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Seanad Éireann debate -
Thursday, 22 Jul 1982

Vol. 98 No. 12

Local Government (Planning and Development) Bill, 1982: Committee Stage.

Section 1 agreed to.
Question proposed: "That section 2 stand part of the Bill."

I raised this on Second Stage and I am not too clear on it. Some older planning permissions have a lifetime of seven years and I think some planning permissions have a lifetime of five years. If a person applies for planning permission today, what is the period?

Dublin South-East): I will give a more detailed explanation of this section.

I am afraid I may be more confused with the detailed explanation.

(Dublin South-East): If the Senator is I will be delighted to answer any questions. The Senator has made an important point and I want to be as helpful as I can in that respect.

The purpose of this section is to introduce new provisions governing the duration of planning permissions in place of the provisions now contained in section 29 of the 1976 Planning Act. Under section 29, all permissions granted before 1 November 1976, ceased to have effect on 31 October, 1981, and all other permissions cease to have effect five years after the date of the granting of the permission. In the latter half of 1981, numerous representations were made to the then Minister for the Environment from individuals and from their legal and other professional advisers regarding the effect of section 29.

In addition, certain defects in the section, particularly in its provisions in relation to the extension of permissions, came to light and it was considered desirable that these should be put right. In these circumstances the previous Minister announced on 16 December 1981, with the approval of the then Government, that he intended to introduce legislation at an early date to repeal and replace the law with regard to the duration of planning permissions.

The Minister's statement indicated that permissions which expired under existing law on 31 October 1981 would be extended for a period of one year from that date and that all other permissions would have a life of six years. The statement indicated that the additional period now being proposed for the completion of development was considered to be justified because of the lack of awareness on the part of many people of the limit on the life of their permissions and because the five year period allowed under existing law for the completion of development was too short in the case of some major developments. The preparation of legislation to implement the proposals announced in December 1981 had not been completed when the Coalition Government left office in March 1982.

Having reviewed the position in some detail, the Government have decided to implement the previous Government's undertaking in regard to the extension of existing permissions and, in addition, to introduce a new procedure designed to eliminate the difficulties caused for both developers and planning authorities in dealing with applications for the extension of permissions. Having regard to the unavoidable delay in enacting the necessary legislation it would obviously be of little benefit to many people to provide at this stage for a six year life for existing permissions. Accordingly, to allow for the lapse of time since the previous Minister's announcement in December 1981, section 2 of the Bill provides that permissions granted before 1 November 1976 will expire on 31 November 1983. On the other hand, the Government are satisfied that the life of permissions granted from now on should not in general exceed five years, and section 2 of the Bill provides accordingly.

The previous Government had intended to extend the life of all future permissions to six years. But this is not considered to be necessary or desirable for future permissions. The position will, therefore, be that a five year life will normally apply, but where the development has commenced within the five year period, and where substantial works have been carried out on foot of the permission, the developer will have a right to apply for and obtain an extension of the permission sufficient to enable him to complete the development.

The Government believe that a five year duration for future permissions, coupled with this new extension procedure, should be perfectly adequate to cover the generality of cases and that, if the duration of permissions generally were extended beyond five years, the commencement of permitted development would be delayed in some cases with undesirable consequences in the area of dereliction and general urban blight. In so far as permissions granted between November 1976 and November 1982 are concerned, section 2 provides for a form of tapering arrangement. Permissions granted during this period will last until 31 October 1987, or seven years after the granting of the permission, whichever is the shorter period.

It is considered that the new provisions of section 2 will achieve a reasonable balance between the objective of encouraging early development and re-development and the practical problems encountered by developers of all kinds commencing and completing their development generally.

Question put and agreed to.

I move amendment No. 1:

In page 5, line 31, after "effect" to insert "provided the development starts within two years".

This amendment is simple. What I have in mind is a person who has planning permission for a five year period of a seven year period and, having done no development, re-applies for an extension. Before that extension is granted there should be a direction in the planning permission that work must commence within a period of two years. Perhaps that is too long, or perhaps the Minister might convince me that it is not long enough. Nobody is entitled to hold planning permission for seven years the first time, and seven years the second time. That is the procedure at present and I do not think it is good enough or fair.

(Dublin South-East): That will not apply. Section 4 would not permit that. This might be just a technical point. This Bill of its essence is, I suppose, rather weightily drafted to cover so many provisions, but the Senator is referring more to section 4 in this amendment. I will outline section 4 when we come to it but the amendment is more in line with the following section.

With section 4?

(Dublin South-East): I can explain it.

With the permission of the Leas-Chathaoirleach we could take them together.

An Leas-Chathaoirleach

They can be discussed together, but there will be separate decisions on each section.

(Dublin South-East): The purpose of section 3 is to provide for a degree of flexibility in the duration of permissions allowing planning authorities, as part of a grant of permission, to specify a period of duration longer than five years in cases where they consider that the nature and extent of the development or any other material consideration would warrant this. It is envisaged that this provision could be used in the case of continuing developments, such as quarries, or in relation to large complex developments which could take some time to get under way and be completed, or in relation to cases where difficulties and delays in commencing, and therefore completing, a permitted development might be anticipated because of the need to await the provision of services or compliance with some other consideration of the permission.

The provisions of this section were welcomed by the Opposition in the Dáil especially by Deputy Tom Fitzpatrick of Cavan-Monaghan. Deputies sought to have the Bill amended so as to build in a further easement for developers. They sought to provide that the life of a permission would not even begin to run until conditions outside the control of the applicant, such as service conditions had been complied with. The Minister undertook to consider this in the context of a later Bill. What is proposed in Senator Reynolds' amendment amounts to an unnecessary or undesirable limitation of the scope of section 3. Perhaps that is not the Senator's intention, but I see it that way.

We are all anxious to secure that permitted development will commence as quickly as possible, but there is no point in attempting to impose an arbitrary commencement date on permissions in relation to which section 3 is used. Here I should stress that no commencement date is provided for in section 2 in relation to permissions generally. The requirement is that the development be completed within a specified time. There is no reason to think that planning authorities or An Board Pleanála will abuse the power to be conferred on them by section 3. The criteria for granting a longer period than the standard one are set out in the section and a decision by a planning authority to specify a particular period may be appealed to An Bord Pleanála.

There are other arguments also against the amendment. For example, section 3 applies to outline permissions as well as to full permissions. A two year commencement requirement could be very onerous in relation to outlines, given the need to apply for and obtain approval before any development can actually commence. Again, there is the technical question of when a development can be said to have actually started. This could possibly be got over by a complicated definition provision, but even then it would add yet another source of conflict to the already complicated process. In all these circumstances I consider that the House should not adopt this amendment.

My amendment is simple. If a person has planning permission for a development and no development is done and he reapplies at the end of the period, let it be five years or seven years, if he is to get planning permission again there should be something in that planning permission saying the development must start within two years, or within a month, or six months, or within three years. That is my simple amendment.

(Dublin South-East): I take the point. Section 4 actually accommodates the Senator.

Where in section 4 is it mentioned?

(Dublin South-East): Are we discussing section 4 now?

An Leas-Chathaoirleach

We are taking sections 3 and 4 together.

(Dublin South-East): With the permission of the Chair I will read out that subsection:

(1) On an application being made to them in that behalf, a planning authority shall, as regards a particular permission, extend the appropriate period, by such additional period as the authority consider requisite to enable the development to which the permission relates to be completed, if, and only if, each of the following requirements is complied with.

One of the requirements is that "the development will be completed within a reasonable time".

When is "a reasonable time"?

(Dublin South-East): Only then can an extension be granted.

If no work is started, and if there is no extension——

(Dublin South-East): That safeguard is covered in the Bill.

I could not find it. I am not satisfied.

I would like to ask a question which might clarify the point raised by Senator P. Reynolds. There is very little between what I am going to ask and what Senator P. Reynolds had been trying to extract from the Minister in connection with outline planning permission. Many applications are received for outline planning permission for the purpose of the sale of a plot of land. In order to get that permission a person must define for the planning authority whether that portion of land is suitable for development prior to sale. If the sale does not take place within the five-year period prescribed in the new Bill, will a new application have to be sought to define if the land is suitable, thus putting the people to the extra cost of making another application? If a building is under construction but is not completed in the prescribed period, section 4 provides for an extension of that period to complete the building. That is an natural process. In that case do I take it reapplication for planning permission will have to be made?

(Dublin South-East): Yes. In that case the outline planning permission would wither. That is the existing law and that will not change.

And no extension can be given and the person must make a new application?

(Dublin South-East): Yes, unless work has started.

That is a different thing. I agree that development may have started but the work is not completed because something can go wrong with the work. That is understandable, but I still think there are a number of applications for planning permission — from private individuals or big developers — where work may not have been started and they can reapply and get an extra period of one, two, three or seven years. However, the Minister has convinced me that is not right, and I am prepared to accept that.

(Dublin South-East): There would be nothing against the applicant applying for a fresh permission.

Does that section deal decisively with a developer who may apply for planning permission but not use that planning permission within the period in order to allow the market value to rise? Is that not part of what we are trying to prevent? We do want to give people planning permission letting them keep that site for a long time and not using it constructively. Perhaps I am off the beam here, but can a person take over a site, apply for planning permission to erect another building and allow the existing building to fall into total disrepair, in order to increase the market value but not use the site for the stated purpose?

(Dublin South-East): This is a very important point and I agree fully with what the Senator says. This will prevent people hoarding and exploiting sites, which is an inbuilt recipe for dereliction in the future. This will prevent that happening.

Amendment, by leave, withdrawn.
Section 3 agreed to.
Sections 4 and 5 agreed to.
Question proposed: "That section 6 stand part of the Bill."

I understand that certain planning permissions were declared to be null and void by the Supreme Court. I agree the law has to be put right, but who is going to declare under subsection (2) whether a person's constitutional rights are going to be interfered with? Does it mean another trip to the Supreme Court? What is the position? The Minister might tell us exactly what is in his mind.

(Dublin South-East): It would be agreed by the court. Subsection (2) has been included by the parliamentary draftsman, with the agreement of the Attorney General, so as to preserve the rights of parties to any proceedings now before the courts and to assure that no court is deprived of jurisdiction regarding an issue raised in such proceedings. This subsection is also designed to meet the case of any unconstitutional interference with a property right.

Question put and agreed to.

I move amendment No.2:

In page 8, between lines 25 and 26, to add the following subsection:

"(5) The Minister shall direct the Board to determine each appeal to it within three months of the date of receipt of the appeal by it."

Three months might be too long or might not be long enough.

There seems to be a certain amount of uneasiness on the part of people who have appealed to the board and this uneasiness is due to the delay in giving a decision. I wonder if there is any way in which this could be hurried up? I mentioned a figure of two or three months. I have an open mind on what period but some appeals are awaiting decision for six or 12 months.

(Dublin South-East): The question of placing a time limit on the period within which a planning appeal should be decided was considered during the passage through the Oireachtas of the Local Government Planning and Development Act, 1976, and on a number of occasions since then. It was decided, however, that such a limit would not be realistic given the manner in which the board are required to operate and the widely differing classes of appeals with which they have to deal. The board try to be as efficient and expeditious as possible in dealing with appeals but they cannot act in an arbitrary fashion or ignore the requirements of natural justice to conform to such a deadline as the Senator proposes. It is a very considerable undertaking to deal with an intake of up to 4,500 planning appeals each year. The requirements of the Planning Acts and regulations must be complied with in every case. In addition, there are the requirements of natural and constitutional justice. Each appeal is important to the individual concerned and it is better to suffer some delay in the interests of natural justice than to act in an arbitrary fashion. It must be emphasised that factors outside the control of the board affect the time taken in dealing with some appeals. These factors include delays in submitting grounds of appeal, requests that appeals be held in abeyance, delays in getting documents from local authorities, the need to circulate documents and await comments or submissions on them, new issues arising and inadequate plans submitted with original applications. It is not practicable, therefore, to impose strict statutory time limits on the board in regard to appeals.

I might mention, however, that efforts are being made to speed up the process of appeals. The Minister has indicated to the board his concern at the increase in the number of appeals on hand at the end of 1981 and he has stressed that it is imperative in the interests of the efficient operation of the planning system and of the Government's aims relating to promotion of development and employment that every effort should be made to devise means by which the output of decisions may be speeded up. The board have stated that they share the Minister's concern that the number of appeals on hand should be kept to a minimum and they have always been conscious of the need to deal expeditiously with cases which could be large employment generators and with third party appeals involving major developments. I can assure the House that the operation of the appeals system, and particularly the question of delays in dealing with appeals, will be kept under review and all possible steps will be taken to avoid any delays.

The Minister has made a good case but I will put it to him in reverse. Local authorities must give a decision on a planning permission within a three-month period but if there is an appeal there is no time limit put on the board. If there is a time limit on a local authority, surely there should be a time limit on the board to whom the appeal is made? Perhaps the Minister would state the average time for a planning appeal. Is it true that such appeals can be with the board for periods of six, eight or 12 months while the local authority have to deal with them within three months? I certainly do not think that makes sense.

(Dublin South-East): As a member of a local authority I dealt with the point the Senator has made. In certain cases the wrong emphasis may be placed on particular appeals that are processed. In actual fact, only one per cent of appeals would take 12 months. Local authorities do not have to circulate documents. I do not think it practical to consider the point of view of the Senator. I appreciate what he is saying but I feel the legislation adequately covers this point.

I am prepared to accept what the Minister says that it is not practical. If my neighbour applies for planning permission he must get a decision from the county council within the three-month period. If the permission is refused he can apply to An Bord Pleanála but they can hold up his application for a long time. This is difficult to explain to the ordinary citizen. I would want to have the Minister around with me every day.

(Dublin South-East): The point I made was that the local authority do not have to circulate these documents. I do not follow the point the Senator is making here.

The point is simple. The local authority have to make a decision within three months but the board to whom the appeal is made can keep it for as long as they like. It is a very simple point.

An Leas-Chathaoirleach

Is the amendment withdrawn?

No. I mentioned a period of not more than three months, the same period as the local authority. I do not mind extending it if the Minister is prepared to accept the amendment.

(Dublin South-East): I can give the House the assurance that everything is being done to expedite this whole process. For the reasons I have stated, I do not think a fixed limit with regard to time is practical. I think it would have a detrimental effect rather than having the effect the Senator would wish it to have. I do not think it would work out at all.

If permission is not granted but if there is no correspondence from the local authority then the applicant may get planning permission by default. What really happens in the case of a local authority is that some further question is asked in connection with some aspect of the planning which allows the local authority to extend that period. I agree with Senator Reynolds in connection with An Bord Pleanála that the time for processing applications is far too long. While the Minister in the context of good planning may not be in a position to put a limit on the time, he should give some assurance to this House and to the people concerned. At a time of high inflation we could be talking about a development costing thousands of pounds. I am sure the Minister is not in a position legally to put a limit on the time because he has outlined the difficulty about having the necessary information with An Bord Pleanála and trying to extract it from the different agencies. The delay may not be the fault of An Bord Pleanála. Everything possible should be done to expedite every appeal sent to An Bord Pleanála. Senator Reynolds and I may be satisfied with that assurance from the Minister.

(Dublin South-East): An assurance has been given by the Minister but I certainly give that assurance again to the House that every step will be taken to speed up this question.

I believe the board are doing a good and honest job. Human nature being what it is we all know that when we all get a difficult problem we are inclined to put it off and say we will look at it tomorrow or the day after. In my view that is what is happening with the board. I do not want to be critical of the board and I may be wrong in my view but it appears that the difficult cases are being held up.

(Dublin South-East): I take the point but I should like to reiterate one point: that this Bill is an interim measure. It is a short term measure to tidy up some very necessary aspects of planning that had to be put in order. Any further legislation to bring about improvements in the general planning laws will be given consideration. I will recommend that consideration be given to the suggestion that has been made.

Is it true that this is a new departure in that up to now the Minister had not the authority to give a directive to the planning board but only to the local authority? Is the Minister now seeking to assume powers to enable him to direct the planning board? Will that be tantamount to the Minister taking back the power which he handed to the board when it was established?

(Dublin South-East): The Minister can give only general directives. The position is explained in greater detail in the next section. The Minister may only issue directives.

I am sure the Minister will agree that at a time when he may issue a directive to the board there may be a controversial case——

An Leas-Chathaoirleach

We are dealing with amendment No. 2 and that point does not arise on it.

That matter will arise on the section.

An Leas-Chathaoirleach

The Senator may discuss it when we are dealing with the section.

Amendment, by leave, withdrawn.
Question proposed: "That section 7 stand part of the Bill."

The Minister has stated that this will be a general directive and not relate to a specific case but if it coincides with an occasion when there is a controversial case up for decision will the fact that the Minister issued a directive or communicated with the board mean that he is assuming some of the authority he had prior to the establishment of the board?

(Dublin South-East): I see it the opposite way. The Minister has power in relation to the board at present but this power is now being extended to the local authority.

He did not have the power over the board and the local authorities prior to this.

(Dublin South-East): He only had that power in relation to the board.

And he is now seeking it for the local authorities also?

(Dublin South-East): Yes.

Therefore, the Minister is assuming different additional powers.

(Dublin South-East): That is true but I can assure the Senator that it is being done in the interest of good planning.

It all depends.

This section gives local authorities permission to build without planning permission, a matter I raised on Second Stage. A local authority can erect a courthouse, a fire station or any other type of building they require without planning permission. Some people hold that there is not much point in a local authority applying to themselves for planning permission, and that is understandable, but difficulties can arise. For example, I am aware of a local authority who wanted to erect a fire station in a residential area and the residents protested with a result that the work is held up. However, the local authority are in the happy position in that they can build that fire station without planning permission and the local people will not have an opportunity of objecting. That is wrong. There is little point in having a law to cover private individuals or businessmen while local authorities, who are also the planning authorities, can build without permission.

A similar situation arises in regard to the forestry section of the Department of Fisheries and Forestry. They can develop a forest in any area without planning permission but anybody else anxious to make use of agricultural land must obtain planning permission. The forestry division in my county, and in counties Sligo and Cavan, when developing forests wreck every road in the vicinity in the planting, cultivation and trimming processes. They bring in heavy machinery for their work on roads that are not capable of carrying them. However, if a private individual did that — a person developing a quarry, for example — he would have to repair the road but the forestry division do not have to do that work. It is left to the local authorities who do not have the money to carry out such repairs. Private individuals carrying out any type of development are told when they are given planning permission that they must leave the road in good condition. Something should be done about those matters under this section.

(Dublin South-East): As an experienced local representative I am sure the Senator realises that under the various Acts dealing with management all new works must be approved by the general council. In fact, local elected representatives must be approached in such cases. That is a practical safeguard. I accept that forestry is exempted development but it must be remembered that it provides much needed employment. No doubt, in Leitrim it is a great advantage.

It is easy to know that the Minister is a Dubliner. If he was a Leitrim man he would not get away with that statement.

(Dublin South-East): I am only a first generation Dubliner. I am from Cavan, not very far from where the Senator comes from.

I agree with the Minister that it gives good employment, which delights people, but land has been offered for sale by private individuals, and foreigners have come in to buy it. A number of small farmers feel that that land should be purchased by the Land Commission and divided among them. Therefore, this is not as acceptable as the Minister seems to think. There were many rows in my county and neighbouring counties about this — they paraded, they carried placards, no matter which Government were in power. The main point I have been making is that private individuals cannot object to a local authority or to the Board of Works. If the Board of Works want to build a Garda station here or there, or a military barracks here or there, they can do so without planning permission. That is wrong. If the Minister assures me that he will prepare another Bill to remedy this I will accept it.

(Dublin South-East): I will give the Senator an assurance that I will look at this, but I would still point out that the mechanism is there. The elected representatives in each council area are the people to be approached. That is an ideal form of safety. Councillors can be approached if citizens are concerned to the extent that the Senator fears. I cannot see anything better than that arrangement.

I have been a member of a local authority for 45 years. The manager will arrive at a meeting of the local authority — I am sure the Minister has had the same experience — and he will say that a local councillor or a group of councillors want to get a fire station built in a town for the protection of the people. My point is that local authorities should not have permission to do what they want in regard to buildings whereas the ordinary citizen must go through the machinery. Individuals will ask what the hell local authorities have that they have not got. That will have to be changed before long because the people will no longer take it. The Minister can take that from me.

(Dublin South-East): Words can be erroneous in a situation like this. If we bring it to its logical conclusion, we must ask ourselves for whom do the local authorities do the work? The Senator has a lot of experience in local authorities but I am wondering how many cases could the Senator cite in which a local authority would rough-ride over local opinion.

Three that I can remember.

(Dublin South-East): It is desirable that local authorities would act in an efficient manner, that they would invest in proper planning, and it is up to local elected representatives to keep in touch with what is happening in their areas.

I do not want to hold up the House any longer on this. I can recall three cases, but that is not the point. The ordinary taxpayer and ratepayer feels that the local authority should have to go through the same planning machinery to get permission to build fire stations or other such structures as the private individual must do. That complaint is gathering moss at the moment and that moss will be dangerous. I suggest that the Minister check with every local authority about it.

(Dublin South-East): We will take a look at it.

Progress reported; Committee to sit again.