obtained?

Deputy Michael Fitzpatrick

My understanding is that there is provision in the planning Acts for seeking independent legal advice. It does not state in the planning laws that councillors can avail of advice. While that is true, managers try to make their legal advisers available to councillors.

Deputy Johnny Brady

Some years ago I had a difficulty with the council in my town in regard to its development plan. When I threatened to seek an injunction against the council, everyone wanted to meet me. It was not long before the legal adviser was brought in to advise the council on the matter. It is sad one has to resort to this type of action. On that occasion I had to threaten that I would take legal action, following which the council was quick to bring in its legal advisers to advise it. I was not a member of the council at the time but I was aware of what it was up to.

Chairman

Perhaps the regional planning seminars for elected members as provided for in the previous recommendation would address this issue.

Deputy Ciarán Cuffe

The Institute of Planning in the United Kingdom runs fantastic summer schools. Usually, they run for two weeks, with the first week being for planners and the second for councillors. There is great rapport between the two. Councillors in the United Kingdom are required to make decisions on individual planning applications. These schools assist in improving the competence of councillors and work well. It is a good idea that we should copy.

Deputy Christy O’Sullivan

From time to time councillors are required to make serious decisions. During my time on the council I was aware of it being advised by managers that it was leaving itself open to legal challenge if it went ahead and made particular decisions. Councils were often forced to do things against their better judgment as a result of the position in which they found themselves. It is important we address the issue. I do not have a magic formula for how this can be done. Perhaps, we can seek advice on the matter.

Deputy Phil Hogan

On the basis that it has caused debate, I would leave it in.

Chairman

Yes, the Minister does not have to accept it. Perhaps we can amend the recommendation by leaving out the word "independent" which suggests councillors should obtain advice against the manager's advice, which is not the intention.

Deputy Ciarán Cuffe

The word "impartial" might be better.

Chairman

We will use that word.

Deputy Johnny Brady

The council's legal adviser will give to councillors the advice that suits officials. We have all seen this happen time and again. It has always been the way.

Deputy Ciarán Cuffe

Many years ago, when I had barely been a member of a council for a few months, the house stewart in the Mansion House told me to watch the manager who was only ever nervous at the end of the year when the Estimates were being passed. Once passed, he was in control.

Chairman

We will use the word "impartial" rather than "independent".

We have textual amendments to make to the report. The report before members is not the final one. Are they agreed that, as amended, it will be our report? Agreed. It is intended that it will be launched tomorrow, 11 March, at 3 p.m. in the audio-visual room in Leinster House. Copies of the final report will be available to members tomorrow. I ask them not to discuss it with anyone before publication and that as many as possible attend the launch.

The joint committee adjourned at 4.30 p.m. until 3.30 p.m. on Tuesday, 24 March 2009.