Adjournment Debate. - Planning Reports. – Seanad Éireann (14th Seanad) – Wednesday, 3 May 1978

Adjournment Debate. - Planning Reports.

Dr. West

The matter which I wish to raise concerns planning appeals and the difficulty interested parties to planning appeals are faced with when they ask for an inspector's report. The situation at present is that to obtain an inspector's report to a planning appeal, if one is an interested party, one has actually to take the Minister to court. This is ridiculous, because the matter has already been decided by the courts. In a judgment delivered on 14 July 1972 by Mr. Justice Walsh he ruled overturning a judgment by Mr. Justice Kenny in a case Murphy v. Dublin Corporation and the Minister for Local Government that it was possible for parties interested in a planning appeal to be given an inspector's report. However, that was 1972 but since then the situation has not, regrettably, changed. I have a letter here dated 9 March 1977 from the Department of Local Government re a planning appeal in County Dublin. That letter states:

I am directed by the Minister for Local Government to refer to your letter of 21 February 1977 and 1 March 1977 in connection with the above and I am to state that it is not the practice to furnish copies of inspectors' reports.

The parties had to go to court and through considerable litigation. The judgment was in their favour and they were allowed to see the inspector's report and the costs were given against the Minister. That is a ridiculous situation. Because it is a minor administrative matter and it is within the Minister's competence to do so, I ask that the Minister take the power to give the requisite directions to An Bord Pleanála concerning planning reports. I would like to quote section 6 of the Local Government (Planning and Development) Act, 1976, subsection (1):

The Minister shall, from time to time, give to the Board such general directives as to policy in relation to planning and development as he considers necessary.

(2) The Board shall in performing its functions have regard to any directive under this section.

(3) Nothing in this section shall be construed as enabling the Minister to exercise any power or control in relation to any particular case with which the Board is or may be concerned.

(4) Where the Minister gives a directive under this section the following provisions shall apply. namely,

(a) as soon as may be the Minister shall cause a copy of the directive to be laid before each House of the Oireachtas,

(b) the directive shall be published in Iris Oifigiúil, and

I ask the Minister to so decide that the inspectors' reports to planning appeals can be made available to interested parties. This is the situation in the United Kingdom. I would like to quote from the rules set down for the inquiry procedures. The inspector is referred to as the appointed person. Rule 12, subsection (1) states:

12. (1) The appointed person shall after the close of the inquiry make a report in writing to the Secretary of State which shall include the appointed person's findings of fact and his recommendation, if any, or his reason for not making any recommendations.

Rule 13, subsection (2) states:

Where a copy of the appointed person's report is not sent with a notification of a decision, a notification shall be accompanied by a summary of the appointed person's conclusions and recommendation; and if any person entitled to be notified of the Secretary of State's decision under the last foregoing paragraph has not received a copy of the appointed person's report, he shall be supplied with a copy thereof on written application made to the Secretary of State within one month from the day of his decision.

The situation there is quite clear. There would not be a cause for complaint had Mr. Justice Walsh not ruled quite clearly that it was within the legal rights of an interested party at planning appeal to see a copy of the inspector's report. He overturned the judgment of Mr. Justice Kenny who upheld a claim of the Minister which said that the report was within a class of document which on grounds of public interest ought to be withheld from production or disclosure and that "on the grounds aforsesaid I am instructed by the Minister to claim privilege therefore". That was originally upheld by Mr. Justice Kenny and then, on appeal, it was overturned by Mr. Justice Walsh. He said, and I quote from the Law Reports:

Once it was shown that the document was relevant, the onus of establishing that the document should not be produced would have had to have been borne by the person making that claim; and that the claim to withhold production would have had to have been made in relation to a particular document or documents and to have contained the statement of the grounds for the claim.

Mr. Justice Walsh made it clear in his judgment that the Minister could not claim privilege and therefore was not entitled to withhold the copies of the inspectors' reports from the interested parties. The situation has remained like this and the Department of Local Government still will not allow parties to see the inspectors' reports without going to court. Because of the judgment of Mr. Justice Walsh, when they go to court it takes considerable time, the judgment is granted in their favour and costs are made out against the Minister and they eventually see the report. I would like the Minister to exercise the powers that he holds under section 6 of the Planning Act, 1976 and allow An Bord Pleanála to direct them to make inspectors' reports available for interested parties to planning appeals when they wish to inspect them.

Minister of State at the Department of the Environment (Mr. J. O'Leary)

Senator West's motion refers to inspectors' reports in planning matters. Inspectors' reports arise in a range of planning matters, as I shall indicate.

The Local Government (Planning and Development) Acts, 1963 and 1976 contain the basic legislation governing the planning process. The 1963 Act which came into operation in October 1964 provided that before any development, other than exempted development, commenced it would be necessary to obtain planning permission from the local planning authority. The function of deciding appeals against decisions of planning authorities was assigned under the Act to the Minister for Local Government, now the Minister for the Environment. The 1963 Act was amended in 1976 by the Local Government (Planning and Development) Act, 1976. The 1976 Act provides for the establishment of an independent body to conduct planning appeals and other matters and as a consequence on 15 March 1977 An Bord Pleanála took over responsibility for a wide range of appellate functions.

The only appellate functions arising under the Planning Acts which now remain with the Minister are those related to building regulations which may be made under section 86 of the 1963 Act and those relating to extinguishment of public rights of way under section 76 of the 1963 Act. However, as the provisions relating to building regulations have not yet been brought into force the question of appeals in the matter does not at present arise. The provisions of the 1963 Act relating to extinguishment of rights of way were amended by the 1976 Act and now provide that where objections to the closure of a right of way have been received and are not withdrawn an oral hearing must be held before the Minister may decide on the local authority's extinguishment order.

All other appeals arising under the Planning Acts are now the responsibility of An Bord Pleanála. The principal types of appeal dealt with by the board are those arising under section 26 of the 1963 Act, that is, appeals against decisions of planning authorities on applications for permission or approval to carry out development. In addition, An Bord Pleanála are also responsible for adjudicating on such matters as appeals against a revocation or modification of a permission previously granted; against a notice requiring removal or alteration of a structure; against a notice requiring discontinuance of use; against a tree preservation order or a conservation order; or against an order creating a public right of way over land. An Bord Pleanála also determine references as to what, in any particular case, is or is not exempted development and adjudicate on other disagreements or disputes.

I take it that the Senator is chiefly interested in the cases dealt with by An Bord Pleanála rather than in the few items still to be dealt with by the Minister. But I may say that the board and the Minister follow the same practice in regard to inspectors' reports. That practice is not to make the inspector's report available except where it is required for a court case. The case for this was gone into when the Bill which became the 1976 Act was being debated in the Dáil. The relevant debate may be found in Volume 280, No. 8 of the Dáil Official Report for 7 May 1975. An amendment seeking to have such reports made available generally to the public was withdrawn following the explanation by the Minister at the time, Deputy Tully, having regard to the case against it. I should say that the matter was mentioned briefly on the Second Reading in the Seanad by Senator, now Deputy, Horgan but was not followed up.

There are good practical arguments for maintaining the present practice. In the case of an appeal to An Bord Pleanála it is the board which take the decision and, while the board are required by law to consider the report, they are free to take a decision which the inspector did not recommend. This is provided under section 23 of the 1976 Act. The law now provides that the board must give their reasons for every decision, one to grant as well as one to refuse, and this is the issue which is of importance and relevance to the public. That is covered by section 39 (8) (g) of the same Act which is an amendment of the 1963 Act. In the 1963 Act it was not necessary to give a reason for the grant of permission. Issuing the inspector's report in addition could well confuse, and indeed might involve delay in the planning process.

The reason reports are produced for court cases follows court rulings on that specific issue is that it would require new regulations to compel the board to publish inspectors' reports as a general rule, although they would be free to adopt such a practice of their own accord.

Dr. West

The Minister has power under section 6 of the Planning Act, 1976, to make those regulations.

Mr. J. O'Leary

I believe that the present practice in the matter is the right one. However, due note will be taken of what the Senator has stated in this debate and I shall in particular ask the board to consider it. The Senator mentioned section 6 of the 1976 Act with regard to matters relating to policy. Section 6 (3) states:

Nothing in this section shall be construed as enabling the Minister to exercise any power or control in relation to any particular case with which the Board is or may be concerned.

Seanad Éireann debate - Wednesday, 3 May 1978

Adjournment Debate. - Planning Reports.

Seanad Éireann debate -
Wednesday, 3 May 1978