The Local Government (Planning and Development) Bill, 1982, is meant to deal primarily with matters that require urgent attention. The explanatory memorandum circulated with the Bill gives details of the individual sections. These can be grouped under five main headings, as follows: (1) duration of planning permissions; (2) validity of certain permissions; (3) general policy directives: (4) penalties for planning offences, and (5) fees for applications and appeals.
Section 29 of the Local Government (Planning and Development) Act, 1976, provides that all planning permissions granted since 1 November 1976, cease to have effect five years after the date of the granting of the permission unless they have been extended by the planning authority. The same section provides that all permissions granted before 1 November 1976, would cease to have effect on 31 October 1981, unless they were extended. Last year numerous representations were made from individuals and from legal and other professional interests regarding the operation of this section. In addition, defects in the section came to light. The previous Minister examined the situation and, on 16 December last, announced his intention to introduce legislation to repeal and replace section 29. His proposals were that all permissions would have a life of six years instead of five and that all permissions that expired on 31 October 1981, would be automatically extended for a further year. However, the legislation necessary to give effect to these proposals had not been completed when the Coalition Government left office last March.
The Government have now reviewed the situation in some detail and have decided to repeal section 29 of the 1976 Planning Act and to replace it with sections 2, 3, 4, 11 and 14 of this Bill.
Section 2 provides that permissions granted before 1 November 1976, will expire on 31 October 1983. This allows for the lapse of time since the announcement by the previous Minister in December last. The Government are, however, satisfied that the life of permissions granted in the future should not, in general, exceed five years and section 2 provides accordingly. As I have already stated, the previous Government had intended to extend the life of all future permissions to six years but I do not consider that this is either necessary or desirable. It is, however, necessary to make some form of tapering arrangement in respect of permissions granted between November 1976 and November 1982. Section 2 provides for this. Permissions granted during that period will last until 31 October 1987, or seven years after the granting of the permission, whichever is the shorter period. In addition extensions for any longer period already granted by planning authorities under existing legislation will continue to have effect.
I consider that the new provisions of section 2 will achieve a reasonable balance between the objective of encouraging early development and redevelopment and the practical problems encountered by developers of all kinds in commencing and completing their developments. I hope that they will encourage speedier development, particularly in urban areas, thus reducing the amount of dereliction and urban blight.
Section 3 of the Bill allows planning authorities, as part of a grant of permission, to specify a period of duration longer than the normal five years in cases where they consider that the nature and extent of development warrant this. This provides for a greater degree of flexibility in regard to the duration of permissions than existing legislation provides for. Section 3 could be used in the case of large complex development which could take a considerable time or for continuing development such as quarries. A refusal by a planning authority to exercise this power or a decision to specify a particular period may be appealed to An Bord Pleanála.
Under section 4, the procedure in relation to extension applications is specified, criteria are set out for the granting of extensions and a time limit is specified for dealing with applications for extensions. No such provisions were specified in section 29 of the 1976 Act and this has led to a considerable amount of difficulty. However, section 4 and the regulations to be made under section 11 should eliminate these difficulties.
I turn now to section 6, the purpose of which is to remove doubts about the validity of certain permissions and approvals granted on appeal before 15 March 1977 when An Bord Pleanála took over appeals functions. The need to do this arises from the decision of the Supreme Court in The State (Pine Valley Developments Limited) v. Dublin County Council— judgements delivered 5 February 1982. In that case, the court held that the Minister for Local Government had no power, in determining a planning appeal, to grant permission for a development which contravened materially the relevant development plan. I should emphasise that the Minister was not a party to the case and had no notice that the important point of law involved was to be raised or decided in the Supreme Court in the case.
In determining planning appeals, successive Ministers for Local Government had always been advised that they had power to grant a permission even in material contravention of a development plan. A significant number of such decisions were made between 1964 and 1977, when the function of determining appeals passed to An Bord Pleanála, but it would not be possible to attempt to identify all of the cases involved.
The Supreme Court decision has given rise to unease and uncertainty in the legal profession, the construction industry and among the financial institutions. It is particularly undersirable that purchases of land, dwellings and other buildings have been made, and that contracts and commitments have been entered into, in good faith, on foot of permissions which are now open to challenge in the courts. Serious problems are arising not only for builders who have developments in progress but also for owners of completed buildings. Problems are also arising in closing sales of new houses and other property. The Incorporated Law Society have been in touch with me to express their concern about the effect of the Pine Valley decision. The society feel that many innocent parties would be involved in considerable hardship unless the situation is altered. As the society see it, this hardship would affect people changing house or buying a new house, who could be on bridging finance and unable to complete a mortgage or sale because of the doubt now cast on the planning permission for the property. For this reason, the society have urged the introduction of legislation to remedy the situation.
Before deciding to introduce legislation to deal with the matter, an effort was made to have the relevant point of law reviewed in the course of another case which is before the Supreme Court but that case will not now be taken until the term commencing in October 1982 and I cannot, of course, be certain as to the outcome of the case even then. In these circumstances, and having regard to the disruption and hardship which has arisen, the only sensible course at this stage is to enact a provision which will put the matter beyond doubt. Section 6, accordingly, makes it clear that a permission or approval granted on appeal prior to 15 March 1977 — when An Bord Pleanála took over appeals functions — shall not be invalid by reason only of the fact that the development concerned would materially contravene the development plan.
Section 7 provides that the Minister shall, from time to time, issue such general directives as to policy in relation to planning and development as he considers necessary. Essentially, this is a reenactment of section 6 of the 1976 Act extended to apply to planning authorities as well as to An Bord Pleanála. The terms of section 6 are otherwise unchanged. It is made clear in subsection (3) that the power conferred by this section may not be used in relation to particular cases. In 1981, planning authorities received approximately 54,200 planning applications while An Bord Pleanála received over 4,500 planning appeals. It is anomalous in these circumstances that planning authorities are not required to have regard to ministerial policy directives as to planning and development which apply to the board. Clearly, the same criteria should be applied at local level and at appeals level and the new section will enable this to be achieved.
Only one directive has been issued under section 6 of the 1976 Act. This directive was given by me to An Bord Pleanála in May 1981, and related to policy on large retail establishments. When this Bill is enacted, I intend that that directive will be re-issued to planning authorities and to the board. This will be consistent with the Government's commitment to the continuance of a policy of freedom of choice for consumers as between large-scale and independently owned retail outlets.
Sections 8, 9 and 13 are concerned with the level of penalties for offences under the Planning Acts. The wider question of enforcement will be considered as part of the general review of planning law which I am carrying out at present.
The effect of section 8 is to increase the monetary penalties for all offences under the 1963 and 1976 Acts to take account of the fall in money values. For the less serious summary offences, a maximum penalty of £100 is now being provided for. The more serious offences which now attract fines of £250 on summary conviction will carry a maximum fine of £800. The legal advice available is that this is the maximum penalty which can be prescribed at present while retaining the offences within the category of minor offences which can be dealt with in the District Court. The offences which will attract the new maximum fine of £800 include failure to comply with the conditions of permissions in regard, for example, to housing estates and other development. The penalties for further or continuing offences related to the basic offences are being increased pro-rata.
Subsection (3) of section 8 makes provision, for the first time, for indictable offences in the case of two basic offences under the Planning Acts. These are the offences under section 24 (3) of the 1963 Act of carrying out development in respect of which permission is required, save under and in accordance with a permission, and the offence under section 26 (4) of the 1976 Act of failing to comply with a warning notice, or knowingly assisting or permitting development in contravention of a notice, or damaging or removing a tree to which such a notice relates. On conviction on indictment for either of these offences, a person will be liable to a fine of up to £10,000, or up to two years imprisonment, or both.
These penalties are intended to be a real deterrent in the case of flagrant breaches of the Planning Acts and are an indication of the seriousness with which the Government view such breaches. Clearly, however, every contravention of the relevant sections will not warrant such large penalties or, indeed, being dealt with as an indictable offence. It will be a matter for the Director of Public Prosecutions to decide when to press for a trial on indictment and when to consent to a summary trial in the District Court. Where an indictable offence is tried summarily under section 9, the section provides for maximum penalties of £800, or six months imprisonment, or both, plus further fines and/or imprisonment for continuing offences.
Section 13 is consequential on the provision in section 8 for indictable offences. As it stands, section 80 of the 1963 Act provides that any planning offence may be prosecuted by the relevant planning authority. Since the Director of Public Prosecutions is responsible for the prosecution of indictable offences, it is necessary to confine the planning authority's power under section 80 (1) to summary offences and section 13 provides accordingly.
Finally, I wish to refer to the provisions of the Bill in relation to fees for planning applications and appeals. The question of charging such fees has been raised at intervals over the last ten years and has been considered in detail in more recent years in the context of other changes in the system of local finance. In May 1980, for example, a paper on local government finance prepared by the County and City Managers Association recommended that local authorities should be empowered to charge for the "investigation and determination of planning applications". Last December, the Coalition Government decided, following consideration of proposals submitted by the former Minister for the Environment, that legislation should be prepared to enable planning fees to be introduced. This intention was confirmed at the time of the January 1982 budget. The provision of this Bill in regard to fees are the same as those decided on by the former Government and I hope that this will be borne in mind in the debate.
I might also mention that the cost of planning control at local level in 1981 is estimated at £6.86 million. The total number of planning applications in that year was 54,200. The average cost of dealing with applications was about £280 in County Dublin and the four county boroughs, and £85 in the other counties. In areas outside of Dublin and other major growth areas, a high proportion of total applications relate to housing — either extensions to existing houses or proposals to erect new single houses or small groups of houses.
The main provision in this Bill in regard to fees is section 10 but sections 5 and 12 are also related. Under section 10, the Minister for the Environment will have power to make regulations, with the consent of the Minister for Finance, providing for the payment of fees to planning authorities and to An Bord Pleanála in relation to the various categories of planning application, appeals, etc. Where fees are prescribed in relation to a planning application, the two months period during which the planning authority must determine the application will not begin to run until the fee has been received by the planning authority. Similarly, where fees are prescribed in relation to appeals, provision is made under which the appeal will not be valid unless the fee is received by the board within the period specified for the making of the appeal. In addition to enabling fees to be prescribed for payment by the main parties to applications and appeals, the section makes provision for the payment of fees by other persons who wish to make submissions or observations either to the planning authority or to the board as regards an application, appeal, etc. Provision is also made under which additional fees could be prescribed in respect of requests for oral hearings of appeals or references to the board.
The power to make regulations under section 10 is deliberately framed in a flexible manner. In particular, it is made clear that the regulations may provide for the payment of different fees in relation to cases of different classes or descriptions. This power could be used to require relatively small fees to be paid for single house applications or for other minor developments as compared, for example, to the fees for major commercial developments. The power to allow for complete exemption from the payment of fees in circumstances specified in the regulations, or for the waiver, remission or refund, in whole or in part, of fees in specified circumstances could be used to make special provision in relation to certain categories of applications at local level or to make special provisions in relation to appeals by prescribed categories of persons or bodies.
References and appeals are made regularly to An Bord Pleanála and not proceeded with. In some cases there may be a request to hold an appeal in abeyance. If such requests are reasonable, they will be acceded to by the board. Section 5 is not designed to interfere with that system. However, when an appellant simply does not co-operate in processing the case, or, in effect, abandons it, the board have no way of dealing with that situation, except to determine the original application, involving a commitment of time and effort which should go to more pressing cases. What section 5 proposes is, in effect, to confer a power on the board to enable them to clear off from their books cases where the appellant has clearly lost interest in pursuing his appeal. Before exercising their powers under section 5, the board will be required to serve appropriate notice on the parties and to invite submissions in relation to the matter. Any such submissions will have to be considered by the board before an appeal is formally declared to be withdrawn.
Section 12 will allow the fee for a copy of an entry in the planning register to be increased by regulations. The fee fixed by section 8 of the 1963 Act is ten shillings which, under the Decimal Currency Act, 1969, must now be construed as 50 pence. In fixing the new fee account will be taken of the fall in the value of money. The planning authority register is used for the purpose of recording all entries required under the Planning Acts in relation to all land within the area of a planning authority. Copies of entries are required mainly for conveyancing or other legal purposes and are sought primarily by solicitors, auctioneers, architects and estate agents. It is reasonable to increase the fee having regard to rising production costs.
Section 15 will enable the existing requirements as regards appeal deposits to be repealed when fees regulations are made. The deposit of £10 is no real deterrent to frivolous or vexatious appeals. In the past number of years, only a very small number of appeals have been declared by the board to be vexatious — 14 in 1979 and 13 in 1980. This does not mean that a much higher proportion of appeals may not have been without substance but is a consequence of the legal interpretation of "vexatious" as used in the 1976 Act. It appears that "vexatious" in that sense is held not to include, for example, causing unnecessary delay and is not synonymous with being frivolous or without foundation. The fact that only a small number of appeals are formally declared to be vexatious cannot be taken as an indication that all others are reasonable. In practice, the true nature of an appeal which is vexatious, or frivolous, or without merit, may not emerge until processing of the case is well advanced or almost completed. Each appeal is, of course, dealt with on its merits, and experience has shown that few can formally be declared to be vexatious, given the legal interpretation of that word.
Before concluding I should make it clear that the Bill now before the House is regarded by me only as a short-term measure and that I see a need for further legislation to bring about the improvements required in our planning system. A general review of that system is being carried out so as to enable us to decide what changes are necessary to improve the performance of the system and to speed up the decision-making process at local and at appeal levels. Clearly, it will take some time to complete this exercise and to introduce and enact whatever legislative proposals may be decided upon. In the meantime, I will be asking planning authorities to review their own approach to planning control so as to ensure that the system will not have the effect of causing delays in the commencement of worthwhile development and in the creation of jobs.
Work on the preparation of a substantial memorandum containing advice and guidelines to assist planning authorities in reviewing their procedures is well advanced in my Department.
Although the present Bill is an interim one, it provides for some necessary and desirable modifications of existing law. In addition, some of its provisions are urgently required for reasons I have explained earlier. In these circumstances, I trust that the House will co-operate with me in giving the Bill a speedy passage through all Stages. I commend the Bill to the House.