Skip to main content
Normal View

Seanad Éireann debate -
Thursday, 17 Jun 1976

Vol. 84 No. 4

Local Government (Planning and Development) Bill, 1973: Committee and Final Stages.

Sections 1 to 17 inclusive agreed to.
SECTION 18.

I move amendment No. 1.

In page 10, line 27, to delete "may" and substitute the following:

"shall within the period of three months from the date of receipt of the appeal".

According to section 18 the board may serve notice but this is rather vague. There should be a time limit and I am suggesting that the time limit should be three months. My reason for suggesting that the word "may" is vague is that some objector could come to the board with a case which they might consider to be good with the result that the planning application might be held up. Therefore it would be best to suggest a specific date, perhaps three months or, should the Minister so wish, a month or even six months.

Senator Ryan's comment makes my argument. The purpose of the section is to enable the board to deal expeditiously with appeals which are vexatious or where the appeal of any party is subjected to an unnecessarily delayed decision either through failure to submit grounds for an appeal or through delay in reply to correspondence. The section provides that the board may serve a notice in such a case stating that after a specified day the appeal will be decided whether or not permission from the delaying party has been received. We are all aware of the delay on decisions. Even local authorities have delayed sending in certain information with the consequential results that appeals have been unnecessarily delayed. The provision as drafted is discretionary and flexible and it is left to the board to decide whether, and if so, a notice should be served in any particular case. The amendment would make it mandatory on the board to serve a section 18 notice within three months of the receipt of the appeal. Such a provision would serve no useful purpose and would only weaken the section as there could be circumstances where the delay might only arise after a period of three months had elapsed, where a request for further information was not replied to.

There could also be cases of vexatious appeals where it might be appropriate to serve a notice very soon after the appeal is received. I prefer to leave it to the discretion of the board to decide whether a particular reference or appeal is vexatious or is being unduly delayed. It would not be logical to set a time limit within which you could serve a notice. We must assume that the board will act in a reasonable way and that they will be in the best position to assess when the serving of an notice would be appropriate. I know what Senator Ryan is getting at and I appreciate the point he made, but I believe that as it is, the section enables the board to deal with it far more quickly and will prevent somebody dragging along appeals which are annoying to everybody, both to the person who is waiting for the result as well as to the board and others. Therefore, I would ask Senator Ryan to withdraw the amendment.

Amendment, by leave, withdrawn.
Section agreed to.
Sections 19 to 26, inclusive, agreed to.
SECTION 27

I move amendment No. 2:

In page 17, lines 42 and 43, to delete "or any other person, whether or not that person has an interest in the land".

I was asked by our local planning authority to table this amendment. Having studied it I am not very happy with it and am inclined to withdraw it but before I do so I want to say that what prompted our local planning authority to request me to table this amendment was the case of Schering Plow where people who had no right to do so were objecting. If the Minister were to accept my amendment it would mean that the only people who could object would be the planning authority. This would be cutting out private individuals altogether, something I would not be in favour of. Granted, those people in the case of Schering Plow should not have objected but there might be another person who might have a genuine objection and if I were to pursue this, he would not have that right, so I withdraw the amendment.

Amendment, by leave, withdrawn.
Section agreed to.
Sections 28 to 38, inclusive, agreed to.
SECTION 39.

I move amendment No. 3:

Before section 39 to insert the following new section:—

"Part 1 of the Principal Act is hereby amended by the substitution of the following subsection for subsection (1) (a) of section 4:—

‘(a) development consisting of the use of any land for the purpose of agriculture or forestry (including afforestation)."'

I am not very clear on this. Is it not the position that permission must be obtained in respect of farm buildings?

No, not at present, but it is proposed to deal with the situation in the regulations.

According to the original Act, you did not have to apply but if you wanted to get a grant from the Department of Agriculture and Fisheries you did not get the grant unless you produced the planning permission.

An exemption certificate.

Every other day I hear of applications in my county for planning permission to erect a cow byre or something like that but what I am interested in is silo pits in particular that have no roof because the council cannot do anything about them. They can be built any place and even according to this Bill you still can build a silo pit without having to seek planning permission.

Not build. The exemption at the moment is the construction, excavation, extension, alteration or replacement of any store, barn, byre, shed, glasshouse, pen, sty, silo or other structure on land not less than 30 feet from any public road or from the site of any road improvement works or new road, carrying out the construction of which is an objective of any development plan.

No such structures are to be used for any purpose other than the purpose of agriculture or forestry and no such structure for the housing of pigs or poultry or the making of silage shall be situated within 100 feet of any dwelling-house, save with the consent of the owner and occupier thereof. That is one provision which is not adhered to. And no such structure within 100 yards of any public road shall exceed 21 feet in height above ground level.

Section 4 (1) (a) of the 1963 Act reads:

Development consisting of the use of any land for the purposes of agriculture or forestry (including afforestation), and development consisting of the use for any of these purposes of any building occupied together with land so used:

This amendment proposes to repeal that part of section 4 (1) (a) which exempts from planning control development consisting of the use for the purpose of agriculture or forestry of existing buildings occupied together with land used for such purposes. The objective in putting down this amendment may be to secure that farm buildings are not erected without planning permission. On Second Stage I indicated that in my view erection of the larger type of farm buildings used for intensive farming such as pigs and poultry breeding should be brought under planning control. Such buildings make a public health nuisance and also create the risk of water pollution. An amendment to the Act is not, however, necessary or appropriate to achieve this control. This specific provision exempting such structures is contained in the Local Government (Planning and Development) Act, 1963, and in the Development Regulations, 1967. As I indicated on Second Stage, an amendment of these regulations in relation to the larger type of farm buildings used for the housing of livestock has been agreed in principle and the details are now under discussion with the Department of Agriculture and Fisheries. The amendment would mean that use for agriculture or forestry purposes of any land or existing building not at present used for such purposes would require planning permission. This would not be warranted. I am sure it is not what the Senator meant to achieve and in the circumstances I ask that the amendment be withdrawn. I agree with him that there have been abuses and we propose to deal with these abuses. Discussion has taken place with the Department of Agriculture and Fisheries in this regard. They are just as much interested in this matter as we are because, as they appreciate, it is not the good farmer who does those things, it is the farmer who does not care about anybody not even himself. Some of the things he does make it appear that he is not very much interested in his own welfare. Discussions are taking place and we will have regulations which will meet most of the points which the Senator wishes to have dealt with. If he has any specific point which may be overlooked perhaps he will let me know and we will see if we might deal with it.

I have a certain amount of sympathy with this amendment tabled by Senator Ryan because I think this is one aspect of the 1963 Act which has been very unsatisfactory in rural Ireland. The Department of Agriculture and Fisheries or anybody else can make all the regulations they like but if any landowner, or farmer, can put up a building within 30 feet of a public road and say that he is doing that for the purpose of housing agricultural produce, cattle, pigs and so on, he is exempt but, as Senator Ryan mentioned, if he wants to get a grant he can apply for permission and get an exemption from the planning office.

It must be more than 30 feet from the public road.

This has led to many difficulties in rural areas. You can have quite a nice house and somebody can buy a ranch which is opposite your house and in a couple of weeks time you find a silo has been erected, maybe with 100 cattle, and you know what the value of your house is then. This kind of thing has been happening all over the country. It is wrong that anyone should be allowed to put up buildings and be exempt from the Planning Act. We should have learned from the mistakes of the 1963 Act and I am sorry that something more specific has not been done in this Act in relation to that. We have a situation down in our own constituency that the Minister is aware of and they are exempt and we know what the people in the area suffer as a result of that building.

They are not exempt. Some local authorities have ruled that people are exempt when in fact they are not and it is proposed to deal with this in the regulations. Senator Fitzgerald may be assured that we have in mind regulations to deal with the sort of situation he instances.

In view of what the Minister has said I am prepared to withdraw the amendment but I am in complete agreement with Senator Fitzgerald. The building that I am mostly interested in is the silo pit. I am a farmer and I suppose I should not be talking against the farming community but the greatest abuse of the planning legislation is in relation to silo pits. People are erecting these at the required distance from the road but that is not good enough. We know the smell that can come from a silo pit. I know one case of where a silo pit was erected within 50 yards of the road between Clonmel and Carrick-on-Suir which is the main Limerick/Waterford road. It is an eyesore. I am very sorry that we are not stricter as far as silo pits go. The Minister referred to the specification of 30 feet. This refers to height but no silo pit is higher than five or six feet anyway. I hope that, in consultation with the Department of Agriculture and Fisheries, some steps will be taken to rectify this situation.

I would add my voice to the concern expressed in relation to the erection of silage pits and so on. It is imperative that these regulations be implemented urgently because we are in the process of dealing with the Water Pollution Bill at the moment which will probably be finalised in the course of the next month or two in this House. It is necessary that those regulations be implemented to have effect as from the same date of operation of the Water Pollution Bill and this new Planning Bill. I would ask the Minister if he can give an indication that the regulations will be in operation approximately from the same date.

Amendment, by leave, withdrawn.
Section agreed to.
SECTION 40.
Question proposed: "That section 40 stand part of the Bill."

I wish to make a small point on section 40 and it relates to something that I said on Second Reading. It seems that the definition of the reasons whereby a local authority can make a special amenity area order would exclude the sort of thing I was talking about on Second Stage—for example, a townscape which might not be regarded as having outstanding natural beauty in the sense that it is manmade, would not have any special recreational value and whose relevance to nature conservation would be nonexistent really. The point I was making at that time, and I would like to repeat it now, is whether or not the Minister would be prepared to consider the possibility of making such orders for areas which are not purely scenic areas and in particular to make it possible for planning authorities to carry out preservational orders in such a way that demolition in particular will not be exempt. We have this big problem with demolition not being exempt. Developers who want to knock down a house are free to do so and then can hold a revolver to the head of the planning authority with regard to what they want to put up in its place, irrespective of whether the thing that was demolished was of any value or not. We should have some form of legislation or regulation whereby planning authorities can say in relation to whole areas that no demolition will take place in this area without their prior consent. I wonder if the Minister would be prepared to consider adding to the section another subsection which would have this effect.

There is a particular reason why this is not feasible and the reason is that a special amenity area so declared is declared without compensation. If an urban area was included it could create a tremendous problem. There is another way in which local authorities can list houses and I do not mean list B. If they want to list the street and they want it preserved, they should not just put it on list B, which in effect is not a protection. If it is list A, that puts it in a different position altogether, but in this it would not be feasible to include it here because it would simply mean that it would put an intolerable burden on the local authority. This section would not be the way to deal with it. I can understand the point and we looked at it very carefully. Senator Horgan raised it on Second Reading but it is not possible to cover it. It can be covered another way by the local authorities themselves.

Is the Minister satisfied with the degree to which local authorities have up to now utilised the powers they have for creating special amenity areas and so on?

They have not been using it. They should use it. I am hoping that following this they will use it but they have not used it at all.

Question put and agreed to.
Section 41 agreed to.
SECTION 42.
Government amendment No. 4:
In page 33, paragraph (a), to substitute the following for lines 4 to 18:
"(3) Where a question of law arises on any reference, appeal or section 76 hearing, the question may be referred to the High Court for decision by it by,
(a) in the case of a reference or appeal, other than an appeal to the Minister under section 88 of this Act, the Board,
(b) in the case of an appeal to the Minister under section 88 of this Act or a section 76 hearing, the Minister.
(3A) A person shall not by prohibition,certiorari or in any other legal proceedings whatsoever question the validity of—
(a) a decision of a planning authority on an application for a permission or approval under Part IV of the Principal Act,
(b) a decision of the Board on any appeal or on any reference,
(c) a decision of the Minister on any appeal,
unless the proceedings are instituted within the period of two months commencing on the date on which the decision is given."

When I replied to the Seanad debate on the Second Stage of the Bill on 7th April last, I referred to difficulties which had arisen in relation to particular development proposals for which planning permission had been granted on appeal subject to the most stringent environmental and other conditions. Senator W. Ryan will appreciate that what I am talking about is prompted by Schering Plow. I made it clear that so far as I was concerned anybody who is dissatisfied with an appeal decision is entitled to go to the High Court to seek to have the decision quashed if he has reasonable grounds for so doing, but I expressed the view that a person should not be entitled to obstruct the developer by threatening to take High Court action at some future date. I therefore indicated that I was seriously considering whether it would be possible to have a provision under which there would be a limit on the period within which High Court action could be taken.

Under section 82 (3) of the Local Government (Planning and Development) Act, 1963, which is being replaced by a provision of section 42 of the Bill, an appeal lies to the High Court on a question of law which arises on any appeal. Such an appeal to the High Court must be taken within three months after the giving of the decision of such longer period as the High Court may in any particular case allow. Apart altogether from this provision, the general law entitles a person at any time to apply to the High Court for an order of certiorari or a declaratory order seeking to have a special appeal decision quashed, and there is no time limit on this.

I have no wish to deprive anybody of the right to apply to the High Court seeking to have an appeal decision quashed in a case where that person considers that there are grounds for so doing, but it is only reasonable that if a person wishes to exercise this right he should initiate the proceedings within a reasonable time. It is only fair that there should be some provision to ensure that all objections to a development can be brought to a speedy end. For this reason I have put down an amendment which in effect involves a reasonable regulation of the right of access to the courts to question a decision made either by a planning authority on an application for permission or by the Minister or the board in an appeals case. There are precedents for this type of provision both in English law and in our law, such as the provision of the Housing Act, 1966, dealing with the confirmation of compulsory purchase orders.

I have given a considerable amount of thought to the period which should be allowed under the proposed new provision for the initiation of proceedings in the High Court. In the interests of bringing a case to finality and enabling a worth-while development to go ahead as quickly as possible I would like to provide for quite a short period. However, I think we must recognise that people who may have a legitimate grievance will need time to consult their legal advisers and to weigh up the pros and cons of proceedings in the courts. Moreover, if we were to provide for an unduly short period, there could perhaps be a danger that the entire provision might be found to be unconstitutional in that it would represent an unreasonable interference with the right of access to the High Court. In all the circumstances I have been advised that a two-month period would be appropriate, and I have had the amendment drafted accordingly.

I should, of course, point out that, even if we succeed in establishing a fairly limited period for applying to the High Court in a case where the validity of a permission is being challenged, a considerable delay could still result before the case could come to a hearing or judgment could be delivered. I am advised that nothing can be done about this by way of further amendment. It would not be appropriate to attempt to regulate court procedure in the Bill. I might mention however that once proceedings are initiated in the High Court a developer will have some remedy because if there is unreasonable delay on the part of the person who instituted the proceedings an application can be made to the court for an order either directing that the statement of claim and so on should be lodged quickly or alternatively striking out the proceedings.

The type of case about which I am particularly concerned is where a person does not actually institute proceedings but threatens to do so if and when a development commences. I am satisfied that the proposed amendment of the 1963 Act will at least prevent this type of situation arising in the future and accordingly I commend it to the House.

The amendments themselves are largely self-explanatory. The first proposes that the existing section 82 (3) should be redrafted to confine it to cases where points of law may arise on appeal and cases may need to be referred to the High Court either by the Minister or by the board.

A new subsection (3A) is being inserted to avoid the type of limitation about which I have been speaking in the case of proceedings designed to challenge the validity of a planning decision.

The second amendment of section 42 is purely consequential and takes account of the redrafting of section 82 (3) which is affected by the first amendment.

I am very pleased that the Minister has tabled this amendment, because it has worried us quite a lot down Tipperary way that a person could just make a threat to take High Court action and that the people concerned, the people bringing industry in, were afraid to make any further move. This could hang on for maybe 12 months, and of course by the end of that time the industry was gone. In this case they will have to have an appeal lodged in the High Court within two months. We know, of course, that the High Court can move very slowly and the hearing might be 12 months after that, but that is not the responsibility of the Minister for Local Government. If an appeal has to be lodged with the High Court within two months we are getting somewhere.

Amendment agreed to.
Government amendment No. 5:
In page 33, paragraph (b), lines 25 and 26, to substitute ", except where the context otherwise requires" for "except in paragraph (b) of subsection (3)".
Amendment agreed to.
Section 42, as amended, agreed to.
Section 43 agreed to.
NEW SECTION.
Government amendment No. 6:
In page 35, between lines 53 and 54, to insert the following section before section 44:
44. —Section 42 of the Public Health (Ireland) Act, 1878, as amended by sections 86 and 91 of the Principal Act, shall be construed and have effect as if or such extended period as may at any time be agreed in writing between that authority and the person proposing to execute the work' and ‘or such extended period, as may be appropriate,' were inserted therein after ‘within two months' and ‘such two months', respectively."

Section 91 of the 1963 Act amends section 42 of the Public Health (Ireland) Act, 1878, so as to extend from one to two months the period within which a planning authority must give a decision on whether any building work is in conformity with the building regulations. The preparation of such regulations is now at an advanced stage. It is likely that in some cases, through no fault of their own, the planning authority may not be in a position to give a fully considered decision on applications within the prescribed time due—for instance, because of the complexity of the project or delay on the part of the applicant in furnishing necessary supplementary information in good time. It seems reasonable therefore in the interest of both the planning authority and the applicant that there should be some provision for the extension of the time allowed for dealing with applications. The most acceptable way of providing for such extension would be to amend the existing law by providing that the time limit may be extended to the extent that the person proposing to carry out the building work agrees in writing. The amendment therefore proposes to insert a new section into the Bill which amends the 1878 Act to allow such an extension to be agreed. The concept of extending the time limit by agreement with the applicant is already given effect to in section 87 (6) of the 1963 Act which deals with the relaxation of building regulations. Section 39 (f) of the Bill contains a similar provision relating to applications for planning permission.

Amendment agreed to.

This amendment involves deletion of section 44.

Section 45 agreed to.
Schedule agreed to.
Title agreed to.
Bill reported with amendments and received for final consideration.
Question proposed: "That the Bill do now pass."

I wish to express the hope that this Bill will be brought into force as quickly as possible, because it is one of tremendous importance. A commission are to be appointed and they should be enabled to get on with their work and there should be no undue delay in passing the Bill.

While it is fair to say that there is no one more anxious than I am to see the Bill becoming law there will be a delay, whether we like it or not, of, I would say, up to six months before the Planning Board will be finally in existence. I was very anxious to get it through because there are many things to be done. I assure the House, that as soon as I can I will have this Bill made law and bring the new regulations into operation.

I thank the House for the way in which they have dealt with the Bill here today and indeed when it was previously before the House. When the Bill finally becomes law there will be a big improvement in our planning law. I think it only fair to say that, with all its warts, the 1963 Bill was a good one and, while we found many things wrong with it over the years, it was a good Bill and this one, I hope, will bring it up to date.

I appreciate what the Minister has said. Because he found it necessary to put down amendments, and rightly so, the Bill will have to be referred back to the Dáil and I would appreciate it very much if this could be done before the Summer Recess.

I would like to have that done but any amendments take time to frame. There is no point at all in putting down an amendment unless it is properly framed and while I will do my best, I would not like to promise it.

Question put and agreed to.
The Seanad adjourned at 6.15 p.m. until 2.30 p.m. on Wednesday, 23rd June, 1976.
Top
Share